On March 2, during jury deliberation in the Lewis "Scooter" Libby trial, the jury sent the judge a note, asking him to clarify the meaning of "reasonable doubt." They asked whether the prosecution had to provide evidence proving "it is not humanly possible for someone not to recall an event" beyond reasonable doubt. The judge sent back a note asking the jury what it meant by "humanly possible." This kind of dance is not new in jury trials. At least part of the problem comes from language that is more familiar to the courts than jurors and part of it comes from judges trying desparately to avoid having cases overturned. Many judges are reluctant to explain any aspect of the instructions. Many simply repeat them verbatim. Many don't answer at all.
David Mellinkoff, in his classic book, The Language of the Law, calls "reasonable doubt" one of those "flexible expressions" that law uses however it wants:
But the law doesn't deal with unattached reasonable's. And when reasonable in one form or another is hitched onto another word, sound men grow giddy with the excitement. It is assumed that the attachment can work a reformation, and that a word wild and amorphous can suddenly become tame and purposeful. Take for example, reasonable doubt and beyond a reasonable doubt. Because they are so often repeated -- it is assumed that they must have some definite meaning, that in the context reasonable is precise. Few have had the courage to say with England's Chief Justice Goddard: "I have never yet heard any court give a real definition of what is reasonable doubt, and it would be much better if that expression was not used." (Mellinkoff, 302-303)
Thus the Libby jury joins legions of juries that can't quite figure out the meaning of one of law's favorite flexible words.
So where did this expression come from? The Oxford Companion to American Law (2002, page 70) says that it all began with the Boston Massacre trial in 1770. A stenographic report of that trial has survived and it contains the first recorded use of "reasonable doubt" by an American judge as a standard of proof.
This practice lives on. We can read the jury instructions relevant to "reasonable doubt" given by Judge Walton here:
Your function is to determine whether the government has proven the charges against the defendant beyond a reasonable doubt. To do this, you must determine the facts based on the evidence presented at this trial ... The government has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Reasonable doubt, as the name implies, is a doubt based on reason -- a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant's guilt, then you have a reasonable doubt. Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters of life. However, it is not imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. Its burden is to prove guilt beyond a reasonable doubt. (pages 3-4, 26-28)
Oddly enough, Judge Walton's instructions are better than many, including the ones on "reasonable doubt" given by Judge Ito in the O.J.Simpson trial:
It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.
As Peter Tiersma points out in his book, Legal Language (U Chicago, 1999), Judge Ito's explanation never addresses the jurors as you, is phrased in the negative, and uses the obscure expression, "abiding conviction," in which "conviction" offers a perhaps unwanted suggestion (195).
So the expression,"reasonable doubt," lives on, and on, and on.
Posted by Roger Shuy at March 5, 2007 07:15 PM