Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

We all know that, when a criminal lawyer has to defend a case where the facts are all against him, his uniform and too often unfailing resource is the law.  Upon this he falls back. The doctrine of ‘reasonable doubt’ is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported ‘dicta’ of the text-writers, made perhaps in support of a theory of what the law ought to be, rather than as proof of what it has been authoritatively declared to be, are hunted up with untiring zeal. These are reenforced by a series of cases – fabulous and authentic – scattered through the musty annals of crime, in which, it is said that innocent persons have been convicted. The whole mass of bewildering definitions, extravagant ‘dicta,’ astounding facts, or fictions, as the case may be, is then arrayed with greater or less skill, according to the ability of counsel, and paraded before the jury with pathetic solemnity. Of course, the object of all of this is to confound and befog; to bring the jury into that state of amazement, apprehension and uncertainty, which will disqualify them to deal calmly and rationally with the facts of the case before them….1John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 662-663 (1876).

In common law and hybrid systems where the proceedings are adversarial defense lawyers are ethically bound to represent zealously their clients. This duty is universally recognized in virtually all national and international codes of professional ethics.2See, for example, The United States (“US”), American Bar Association Model Rules, Rule 1.3: “act with reasonable diligence and promptness in representing a client”; The United Kingdom (“UK”), Board Standard Bar Handbook, CD7: “to provide a competent standard of work and service to each client.” France, Decision of 12 July 2007 on the adoption of the National Internal Regulations of the Legal Profession, Art. 1.3; Germany, The Rules of Professional Conduct (2013), para. 11 (although The Rules do not use the term “diligence”, they oblige lawyers to act with “promptness” in relation to client’s inquiries and requests). In the international context, where the tribunals and courts tend to be hybrid with party-driven adversarial proceedings “[t]he requirement of due diligence includes the appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.” Prosecutor v. Tadić, IT-94-1, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 47. Defence Counsel must also bring “any difficulties in relation to obtaining evidence on behalf of the accused . . . to the attention of the Trial Chamber.” Prosecutor v. Krstić, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 5.  Zealous representation includes raising every conceivable doubt by every conceivable acceptable means.  Cynical as it may seem from Judge John W. May’s observation, raising reasonable doubt during the presentation of the evidence is an essential obligation.  Fittingly, Judge May notes just how confusing it can be to establish what constitutes the standard of proof beyond a reasonable doubt (hereinafter “the reasonable doubt standard”), despite its existence as the requisite standard of proof over the past few centuries.

In the previous blog post, I introduced the various terms and definitions necessary for the discussion on the standards and burdens of proof.  As a background to the discussion to follow, this post provides a brief overview of how the common and civil law systems split off and evolved over centuries, and how the reasonable doubt standard came about.  I will touch upon the in dubio pro reo principle and its relation to the reasonable doubt standard. I will then show that, to this day, despite its broad acceptance and application in the common law systems around the world, there is no uniform definition of reasonable doubt.

Historians and legal scholars have attempted to trace the origins and evolution of the reasonable doubt standard jurisprudence to determine where this standard stems from, how and why it was developed, how was it defined, and how was it applied in different historical periods.  There is a virtual consensus as to the first recorded use of reasonable doubt standard – in the 18th century in the American colonies. However, there is no uniform point of view among scholars as to why and how the reasonable doubt standard was conceived. Scholars take different and sometimes contradictory positions.3See generally James Q. Whitman, The Origins of “Reasonable Doubt” Yale University Press (2008) (hereinafter “Whitman”); Anthony Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B. U. L. Rev, 507 (1975) (hereinafter “Morano”); John H. Langbein, The Origins of Adversary Criminal Trial, Oxford (2003) (hereinafter “Langbein, Adversary Criminal Trial”); Barbara J. Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American law of Evidence, Berkley: University of California Press (1991) (hereinafter, “Shapiro, Doubt”); Steve Sheppard, The Metamorphosis of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 Notre Dame L. Rev. 1165 (2003).

For instance, Professor Anthony A. Morano suggests that it was actually “a prosecutorial innovation that had the effect of decreasing the burden of proof in criminal cases.”4Morano, p. 517.  Contrastingly, according to historian John H. Langbein, the reasonable doubt standard was developed in England in the mid-1780s as part of an effort to create procedural protections of the accused, “in association with the ripening adversary system.”5Langbein, Adversary Criminal Trial, p. 33.  Professor Barbara J. Shapiro finds origins of the reasonable doubt standard in the seventeenth century philosophy of reason, as an effort to find “moral certainty.”6Shapiro, Doubt, p. 4.  Professor James Q. Whitman argues that although the reasonable doubt standard emerged during the course of the seventeenth and eighteenth centuries (as others also conclude), its origins can be traced to the Middle Ages, originally conceived not for the protection of criminal accused, but rather for the “souls of the jurors.”7Whitman, p. 3.

Whitman’s analysis deserves high praise for his extensive research of Christian history and practices, and the influence theology had on the emergence and development of the reasonable doubt standard. He traces back to the pre-modern Christian theology of judging.  And by bringing together the history of the common law jury trial and of continental inquisitorial criminal procedure, Whitman provides an interesting analysis of the role of religion in the history of law.

I also find sufficiently persuasive and worth examining the research and interpretations of other scholars such as Morano, Langbein, and Shapiro. Although the conclusions of scholars vary, there is a substantial overlap in details and the overall historical narrative.  The dispute focuses on interpretations and emphasis.  Consequently, in providing this brief historical survey of the reasonable doubt standard, I drew from various scholarly sources.

