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The Instruction on Reasonable Doubt: 200 Years of Sophistry is Enough

Criminal Law

& #x201c;Speak English!” Said the eaglet; “I don’t know the meaning of half those long words and what’s more, I don’t believe you do either!” Alice in Wonderland, Lewis Carroll

Judge Chamberlin started it all. Two hundred years ago,in 1798, in Dublin, Ireland,
Judge Edward Chamberlin gave the first recorded definition of reasonable doubt to a jury. The words he used have changed little to this day and find their way into Florida’s instruction on reasonable doubt. It is time to scrutinize his words and our definition and hope that before 1998 ends we can substitute a new and better definition.

Two hundred years of sophistry is enough.

Is This Any Way
to Run a Legal System?

Let me begin by saying I have no quarrel with reasonable doubt as a standard for conviction in criminal cases. It would be in direct contradiction of the United States Supreme Court to do so. In re Winship, 397 U.S. 358 (1970).

It is the meaningless definition of reasonable doubt we use in Florida and pretend to understand that provokes me to write this article. It is the patronizing manner in which we learned ones in the legal class deceive jurors into believing that we are giving them help when we say, “Whenever the words ‘reasonable doubt’ are usedyou must consider. . . . ” They should either resent the command or ridicule what follows it. Unfortunately when a judge dressed in a black robe speaks, juries are struck with such reverence that they fail to notice the lack of content of his or her words. Jurors assume the words spoken by an honorable person in black must make sense. This assumption is false.

Florida Standard Jury Instruction 2.03 states as follows:

A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. It is to the evidence introduced upon this trial, and to it alone, that you are to look for that proof. A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence or the lack of evidence.

The definition sounds familiar to lawyers. It feels comfortable. Perhaps that is why no one has bothered to examine these words with a critical ear. The human mind can adapt to patterns, even though they are incomprehensible. The attraction of children’s nonsense limericks is a reflection of the same mental process.

History, familiarity, adaptation, and comfort are not justifications for keeping bad laws. The legal system cannot justify verbal eccentricities on grounds of childish delight. The legal system is a cultural necessity. It controls life and death. It attempts to punish the wicked, protect the innocent, and appease the victim. Familiar or not, the words used in the definition of reasonable doubt are incomprehensible. They make no sense, even when a person who dresses in black speaks them.

Let me make a few substitutions in the framework of the definition to see if I can make my point.

Suppose you go into a doctor’s office and ask if you are having a heart attack. The good doctor goes to a medical dictionary and reads the following:

Heart attack: A heart attack is not a broken bone, a rash, hypochondria or chest pain. Such symptoms must not influence you to return a diagnosis of no heart attack if you have an abiding conviction that it is a heart attack. On the other hand, if, after carefully considering, comparing and weighing all the symptoms, there is not an abiding conviction of heart attack, or if having a conviction, it is one which is not stable but which wavers and vacillates, then the disease is not proved to a reasonable degree of medical certainty and you must tell the patient you find no heart attack because you are not convinced to a reasonable degree of medical certainty. It is to the evidence introduced upon this examination, and to it alone, that you are to look for that proof. A reasonable degree of medical certainty may arise from the symptoms, conflict in the symptoms or lack of symptoms.

If that were the definition physicians used to assist in the diagnosis and detection of heart attacks, people would be dying in the streets clutching their chests all the time. Doctors would not know when to admit the patient into a hospital or send the patient home with Rolaids.

Unfortunately, people are dying in the streets clutching their chests from gunshot and knife wounds. It is time we give our jurors meaningful help in diagnosing the degree of proof necessary to convict or acquit. We can then admit the guilty offender into prison and send the innocent home with our apologies.

Let’s examine the definition one sentence at a time:

Sentence One:
“A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt.”
The primary weakness of this opening sentence is you cannot define something by saying what it is not. To say a ship is not a doughnut accomplishes nothing. Moreover, why start a definition with comparisons? A few sentences later, after defining the key term, a writer might refine the reader’s understanding with contrasting examples. To do so in the opening line only serves to delay the inevitable conclusion that no definition ever surfaces within the paragraph.

Sentence Two:
“Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt.”

The second sentence merely tells the jurors what to do if they have a speculative, imaginary, or forced doubt. It does nothing to educate them on what a reasonable doubt is. Sentence two can follow sentence one, but both are premature.

Sentence Three:
“On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.”

