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.\u00a0 Upon this he falls back. The doctrine of \u2018reasonable doubt\u2019 is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported \u2018dicta\u2019 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 \u2018dicta,\u2019 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….<\/em><\/strong>((John W. May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases<\/em>, 10 Am. L. Rev. <\/em>642, 662-663 (1876). ))<\/p>\n 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.((See<\/em>, for example, The United States (\u201cUS\u201d), American Bar Association Model Rules, Rule 1.3: \u201cact with reasonable diligence and promptness in representing a client\u201d; The United Kingdom (\u201cUK\u201d), Board Standard Bar Handbook, CD7: \u201cto provide a competent standard of work and service to each client.\u201d 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 \u201cdiligence\u201d, they oblige lawyers to act with \u201cpromptness\u201d in relation to client\u2019s inquiries and requests). In the international context, where the tribunals and courts tend to be hybrid with party-driven adversarial proceedings \u201c[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.\u201d Prosecutor v. Tadi\u0107<\/em>, IT-94-1, Decision on Appellant\u2019s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 47. Defence Counsel must also bring \u201cany difficulties in relation to obtaining evidence on behalf of the accused . . . to the attention of the Trial Chamber.\u201d Prosecutor v. Krsti\u0107<\/em>, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 5.)) \u00a0Zealous representation includes raising every conceivable doubt by every conceivable acceptable means.\u00a0 Cynical as it may seem from Judge John W. May\u2019s observation, raising reasonable doubt<\/em> during the presentation of the evidence is an essential obligation.\u00a0 Fittingly, Judge May notes just how confusing it can be to establish what constitutes the standard of proof beyond a reasonable doubt <\/em>(hereinafter \u201cthe reasonable doubt<\/em> standard\u201d), despite its existence as the<\/em> requisite standard of proof over the past few centuries.<\/p>\n In the previous blog post, I introduced the various terms and definitions necessary for the discussion on the standards and burdens of proof. \u00a0As 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<\/em> standard came about.\u00a0 I will touch upon the in dubio pro reo<\/em> principle and its relation to the reasonable doubt<\/em> 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<\/em>.<\/p>\n Historians and legal scholars have attempted to trace the origins and evolution of the reasonable doubt<\/em> 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.\u00a0 There is a virtual consensus as to the first recorded use of reasonable doubt<\/em> standard \u2013 in the 18th<\/sup> century in the American colonies. However, there is no uniform point of view among scholars as to why and how the reasonable doubt<\/em> standard was conceived. Scholars take different and sometimes contradictory positions.((See<\/em> generally<\/em> James Q. Whitman, The Origins of \u201cReasonable Doubt\u201d Yale University Press (2008) (hereinafter \u201cWhitman\u201d); Anthony Morano, A Reexamination of the Development of the Reasonable Doubt Rule, <\/em>55 B. U. L. Rev, 507 (1975) (hereinafter \u201cMorano\u201d); John H. Langbein, The Origins of Adversary Criminal Trial, Oxford (2003) (hereinafter \u201cLangbein, Adversary Criminal Trial\u201d); 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, \u201cShapiro, Doubt\u201d); Steve Sheppard, The Metamorphosis of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence<\/em>, 78 Notre Dame L. Rev. 1165 (2003). ))<\/p>\n Whitman\u2019s 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<\/em> standard. He traces back to the pre-modern Christian theology of judging.\u00a0 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.<\/p>\n 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.\u00a0 The dispute focuses on interpretations and emphasis.\u00a0 Consequently, in providing this brief historical survey of the reasonable doubt <\/em>standard, I drew from various scholarly sources.<\/p>\n Early history<\/em><\/strong><\/p>\n The roots of the concept of doubt<\/em> dates back to ancient times.\u00a0 Actually, the history of doubt <\/em>can be traced back to the work Problemata<\/em>, which is attributed to Aristotle (384 \u2013 322 BC).((Daniel Epps, The Consequences of Error in Criminal Justice<\/em>, 128(4) Harv. L. Rev. 1065, 1077 (2015). The authorship of Problemata<\/em> is disputed; the time frame in which it was probably written ranges from the third century BC to the sixth century AD. See<\/em> Ann Blair, Authorship in the Popular \u201cProblemata Aristotelis\u201d<\/em>, 4(3) Early Science and Medicine 189-227 (1999). )) The chapter titled \u201cProblems connected with Justice and Injustice\u201d provides:<\/p>\n 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<\/em>; 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.