TAKING
TAKING REASONABLE
REASONABLE DOUBT
DOUBT SERIOUSLY
SERIOUSLY
ARNOLD H. LOEWY*
LOEWY·
INTRODUCTION
INTRODUCTION
In recent
recent years,
years, much has been
been written about
about convicting
convicting the innocent.'
innocent. I
magnitude of the problem,
problem,22 this is a positive
positive trend to which II am
am
Given the magnitude
pleased
pleased to say I have
have contributed.
contributed.33 The usual suspects
suspects for wrongful
wrongful convicconvicconfessions, bad forensics,
tion are faulty identification,
identification, false confessions,
forensics, false testimony from jailhouse
jailhouse snitches, and prosecutorial
prosecutorial misconduct.
Only rarely is the jury's
jury's failure to apply reasonable
reasonable doubt even mendid
is
that
a
jury
will rarely say that it did
reason
for
that
one
tioned. Of course, one reason
reasonable doubt. And, indeed, in general I do believe
not apply reasonable
believe that jurors
do conscientiously
convinced
conscientiously try
try to apply that standard. Nevertheless,
Nevertheless, I am convinced
convinced of the
that in many cases, especially serious
serious crimes, a jury
jury that is convinced
of
defendant's
defendant's guilt will unconsciously
unconsciously fail to give the defendant
defendant the benefit of
a reasonable
reasonable doubt.
If juries conscientiously
conscientiously try to follow instructions, why, one may ask,
is
would they not take reasonable doubt seriously? I think that the answer is
two-fold: (1)
(1) there is a reluctance to let someone
someone who is probably guilty get
(2) there is genuine
away with it, and (2)
genuine fear of what the probably guilty perpetrator will do if acquitted.
thirty-year-old Charles
Let us take a hypothetical case. Assume that thirty-year-old
Charles
Davidson is on trial for raping his five year old daughter, Carla. The case
arose when Charles brought Carla
Carla to her pediatrician,
pediatrician, Dr. Harvey Sanders,
injuries
Charles
told Dr. Sanders that the injuries
to be treated
treated for vaginal
vaginal tearing.
Carla,
were caused by her falling out of a tree. Dr. Sanders, after examining Carla,
arranged
concluded that the injuries were consistent with rape. He therefore arranged
to thank
thank
Law. The
like to
of Law-Texas
Law-Texas Tech
Tech School
School of
George Killam
Killam Professor
Professor of
•* George
of Law.
The author
author would
would like
research
Matthew Rittmayer, a recent graduate of the Texas Tech School of Law, for his valuable research
preparation of this article.
assistance in the preparation
L. REV.
(2008).
\.1. See, e.g., Symposium, 41 TEX. TECH L.
REv. I1 (2008).
DWYER, PETER NEUFELD & BARRY
2. See,
See, e.g., JIM DWYER,
BARRY SCHECK, ACTUAL
ACTUAL INNOCENCE: WHEN
HOW TO MAKE IT RIGHT (2003).
(2003).
JUSTICE GOES WRONG AND How
Innocent,
Conviction of the innocent,
Changes that
that Could Reduce the Conviction
3. See Arnold H. Loewy, Systemic Changes
World Where the Innocent
Innocent Are
The Death
Death Penalty
Penalty in a World
18 CRIM.
CRIM. L.F. 137 (2007); Arnold H. Loewy, The
18
REV. 187
187 (2008).
Sometimes Convicted,
Convicted, 41 TEX. TECH L. REv.
Sometimes
63
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speak to a social
social worker,
worker, Mary
Mary Thompson.
Thompson. According
According to
to Mary,
Mary,
for Carla to speak
of tree, but after several
several
Carla at first
first confirmed
confirmed that she had
had fallen
fallen out
out of
Carla
interviews,
interviews, punctuated
punctuated by Mary's
Mary's insistence
insistence that it could not have
have happened
pened that way,
way, finally yielded
yielded to Mary's
Mary's suggestion
suggestion that Charles
Charles had
had raped
raped
Carla.
At trial, Dr. Sanders testified
testified that in his professional
professional opinion, Carla
Carla
appeared to have been raped. Dr. Thompson
Thompson testified that in her opinion
opinion
appeared
Carla
Carla was telling the
the truth when she said she had been raped after first having
ing been in denial. Carla
Carla testified
testified at trial that
that "Daddy
"Daddy hurt me, but
but I didn't
didn't
remember
remember."
remember it until Mary helped
helped me remember."
For
For the defense,
defense, Charles testified
testified that he was watching
watching in their
their backyard when Carla fell out of the tree. Seeing the blood, he immediately
immediately
He further testified
testified that he in no way
way touched her
rushed her to the doctor. He
inappropriately. On cross examination,
examination, however, he did admit that he was
currently
Holly
currently on probation
probation for fondling a six-year-old
six-year-old neighbor
neighbor girl. Holly
Davidson, Charles's
wife
and
Carla's
mother,
testified
that
she
believes
Charles's
believes her
husband
husband although
although she was not present
present at the time. There was no conclusive
conclusive
forensic evidence in regard
regard to the rape. However, a small amount
amount of blood
determined
determined to have
have come
come from Carla was found at the tree where Charles
Charles
alleges she fell.
What's a jury to do? There
There are at least
least two reasonable
reasonable possibilities:
(1) Charles
Charles raped
raped his daughter. The doctor thought she was raped. Carla
told the social worker she was raped. Charles has a history of sex with chilincident (or
(or
dren. The small trace of blood could have been from a prior incident
even where he raped her). He has fooled his poor unsuspecting wife, so her
testimony is unpersuasive.
Or (2)
(2) the jury might say the doctor could not be certain of rape. Carla
was manipulated
manipulated by the social worker, Mary
Mary Thompson, into believing
believing that
4 The blood by the tree
4
something
which
was
not
true
in
fact
happened.
something
shows that she probably
Carla's mother vouched for Charles, as
probably fell there. Carla's
did Carla originally. And, Charles's
Charles's prior conviction was not even admitted
to prove he committed the crime, but only to impeach his credibility. Bereprehensible than fondling.
sides, rape is different from and more reprehensible
If the jury chooses the first alternative and it is wrong it sends an innocent man to prison for raping his own daughter, where, for sure, he will
4. To illustrate, the interviewing
interviewing techniques utilized by the social workers in the famous McMartin case have received vast criticism
criticism due to their strong suggestive
suggestive nature which led to over 300 children
al., More
More Than
Than Suggestion:
Suggestion: The Effect of Interviewing
Interviewing Techniques
Techniques From
alleging abuse. Sena Garven et aI.,
From
the McMartin
PreschoolCase,
83 J. ApPLIED
APPLIED PSYCHOL.
