On 6 October 2017, I had the privilege to participate in a conference and roundtable discussion dedicated to the publication of “Doubt in favour of the defendant, guilty beyond reasonable doubt” hosted by the Organisation for Security and Cooperation in Europe (OSCE) Mission in Skopje, Former Yugoslav Republic of Macedonia (Macedonia). My contribution to the text was a historical analysis of the beyond reasonable doubt standard of proof and the principle of in dubio pro reo. My research paper was mainly a compilation and collation of the works of leading experts who have grappled with this issue, and an analysis of the jurisprudence and jury instructions of various common law jurisdictions and the practice of the European Court of Human Rights.
The beyond reasonable doubt standard of proof1My preferred definition and jury instruction is: proof beyond a reasonable doubt is proof of such a convincing nature that you are willing to rely and act on it, without hesitation, in your important affairs. This mirrors the Model Criminal Jury Instructions of the United States (U.S.) Court of Appeal for the Third Circuit: “A reasonable doubt is a fair doubt based on reason, logic, common sense, or experience. It is a doubt that an ordinary reasonable person has after carefully weighing all of the evidence, and is a doubt of the sort that would cause him or her to hesitate to act in matters of importance in his or her own life. It may arise from the evidence, or from the lack of evidence, or from the nature of the evidence.” The U.S. Court of Appeals for the Third Circuit, Model Criminal Jury Instructions, instruction 3.06 (last updated 2015). found in common law systems, as well as in hybrid systems of international(ized) criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia or the Extraordinary Chambers in the Courts of Cambodia, or in domestic hybrid systems, such as in Italy, Bosnia and Herzegovina, or Macedonia, has evolved and matured ever since it first came into existence several centuries ago. Its historical roots can be traced to the early Middle Ages when the Christian Church was involved in or had influence over matters related to crime and punishment (earthly or heavenly). The philosophical underpinnings on reason and probabilities that emerged from the Age of Reason and Enlightenment also played a significant role in the acceptance, if not development, of the beyond reasonable doubt standard.
Whatever catapulted the beyond reasonable doubt standard to the forefront as the preeminent and universally accepted standard of proof in common law systems is no more relevant today than the historical backdrop of how intimate conviction2Generally, intimate conviction can be described as the personal opinion the judge forms after inward reflection on the evidence discussed by the parties at trial. A definition from the French Cour d’Assise is illustrative: “The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?” See Code de Procédure Pénale, last amended by Act No. 2005-1550 of 12 December 2005, Art. 353 (unofficial translation available here). became the standard of proof in civil law systems. But what is relevant, is that there is no universally accepted definition. Framing a clear, concise, and consistent definition of the beyond reasonable doubt standard persists.
In judge-tried cases, the lack of a concise and universally accepted definition poses less of a dilemma. Judges, by virtue of their training and knowledge of the law and rules and principles of evidence, are expected to assess the testimonial and documentary evidence presented during a criminal trial and apply the requisite law in determining whether the prosecution has met its burden of proving the elements of the charged crimes. My good friend and colleague, Alan Yatvin, described a judge before whom he had often appeared on bench trials as having little visceral reasonable doubt, but possessed of perfect intellectual reasonable doubt – a paradigmatic box into which the evidence either did or did not fit.