((Aristotle, 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). ))<\/p>\n In the Roman Digesta<\/em> (a series of books compiled between 530 and 533 AD at the request of Emperor Justinian and form part of the Corpus Iuris Civilis<\/em>)((On Roman law materials, see<\/em> Jo\u00ebl 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: \u201cIn doubtful matters, the more benevolent opinion is to be preferred\u2026.The condition of the defendant is to be favored rather than that of the plaintiff.\u201d((\u201cSemper in dubiis benigniora praeferenda sunt,\u201d Corpus Iuris Civilis, Digesta, D.50.17.56 (Gaius 3 de legatis ad ed. urb.); \u201cFavorabiliores rei potius quam actors habentur,\u201d Corpus Iuris Civilis, Digesta, D.50.17.125 (Gaius 5 ad ed. provinc.), available<\/em> at<\/em> http:\/\/www.thelatinlibrary.com\/justinian.html (unofficial translation by author). ))<\/p>\n 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<\/em> and the in dubio pro reo <\/em>principle.\u00a0 The ancient Greek and Roman ideas were elaborated by medieval canon lawyers centuries later and became basis of numerous canon texts.((J. H. Baker, An Introduction to English Legal History 73 (4th<\/sup> ed., Butterworths 2002) (hereinafter \u201cBaker\u201d), p. 5. For more on the history of medieval canon law, see<\/em> James Brundage, Medieval Canon Law (Routledge 1995). ))<\/p>\n 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\u2019s soul requiring purification.\u00a0 Saint Augustine of Hippo (4th century AD) discussed this problem, stating that \u201cwhen a man is killed justly, it is the law that kills him, not you.\u201d((Whitman, p. 47, citing <\/em>Patrologia Latina vol. 34, p. 707.))<\/p>\n Saint Augustine\u2019s passage became the basis of numerous canon texts of the Middle Ages and played a role in the abolition of the ordeals \u2013 judicially sanctioned blood punishments.((Favorabiliores rei potius quam actors habentur,\u201d Corpus Iuris Civilis, Digesta, D.50.17.125 (Gaius 5 ad ed. provinc.), available<\/em> at<\/em> http:\/\/www.thelatinlibrary.com\/justinian.html\u00a0 (unofficial translation by author). )) The abolition of ordeals is viewed by many as a watershed moment and the beginning of the western legal tradition.((See <\/em>Whitman, p. 39; Shapiro, Doubt, p. 3.))<\/p>\n In 1215, after several decades of agitation by church reformers, the Church forbade priests to participate in ordeals, which meant they were effectively abolished.((Baker, p. 5.)) \u00a0The abolition of ordeals caused a formative crisis in adjudication that influenced the body of rules.\u00a0 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.\u00a0 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.\u00a0 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.((Shapiro, Doubt, p. 4.))<\/p>\n Civil law system (inquisition process)<\/em><\/strong><\/p>\n 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.((Shapiro, Doubt, p. 4.)) It employed highly rationalized procedures and required \u201cfull proof\u201d that had to be \u201c\u2019clearer that the light of the midday sun.\u2019\u201d((Whitman, p. 115, citing<\/em> Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern, Naples, (1979), p. 3-5.)) \u00a0The full proof was defined by clearly specified evidentiary standards of the quality and quantity of proof.((Shapiro, Doubt, p. 4.))<\/p>\n The judge was \u201can accountant of who totaled the proof fractions.\u201d((Shapiro, Doubt, p. 4.)) \u00a0For instance, two good trustworthy eyewitnesses or confession would have high evidentiary value to constitute full proof.\u00a0 The testimony of two witnesses was rarely available; therefore, continental law sought a confession through torture. \u00a0The torture could not be ordered unless there was \u201csemiplena<\/em> probatio<\/em>\u201d or \u201chalf-full proof.\u201d((Whitman, p. 115, noting that persons of high social standing (members of the nobility and the like) could not be tortured at all.)) \u00a0To determine whether there was half-full proof, judges were to follow the rigidly specified rules for the weighing of evidence.\u00a0 The technical term for such evidence was \u201cindicium<\/em>\u201d or \u201cproof.\u201d\u00a0 Inquisitorial procedure was \u201chighly rule-bound.\u201d((Whitman, p. 115; Shapiro, Doubt, p. 4.)) \u00a0For example, judges were instructed to find \u201cindicia indubitata<\/em>\u201d \u2013 \u201cproof that did not permit of any doubt.\u201d((Whitman, p. 115.)) \u00a0As canon lawyer Huggicio (13th<\/sup> century AD) stated, a \u201c\u2018doubtful matter\u2019 was a matter not proven by witnesses, or documents, or evidence such as confession.\u201d((Whitman, p. 119.)) \u00a0Popes Clement III (1187\u20131191) and Innocent III (1198 \u2013 1216) exhorted clergy to avoid the stain of bloodshed by following the \u201c\u2018safer path\u2019: in cases of doubt, \u2018in<\/em> dubiis\u2019<\/em>, one should act in such a way as to minimize the possibility of pollution.