It is hard to decide where to begin criticizing sentence three. Perhaps we should start with the word, “conviction.” It is repeated twice and has already been used once in the previous sentence. I criticize this word on very simple grounds. I ask, “What does a criminal prosecution involve?” Convicting criminals. Convictions. Is it not odd that of the 50,000 or so commonly used words in the English language, the drafters of this instruction could not have found a more neutral and less distracting word when discussing the “state of mind” of the jurors? It is an ambiguous word that has two entirely different meanings. Numerous better words come to mind. Persuasion. Belief. View. My paperback thesaurus has 18 synonyms for the idea and all of them are better than “conviction.”

Sadly, even if “conviction” is deleted and a better word substituted, the third sentence is still in desperate need of help. It is 63 words long. A typical sentence should have about 20. It has eight commas. Three of those commas appear in rapid succession between only four words, “….guilt, or, if, having….” It would be difficult to find a more convoluted sentence in regular use in the English language. It would be impossible to find a sentence of more life-changing consequences.

The sentence construction is absurd for such a literate profession. It would be a dangerous sentence construction in a hazardous profession.

Imagine you are a member of a bomb squad wanting to know which wire to cut and read the following: “explosion, or, if, having a wire, it is one which is not blue but one which is yellow or red, then cut the….”

Without a degree in English, your life expectancy that afternoon would be very short indeed.
The middle of sentence three contains its essence. It basically says if your belief changes from moment to moment then you must find the defendant not guilty. That’s okay, but why not just say that? the way, what is the difference between a “not stable” belief and one which “wavers and vacillates”? There is no excuse for using three words to describe the same thing. There is no excuse for putting the word “not” in front of one of them and the word “but” in front of the other two. The mind has a limited ability to comprehend the spoken word and negatives followed by exclusions makes the effort nearly impossible.

The last third of the sentence is nonsense. Removing only a few words, the phrase reads like this: “then the charge is not proved beyond every reasonable doubt.. . because the doubt is reasonable.” Please read that quote again. I have only left out: “and you must find the defendant not guilty.. . . ” doing so, I have exposed the entire sentence to its fatal flaw. It sounds good when put together but doesn’t say anything.

Judge Leonard May wrote about reasonable doubt in 1876 in an article in the American Law Review. His comments seem appropriate now, even though after a hundred years no one seems to have paid him any attention. He said, “(So far as reasonable doubt is concerned) what possible end can such a heaping up of indefinable terms serve, but to confuse and baffle rather than enlighten and aid the average juror?” Judge Leonard May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 663 (1876).

Sentence Four:
“It is to the evidence introduced upon this trial, and to it alone, that you are to look for that proof.”

Yes, we hope the jury will look to the evidence, but if they look to it and “it alone,” they may disregard the instruction requiring them to use their common sense. Also, the word “upon” seems a little too theatrical. Does anyone talk like that? Wouldn’t the word “in” serve just as well?

Sentence Five:
“A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence or the lack of evidence.”

This last sentence tells the jurors where they might find reasonable doubts. We might find rattlesnakes in dark holes, but it doesn’t help us distinguish them from mushrooms. We might suppose that jurors would look to the evidence for their decision. They will be instructed later that lawyers’ comments are not evidence. What purpose does this sentence serve?

What else do we observe about the instruction?

A) The word “not” is used seven times.
B) The word “if” is used three times.
C) There is no topic sentence. Our high school English teachers taught us always to have a topic sentence in every paragraph. Topic sentences highlight and summarize the paragraph. No sentence in this paragraph seems to highlight any particular theme.
D) There are 12 commas.
E) The word “doubt” is used seven times.
F) For those of you familiar with the Flesch Reading Ease Index or Gunning’s Fog Index, this paragraph scores 45 and 19 respectively. These are not good scores.

History of Reasonable Doubt

To understand how we stumbled into this revered but vague definition on reasonable doubt, we must take a few steps back in time. One very important aspect of society is having a dispute resolution mechanism for its residents. From the earliest times the wise and strong were called upon to keep peace within communities. Later, God was the wisest and strongest leader in people’s minds. Disputes were often taken to Him and His “rulings” were interpreted from accidental or fortuitous events. While we might call some of those events superstitions today, the belief that God directed the outcome of everything on earth was unshakable.

In Anglo-Saxon cultures many members believed that, “not one sparrow shall fall without the will of God.” With such faith, it is not difficult to understand how certain trial techniques evolved. Trial by battle, a Norman innovation, reflected a confidence that God would reward the righteous person. If two contestants had a dispute, let them fight in the king’s courtyard. The outward physical abilities of the combatants would be no factor. God would never give victory to the unjust person. We can imagine the townsfolk saying, “the brute must have been right all along” as the weaker and now bloodied loser was dragged home or buried. This judicial remedy survived in England until 1819.