The dilemma arises when a criminal trial is conducted before a jury, and where the judge is required to instruct the jury on the definition of proof beyond reasonable doubt. The jurisprudence shows that finding an appropriate definition – that is accurate and easily understood and not subject to constructive ambiguity or confusion – is a challenge. Defining terms within the definition or trying to explain terms or concepts by way of analogy or example has often led to more confusion.3A federal court sitting in Philadelphia recently reversed a state court homicide conviction, stating: “Petitioner Basil Brooks was convicted of first-degree murder and is serving life without parole following a trial at which reasonable doubt was explained to the jury through an emotionally charged hypothetical, which asked the jurors to analogize their deliberations to making a decision about life-saving medical treatment for a loved one when only a single option exists. Because I am convinced that the use of this hypothetical improperly elevated the level of doubt necessary to secure an acquittal, Petitioner is entitled to a new trial.” Brooks v. Gilmore, 2017 U.S. Dist. LEXIS 127703, *1-2, 2017 WL 3453324 (E.D. Pa. 11 August 2017). Attempts to adopt a model definition have also proved to be challenging, as seen by the disparate instructions on the beyond reasonable doubt standard among the United States (U.S.) Federal Circuit Courts.4Some 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, expressed in the subject “you.” There are also some subtle differences in the verb used, for instance, “hesitate and pause,” “not hesitate to rely and act upon it,” or “willing to rely and act.” For a comparative chart of jury instructions from various Federal Circuit Courts, see Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 75-76 (1999-2000). Some jurisdictions have gone so far as to advise judges against instructing the jury on the definition of proof beyond reasonable doubt, leaving it up to the individual jurors to exercise their reason, common sense, logic, and personal experience in figuring out what is a reasonable doubt.5The U.S. Court of Appeals for the Seventh Circuit contains no instruction regarding the definition of the reasonable doubt standard. In United States v. Glass, the Court stated: “‘Reasonable doubt’ must speak for itself. Jurors know what is ‘reasonable’ and are quite familiar with the meaning of ‘doubt.’ Judges’ and lawyers’ attempts to inject other amorphous catch-phrases into the ‘reasonable doubt’ standard, such as ‘matter of the highest importance,’ only muddy the water. This jury attested to that. It is, therefore, inappropriate for judges to give an instruction defining ‘reasonable doubt,’ and it is equally inappropriate for trial counsel to provide their own definition. Trial counsel may argue that the government has the burden of proving the defendant’s guilt ‘beyond a reasonable doubt,’ but they may not attempt to define ‘reasonable doubt.’” United States v. Glass, 846 F.2d 386, 387 (7th Cir. 1988) (italics in original, internal citation omitted).
Based on my own experience in working on transitional judicial reform projects, I am firmly convinced that introducing alien concepts – such as juries as fact-finders – that may work well in a highly developed country with a culture and history of jury trials, into a judicial system of a different legal tradition that is transitioning to a hybrid system, can be confusing, unsuitable, and even hazardous. It is one thing to introduce adversarial modalities to a civil law system to empower the prosecution and the defense, while liberating the judge to be more of a law giver and less of a fact-finder and thereby, arguably, enhancing the judge’s objectivity. It is quite another to turn over the fact-finding reins to lay members of the community. Not everything that works in the U.S. or the United Kingdom and elsewhere in the common law world will readily translate to civil law systems that have been revised due to a need for legal and judicial reform. Simply put, what makes a jury work in the systems where it has long abided is context.
For starters, there is the issue of providing a clear, concise, and well-understood definition of that which amounts to proof beyond reasonable doubt. This may not be so much of a problem in common law systems. Over the centuries, Anglo-Saxon societies have developed an abiding appreciation for the jury system – something that is studied in civic classes from grade school and beyond. This understanding of the role of the jury in the judicial system and its societal function should not be undervalued. It serves as the bedrock of the expected civic participation of citizens in the criminal justice system.
Civil law judges should have no real dilemma in discerning the qualitative substance of evidence required to be satisfied of the accused’s guilt to an intimate conviction, though there are always exceptions (civil law judges who do not conduct the requisite inquiry or correctly apply the civil law legal framework). The definitional differences between the beyond reasonable doubt standard and the intimate conviction standard are arguably a matter of semantics. There appears to be little, if any, difference in the quality of proof between these two different standards. Both require a high degree of proof tantamount to near certainty, eschewing fanciful or inconsequential doubts. Though the standard of proof in civil law systems is the intimate conviction standard, in essence, it calls for the same level of proof required by the beyond reasonable doubt standard, i.e., near certainty (since few things in life can be proved with absolute certainty).6In comparing the American and German systems regarding the admission and evaluation of evidence, scholars Feeney and Herrmann have argued that the free evaluation of evidence in Germany, which requires the application of the in dubio pro reo principle, results in the same standard of proof as the beyond reasonable doubt standard. Floyd Feeney & Joachim Herrmann, One Case – Two Systems: A Comparative View Of American And German Criminal Justice 430-32 (Transnational Publishers Inc. N.Y., 2005). See also Professor Fletcher’s excellent research and analysis of US jurisprudence in relation to the burden of proof practices, and a comparative study of the U.S. and Germany. George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 916-17 (1967-1968).