PSYCHOL. 347 (1998);
(1998); 10hn
John E.
E. Lee, Modern
the
McMartin Preschool
Case, 831.
Modern Witch Hunts:
Hunts:
From Manhattan
Manhattan Beach to Malden;
Malden; Coerced
Coerced Child
Child Testimony
Testimony and
and Denial
Denial 0/
of Confrontation
ConfrontationRights
Rights in
in
From
CareCenter
Center Sex Abuse Trials,
Trials, 2 HOLY CROSS 1.L.
J.L. &
& PUB. POL'y
POL'Y 83
83 (1997).
(1997).
Day Care
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DOUBT SERIOUSLY
TAKING REASONABLE
REASONABLE DOUBT
65
not live happily ever after. On the other hand, if the jury wrongly (in the
sense that he is really guilty) acquits him, he is returned to the daughter that
he raped to be chaperoned
chaperoned only by her oblivious mother.
Now suppose that the jury is fairly (let's say 75%) sure that Charles is
guilty, but still has nagging doubts. Is the jury going to turn him loose back
back
to be with his daughter, who he may very well rape again? I do not think
so. While I do not think that jurors willfully violate their oath, I do think
that many would be tempted to describe their doubts as unreasonable
unreasonable and
and
convict the defendant.
I.
TO DO?
WHAT Do WE WANT THE JURY
JURY To
Classically, I think that the answer
answer to the title question
question of this section
"acquit." We think that it is far worse to convict an innocent person than
is "acquit."
Charles
to acquit a guilty one. But is that always true? Is it better to send Charles
75% sure that he raped
back to his family when we are 75%
raped his daughter than it
is to send him to prison when there is a 25%
25% chance
chance of his innocence?
Historically, Blackstone
Blackstone talked about supporting
supporting a ten-to-one ratio,
claiming that it would be better to acquit ten guilty people
people than convict one
claiming
innocent. s5 In Re Winship explained the importance
importance of being
being sure of guilt
convicted
for three reasons:
reasons: (1) the interest of the defendant
defendant in not being convicted
in
(2) the interest of society
unless we are substantially
substantially sure of his guilt; (2)
society in
knowing that those imprisoned are in fact guilty of the crime with which
they were charged;
charged; and finally, (3) the interest of each individual
individual member
of society, knowing that if he is ever charged
charged with a crime, he cannot
cannot be
6
reasonable doubt.
convicted
convicted unless the State proves him guilty beyond
beyond a reasonable
doubt. 6
Are things any different now than they were in the time of Blackstone
decided? Well, certainly
certainly the interests of a deor even since Winship was decided?
of
fendant in not being wrongfully
wrongfully convicted remain the same. The interest of
society in being certain that those it imprisons are in fact guilty, I think
remains
average citizen that
remains the same. And if anything, the concern of the average
no matter what he is accused
accused of he cannot be convicted
convicted unless proven
proven
5. "[A]II
"[AII presumptive evidence of felony should be admitted cautiously: for the law holds, that it
suffer." 4 WILLIAM BLACKSTONE,
is better that ten guilty persons escape, than that one
one innocent suffer."
BLACKSTONE,
at
*358,
available
COMMENTARIES
ON
THE
LAWS
COMMENTARIES
ON
OF
ENGLAND
*358,
available
http://avalon.law.yale.edu/18th-century/blackstonebk4ch27.asp
http://avalon.law.yale.edulI8th_centurylblackstone_bk4ch27 .asp (last visited October 30, 2008); see
Feeble Response, 55
Failures, and
and the Supreme Court's
Court's Feeble
also George C. Thomas III, Bigotry,
Bigotry, Jury
also
Jury Failures,
Franklin...
Blackstone in a letter
BUFF. L. REv. 947, 978 (2007)
(2007) ("Benjamin
("Benjamin Franklin
... upped
upped the ante on Blackstone
letter in
'it is better [that] 100 guilty Persons should escape than that one innocent Person
1785, stating that 'it
1785,
14, 1785),
should suffer.'"
suffer."' (quoting Letter from Benjamin Franklin to Benjamin Vaughn (Mar. 14,
1785), in 9 THE
FRANKLIN, at 293 (Albert
(Albert Henry Smith ed., 1907))).
WRITINGS OF BENJAMIN
BENJAMIN FRANKLIN,
1907))).
6. In re Winship,
Winship, 397 U.S. 358, 363-64
363-M (1970).
(1970).
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guilty beyond
beyond a reasonable
reasonable doubt
doubt is stronger
stronger today.
today.
The reason for this last
last point
point is
is that a generation
generation ago,
ago, most
most of
of the
the citiciti7
convicted.
ever,
if
rarely,
were
people
innocent
that
zenry truly believed
believed that innocent people
rarely, if
convicted.7
zenry
of
Although I have
have no idea how one could
could measure this, with
with the number
number of
Although
highly publicized
publicized instances
instances of
of people
people being
being released
released from prison or death
death
row after
after having been
been wrongfully
wrongfully convicted,
convicted,S8 II suspect
suspect that
that the
the citizenry
citizenry
must be far less at ease about being
being wrongfully convicted
convicted than they used to
For sure, I would think
think that an innocent
innocent person
person arrested
arrested for a crime
crime that
be. For
she
she did not commit
commit must
must be far more afraid
afraid than she would
would have been
been a
generation
generation ago, when
when her
her natural thinking
thinking would
would be that "the
"the police will
will
soon realize
realize their
their mistake
mistake and let me go."
go."
soon
Thus, it seems
seems fair to say that the Winship reasons
reasons for applying
applying Blackstonian
logic
are
at
least
as
strong
today
as
they
were
a
generation
stonian
generation ago. But
what
there a need to protect
protect victims
what about the countervailing
countervailing points? Is there
which has either
either changed or was not fully perceived
perceived in earlier times?
times? For
For
example,
example, do we really want to put probable child predators in a position
position
where they can injure more
more children,
children, or serial killers in a position where
they can
can kill again?