((Pope 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: \u201cIn dubiis via eligenda est tutior<\/em>,\u201d<\/em> i.e., \u201cWhen there are doubts, one must choose the safer path.\u201d cited<\/em> in Whitman, p. 117.))<\/p>\n The \u201cmoral theology of doubt lay at the very foundation of criminal procedure as the continental jurists developed it.\u201d((Whitman, p. 118.)) \u00a0Whitman argues that the principle of \u201c\u2018in dubio pro reo<\/em>\u2019 was the other side of the procedural coin that required proof \u2018clearer than the midday sun\u2019 before sending a person to blood punishment.\u201d((Whitman, p. 100, citing<\/em> Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern 3-5, Naples (1979). )) \u00a0The principle emerged from the \u201csafer path\u201d doctrine and created a form of protection for the accused that stemmed from the \u201cfear that the judge might make himself into a \u2018murderer.\u2019\u201d((Whitman, p. 100, citing<\/em> Giorgia Alessi Palazzolo, Provo Legale e Pena. La Crisi del Sistema Tra Evo Medio et Modern 3-5 Naples (1979). ))<\/p>\n Common law system (jury trials)<\/em><\/strong><\/p>\n In England, an early form of the jury \u2013 presentment jury, was used in the late eleventh century before the abolition of ordeals.((Baker, p. 72-73.)) The presentment jury determined whether one had to submit to an ordeal, and spoke \u201cabout a defendant\u2019s character [rather] than about his guilt or innocence.\u201d((Shapiro, Doubt, p. 3, 5.)) \u00a0The abolition of ordeals meant that the jury would have to begin a system of formal inquiry.<\/p>\n By the thirteenth to fourteenth centuries jurors were \u201cboth gatherers and weighers of evidence. Witnesses do not seem to have appeared as a regular part of criminal prosecutions.\u201d((Shapiro, Doubt, p. 4.)) Composed of the members from the local community, jurors were \u201cself-informing\u201d and expected to arrive at findings based on their personal knowledge of facts, their own investigation, and common knowledge and sense.<\/p>\n By the fifteenth century the development and increasing mobility of society modified the character of the jury trial.\u00a0 Jurors no longer conducted their own investigations and their personal knowledge was not always sufficient to make the decisions without hearing evidence. \u00a0The role of the jury evolved to \u201clistening to and assessing evidence introduced by private accusers and government officials.\u201d((Shapiro, Doubt, p. 4; Morano, p. 511, citing<\/em> 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 <\/em>Shapiro, Doubt, p. 5, citing<\/em> Kevin M. Teeven, Seventeenth-Century Evidentiary Concerns and the Statute of Frauds<\/em>, 9 Adelaide L. Rev. 225 (1983). ))<\/p>\n By the sixteenth to seventeenth centuries jurors became passive viewers who had to rely on witnesses and documents, the judge\u2019s questioning and accused\u2019s response, the demeanor and witnesses\u2019 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\u2019s 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<\/em> standard.((Shapiro, Doubt, p. 5-6.))<\/p>\n The impact of 17th century philosophy on the standard of proof<\/em><\/strong><\/p>\n By the seventeenth century Continental Europe and England developed a new philosophy moving away from theology and faith-based arguments.\u00a0 This period in philosophy is also referred to as the Age of Reason or Enlightenment.\u00a0 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.((Shapiro, Doubt, p. 2, 6-7.))<\/p>\n The highest level of knowledge of practical matters in human affairs was rational belief<\/em> or moral certainty<\/em>. \u00a0Rational belief<\/em> was the highest category of mathematical knowledge, which could be established by logical demonstration, such as geometry proofs.((John Wilkins, Of the Principles and Duties of Natural Religion 6, London: J. Walthoe, J. Knapton (1734) (hereinafter \u201cWilkins\u201d) (emphasis in original), available at<\/em> https:\/\/archive.org\/details\/ofprinciplesduti00wilk.)) Moral certainty<\/em> involved areas where mathematical certainty was not possible:<\/p>\n [I]ts Object such Beings as are less simple<\/em>, and do more depend upon mixed Circumstances. Which though they are not capable of the same kind of Evidence \u2026 so as to necessitate every Man\u2019s 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.(( Wilkins, p. 7.\u00a0 See also <\/em>Shapiro, Doubt, p. 8-9, discussing Locke\u2019s and Wilkins\u2019 categorization of knowledge and probability.\u00a0 <\/em>John Locke, Of the Degrees of Assent in An Essay Concerning Human Understanding<\/em>, Bk. IV, Ch. XVI, section 6, 7(II) (1690) available at<\/em> http:\/\/enlightenment.supersaturated.com\/johnlocke\/BOOKIVChapterXVI.html.))<\/p>\n The prevalent philosophical understandings about knowledge and certainty affected the law and shaped standards of proof.\u00a0 By the late seventeenth century, jurors were weighing the credibility of witnesses.