Other methods were used, too. If you were accused of murder, you might be asked to touch the head or wound of the deceased. If the body stirred, it was the soul, shocked at the closeness of the evil murderer, that convicted the accused. Never mind that the body might be arranged in a precarious position just before the prime suspect was called into the room.

The accused might be called upon to say an oath. These oaths were not to affirm the facts but to recite the Word of God. If the tongue stumbled, it was the devil’s tongue that made the mistake. After that, only execution of the evil person remained. To make matters worse, these persons were not given the last rites and thus their souls were condemned to eternal damnation as well.

Persons might be called upon to recite the truth as the community “knew” it. These early “jurors” might be eyewitnesses or just persons knowledgeable in the reputation of the event. They spoke the truth as God’s representatives. To help interpret God’s will, they eventually received permission to call in outsiders who may know something about the events. These were the first witnesses.

The presiding official assisted the less learned and temporary citizen jurors in following their duty. It would not be well to go against the will of God. Yet even then they knew that human affairs were a continuum of probabilities. Humans rarely encounter certainty. What test did God follow? God did not make errors. How could human beings do as well? These God fearing people soon discovered that they couldn’t avoid mistakes. The solution was to fall back on the belief in God’s mercy. To relieve the pressure on themselves they concluded: “It is better that five guilty persons should escape unpunished than one innocent person should die.” Years later, Blackstone upped the number to 10 and today many authors offer 99 as the ratio of guilty persons we should accept going free to protect one person being wrongfully convicted. The weakness of that pretense is fruit for another article, but the admission of fallibility is basic to the human adjudication of guilt.

Why was leniency so accepted? You have to remember that in England all felons were executed and this weighed heavily in the small villages where everyone knew each other. Also, felony cases involved all larceny and a host of other offenses which we today would call trivial. Err on the side of mercy and the community slept better. The judges said that the instructions of the king and God required the jurors to acquit if they had “any” doubt. No matter how irrational, a doubt was a doubt.

This worked for them at the time. The prosecutors of the time still obtained adequate convictions even with an “any doubt” test for a number of reasons. First, the defendant could not take the stand. Second, the defendant could not call witnesses. The prosecutor could control the flow of information so effectively as to meet any burden of proof in most cases. Third, in small communities, everyone knew what happened. Many trials were a formality and served as community entertainment. The same is sometimes true today.

In the 18th century, the defendant became able to call witnesses (even though they could not be sworn in) and the prosecutor’s job started getting tough. Fundamental fairness and an elevation of the common man, even the accused man, was the impetus for this new procedure. Consequently the “any” doubt rule was in jeopardy because even unsworn information delivered by a sobbing spouse could affect the outcome of most any trial. The 17th Century philosophers such as John Wilkins, John Locke, and Jean Rousseau provided the needed counterbalance. These philosophers discussed the minds of the ordinary man and the “reasonable” man. It is from their works that the reasonable man test for negligence cases evolved.

Progressive even then, it was from the American colonies that the first recorded suggestion of change to the “any doubt” test comes. Notorious events are widely documented and the Boston massacre was no exception. On March 5, 1770, a patrol of British soldiers shot and killed five Bostonians during a civil dispute. To preserve order in the colonies, the Crown indicted the captain and eight soldiers. The Crown’s prosecutor was Robert Treat Paine. The (local) jurors did not want to be held to a standard that might acquit the rascals and so Mr. Paine gave them an out. One of the defense attorneys used the classic “any doubt” test in his closing argument and said: “The best rule [is]. . . where you are doubtful never act; that is, if you doubt of the prisoner’s guilt, never declare him guilty.”

way of response Mr. Paine in his closing said: “If the evidence be sufficient to convince you of their guilt beyond reasonable doubtthe justice of the law will require you to declare them guilty.” It was only argument but it was a beginning.

Finally in 1798, 200 years ago, we find the first recorded incidence of a jury instructionon reasonable doubt. As mentioned in the opening paragraph, Judge Chamberlin, sitting in Dublin, Ireland, used reasonable doubt in a notorious treason case against a Mr. Finney and then refined his words in the trial of the co-defendant, a Mr. Bond, tried later that year. The information about their trials comes to us, not from any official transcript, but rather from a book written in 1824 by Leonard McNally, one of the defendant’s attorneys. The jury, we learn, was instructed in the first trial (Finney’s) that they were to be satisfied beyond the probability of doubt. Moreover, that if they had a doubt and if their minds were in a state of oscillation, they ought to acquit. July when the companion (Bond) was tried, Judge Chamberlin went farther and instructed the jury by saying, “However trite it may be, I must remind you of the maxim founded in humanity, that if you have any rational doubt, then, as fair and honorable men, you must acquit.” The language of the two trials taken together sounds familiar to us even today.