Early history

The roots of the concept of doubt dates back to ancient times.  Actually, the history of doubt can be traced back to the work Problemata, which is attributed to Aristotle (384 – 322 BC).8Daniel Epps, The Consequences of Error in Criminal Justice, 128(4) Harv. L. Rev. 1065, 1077 (2015). The authorship of Problemata is disputed; the time frame in which it was probably written ranges from the third century BC to the sixth century AD. See Ann Blair, Authorship in the Popular “Problemata Aristotelis”, 4(3) Early Science and Medicine 189-227 (1999). The chapter titled “Problems connected with Justice and Injustice” provides:

Further, anyone of us would prefer to pass a sentence acquitting a wrong-doer rather than condemn a guilty one who is innocent, in the case, for example, of a man being accused of enslavement or murder. For we should prefer to acquit either of such persons, though the charges brought against them by their accuser were true, rather than condemn them if they were untrue; for when any doubt is entertained, the less grave error ought to be preferred; it is a serious matter to decide that a slave is free, yet it is much more serious to convict a freeman of being a slave.9Aristotle, Problemata, Bk. XXIX (emphasis added); translated in E.S. Forster, The Works of Aristotle Vol. VII Problemata 951b (J.A. Smith and W.D. Ross eds., Clarendon Press 1927).

In the Roman Digesta (a series of books compiled between 530 and 533 AD at the request of Emperor Justinian and form part of the Corpus Iuris Civilis)10On Roman law materials, see Joël E. Goudsmit, The Pandects: A Treatise On The Roman Law And Upon Its Connection With Modern Legislation 1 (The Lawbook Exchange 1873). it is said that: “In doubtful matters, the more benevolent opinion is to be preferred….The condition of the defendant is to be favored rather than that of the plaintiff.”11“Semper in dubiis benigniora praeferenda sunt,” Corpus Iuris Civilis, Digesta, D.50.17.56 (Gaius 3 de legatis ad ed. urb.); “Favorabiliores rei potius quam actors habentur,” Corpus Iuris Civilis, Digesta, D.50.17.125 (Gaius 5 ad ed. provinc.), available at http://www.thelatinlibrary.com/justinian.html (unofficial translation by author).

These are some of the earliest references to the burden of proof that, as some scholars argue, would later develop into proof beyond a reasonable doubt and the in dubio pro reo principle.  The ancient Greek and Roman ideas were elaborated by medieval canon lawyers centuries later and became basis of numerous canon texts.12J. H. Baker, An Introduction to English Legal History 73 (4th ed., Butterworths 2002) (hereinafter “Baker”), p. 5. For more on the history of medieval canon law, see James Brundage, Medieval Canon Law (Routledge 1995).

In the fourth century Christianity became a state-approved religion, and the Christian bishops assumed powers of administration and judging in criminal matters that usually resulted in blood punishments. This raised a problem for Christian theologians who viewed any bloodshed as a pollution of one’s soul requiring purification.  Saint Augustine of Hippo (4th century AD) discussed this problem, stating that “when a man is killed justly, it is the law that kills him, not you.”13Whitman, p. 47, citing Patrologia Latina vol. 34, p. 707.

Saint Augustine’s passage became the basis of numerous canon texts of the Middle Ages and played a role in the abolition of the ordeals – judicially sanctioned blood punishments.14Favorabiliores rei potius quam actors habentur,” Corpus Iuris Civilis, Digesta, D.50.17.125 (Gaius 5 ad ed. provinc.), available at http://www.thelatinlibrary.com/justinian.html  (unofficial translation by author). The abolition of ordeals is viewed by many as a watershed moment and the beginning of the western legal tradition.15See Whitman, p. 39; Shapiro, Doubt, p. 3.

imagecucking_stoolOrdeals were procedures for invoking the “judgment of God” to determine the fate of an accused of a crime.  Most typical ordeals involved “hot iron” or “cold water.”  The ordeal of hot iron required the accused to hold a piece of red-hot iron.  The burnt hand was bound and examined after three days: if the burn was healing, it was taken as a sign of innocence and the person was acquitted.  The ordeal of cold water involved an accused being thrown into water: accused who sank were acquitted, and those who floated were deemed guilty and punished.  A priest was present during the procedure and would pray to God to bless the water or iron and to deliver his judgment.16Baker, p. 5. For more on history of trial by ordeal, see Thomas P. Gallanis, Ordeal: English Common Law, in 4 Oxford Encyclopedia of Legal History (Stanley N. Katz ed., Oxford University Press 2009). Ordeal_of_boiling_water-615x401

In 1215, after several decades of agitation by church reformers, the Church forbade priests to participate in ordeals, which meant they were effectively abolished.17Baker, p. 5.  The abolition of ordeals caused a formative crisis in adjudication that influenced the body of rules.  In England and on the Continent, there were two different responses to this crisis that explain how the common and civil law systems split off.  On the Continent, where inquisitorial procedure had been developing over the course of the twelfth century, ordeals were replaced by the Romano-canon inquisition process.  In England, where an early form of the jury had been introduced in the late twelfth century, the ordeals were replaced by the jury trial.18Shapiro, Doubt, p. 4.

Civil law system (inquisition process)

The inquisition process put the judge in charge of all steps in criminal proceedings: from initiation the action to the investigation of facts and determination of guilt or innocence.19Shapiro, Doubt, p. 4. It employed highly rationalized procedures and required “full proof” that had to be “’clearer that the light of the midday sun.’”20Whitman, p. 115, citing Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern, Naples, (1979), p. 3-5.  The full proof was defined by clearly specified evidentiary standards of the quality and quantity of proof.21Shapiro, Doubt, p. 4.