I think that the answer
other entities than criminal courts and
answer is that other
juries
can
deal
with
these
situations.
juries can
situations. If in the hypothetical
hypothetical problem, Charles
were acquitted, other agencies could
could still monitor the safety of his daughter.
Presumably, Child Protective
Protective Services
Services would still be able to interview the
child, and if appropriate remove the child from parental custody. Most
Most
jurisdictions
jurisdictions do not require proof beyond a reasonable doubt for Child Protective Services to do that. 99 Thus, if despite Charles's acquittal Carla is still
accompanying text.
7. See infra note 21 and accompanying
8.
September 18,
2008, 130
130
S. According
According to the Death Penalty Information
Infonnation Center, from 1973 to September
IS, 200S,
individuals on death row in the United States either
either had their convictions
convictions overturned (either acquitted at
charges were dropped)
dropped) or they were given an absolute pardon by the governor
governor based on
re-trial or all charges
new evidence of innocence. Death Penalty Infonnation
Information Center, Innocence: List of Those Freed
from
Freed from
Row, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row
Death Row,
http://www.deathpenaltyinfo.org/innocence-Iist-those-freed-death-row (last visited Oct. 30,
2008); see also
also Adam Liptak, Fewer
Fewer Death
U.S., N.Y. TIMES, Sept. 15,
15,
Death Sentences Being Imposed in u.s.,
200S);
2004, at AI6
A16 ("The Death Penalty Information Center
Center...
... attributes the decline largely to growing
awareness of death-row exonerations and concerns that innocent people might be sentenced to
public awareness
die.").
preponderance of evidence standard,
standard, which places the risk of error equally
9. Some states apply a preponderance
on both parties-unlike the reasonable-doubt
reasonable-doubt standard, which places all of the risk of error on the State.
See, e.g., Larkin v. Pridgett, 407 S.W.2d 374, 374, 376 (Ark. 1966); Shurupoffv. Vockroth, SI4
814 A.2d
See,
543, 555-56 (Md. 2003); In re
re Perales, 369 N.E.2d 1047,
1047, 1052 (Ohio 1977).
1977). "Some
articulated
543,555-56
"Some have articulated
other tests [such as] 'satisfactory
'satisfactory evidence.'"
evidence."' Shurnpo./J,
Shurupoff, SI4
814 A.2d at
at 553 (citing In
In re Dependency of
of
1959)). Other states apply aa more demanding
standard than
Terry Klugman,
Klugman, 97 N.W.2d 425 (Minn. 1959».
demanding standard
preponderance
evidence, such as "clear and convincing."
Connecticut Appellate
Appellate
preponderance of the evidence,
convincing." For example, the Connecticut
custody of the child,
Court found that in reviewing
reviewing whether a parent achieved rehabilitation to regain custody
rehabilitation must be proven
proven by clear and convincing
convincing evidence. See In
In re
re Michael L.,
L., 745 A.2d S47,
847,
851 (Conn.
(Conn. App. Ct. 2000); accord
accordIn re
re Baby
Baby Girl
Girl T.,
T., 715 A.2d 99,102
99, 102 (Del. Fam. Ct.
Ct. 11998)
S51
99S) (requir-
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67
frightened
frightened of
of her
her dad, and Child
Child Protective
Protective Services
Services can
can convince
convince a court,
even
even if not
not beyond
beyond aa reasonable
reasonable doubt, that Charles
Charles did rape
rape Carla, aa court
would likely remove
remove the
the child
child from his custody.
But do we want people
people like Charles
Charles to have to run that gauntlet?
gauntlet? Once
Once
But
he is acquitted, in
want
in what had to be
be an
an emotionally
emotionally trying trial, do we want
him to be
be subject
subject to yet another
another proceeding
proceeding in which
which he can
can lose his child?
I think
think that
that the
the answer is "yes."
"yes."
In child
child custody
custody (or
(or most other
other civil) trials, we want to get it right. An
An
error
error on
on either side
side is equally
equally bad. A
A finding
finding that Charles
Charles is an unfit parent
parent
incorrect,
(because he raped his daughter)
daughter) results in his losing custody. If incorrect,
this
this is a brutally
brutally painful loss for him (and
(and his wife)
wife) and possibly
possibly for his
daughter, if he is in fact a good
good parent. On the other hand, his loss is not so
occur
criminality that occur
severe as the loss of liberty and gain of the stigma of criminality
in a criminal trial. Consequently,
Consequently, in a child
child custody proceeding, the harm of
of
an
leaving
a
child
with
roughly
equal.
Wrongfully
a wrongful
wrongful decision
decision is
Wrongfully leaving
an
abusive parent
parent is roughly as bad as taking
taking a child from a good parent.
Buttressing
Buttressing this conclusion is the fact that res judicata
judicata does not apply
as fully to child custody
custody proceedings
proceedings as it does to other cases. 10
I 0 Thus, if six
six
months after Carla
Carla is removed from Charles
Charles and Holly, Carla
Carla tells her social worker that "Daddy never really hurt me. I just
just remembered
remembered wrong
wrong
me," there is a reasonable
reasonable chance
chance that custody
custody
because of what Mary told me,"
recanted tescan be returned to the parents.'
parents. I1I In a criminal case, however, recanted
insufficient to undo or ameliorate the damage. 1122 Thus,
timony is frequently insufficient
ing clear
clear and convincing
convincing standard
standard of proof in order
order to terminate
terminate parental
parental rights due to the "fundamental
liberty interest
interest at stake and the unique type of deprivation
deprivation that may occur"). "Clear
"Clear and convincing
evidence is something more than preponderance
preponderance of the evidence,
evidence, required
required in neglect proceedings and in
cases."
other civil cases,
cases, but something less than proof
proof beyond
beyond a reasonable
reasonable doubt, required in criminal cases."
re Michael M., 614 A.2d 832 (Conn. App. Ct. 1992)).