In the United States, Chief Justice Shaw in the case of Commonwealth v. Webster, 59 Mass 5 Cush.320 (1850), further refined the prevailing and evolving definition. His language sounds even more familiar. “Reasonable doubt,” he said, is “that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. . . the evidence must establish the truth of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment.”

It is time to admit that the words of the two judges have served their purpose. We can breathe new life into the concept of reasonable doubt and minimize the confusion in the minds of our contemporary jurors. Our poor traditional definition survives not from lack of talent or intelligence on our part; it survives from our lack of attention to detail and our laziness. We can do better if we try. With crime at an all-time high, we must try.

I once gave a college paralegal class one week to come up with phrases and concepts that might better describe reasonable doubt.

“Reasonable doubt is a logical skepticism or continuing uncertainty,” said one student, Debbie Morgan. She went on to suggest that if a juror has a strong and unshakable belief of guilt based on good judgment and consideration of the evidence, conviction would be appropriate.

Another student, Earlene Montgomery, said that reasonable doubt, “means to be convinced by the evidence of guilt to a rational common sense degree of belief or certainty. If the evidence presented although incapable of dispelling all doubts leaves a fair sound basis on which to rest a verdict, the defendant could be found guilty.”

Not bad for college students. Not bad for only one week’s effort.

Conclusion and Requiem

We probably do not need to define reasonable doubt. Its two words are of common usage and understandable.

That solution is too simple and, I realize, totally unacceptable to the Bar and to Florida judges. If we must say something, let’s work toward a product that clarifies and elucidates.

We cannot do this alone. We will need the help of professionals in other fields. Logicians would educate us about the concepts of relative proof and probability. Linguists could tell us how long a spoken sentence can be before the mind can no longer understand or retain it. Grammarians could tell us where to put commas and periods. Any literate English-speaking person could tell us not to repeat the word we are defining within the definition itself. We as lawyers could figure out for ourselves that the use of words such as “conviction” in criminal cases should be confined to situations when a jury has rendered a verdict against a defendant. Psychologists could tell us.. . . Well, you get the point.

The time is now. A clear definition of the standard of proof would have a positive impact on our struggling criminal justice system. Nothing could be better for community confidence than to admit the errors of the past and not let our definition of reasonable doubt celebrate its 200th birthday.q

Bibliography and
Suggested Reading

Lewis Carroll, Alice’s Adventures in Wonderland (1867)
Sir William Blackstone, Commentaries on the Common Law (1765)
Samuel W. Mccart, Trial by Jury (1964)
Eugene C. Gerhart, the Lawyers’ Treasury (1956)
Frederick Pollock and F.w. Maitland, the History of English Law (Cambridge Univ. Press 1968) (1895)
Lois G. Forer, the Death of the Law (1975)
J.w. Ehrlich, a Reasonable Doubt (1964)
Richard W. Nice, a Treasury of Law (1964)
Lon L. Fuller, Anatomy of the Law (1968)
Bernard Schwartz, History of the Law in America (1974)
Barbara J. Shapiro, Beyond Reasonable Doubt and Probable Cause (1991)
Steve Bertsch, Crisis in Our Courts (1993)
Philip K. Howard, the Death of Common Sense (1994)
Sir Geoffrey Gilbert, the Law of Evidence
Jeremy Bentham, Rationale of Judicial Evidence
Mckinnon, Philosophy of Evidence
John Locke, Essay Concerning Human Understanding (Alexander Faser ed. 1959)
Leonard Mcnally, the Rules of Evidence on Pleas of the Crown (1802)
John Wigmore, Treatise of the Anglo-American System of Evidence (1940)
John Wigmore, the Principles of Judicial Proof as Given by Legal, Psychological and General Experience (2d ed. 1931)
R.w. Fox, Expediency and Truth-Finding in the Modern Law of Evidence
John Kaplan, Decision Theory and the Fact Finding Process, 20 Stanford L. Rev. 1065 (1968)
Anthony Moarano, A Reexamination of the Reasonable Doubt Rule, 55 Boston L. Rev. 507 (1975)

Lawrence V. Johnston III is an 18th Judicial Circuit Court judge who will be retiring this year. He was first elected to the bench in 1981. He has been a prosecutor, public defender, municipal judge, county court judge, and a circuit court judge.

This column is submitted on behalf of the Criminal Law Section, Claire K. Luten, chair, and Randy E. Merrill, editor.
©1998 Lawrence V. Johnston

Criminal Law