The judge was “an accountant of who totaled the proof fractions.”22Shapiro, Doubt, p. 4.  For instance, two good trustworthy eyewitnesses or confession would have high evidentiary value to constitute full proof.  The testimony of two witnesses was rarely available; therefore, continental law sought a confession through torture.  The torture could not be ordered unless there was “semiplena probatio” or “half-full proof.”23Whitman, p. 115, noting that persons of high social standing (members of the nobility and the like) could not be tortured at all.  To determine whether there was half-full proof, judges were to follow the rigidly specified rules for the weighing of evidence.  The technical term for such evidence was “indicium” or “proof.”  Inquisitorial procedure was “highly rule-bound.”24Whitman, p. 115; Shapiro, Doubt, p. 4.  For example, judges were instructed to find “indicia indubitata” – “proof that did not permit of any doubt.”25Whitman, p. 115.  As canon lawyer Huggicio (13th century AD) stated, a “‘doubtful matter’ was a matter not proven by witnesses, or documents, or evidence such as confession.”26Whitman, p. 119.  Popes Clement III (1187–1191) and Innocent III (1198 – 1216) exhorted clergy to avoid the stain of bloodshed by following the “‘safer path’: in cases of doubt, ‘in dubiis’, one should act in such a way as to minimize the possibility of pollution.27Pope Clemens, Clemens III, Patrologia Latina vol. 204 [col. 1485D]. Pope Innocent III, the lawyer-Pope who presided over the Fourth Lateran Council, produced the classic formulation: “In dubiis via eligenda est tutior, i.e., “When there are doubts, one must choose the safer path.” cited in Whitman, p. 117.

The “moral theology of doubt lay at the very foundation of criminal procedure as the continental jurists developed it.”28Whitman, p. 118.  Whitman argues that the principle of “‘in dubio pro reo’ was the other side of the procedural coin that required proof ‘clearer than the midday sun’ before sending a person to blood punishment.”29Whitman, p. 100, citing Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern 3-5, Naples (1979).  The principle emerged from the “safer path” doctrine and created a form of protection for the accused that stemmed from the “fear that the judge might make himself into a ‘murderer.’”30Whitman, p. 100, citing Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern 3-5 Naples (1979).

Common law system (jury trials)

In England, an early form of the jury – presentment jury, was used in the late eleventh century before the abolition of ordeals.31Baker, p. 72-73. The presentment jury determined whether one had to submit to an ordeal, and spoke “about a defendant’s character [rather] than about his guilt or innocence.”32Shapiro, Doubt, p. 3, 5.  The abolition of ordeals meant that the jury would have to begin a system of formal inquiry.

By the thirteenth to fourteenth centuries jurors were “both gatherers and weighers of evidence. Witnesses do not seem to have appeared as a regular part of criminal prosecutions.”33Shapiro, Doubt, p. 4. Composed of the members from the local community, jurors were “self-informing” and expected to arrive at findings based on their personal knowledge of facts, their own investigation, and common knowledge and sense.

By the fifteenth century the development and increasing mobility of society modified the character of the jury trial.  Jurors no longer conducted their own investigations and their personal knowledge was not always sufficient to make the decisions without hearing evidence.  The role of the jury evolved to “listening to and assessing evidence introduced by private accusers and government officials.”34Shapiro, Doubt, p. 4; Morano, p. 511, citing Holdsworth, p. 334-36; James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 166-70 (Little, Brown and Co. 1898); Baker, p. 75; See also Shapiro, Doubt, p. 5, citing Kevin M. Teeven, Seventeenth-Century Evidentiary Concerns and the Statute of Frauds, 9 Adelaide L. Rev. 225 (1983).

By the sixteenth to seventeenth centuries jurors became passive viewers who had to rely on witnesses and documents, the judge’s questioning and accused’s response, the demeanor and witnesses’ testimony. The distinction between jurors and witnesses became clear: legislation provided a means to compel witnesses to testify and made them liable in case of perjury. As a result of the juror’s evolution towards passive observers and triers of fact, it became necessary to develop some rules and standards to guide jurors in their evaluation of the evidence given in court. This process was the beginning of the development of formal rules of evidence, including the reasonable doubt standard.35Shapiro, Doubt, p. 5-6.

The impact of 17th century philosophy on the standard of proof

By the seventeenth century Continental Europe and England developed a new philosophy moving away from theology and faith-based arguments.  This period in philosophy is also referred to as the Age of Reason or Enlightenment.  The philosophers of this period came to the view that all knowledge can be gained by the power of reason or through senses and experience, and developed new ideas about certainty and probability.36Shapiro, Doubt, p. 2, 6-7.

The highest level of knowledge of practical matters in human affairs was rational belief or moral certainty.  Rational belief was the highest category of mathematical knowledge, which could be established by logical demonstration, such as geometry proofs.37John Wilkins, Of the Principles and Duties of Natural Religion 6, London: J. Walthoe, J. Knapton (1734) (hereinafter “Wilkins”) (emphasis in original), available at https://archive.org/details/ofprinciplesduti00wilk. Moral certainty involved areas where mathematical certainty was not possible:

[I]ts Object such Beings as are less simple, and do more depend upon mixed Circumstances. Which though they are not capable of the same kind of Evidence … so as to necessitate every Man’s Assent, though his Judgment be never so much prejudiced against them; yet may they be so plain, that every Man whose Judgment is free from prejudice will consent unto them. And though there be no natural Necessity, that such things must be so, and that they cannot possibly be otherwise, without implying a Contradiction; yet may they be so certain as not to admit of any reasonable Doubt concerning them.38 Wilkins, p. 7.  See also Shapiro, Doubt, p. 8-9, discussing Locke’s and Wilkins’ categorization of knowledge and probability.  John Locke, Of the Degrees of Assent in An Essay Concerning Human Understanding, Bk. IV, Ch. XVI, section 6, 7(II) (1690) available at http://enlightenment.supersaturated.com/johnlocke/BOOKIVChapterXVI.html.