Michael L., 745 A.2d at 851 (citing In re
Michael
1992». Most
states
proof for the judicial resolution of child custody
custody disputes
disputes
states have not defined a particular standard of proof
"have sought to protect parental
between the child's parents and a third party but rather "have
parental rights through
between
the heavy
heavy substantive burden placed
placed on the third party-to
party-to show unfitness, 'compelling'
'compelling' or 'cogent'
'cogent'
'convincing reasons.'"
reasons."' ShurupojJ,
Shurupoff,814 A.2d at 553 (citations omitted).
reasons, or 'convincing
TEX. FAM.
FAM. CODE ANN.
ANN. § 263.501 (2008) (requiring
10. See,
See. e.g.,
e.g., TEx.
(requiring a placement review hearing at
adopted or the child becomes an adult, even if
least once every six months until the date the child is adopted
there is a final order terminating the parent's parental rights).
(2007) ("Once a child alleged to be in need of
It. See,
STAT. ANN.
ANN. §§ 260.012(a) (2007)
II.
See. e.g., MINN.
MINN. STAT.
efforts...
services is under the court's jurisdiction, the court shall ensure that reasonable efforts
protection or services
...
by the social services agency are made to prevent placement or to eliminate the need for removal and to
... ").
").
reunite the child with the child's family at the earliest possible time ....
Berry v. State or Larrison
12. Most state courts apply the fairly demanding tests set forth in either Berry
Larrison
recanted testimony.
v. United
United States
States when determining
determining whether to grant a new criminal trial based on recanted
Cir.
States, 24 F.2d 82, 87-88 (7th Cir.
(1851); Larrison v. United States.
State, 10 Ga. 511,
See Berry v. State,
511, 512-13 (1851);
Berry test sets forth six factors:
1928). The Berry
1st. That the evidence has come to [the party requesting a new trial's] knowledge since the
1st.
he did not
not acquire itit sooner.
to the want of due diligence that he
trial. 2d. That itit was not owing to
would probably produce a different verdict. 4th. That itit is not
3d. That it is so material, that it would
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criminal case, if one
one is going
going to be
be convicted,
convicted, it
it is far more
more important
important
in a criminal
be sure
sure that
that we get it right.
to be
II.
II. SHOULD
SHOULD REASONABLE
REASONABLE DOUBT
DOUBT BE
BE DEFINED?
DEFINED?
determine that concepts
concepts of
of reasonable
reasonable doubt ought
ought to have
Once we determine
question is
is how
contemporary
contemporary vitality,
vitality, the
the next
next question
how that
that concept
concept should
should be
be conconare
two
schools
of
thought
on
that
question.
veyed
veyed to
to the
the jury.
jury. There
There are two schools of thought on that question. One
One
school suggests
school
suggests that
that attempting
attempting a
a definition
definition is
is aa bad
bad idea.
idea. It reasons
reasons that
that the
the
language will
concept
concept speaks
speaks for itself, and
and that
that any
any additional
additional language
will simply
simply obob13
fuscate
the issue.
issue. 13
fuscate the
The
other school
The other
school of
of thought
thought believes
believes that
that the
the concept
concept is
is not
not intuitively
intuitively
I4 II align
helpful. 14
align
obvious to the jury, and
guidelines are helpful.
obvious
and that definitional
definitional guidelines
myself
with
the
latter
group.
Although
I
think
average
jurors
have
an
idea
myself with the latter group. Although I think average jurors have an idea
do not
not believe
that typically
underof what reasonable
of
reasonable doubt means, II do
believe that
typically they
they underexample, II do not believe
stand all of
of its nuances.
stand
nuances. For example,
believe that
that aa typical
typical jury
convincing
will intuitively
intuitively understand
understand the
the difference
difference between
between "clear
"clear and convincing
will
15
"
doubt.
reasonable
a
"beyond
and
evidence"
and
"beyond
a
reasonable
doubt."15
evidence"
convictions have
Furthermore,
the fact
fact that
that so
so many
many wrongful
Furthermore, the
wrongful convictions
have been
been
cumulative only, viz.: speaking
speaking to facts in relation to which there was evidence
evidence on the trial.
5th. The affidavit of the witness himself should be procured
procured or its absence accounted
accounted for; and
and
6th. The new trial will not be granted if
if the only effect of the evidence
evidence will be to impeach the
credit of a witness.
Berry, 10 Ga. at 512-13.
Larrisontest includes three factors:
Berry,
512-13. The Larrison
reasonably well satisfied
satisfied that the testimony given
given by a material witness is
(a) The court is reasonably
false. (b) That without
without it the jury might have reached a different conclusion.
conclusion. (c)
(c) That the party
party
seeking
seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.
Larrison,24 F
F.2d
Larrison,
.2d at 87-88.
13. See Murphy v. Holland,
13.
Holland, 776 F.2d 470, 475 (4th Cir. 1985) ("The term reasonable
reasonable doubt itself
itself
has a self-evident
self-evident meaning comprehensible
comprehensible to the lay juror."); People
People v. Barkas, 99 N.E. 698, 702-03
(11.
("[Ijt is very
(III. 1912)
1912) ("[I]t
very questionable whether any good purpose is ever served
served by giving involved and
cases...
labored
'reasonable doubt'
doubt' in stating the law to juries in criminal cases
labored definitions of the words 'reasonable
... It is
definition of the term can be found than the words themselves.").
doubtful whether any better definition
258, 262-63 (Pa. 1974) ("Our cases require that
Commonwealth v. Young, 317 A.2d 258,262-63
14. See, e.g., Commonwealth
the jury be given a positive instruction fully and accurately defining reasonable doubt. Only in this way,
can a jury fulfill its responsibility to decide the guilt or innocence of an accused. In the absence of a
trial.").
proper reasonable
reasonable doubt charge, an accused is denied his right to a fair triaL").
explained proof beyond reasonable doubt as "our society
society impos[ing]
15. The Supreme Court explained
IS.
almost the entire risk of error upon itself' because of the Due Process Clause and the value society
418, 424 (1979).
places on individual liberty. Addington v. Texas, 441 U.S. 418,424
(1979). The intermediate standard,
"clear" and "convincing,"
"convincing," is applied in civil cases typically involving a
often described with words like "clear"
quasi-criminal accusation and interests
interests at stake that are more substantial than the mere loss of money;
quasi-criminal
thus the defendant's risk of having his reputation tarnished erroneously is reduced
reduced by increasing the
Id. The preponderance of the evidence standard is the lowest of the three
plaintiff's
plaintiff's burden of proof.
proof. [d.
