March 28, 2007

Reasonable doubt vs. firmly convinced

In my earlier post about reasonable doubt, I briefly discussed the jury instructions given by judges in the "Scooter" Libby and O.J. Simpson trials. This important information is usually given in the formal language of the courtroom often, as Peter Tiersma points out in his book, Legal Language, to preserve the judge's distance and sense of objectivity (p. 194). Tiersma, a linguist who became a lawyer and now teaches in a law school, adds that the obscurity of many jury instructions results from the fact that they are composed in written text, which is more dense and syntactically complex than speech. And when something is written down, it tends to resist any change, especially when it becomes authoritative.

The meaning of "reasonable doubt" now emerges in the Chicago case of Conrad Black, who is accused of looting his Hollinger International empire (here). His lawyers are said to be trying to exploit the "reasonable doubt" concept to convince jurors of Black's innocence -- the same way that Johnnie Cochran did in the O.J. Simpson trial. It's too early in this case  for the judge to prepare his jury instructions but the defense lawyers may wish to read this recent Time article that quotes Larry Solan, another linguist turned lawyer, who also now teaches in a law school and is the current president of the International Association of Forensic Linguists. Solan has some interesting things to say about "reasonable doubt."

Solan says that the abstract word, "doubt," is at least part of the problem:

... we can process an abstract word like doubt only by contrasting two mental images. In a criminal case, the first image would be the prosecutor's version of events, showing the defendant guilty. The second would portray the defendant as innocent. Only if the second were plausible ... would the jury have "doubt" about the first. Jurors might be able to conjure the image of the defendant's innocence, but most need help from his lawyers. Since the defendant isn't required to offer any scenario at all, the very use of the word "doubt" may put an unfair burden on  him ... What's more ... we tend to make sense of things by fitting them into stereotypical models, or "prototypes." We have prototypes for the guilty as well as the innocent. In practice, this means a defendant who looks more guilty than innocent may be convicted, whether or not the prosecutor proves the elements of the crime.

Based on this, Solan says that jurors need to be "firmly convinced" of a defendant's guilt. Doing so focuses the attention on the prosecutor's need to persuade rather than the defendant's need to create doubt. So rather than a jury instruction that stresses "reasonable doubt," the wording might better be something like, "the jury must be firmly convinced that the defendant is guilty."

Posted by Roger Shuy at March 28, 2007 12:46 PM