The prevalent philosophical understandings about knowledge and certainty affected the law and shaped standards of proof.  By the late seventeenth century, jurors were weighing the credibility of witnesses.39Shapiro, Doubt, p. 13.  Credibility issues were significant in criminal trials and drove standards for the verdict. It is not clear whether the jury charges in the cases of the seventeenth century that have survived articulate the applicable standard of proof.40Langbein, Adversary Criminal Trial, p. 264.  Jury charges in cases from the 1660s contain phrases such as: “if you believe,” “if you are satisfied with the evidence,”416 State Trials, 67, 82; 6 State Trials, 530, 559. “belief,” and “satisfied conscience.”426 State Trials, 566, 614, 615.  Some scholars, such as Morano and Shapiro, refer to the standard of proof at that time as the satisfied conscience standard.43Shapiro, Doubt, p. 14; Morano, p. 511.  Langbein refers to Shapiro to argue that early jury instructions required jurors to achieve a satisfied conscience, as opposed to absolute certainty, whereas Whitman argues that Shapiro read the cases in a limited way, focusing on the epistemology and proof as the law of satisfied conscience, while the correct approach would be to focus on the moral responsibility of a judge and the law of safe conscience.44Langbein, Adversary Criminal Trial, p. 264, n. 52; Whitman, p. 166.

Scholars advance different viewpoints whether the satisfied conscience standard was higher or lower compared to the reasonable doubt standard.

According to Shapiro, the new philosophical ideas, especially moral certainty, shaped the new criteria for evaluating facts and testimony.45Shapiro, Doubt, p. 11.  In her view, satisfied conscience was viewed as a rational belief and eventually became the secular moral standard of belief beyond a reasonable doubt.  Shapiro explains that during the seventeenth century, the concern for evaluating evidence “was encapsulated in ‘satisfied conscience’, or ‘satisfied belief’, formulas” related, among other things, to the moral and religious obligations of jurors serving under oath.  During the late seventeenth and eighteenth centuries it became evident that trial by jury required the critical evaluation of witnesses.  Legal thinkers referred and adopted the religious and philosophical ideas dealing with matters of fact.  Shapiro concludes that the reasonable doubt standard was not a change in the required standard of proof, but rather “a clarification of the notion of moral certainty and satisfied belief.”46Barbara J. Shapiro, To a Moral Certainty: Theories of Knowledge and Anglo-American Juries 1600-1850, 8 Hastings L.J. 153, 172 (1986). 

According to Morano, the satisfied conscience standard meant “jurors were to convict the accused only if they were satisfied in their consciences that he was guilty; … unless [jurors] were morally certain of the correctness of a guilty verdict, they would violate their oath if they failed to acquit.”47Morano, p. 511-512.  In Morano’s interpretation, under the satisfied conscience standard, jurors were bound to acquit if they entertained any doubts.  Therefore, in order to prove its case, the prosecution was required to convince the jury beyond all doubts, making convictions very difficult to secure.  Morano concludes that the reasonable doubt standard was introduced to “minimize this advantage and to restore the balance between the defendant and the prosecutor.”48Morano, p. 514.

According to Langbein, the reasonable doubt standard may be connected to the emergence of defense lawyers, who developed evidentiary and other practices to protect the accused.49Langbein, Adversary Criminal Trial, p. 262-263.  He observes that “[a]n English jury could convict on whatever evidence persuaded it, it could still convict on less evidence than was required as a precondition for investigation under torture on the Continent.”50John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime 138, University of Chicago Press (1976).  In Langbein’s view, it seems “impossible to square with a high standard of proof.”51Langbein, Adversary Criminal Trial, p. 262.

Considering that there is little information about the standard of proof prior to the seventeenth and early eighteenth centuries, it is unsurprising that scholars interpret the early practices in different ways. Most scholars agree that the reasonable doubt standard was conceived in the seventieth century.  Undoubtedly, the secular philosophical ideas were the catalyst for the development of the reasonable doubt standard.

First recorded use of the reasonable doubt instruction and gradual crystallization of reasonable doubt standard of proof

Scholars agree that the term reasonable doubt seems to have first appeared in the Boston Massacre Trials, Rex v. Preston and Rex v. Wemms,52A comprehensive account of the Boston Massacre Trials can be found in Legal Papers of John Adams, L. Kinvin Wroth and Hiller B. Zobel, eds. (Cambridge, Mass.: The Belknap Press of Harvard University Press 1965), (hereinafter “Legal Papers of John Adams”). of 1770 in the American Colonies.53Shapiro, Doubt, p. 22; Morano, p. 516. The parties’ closing arguments and the judge’s instructions to the jury in Preston were not reported so there is no confirmation whether the reasonable doubt standard was actually applied in this case.

On 5 March 1770 in Boston, a patrol of British soldiers was confronted by the crowd of Bostonians.  The soldiers of the patrol were provoked into firing at the crown, killing five people.  This resulted in the indictment of the patrol’s leader – Captain Preston – and eight soldiers.  John Adams (who would go on to become the second President of the United States of America) appeared for the defense.  On the other side, arguing for the Crown, was Robert Treat Paine.  Adams, defending the British soldiers, argued in his closing arguments that “the best rule in doubtful cases, is, rather to incline to acquittal than conviction…. If you doubt the prisoner’s guilt, never declare him guilty…”54Legal Papers of John Adams, Vol. 3, p. 243.  Paine agreed that jurors had to acquit if they had doubts; however, he argued that their doubts must be reasonable:

If therefore in the examination of this Cause the Evidence is not sufficient to Convince you beyond reasonable Doubt of the Guilt of all or any of the Prisoners by the Benignity and Reason of the Law you will acquit them, but if the Evidence be sufficient to convince you of their Guilt beyond reasonable Doubt the Justice of the Law will require you to declare them Guilty…55Legal Papers of John Adams, Vol. 3, p. 271.

The judges’ instructions to the jury were only partially preserved so it is not clear if they used the reasonable doubt language.56Morano, p. 517.  Chief Justice Matthew Hale instructed the jury: “Where you are doubtful, never act; that is, if you doubt the prisoner’s guilt, never declare him guilty; this is always the rule, especially in cases of life.”57Legal Papers of John Adams, Vol. 3, p. 243.  Superior Court Justice Peter Oliver instructed the jury that “if upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent.”58Legal Papers of John Adams, Vol. 3, p. 309, (emphasis added).