As such, introducing adversarial modalities into a civil law system, and thus transforming it into a hybrid system, should pose no difficulty to judges in applying the beyond reasonable doubt standard of proof. The same cannot be said for jurors selected to act as lay judges. Jurors, because of their lack of legal training, must be provided with adequate guidance and instruction by the judge on applying the law to the facts in making the findings of fact and determining the accused’s guilt beyond reasonable doubt.
Having jurors simply pronounce guilty or not guilty without having to explain how they reached their decision, without a detailed written judgment that shows what evidence was considered, what evidence was rejected, what weight was ascribed to the evidence, etc., risks fostering mistrust for jury verdicts. Such an outcome is virtually assured if a jury system were to be introduced in a domestic jurisdiction with: (a) no previous legal culture of having laypersons act as fact-finders in criminal cases; (b) a close-knit society where most of those eligible to serve as jurors are related or have close personal, social, cultural, or political ties with the accused or their friends and families; or (c) other ethnic, national, religious, or cultural issues that, depending on the make-up of the jury, make it difficult for the public to accept a verdict that is not supported by any factual findings or legal reasoning in writing.
During a jury trial, the beyond reasonable doubt standard is intrinsic to a host of other mechanisms, from rules of procedure and evidence, to a set of jury instructions invoked throughout the trial. And since the beyond reasonable doubt standard does not act in the abstract, there are other considerations that must be factored into the equation of whether it is prudent to go full Monty by adopting a jury system when transitioning from a classic civil law system to a hybrid party driven system.
In no small measure, resources are a factor of significant consequence, especially for resource-strapped countries in transition. Jury trials are appreciably longer than judge-tried cases not only because of the mechanics of accommodating and navigating around a jury, but because the shortcuts that are readily applied before a judge (stipulations, shorthand and condensed forms of presenting evidence, etc.) are not amenable to a jury trial, or if they are, they require further steps and instruction that judge factfinders do not need. There are costs associated with summoning jurors, compensating them for their services, disciplining them when not appearing for jury duty as summoned, etc. There is also the need to retrofit the courtrooms to accommodate jurors and to locate space within the courthouse that is secure and soundproof for the jurors to be isolated from the public, to meet, and to deliberate. And there is also the need for added staff, such as court bailiffs, to shepherd the jurors during the trial and to guard over them during their deliberations.
Even if resources are not a problem – though it generally is for most states requiring judicial reforms – there are other challenges that must be appreciated. Without indulging in an exegesis on the hurdles that a state, such as Macedonia, would have to overcome when transitioning to a jury system, here is a list of just some:
- Procedures would have to be developed to select juries free of bias, and to keep them that way for the duration of trial and deliberation;
- Formal rules of procedure and evidence would have to be developed to protect the jury fact-finder from prejudicial and other inadmissible evidence;
- A list of evidentiary objections would be required to ensure that the rules of procedure and evidence were being implemented;
- The judges would have to be trained in addressing the evidentiary objections while assessing the evidence contemporaneously as it is presented at trial;
- The lawyers would have to be trained in making the timely and specific objections at trial to make a record for appeal;
- Clear instructions for the jurors would have to be developed to guide the jurors at each phase of the trial;
- A clear, concise and easily understood definition of reasonable doubt would need to be developed.
And of course, I have already mentioned the lack of transparency that comes with outsourcing the fact-finding process to a jury. Jurors do not explain their verdicts. They deliberate secretly. They do not give an accounting on what evidence was accepted or rejected, what weight was afforded to particular evidence or testimony, the credibility of witnesses, or how they reached their individual decision on the evidence. This, above all other factors, in my opinion, is the most compelling reason not to adopt a jury system in a country where civil law tradition was in place for decades.