"typical civil case[s] involving a monetary
monetary dispute
standards identified by the Court and is applied to "typical
"[tlhe
parties." [d.
Id. at 423. Society
Society has little concern with the outcome of such cases and "[t]he
between private parties."
Id.
litigants thus
thus share
share the risk of
of error
error in roughly equal fashion."
fashion." [d.
litigants
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TAKING REASONABLE
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69
uncovered
uncovered in
in recent
recent years'
years l66 is
is pretty good
good evidence
evidence that jurors
jurors do not
not althese wrongful
wrongful
understand reasonable
reasonable doubt. To be sure,
sure, most of these
ways understand
convictions can be
be blamed
blamed on some
some other cause, but
but II do believe
believe that failfailconvictions
ure to take reasonable
reasonable doubt seriously
seriously enough
enough contributed
contributed to the problem.
Consider the
the following
following examples:
examples:
Consider
(A) A teenager
questioning confesses
confesses to the murteenager after many
many hours
hours of questioning
der of his parents after
after police
police falsely tell him that
that his father
father woke up from
der
his coma
coma and identified
identified the teenager
teenager as
as the shooter. Believing
Believing that his father
father
would never
never lie, the boy
boy confesses. Despite
Despite the absence
absence of forensic eviwould
17 Classically, the false
dence, or
or serious
serious motive, the teenager
teenager is convicted.
convicted. 17
dence,
confession is thought to be the culprit
culprit in the wrongful conviction;
conviction; and
and ininconfession
deed
reasonable doubt more seriously,
seriously,
deed it was. But, perhaps
perhaps if the jury took reasonable
confession was
it would have realized
realized that there was a possibility that the confession
false, and perhaps
perhaps it would have given
given the defendant
defendant the benefit
benefit of the
doubt.
defendant confessed to murder. In
(B) A prison snitch testifies
testifies that the defendant
defendant made
made no such confession,
confession, but the snitch, motivated
motivated by a
fact the defendant
by
the
promised
(which
desire
to
get
his
sentenced
reduced
was
prosecutor)
sentenced
reduced
desire
1
8
8
testified to the confession.
confession.l The defendant
defendant is convicted.
convicted. If the jury
falsely testified
applies reasonable
reasonable doubt seriously,
seriously, and understands the snitch's
snitch's motivation
motivation
applies
jury may be more likely to acquit.
for testifying, the jury
(C) A witness positively
positively identifies the defendant
defendant as her rapist. The
The
evidence.1199 Again, the
defendant
defendant is convicted, but later exonerated
exonerated by DNA evidence.
faulty identification
identification is the primary culprit, but secondarily, perhaps the
failure to take reasonable
reasonable doubt seriously also contributed.
To be sure, there are cases where juries
juries in fact do take reasonable
doubt seriously, and perhaps even more where they believe they are taking
seriously. 20 But why
occasions, they may take it too seriously.20
it seriously. Indeed, on occasions,
wouldn't a jury take reasonable doubt seriously? Obviously,
Obviously, as suggested at
concerned with turning a probably
probably guilty
the beginning of the article, it is concerned
criminal free. Additionally, I am not sure that a typical juror really thinks
8.
16. See sources cited supra note 8.
17. These are basically the
the facts
facts of
of the Martin
Martin Tankleff
Tankleff case.
case. Tankleff was finally released after
Perseverance,and
spending twenty years in prison for aa crime that he did not commit. Bruce Lambert, Perseverance,
LI, at I.
1.
Chance, Led to
to Reversal
Reversal in '88 Murders,
Chance,
Murders, N.Y. TIMES, July 6, 2008, LJ,
18. Similar
Similar facts led to the wrongful
wrongful conviction of Kerry Max Cook. See Cook v.v. State,
State, 940
COOK, CHASING JUSTICE
JUSTICE 82-88 (2007).
MAX COOK,
623, 626 (Tex. Crim. App. 1996); KERRY MAx
S.W.2d 623,626
19. Jennifer Thompson, aa rape victim, positively
positively identified Ronald Cotton as her rapist. After
serving
serving eleven years in prison,
prison, Mr. Cotton was exonerated
exonerated due to DNA evidence.
evidence. Ms. Thompson wrote
Can't
aa column regarding her mistaken identification. Jennifer Thompson, When You Can
'f Believe Your Own
9B.
& Forum, at 98.
Eyes, PLAIN DEALER (Cleveland), June 20, 2000, Editorials &
Eyes,
O.J. Simpson acquittal might provide one example.
20. The OJ.
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about the
the possibility
possibility of convicting
convicting an
an innocent
innocent person.
person.
about
Eighty-six
Eighty-six years ago, Judge
Judge Learned
Learned Hand
Hand expressed
expressed aa sentiment,
sentiment,
proven to be woefully
woefully wrong, but which
which some
some jurors may
may share
share
which has proven
today:
Under
Under our criminal procedure
procedure the accused
accused has every advantage.
advantage. While
the
the prosecution
prosecution is held rigidly to the charge,
charge, he need not
not disclose
disclose the
the barest
immune from question
question or comment
comment on
on
est outline of his defense. He is immune
his silence; he
he cannot be convicted
convicted when there
there is the least fair doubt
doubt in
the minds
one of
minds of any
anyone
of the twelve....
twelve .... Our
Our dangers do not lie in too little tenderness
tenderness to the accused. Our procedure
procedure has been always haunted by
by
the ghost
ghost of the innocent
innocent man convicted.
convicted. It is an unreal dream. What
What we
need to fear is the archaic
archaic formalism and
and the watery
watery
that obob2 1 sentiment that
structs,
of crime.
crime. 21
structs, delays, and defeats the prosecution
prosecution of
Because some jurors
jurors still may believe
believe that, and because the importance
reasonable doubt can easily be lost, I believe
believe that it is important
tance of reasonable
both to define
define reasonable doubt, and to explain
explain the importance
importance of following
the instructions
instructions given.