The next spate of cases using reasonable doubt language in jury instructions comes from the Old Bailey (criminal court of London) in the mid-1780s. The reports of the eighteenth century trials are more detailed and include judge’s comments summing up the evidence.  In their comments, judges would occasionally provide guidance for the jurors to follow during their deliberations.  For instance, judges would instruct the jury to acquit if:

  • “you think there is any reasonable cause for doubt”59Trial of John Clarke, The Proceedings of the Old Bailey, Ref: T17831210-4.
  • “on viewing the evidence any reasonable doubt remains on your minds”60Trial of John Higginson, The Proceedings of the Old Bailey, Ref: T17830430-67.
  • “there is a reasonable doubt”61Trial of Richard Corbett, The Proceedings of the Old Bailey, Ref: T17840707-10.
  • “if you see any reasonable doubt”62Trial of Joseph Rickards, The Proceedings of the Old Bailey, Ref: T17860222-1.

With different judges formulating the degree of proof differently and using the term reasonable doubt inconsistently, the reasonable doubt standard of proof does not appear to have crystallized as the standard yet.

It was not until the nineteenth century that reasonable doubt as a standard of proof was incorporated into the US jurisprudence.  US states gradually accepted the reasonable doubt standard in their own time.63To trace the development of the reasonable doubt standard in different US States, see Morano, p. 520-21; Shelagh Kenney, Note, Fifth Amendment Upholding the Constitutional Merit of Misleading Reasonable Doubt Jury Instructions, 85(4) J. Crim. L. & Criminology 989, 989-95 (1995).

One of the most famous reasonable doubt cases of the time comes from the Supreme Court of Massachusetts.  The 1850 case of Commonwealth v. Webster,64Commonwealth v. Webster, 59 Mass. 295 (1850) (hereinafter “Webster”). was a trial of a Harvard professor of chemistry, Dr. John Webster, for the murder of his colleague and a well-known professor Dr. George Parkman. Chief Justice Lemuel Shaw gave the jury instruction at the trial, and its portions on reasonable doubt have become legendary:

Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It 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 burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary, but 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, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.65Webster, at 320 (emphasis added).

Chief Justice Shaw’s definition of reasonable doubt went on to be widely adopted by other courts, and was discussed and considered by the US Supreme Court.

One of the first cases in which the US Supreme Court addressed the issue of the definition of the reasonable doubt standard was Miles v. United States.66Miles v. United States, 103 U.S. 304, 312 (1881) (hereinafter “Miles”).  As one of the grounds of error, the petitioner referred to the jury instruction defining reasonable doubt:

The prisoner’s guilt must be established beyond reasonable doubt.  Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests.67Miles, at 309.

The US Supreme Court found no error in this instruction, although it explicitly recognized the dangers of attempting to define the term reasonable doubt. Relying on several state cases, including Webster, the Court reasoned:

Attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury. The language used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority.68Miles, at 312, citing Webster; Arnold v. State, 23 Ind. 170 (1864); State v. Nash, 7 Iowa 347 (1858); State v. Ostrander, 18 Iowa 435 (1865); Donnelly v. State, 26 N.J.L. 601 (1857); Winter v. State, 20 Ala. 39 (1852).

In Hopt v. Utah,69Hopt v. Utah, 120 U.S. 430 (1887) (hereinafter “Hopt”). This appeal arose out of Hopt’s fourth conviction for the murder of John F. Turner. The three previous convictions had each been overturned by the US Supreme Court. The repeated appeals led to a total time span of seven years between the murder and Hopt’s execution, which frustrated the people of Utah and caused the public lynching of five alleged criminals. See Kimberly S. Hanger, The Frederick Hopt Murder Case: A Darker Side of Utah Territorial History, 6(0) UCLA Hist. J. 83 (1985). similarly dealing with the issue of an erroneous jury instruction at trial, the US Supreme Court criticized Webster, noting that “the words ‘to a reasonable and moral certainty’ add nothing to the words ‘beyond a reasonable doubt;’ one may require explanation as much as the other.”70Hopt, at 440.

The US Supreme Court regarded with favor the trial judge’s reference to weighty and important concerns in the jurors’ lives,71Hopt, at 441. – “…willing to act upon in the more weighty and important matters relating to your own affairs…”72Hopt, at 439. – approving of the use of analogies when instructing juries on the meaning of reasonable doubt.

The reasonable doubt standard in the US

A watershed moment for the reasonable doubt standard occurred in 1970, when the US Supreme Court in In re Winship granted the reasonable doubt standard constitutional status.73In re Winship, 397 US 358 (1970) (hereinafter “Winship”).

In Winship, the US Supreme Court dealt with the issue of “whether proof beyond a reasonable doubt is among the ‘essentials of due process and fair treatment’ required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.”74Winship, at 359.  In that case, the State of New York set a standard for juvenile criminal proceedings by “preponderance of evidence.”75Winship, at 360.  The US Supreme Court explicitly held that “the Due Process Clause [of the Fourteenth Amendment to the US Constitution76The Fourteenth Amendment to the US Constitution provides that no State “shall deprive any person of life, liberty, or property, without due process of law.” ] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”77Winship, at 364.

The Court put forward two reasons to support its holding.  First, the Court reasoned that the reasonable doubt standard “is a prime instrument for reducing the risk of convictions resting on factual error” since “[it] provides concrete substance for the presumption of innocence, … because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.”78Winship, at 363.  Second, the Court reasoned that the reasonable doubt standard is “indispensable to command the respect and confidence of the community in applications of the criminal law,” giving individuals the confidence that “[their] government cannot adjudge [them] guilty of a criminal offence without convincing a proper factfinder of [their] guilt with utmost certainty.”79Winship, at 364.