One counter-argument by some experts favoring juries, is that where there is a lack of judicial independence, transitioning to a jury system is a viable option for eradicating corrupt practices that impede judges from carrying out their judicial functions fairly and impartially. This is as naïve as it is absurd. Juries are hardly an antidote for a flawed judiciary susceptible to outside influences, political or otherwise. Jurors are just as susceptible, if not more, to being influenced in casting their votes – be it for financial reasons, peer pressure, or because of ethnic and racial prejudice. Even in highly developed legal systems where the jury system is part of civic duty DNA fabric, such as in the U.S., jurors occasionally succumb to such pressures and prejudices, as recently seen in the acquittals of white police officers charged with gunning down unarmed African-Americans. The jury acquittal of Tulsa police Officer Betty Shelby in the shooting death of Terence Crutcher, an unarmed black man, is one of many examples.7There are other examples of police misconduct and deaths of African-Americans in the U.S.: The Tamir Rice case in Cleveland, where police shot a 12-year old kid holding a pellet gun. The officer was fired, but was acquitted of criminal charges. The Freddie Gray case in Baltimore, where an African-American man’s neck was snapped on the way to the police station, as a result of the police officers’ failure to restrain him in the paddy-wagon. The charges against the officers were dropped, leading to protests in Baltimore. The Eric Garner case in New York, where a police officer choked an African-American man to death (the underlying “violation” for arrest was selling loose cigarettes). The grand jury declined to indict the officer. The Sam DuBose case in Cincinnati, where an unarmed African-American man was shot by a white police officer. The jury was unable to reach a guilty verdict. Nor are jurors immune from reaching the wrong verdict and convicting innocent citizens and even imposing death sentences as a result of police and prosecutorial misconduct – as the Innocence Project has exposed, contributing to the exoneration of countless wrongfully convicted individuals, many of whom were on death row, through DNA testing. A poignant example is the John Thompson case, recently featured in the New York Times.
Another counter-argument for promoting the jury system is that in some common law jurisdictions, such as in the U.S., judges can override a criminal conviction8See U.S. Federal Rules of Criminal Procedure, Rule 29. or civil judgment9See U.S. Federal Rules of Civil Procedure, Rule 50. if the jurors get it wrong. While this is possible, two points are worth mentioning. First, very rarely will a judge overturn a jury’s verdict. But second, and more importantly, just how acceptable to the public would overturning a jury’s guilty verdict be in a transitional judicial system that opted for a jury system as the solution for overcoming systemic weaknesses plaguing the judiciary. A society that has no historical experiences with the jury system is unlikely to comprehend, appreciate or accept such practices – even if the reasons for overturning the will and conscience of the jury – as a collective judge of the facts – is justified by the lack of evidence to sustain the conviction. This common law system safety valve is not easily accepted in the very systems that birthed it. An even less sanguine response can be expected from a culture without such a tradition.
Yet another counter-argument for introducing the jury system is the claim that it has worked well where it has been introduced, such as in Georgia, and therefore, it must follow, that it can equally be adopted in other places, such as in Macedonia. Perhaps the jury system is indeed working in Georgia, though I am unaware of any empirical evidence that support this conclusion. But even so, just because it is working in one country that has adopted the jury system as part of its transitional justice reforms, provides no assurance that it will succeed elsewhere – especially when there may be vast cultural and societal difference.
Where circumstances vary, analogies rarely serve as clear guides to actions in places undergoing transitional justice reforms efforts. Architects crafting frameworks for improved criminal procedures as part of overarching judicial reforms, are well advised to consider that models that have worked reasonably well elsewhere, may not necessarily work well or be conducive in all other places. Haven’t we learned from the introduction of western fast food into cultures with a tradition of unprocessed, natural foods? The result has been increased obesity, greater incidence of diabetes, and other increased health and economic costs. We can’t simply parachute a practice or concept into another culture without weighing the consequences. Success is not assured, and the outcome will rarely be without unanticipated costs.
So, as I noted during my presentation last week – a refrain that I have made a few years ago when giving a training on General Principles of Evidence and Objections for Macedonian criminal defense lawyers – countries transitioning into hybrid criminal systems are well advised not to succumb to the siren calls of some foreign legal experts and consulting contractors engaged by their embassies or aid agencies, advocating the adoption of the jury system.
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