III. DEFINING REASONABLE
REASONABLE DOUBT
DOUBT
To be fair, any definition of reasonable
reasonable doubt has to capture the full
same time ensuring
ensuring that juries
juries do not
not
scope of the concept, while at the same
acquit if their doubt is unreasonable. So how do we do this? II took my first
crack at it back in 1968 when, as draftsman for the North Carolina Superior
Superior
Committee, I drafted
Court Judges'
Judges' Jury Instructions
Instructions Committee,
drafted the following instruction:
A reasonable doubt is not a vain imaginary
imaginary or fanciful doubt. It is a sane
rational doubt based on reason and common
common sense arising out the evidence or lack of evidence as the case may be. It means that in order to
convict the defendant you must be fully satisfied and entirely convinced
convinced
of hislher
his/her guilt. If you22 are so satisfied, you should return a verdict
of
verdict of
guilty. Otherwise, not. 22
I would have preferred
of
preferred defining reasonable doubt as "a possibility of
innocence based on reason and common sense, arising from the evidence or
or
evidence as the case may be."
be." It seemed to me that getting the jury
lack of evidence
clearer than instructing it
to think in terms of a possibility of innocence is clearer
to think in terms of doubt as to guilt, and more clearly explains what the
jury should be looking for.
for. Candidly, some of the trial judges did not like
"reasonable
possibility
of innocence"
innocence" language
language because they feared that
"reasonable possibility of
21. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.
(S.D.N.Y. 1923).
1923).
22.
22.
NORTH
CAROLINA CONFERENCE
CONFERENCE OF SUPERIOR
NORTH CAROLINA
SUPERIOR COURT
COURT JUDGES,
JUDGES, COMMITTEE
COMMITTEE ON PATTERN
PATTERN
CRIMINAL CASES
CASES (1970);
(1970); see also ARNOLD H. LOEWY,
LOEWY, CRIMINAL LAW
LAW IN A
A
JURY INSTRUCTIONS FOR CRIMINAL
NUTSHELL 212 (5th
(5th ed.
ed. 2009).
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jurors
jurors would
would focus more
more on
on the word
word "possibility"
"possibility" and
and less
less on the
the word
word
"reasonable,"
"reasonable," thereby
thereby giving
giving the
the defendant
defendant the benefit
benefit of
of an
an unreasonable
unreasonable
doubt.
To
To combat that, I would begin my
my ideal definition
definition as follows:
of
innocence
reasonable doubt is a possibility
possibility of innocence based on reason and
A reasonable
case
common
evidence as the case
common sense arising from the evidence
evidence or lack
lack of evidence
may be. It is not
not a vain, imaginary,
imaginary, or fanciful doubt, nor is it an unreaunreapossibility. Rather,
Rather, it is a possibility
possibility that leaves
leaves you
you less than
sonable possibility.
fully
defendant's guilt. If you are
are so
fuIly satisfied
satisfied or entirely convinced
convinced of the defendant's
duty to return
return a verdict of guilty,
guilty, but if not, you
you must
must
satisfied, it is your duty
give
reasonable doubt, and return a vergive the defendant
defendant the
the benefit
benefit of the reasonable
of not guilty.
dict of
Although
Although I once
once thought that this was aa complete
complete enough instruction, I
now believe that more
more is necessary.
necessary. Specifically,
Specifically, I am not sure that the
proposed
adequately distinguishes between
proposed instruction
instruction adequately
between proof beyond a reasonable doubt and proof
proof by clear and convincing
convincing evidence.
evidence. To do that, I
propose
propose adding
adding to the above
above instruction
instruction the following:
In applying
applying reasonable doubt, it would be helpful to think of the followfoIlowing seven ways in which you might view the evidence. (1)
(1) You could be
is innocent,
convinced beyond
beyond a reasonable
reasonable doubt that the defendant
defendant is
innocent, (2)
(2)
You could be fairly sure that the defendant
defendant is innocent, (3) you could
could
think it more likely than not that the defendant
defendant is innocent, (4) you could
could
defendant
think it is as likely that the defendant
defendant is guilty as it is that the defendant
(5) you could think it more likely than not that the defendant
is innocent, (5)
(6) you could be fairly sure that the defendant is guilty, or (7)
(7)
is guilty, (6)
you could be convinced beyond a reasonable doubt that the defendant is
guilty. If after hearing
hearing all of the evidence and arguments, you find it falls
categories, that is, even if you are fairly sure that
in any of the first six categories,
the defendant is guilty, you would still have a reasonable
reasonable doubt, and it
would be your duty to give the defendant the benefit of that doubt, and
and
hearing all of the
return a verdict of not guilty. On the other hand, if after hearing
evidence
evidence and arguments, you are in the seventh category
category and believe the
a reasonable doubt, it would be your duty
defendant to be guilty beyond
23
of guilty.
guilty.23
to return a verdict of
One could argue that this instruction is more favorable to the defendant than he is entitled. Whether
Whether that is true depends
depends on whether there
really is a difference
difference between the sixth and seventh categories. I believe
difference captures the essence of reasonable
that there is, and that the difference
(75% sure
doubt. So, in our original hypothetical,
hypothetical, the jury in Charles's case (75%
of guilt) would be in category six. Under this instruction, the jury knows
that it has to be in category seven, or else it must acquit. Given that I began
23. This is not an original idea with me. II heard it presented
presented at a conference of criminal
criminal defense
If I did, I would
attorneys. Regrettably, II cannot recall the name of the attorney who presented
attorneys.
presented this idea. If!
credit.
appropriate credit.
obviously give him appropriate
obviously
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with the
the hypothesis
hypothesis that we
we do want
want the jury to
to acquit Charles
Charles if itit is only
only
with
75% sure
sure of
of his
his guilt, and
and the further hypothesis that
that many
many juries
juries given
given the
75%
usual
usual reasonable
reasonable doubt instruction
instruction (or no instruction)
instruction) would be
be likely
likely to
convict under those circumstances,
circumstances, the proposed
proposed instruction
instruction sends
sends the jury
convict
powerful message
message that it needs
needs to take reasonable
reasonable doubt seriously.