The Court did not define reasonable doubt; nor did it address the issue of whether the reasonable doubt standard should be explained to the jury and to what extent.  The reasonable doubt standard was constitutionalized with little consideration of its operation and effect.  The failure to address the relationship or conflict between the reasonable doubt and the ideas reflected in such terms as certainty and moral certainty, has led the US Court to revisit the issue and discuss the reasonable doubt instructions in Cage v. Louisiana,80Cage v. Louisiana, 498 U.S. 39 (1990) (hereinafter, “Cage”). and Victor v. Nebraska.81Victor v. Nebraska, 511 U.S. 1 (1994) (hereinafter “Victor”).

In Cage, the US Supreme Court invalidated the trial court’s use of the terms “substantial doubt” and “grave uncertainty” in describing reasonable doubt, finding the trial jury instruction unconstitutional.82Cage, at 39. The Court reasoned that “[w]hen those statements are then considered with reference to “moral certainty,” rather than evidentiary certainty, it becomes clear that a responsible juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.”83Cage, at 41.

In Victor, the US Supreme Court revisited the problems of reasonable doubt instructions.  Victor was a consolidated case considering jury instructions from California and Nebraska.84State v. Victor, 235 Neb. 770 (1990); People v. Sandoval, 4 Cal. 4th 155 (1992).  The two individual petitioners appealed the constitutionality of their respective jury instructions defining reasonable doubt.  The argued that these instructions, which included references to “moral certainty,” “substantial” and “grave” doubts, and “strong probabilities,” overstated the degree of doubt necessary for acquittal and therefore unconstitutionally lowered the prosecutions’ burden of proof.85Victor, at 14-22.

On appeal, the US Supreme Court reaffirmed the convictions by majority.  The Court held that the Constitution neither prohibited nor required trial courts to define the term reasonable doubt.86Victor, at 26.  Justice O’Connor, delivering the judgment for the majority, noted that no particular form of words is required in jury instructions; “[r]ather ‘taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.’”87Victor, at 5.

Regarding the use of term “moral certainty”, the Court stated that it “do[es] not condone the use of the phrase”88Victor, at 16. and “do[es] not countenance its use[;]” however, the inclusion of the phrase did not render the instructions unconstitutional.89Victor, at 21-22.

The Court approvingly noted that the Webster definition was “probably the most satisfactory definition given to the words ‘reasonable doubt’ in any case known to criminal jurisprudence.”90Victor, at 7.  While acknowledging that the term moral certainty “might not be recognized by modern jurors as a synonym for ‘proof beyond a reasonable doubt,’” the Court found that the use of the term did not make the instruction unconstitutional.

In a concurring separate opinion, Justice Ginsburg made some keen observations.  She took the view that the “hesitate to act” language, the analogy used in Victor’s jury instruction, was particularly confusing, noting judicial criticism of this language.91Victor, at 24.  Justice Ginsburg rightly noted that despite the many attempts by trial judges to define the reasonable doubt standard, a clear definition remained wanting.92Victor, at 26. She recommended the model instruction put forward by the Federal Judicial Center:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.93Victor, at 27, citing Pattern Criminal Jury Instructions, Report of the Subcommittee on Pattern Jury Instructions, Committee on the Operation of the Jury System, Judicial Conference of the United States Federal Judicial Center (1987), instruction 21.

Dissenting, Justice Blackmun maintained that “[a]ny jury instruction defining ‘reasonable doubt’ that suggests an improperly high degree of doubt for acquittal or an improperly low degree of certainty for conviction offends due process.”94Victor, at 29. He noted the US Supreme Court’s finding in Cage that “the phrases ‘actual substantial doubt’ and ‘grave uncertainty’ suggested a ‘higher degree of doubt’ than is required for acquittal under the reasonable-doubt standard; … [T]hose phrases taken together with the reference to ‘moral certainty,’ rather than ‘evidentiary certainty,’ rendered the instruction as a whole constitutionally defective.”95Victor, at 30-31.  Regarding the use of the phrase “moral certainty,” Justice Blackmun believed that this phrase was especially dangerous because it was used in conjunction with language that already overstated the degree of doubt necessary to convict.96Victor, at 37.

The one point on which all of the opinions in Victor agreed was that “moral certainty” was a confusing term.  Despite repeated characterizations of the reasonable doubt standard as “vital,” “indispensable,” and “fundamental,”97Winship, at 363-64. the Court did not take an opportunity to provide a definition of the reasonable doubt standard.  As a result, the post-Victor lower courts have continued to disagree on the constitutional sufficiency of various formulations of reasonable doubt instruction, making the confusion even greater.

Robert C. Power in his excellent analysis of the jury instructions of various Federal Courts of Appeal (or Circuit Courts)98The US Federal Courts of Appeals (or Circuit Courts) are the intermediate appellate courts of the US federal court system.  A Court of Appeals decides appeals from the district courts located within its federal judicial circuit. There are eleven judicial circuits, which are not bound by decisions of the other circuits. shows subtle but potentially significant differences in four areas: (1) Reasonable doubt (RD) and beyond a reasonable doubt (BRD); (2) Subject (who); (3) Verb (action); and (4) Object (which matters).99Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 75-76 (1999-2000) (hereinafter “Power”). The chart is reproduced as presented in Power’s article, including the citations to column 1 “Circuit”.

Power’s chart shows that some of the instructions call on jurors to consider how an objective “reasonable person” would interpret the evidence.  By contrast, other instructions call on jurors to consider their own personal opinion on the evidence, presented in Power’s chart as “you.”  Power notes that there is no practical distinction between the “reasonable person” or “you,” as the courts acknowledge that in any event jurors will inevitably self-identify with the “reasonable person.”100Power, p. 77, citing, inter alia, United States v. Ivic, 700 F.2d 51, 68-69 (2d Cir. 1983).  Power demonstrates the wide range of language tolerated in US Federal Courts in defining reasonable doubt:

  • What “you” (as a juror) personally:
    • Would be “willing to rely and act” upon in the “most important of your own affairs”;
    • Would “not hesitate to rely and act” upon in your “most important decisions”;
    • Would be “willing to rely and act upon it” in the “more important of your own personal affairs”;
    • Would be “willing to rely and act upon it without hesitation” in the “most important of your own affairs”;


  • What would cause a “reasonable and prudent man” to “hesitate and pause” in the “graver and more important transactions of life”;


  • What would cause a “reasonable person”:
    • To “hesitate to act in a “transaction of importance and seriousness”;
    • “Not hesitate to rely and act upon” in the “most important of his own affairs”;
    • “Not to hesitate to rely and act.”


  • What would cause a “reasonably prudent person” to “hesitate” in their “more important affairs.”

Perhaps the only consistent element across the Circuits after Victor is that the Courts will assess the constitutional validity of an impugned jury instruction as a whole, and not based on its individual elements.  However, while this assessment may be the theory, in practice it is not applied consistently across the Circuits. 

The reasonable doubt standard in the United Kingdom (England and Wales)

In the United Kingdom (“UK”) the higher courts suggest that judges should generally abstain from providing juries with a definition.

In Miller v. Minister of Pensions (1947), in often-quoted dicta, Lord Alfred Denning gave the following description of the reasonable doubt standard:

It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.101Miller v Minister of Pensions [1947] 2 All ER 372, at 373-4.

In Regina v. Summers (1952), the UK Court of Criminal Appeal held that it is advisable not to instruct the jury on the definition of reasonable doubt, since the explanation results in more confusion.102Regina v. Summers, [1952] 1 All E.R. 1059 (hereinafter “Summers”). Despairing of definitions, Lord Chief Justice Goddard made some observations on the use of the expression reasonable doubt:

I have never yet heard any court give a satisfactory definition of what is a “reasonable doubt,” and it would be very much better if that expression was not used.  Whenever a court attempts to explain what is meant by it, the explanation tends to result in confusion rather than clarity.  It is far better, instead of using the words “reasonable doubt” and then trying to say what is a reasonable doubt, to say to a jury: “You must not convict unless you are satisfied by the evidence given by the prosecution that the offence has been committed.” The jury should be told that it is not for the prisoner to prove his innocence, but for the prosecution to prove his guilt, and that it is their duty to regard the evidence and see if it satisfies them so that they can feel sure, when they give their verdict, that it is a right one.103Summers, at 1059-60.

Lord Chief Justice Goddard reaffirmed his opinion regarding the risk of confusion in defining reasonable doubt in Regina v. Hepworth & Fearnley (1955).104Regina v. Hepworth & Fearnley, [1955] 2 Q.B. 600 (hereinafter “Hepworth & Fearnley”). Noting that “[a] case is never proved if any jury is left in any degree of doubt,”105Hepworth & Fearnley, at 603.  Lord Chief Justice Goddard stated that it is more confusing for the jury to attempt to define reasonable doubt:

Another thing that is said is that the recorder only used the word “satisfied.” It may be, especially considering the number of cases recently in which this question has arisen, that I misled courts when I said in [Summers] … that I thought it was very unfortunate to talk to juries about “reasonable doubt,” because the explanations given as to what is, and what is not, a reasonable doubt were so very often extraordinarily difficult to follow, and it is very difficult to tell a jury what is a reasonable doubt. To tell a jury that it must not be a fanciful doubt is something that is without any real guidance. To tell them that a reasonable doubt is such a doubt as to cause them to hesitate in their own affairs never seems to me to convey any particular standard; one member of the jury might say he would hesitate over something and another member might say that that would not cause him to hesitate at all.  I, therefore, suggested that it would be better to use some other expression, by which I meant to convey to the jury that they should only convict if they felt sure of the guilt of the accused.106Hepworth & Fearnley, at 603, (internal citations omitted).

He further stated:

I should be very sorry if it were thought that cases should depend on the use of a particular formula or particular word or words.  The point is that the jury should be directed first, that the onus is always on the prosecution; secondly that before they convict they must feel sure of the accused’s guilt.  If that is done, that is enough.107Hepworth & Fearnley, at 604.

Lord Chief Justice Goddard concluded:

I hope it will not be thought that we are laying down any particular form of words, but we are saying it is desirable that something more should be said than merely “satisfied” – we think that the conviction should be quashed.108Hepworth & Fearnley, at 604.

In Regina v. Ching (1976), during the jury’s deliberations, although the case seemed to be of a type tried every day in many criminal courts, the jury had difficulty in reaching a verdict.109Regina v. Ching, 63 Cr. App. R. 7, 8 (1976) (hereinafter “Ching”). The judge provided additional instruction to the jury:

It is the duty of the prosecution to prove the charge on the whole of the evidence beyond a reasonable doubt.  A reasonable doubt, it has been said, is a doubt to which you can give a reason as opposed to a mere fanciful sort of speculation such as “Well, nothing in this world is certain nothing in this world can be proved.” As I say, that is the definition of a reasonable doubt – something to which you can assign a reason. It is sometimes said the sort of matter which might influence you if you were to consider some business matter. A matter, for example, of a mortgage concerning your house, or something of that nature.110Ching, at 8.

After this instruction the jury left the courtroom to deliberate, returning four minutes later with a verdict. On appeal, the appellant argued that this jury instruction resulted in a lower standard of proof.111Ching, at 8.

The Court of Criminal Appeals dismissed the appeal, reasoning that in most cases judges would be advised not to “attempt any gloss upon what is meant by ‘sure’ or what is meant by ‘reasonable doubt.’”112Ching, at 10. The Court recalled that in “the last two decades there have been numerous cases before this Court, some of which have been successful, some of which have not, which have come here because judges have thought it helpful to a jury to comment on what the standard of proof is.”113Ching, at 10.  Lord Justice Frederick Lawton, delivering the judgment, noted that experience “has shown that such comments usually create difficulties,” distinguishing, however, that this case was exceptional:

This is the sort of case in which, as I have already pointed out, the jury possibly wanted help as to what was meant by “doubt.” The judge thought they wanted help and he tried to give them some. He was right to try and that is all he was doing. He seems to have steered clear of the formulas which have been condemned in this Court such as “such doubt as arises in your everyday affairs or your everyday life” or using another example which has been before the Court, “the kind of doubts which you may have when trying to make up your minds what kind of motor car to buy.”114Ching, at 10.