a powerful
REASONABLE DOUBT
DOUBT AND
AND THE CONSTITUTION
CONSTITUTION
IV. REASONABLE
There
instruction proposed in the preceding
There is no doubt that the instruction
preceding section would
would pass
pass constitutional
constitutional muster. Unfortunately,
Unfortunately, it is equally
equally clear that
that
an instruction
instruction considerably
considerably less
less favorable to the defendant would also pass
pass
muster. The only
invalidate a reasonable
only decision
decision in recent years to invalidate
reasonable doubt
doubt
instruction
Cage v. Louisiana,
indicated
instruction was Cage
Louisiana, where
where the instruction
instruction clearly indicated
that the defendant
defendant could be convicted despite a reasonable
reasonable doubt:
[A reasonable
reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice or conjecture. It must be such doubt
doubt
as would give rise to a grave uncertainty, raised in your mind by reasons
of the unsatisfactory
unsatisfactory character
character of the evidence
evidence or lack thereof. A reasonable
actual substantial doubt.
able doubt is not a mere possible doubt. It is an actual
It is a doubt that
that a reasonable
reasonable man can seriously
seriously entertain. What
What is reremathematical certainty, but a moral cerquired24is not an absolute or mathematical
tainty.24
tainty.
When we deconstruct
deconstruct this instruction, it is obvious
obvious what troubled the
Court. The word "substantial,"
which
is
used
twice,
is insolubly ambigu"substantial,"
substance" as opposed to ephemeral, it is undoubtedly
undoubtedly
ous. If it means "of substance"
"significant" or "great"
"great" it is not correct. Given that
correct. But, if it means "significant"
the instruction
"grave uncertainty"
instruction also spoke of "grave
uncertainty" it is clearly in error. In our
75% sure of Charles's guilt
hypothetical problem, a juror who is 75%
gUilt would not
"gravely uncertain."
Charles's
be "gravely
uncertain." Indeed, if she were only 40% sure of Charles's
innocent), I doubt that she
guilt (that is, she thought that he was probably
probably innocent),
"gravely uncertain."
uncertain." Thus, it is not surprising
would think of herself
herself as "gravely
surprising that
the Court invalidated
this
instruction.
invalidated
The Court also seemed troubled by the use of the archaic phrase
"moral certainty.,,25
certainty. '25 To
my untutored
untutored twentieth-twenty-first
twentieth-twenty-first century mind,
"moral
To my
the phrase "moral certainty"
certainty" seems to imply something close to absolutely
be concertainty. That is, if I had a vain imaginary or fanciful doubt, I may be
vinced beyond a reasonable doubt, but I do not think that I would feel satis26
fied to a moral certainty.
certainty.26
40 (1990)
(1990) (emphasis
(emphasis omitted).
24. Cage v. Louisiana, 498 U.S. 39,
39,40
25. Seeid.at41.
Seeid. at4l.
that reason
reason that II proposed eliminating the
the "moral certainty" language from the
the North
26. [tIt is for that
Carolina Pattern Jury Instructions.
Carolina
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Cage was told that "moral
"moral certainty"
Of course, the Louisiana jury in Cage
meant something
something less than mathematical
mathematical certainty,
certainty, but was not told what itit
27 Hence, the possibility that the jury thought that it meant somedid mean. 27
something less than reasonable doubt is supposed
supposed to mean was significant.
28
significant reasonable
In the other significant
reasonable doubt case, Victor v. Nebraska,
Nebraska,28
the Court upheld two different reasonable doubt instructions,
instructions, in one of the
cases,
cases correctly, and in the other, incorrectly. In the first of the two cases,
Sandoval
California,the instruction read as follows:
Sandoval v. California,
is not a mere possible doubt;
Reasonable doubt is defined as follows: It is
because
everything relating to human
because everything
human affairs,
affairs, and depending on moral
evidence, is open to some possible
possible or imaginary doubt. It is that state of
the case which, after the entire comparison
comparison and consideration
consideration of all the
jurors in that condition that they cannot
evidence, leaves the minds of the jurors
say they feel
an abiding conviction, to a moral certainty, of the truth of
29
the charge. 29
The Court, though troubled by the term "moral
"moral evidence"
evidence" (which in
the nineteenth
demonstrative
nineteenth century
century apparently
apparently meant all evidence
evidence except demonstrative
evidence)
evidence) concluded
concluded correctly
correctly that the overall instruction was constitutionconstitutionproper. 30o Despite Sandoval's
Sandoval's protestations,
ally proper.3
protestations, he was not, and should not
have been, entitled
imaginary doubt. 33l' And,
entitled to the benefit of possible or imaginary
indeed, if the jury has an "abiding
"abiding conviction to a moral certainty of his
guilt" then they are convinced
convinced beyond a reasonable
reasonable doubt.
I also agree with the Court in disapproving
disapproving of the instruction because
contemporary vitality for terms like "moral evidence"
evidence" and
and
of the lack of contemporary
"moral certainty."
Additionally, II am
am troubled
troubled because the instruction
"moral
certainty." Additionally,
instruction is
confusing. Were I a juror, I would want to know how I could have an abidor
ing conviction to a moral certainty
certainty if I had any doubt, even a possible or
imaginary one. But since that ambiguity if anything is favorable to the deimaginary
fendant, it should not be a basis for reversing his conviction.
The Victor
Victor case fell somewhere in between. The instruction was neiSandoval instruction
instruction nor as obviously
obviously
ther as obviously permissible
permissible as the Sandoval
impermissible
Cage instruction. The instruction read as follows:
impermissible as the Cage
'Reasonable doubt'
'Reasonable
doubt' is such a doubt as would cause a reasonable and prudent person in one of the graver
graver and more important transactions of life,
to pause and hesitate before taking the represented
represented facts as true and relying and acting thereon. It
It is such a doubt as will not permit you, after
full, fair,
fair, and
and impartial
of all of
of the
the evidence,
evidence, to
to have an
an
full,
impartial consideration
consideration of
27.
28.
29.
30.
31.
31.
See Cage,
Cage,498 U.S. at 40.
511 U.S. 1 (1994).
(1994).
Id. at 7 (emphasis
[d.
(emphasis omitted).
See
id. at 10-13,
10-13, 17.
Seeid.
17.
See id.
id. at 17.