The reasonable doubt standard in Canada

Similar to the courts in the UK, Canadian appellate courts have declined to define reasonable doubt.  The following case illustrates one trial judge’s definition, which the Canadian Supreme Court held to be deficient.

In Regina v. Brydon, the appellant was convicted of five counts of sexual assault.115Regina v. Brydon, [1995] 4 S.C.R., 253, para. 4 (hereinafter “Brydon”). After commencing deliberations, the jury sent a note to the trial judge requesting further instructions concerning the definition of reasonable doubt.  The trial judge instructed:

(i) …if you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt, you must give the benefit of that doubt to the accused; … (ii) …after examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty; … (iii) …if you are unanimous in that doubt you must give the benefit of that doubt to the accused.116Brydon, para. 5.

The Canadian Court of Appeal upheld the conviction, finding no reversible error in this jury instruction.117Brydon, para. 9.  The case went to the Canadian Supreme Court, which granted the appeal and ordered a new trial.118Brydon, para. 25.

The Canadian Supreme Court noted that questions from the jury must be answered in a “careful, complete and correct manner.”119Brydon, para. 16.  It reasoned that, “[i]n light of the importance of the burden of proof and reasonable doubt filter to the integrity and reliability of a verdict and to the fairness of an accused’s trial, a trial judge’s instructions must be careful, lucid and scrupulously sound.”120Brydon, para. 18.

The Court held that in assessing whether a trial judge’s instructions on the burden of proof amount to reversible error, a court must consider:

  1. whether the impugned instruction is inconsistent with what was said in the initial charge or is simply erroneous standing by itself; and
  2. whether, after placing the inconsistency or error in the context of the charge as a whole, there is a reasonable possibility that the jury might have been misled by those instructions into either applying a standard of proof less than proof beyond a reasonable doubt or improperly applying the burden of proof or reasonable doubt standard in arriving at their verdict.121Brydon, para. 19.

The Court considered that the first instruction of the trial judge, when read in the context of the entire jury charge, could not have misled the jury into applying a standard of proof less than the required standard of proof beyond a reasonable doubt.122Brydon, para. 21.  It considered that, although the second impugned instruction was confusing for the jury, “in itself [it] would not be sufficient to order a new trial.”123Brydon, para. 23.  However, the Court considered the third instruction, which instructed the jury that they must be unanimous in their doubt before they could acquit “[was] clearly an error.”124Brydon, para. 24.  The Court reasoned:

[W]hile a jury’s verdict had to be unanimous, jurors could arrive at that verdict by taking different routes.  This instruction tainted all of the trial judge’s earlier instructions on reasonable doubt…. coupled with the previous instruction, there is a reasonable possibility that the trial judge’s erroneous instruction may have misled the jury into improperly applying the reasonable doubt standard in arriving at their verdict.125Brydon, para. 24-25.

The Court granted the appeal and ordered a new trial.126Brydon, para. 25.

Concluding observations

The brief historical survey in this blog post was aimed at showing the main highlights in the history of the standards of proof in criminal proceedings.  Both common and civil law systems appear to be influenced and shaped by canon law and ancient Christian theological doctrines.  After the division of the common and civil law systems in the twelfth century, the common law standard of proof evolved along with the evolution of the jury system; jurors became more detached and impartial, basing their verdict on the evidence presented at trial.  Hence the need for clearer evidentiary standards. The satisfied conscience standard, whether it was higher or lower than the reasonable doubt standard, became central to the development of a uniform evidentiary standard.

Another historical watershed event was the intellectual crisis of the seventeenth century. The philosophical debates of this period on knowledge, probability, and certainty served as the handmaiden to the development of the reasonable doubt standard.  By the eighteenth century the reasonable doubt standard gradually crystallized and became widely accepted by the mid-nineteenth century.

Its history is as complex and controversial as its defining features, which continue to confound and confuse jurists, lawyers, and academics in no short measure.  No judicial system adequately and fully explains the reasonable doubt standard.  No definition is flawless.

The US jurisprudence is rather telling.  Neither Winship nor Cage and Victor–the primary US Supreme Court cases addressing the constitutionality of jury instructions on reasonable doubt–provide a clear definition of the reasonable doubt standard.  This “constitutional vacuum” has caused uncertainty and a lack of clarity in the application of the standard of proof by US Federal and State courts.

In the UK and Canada, the judiciary has repeatedly tried to define reasonable doubt, but the higher courts have just as often found these definitions to be incorrect.  Common law systems, where jury instructions are central to criminal trials because the jury has to weigh the evidence and decide the facts, have not yet developed a definition that escapes criticism.

In the next post I will discuss in more detail common law and civil law procedures and their respective approaches to standards and burdens of proof: the reasonable doubt standard and intimate conviction.

Posts in this series: 

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV


About Author



Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

One thought on “Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo”

  1.  The final sentence above not beyond any doubt, but beyond reasonable doubt was held by the Victorian Court of Appeal to suggest to jurors that they may entertain a doubt, which is not a reasonable doubt , and on that basis proceed to convict the accused. This was held to be an error by the trial judge.  Mr Dookheea s conviction was set aside, and a retrial was ordered.  The case was appealed to the High Court, where the High Court found that in accordance with Green, it is both unnecessary and unwise for a trial judge to attempt to explain what is meant by beyond a reasonable doubt. However, the High Court concluded that while it may be unnecessary and unwise for a trial judge to contrast reasonable doubt with any doubt, it would not always result in a substantial miscarriage of justice.  In Dookheea, the High Court found that a substantial miscarriage of justice had not occurred because  

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