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CHICAGO-KENT
LAW REVIEW
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GO-KENT LAW
CHICA
[Vol 85:1
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abiding conviction, to
to aa moral certainty,
certainty, of
of the guilt of the accused. At
At
abiding
the
the same
same time,
time, absolute
absolute or
or mathematical
mathematical certainty
certainty is not required. You
You
may
may be convinced
convinced of the truth
truth of a fact beyond
beyond aa reasonable
reasonable doubt
doubt and
and
yet be fully aware that possibly you may be mistaken. You
You may find an
accused guilty upon the strong
strong probabilities
probabilities of the case,
case, provided such
such
probabilities
probabilities are strong
strong enough to exclude
exclude any
any doubt of his guilt that is
reasonable.
reasonable. A
A reasonable
reasonable doubt
doubt is an actual
actual and substantial doubt reasonably
sonably arising from the evidence,
evidence, from the facts or circumstances
circumstances
shown
shown by the evidence,
evidence, or from the lack of
of evidence
evidence on the part
part of the
mere
possibility,
from
State,
State, as distinguished
distinguished from aa doubt arising from
mere
from
32
conjecture. 32
bare imagination, or from fanciful conjecture.
33 The disBy a seven-to-two
seven-to-two vote the
the Court upheld this
this instruction.
instruction)3
senting
senting Justices (Blackmun
(Blackmun and Souter),
Souter), were bothered by the phrase "sub"sub34 While
stantial
reaSOn it troubled
troubled the Court in Cage.
Cage. 34
While I
stantial doubt" for the same reason
agree with the Court that the overall instructions were
were not as incorrect as
those in Cage,
that
is
surely
damning
with
faint
praise.
Cage,
damning with
Justice
concurred in part, did so only
Justice Ginsburg,
Ginsburg, who concurred
only on the ground
that it was no business of the Court to revise instructions for the state judi35 She was
ciary.
ciary)5
She
especially bothered
bothered by the phrase
phrase "such
"such a doubt as would
would
cause
cause a reasonable
reasonable and prudent
prudent person, in one of the graver
graver and more important transactions
transactions of life, to pause and hesitate before taking
taking the repre' '36 Relying On
on a
sented facts as true
true and
and relying and acting thereon.
thereon."36
statement in a report
to
the
Judicial
Conference
of
the
United
States,
she
report
Judicial Conference
emphasized that things like "'choosing
"'choosing a spouse, job, a place to live and the
emphasized
like-generally involve a very heavy element
element of uncertainty
like-generally
uncertainty and risktaking. They are wholly unlike the decisions jurors ought to make in crimi' 37
cases.'"'37
nal cases.
I could hardly agree more with Justice
Justice Ginsburg's conclusions. Indeed, perhaps in the life's most important
important decision, one's relationship to a
deity, I have certainly
Concertainly known of active church members who are not convinced beyond
reasonable doubt that their church represents the One
one true
beyond a reasonable
faith.
Perhaps part of the reason for the Court's affinnation
affirmation of the Victor
instruction
instruction was its apparent belief in the correctness
correctness of the jury's determiVictor, Justice O'Connor, writing for the Court,
nation. For example, in Victor,
December 26, 1987, petitioner Victor
explained the case as follows: "On December
Id. at 18
18 (emphasis omitted).
32. Id.
33. See id.
id. at 22-23.
34. See id.
id. at 30-38 (Blackmun,
(Blackmun, J., dissenting).
35. Id.
Id. at 27 (Ginsburg, J., concurring).
Id. at 24.
36. Id.
CRIMINAL JURY INSTRUCTIONS
INSTRUCTIONS No. 21
21
37. Id.
Id. (quoting FEDERAL JUDICIAL CENTER, PATTERN CRIMINAL
cmt. at
at 18-19
18-19 (1987).
(1987).
cmt.
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75
went
went to
to the Omaha
Omaha home
home of
of an
an 82-year-old
82-year-old woman
woman for whom
whom he occasionoccasionally did
did gardening
gardening work. Once
Once inside, he
he beat
beat her
her with
with a pipe and
and cut
cut her
her
throat
throat with aa knife,
knife, killing her. Victor
Victor was convicted
convicted of first degree mur38
der."38
der."
moment's reflection,
reflection, it should
should be apparent that
that O'Connor
O'Connor is begOn aa moment's
ging the
decided. The jury
jury needed to determine
determine whether
whether
the very question to be decided.
the evidence established
reasonable doubt that Victor
Victor did the
established beyond a reasonable
things alleged by the Government.
Government. When one starts the opinion
opinion with the
statement that he
he did them, she might not
not be quite so persnickety
persnickety about
statement
whether the Government
Government met
met the proper burden
burden of proof.
whether
"the Government
The
The opinion
opinion should have
have started
started out by
by saying
saying "the
Government alleges that Victor
Victor beat her with a pipe
pipe and cut her with a knife, killing her.
manner in which the jury
jury was
question for us is whether given the manner
The question
instructed, can
can we be confident that the jury found Victor guilty beyond a
doubt?" With a mindset that a heinous
reasonable
reasonable doubt?"
heinous act had been charged
charged and
that we need to be satisfied
satisfied that the jury
jury understood its fact-finding obligations properly,
properly, it is at least
least plausible
plausible that the Court would have reached
reached a
different result.
different
CONCLUSION
It is clear that although due process
process requires proof beyond a reasonable doubt, only the plainest error on that score
score will rise to the level of constitutional scrutiny. It is, however, equally clear that states are free to define
reasonable doubt in such a way that jurors will not be confused with the
reasonable
convincing evidence.
evidence. Because
Because there is good
lesser standard of clear and convincing
benefit
reason to believe that juries may not always give the defendant the benefit
the
benefit
of
of a reasonable
because failure to give defendants
defendants
of
reasonable doubt, and because
a reasonable
reasonable doubt may well have contributed
contributed to some wrongful convictions, state trial judges ought to do everything in their power to ensure that
defendants are given the benefit of a reasonable doubt.
If judges regularly
regularly gave instructions such as that proposed in section
III of this article, I believe that fewer innocent people would be convicted.
guilty people
Of course, one of the costs would be that more factually gUilty
Winship,
would likely be acquitted. But, if the Court meant what it said in Winship,
and if Blackstone was right, it is a cost we should be willing to pay.
38.
38. [d.
Id. at 17.
HeinOnline -- 85 Chi.-Kent L. Rev. 75 2010
HeinOnline -- 85 Chi.-Kent L. Rev. 76 2010