((Shapiro, Doubt, p. 13.)) \u00a0Credibility 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.((Langbein, Adversary Criminal Trial, p. 264.)) \u00a0Jury charges in cases from the 1660s contain phrases such as: \u201cif you believe,\u201d \u201cif you are satisfied with the evidence,\u201d((6 State Trials, <\/em>67, 82; 6 State Trials, <\/em>530, 559.)) \u201cbelief,\u201d and \u201csatisfied conscience.\u201d((6 State Trials, <\/em>566, 614, 615.)) \u00a0Some scholars, such as Morano and Shapiro, refer to the standard of proof at that time as the satisfied conscience<\/em> standard.((Shapiro, Doubt, p. 14; Morano, p. 511.)) \u00a0Langbein 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<\/em>, while the correct approach would be to focus on the moral responsibility of a judge and the law of safe<\/em> conscience.((Langbein, Adversary Criminal Trial, p. 264, n. 52; Whitman, p. 166.))<\/p>\n Scholars advance different viewpoints whether the satisfied conscience <\/em>standard was higher or lower compared to the reasonable doubt<\/em> standard.<\/p>\n According to Shapiro, the new philosophical ideas, especially moral certainty<\/em>, shaped the new criteria for evaluating facts and testimony.((Shapiro, Doubt, p. 11.)) \u00a0In her view, satisfied conscience<\/em> was viewed as a rational belief and eventually became the secular moral standard of belief beyond a reasonable doubt<\/em>. \u00a0Shapiro explains that during the seventeenth century, the concern for evaluating evidence \u201cwas encapsulated in \u2018satisfied conscience\u2019, or \u2018satisfied belief\u2019, formulas\u201d related, among other things, to the moral and religious obligations of jurors serving under oath. \u00a0During the late seventeenth and eighteenth centuries it became evident that trial by jury required the critical evaluation of witnesses. \u00a0Legal thinkers referred and adopted the religious and philosophical ideas dealing with matters of fact. \u00a0Shapiro concludes that the reasonable doubt<\/em> standard was not a change in the required standard of proof, but rather \u201ca clarification of the notion of moral certainty and satisfied belief.\u201d((Barbara J. Shapiro, To a Moral Certainty: Theories of Knowledge and Anglo-American Juries 1600-1850, <\/em>8 Hastings L.J. 153, 172 (1986).\u00a0 ))<\/p>\n According to Morano, the satisfied conscience<\/em> standard meant \u201cjurors were to convict the accused only if they were satisfied in their consciences that he was guilty; \u2026 unless [jurors] were morally certain of the correctness of a guilty verdict, they would violate their oath if they failed to acquit.\u201d((Morano, p. 511-512.)) \u00a0In Morano\u2019s interpretation, under the satisfied conscience<\/em> standard, jurors were bound to acquit if they entertained any<\/em> doubts.\u00a0 Therefore, in order to prove its case, the prosecution was required to convince the jury beyond all doubts, making convictions very difficult to secure.\u00a0 Morano concludes that the reasonable doubt<\/em> standard was introduced to \u201cminimize this advantage and to restore the balance between the defendant and the prosecutor.\u201d((Morano, p. 514.))<\/p>\n According to Langbein, the reasonable doubt<\/em> standard may be connected to the emergence of defense lawyers, who developed evidentiary and other practices to protect the accused.((Langbein, Adversary Criminal Trial, p. 262-263.)) \u00a0He observes that \u201c[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.\u201d((John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien R\u00e9gime 138, University of Chicago Press (1976). )) \u00a0In Langbein\u2019s view, it seems \u201cimpossible to square with a high standard of proof.\u201d((Langbein, Adversary Criminal Trial, p. 262.))<\/p>\n 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<\/em> standard was conceived in the seventieth century.\u00a0 Undoubtedly, the secular philosophical ideas were the catalyst for the development of the reasonable doubt<\/em> standard.<\/p>\n First recorded use of the reasonable doubt instruction and gradual crystallization of reasonable doubt standard of proof<\/em><\/strong><\/p>\n Scholars agree that the term reasonable doubt<\/em> seems to have first appeared in the Boston Massacre Trials, Rex v. Preston <\/em>and Rex v. Wemms<\/em>,((A 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 \u201cLegal Papers of John Adams\u201d). )) of 1770 in the American Colonies.((Shapiro, Doubt, p. 22; Morano, p. 516.)) The parties\u2019 closing arguments and the judge\u2019s instructions to the jury in Preston<\/em> were not reported so there is no confirmation whether the reasonable doubt<\/em> standard was actually applied in this case.<\/p>\n On 5 March 1770 in Boston, a patrol of British soldiers was confronted by the crowd of Bostonians.\u00a0 The soldiers of the patrol were provoked into firing at the crown, killing five people.\u00a0 This resulted in the indictment of the patrol\u2019s leader \u2013 Captain Preston \u2013 and eight soldiers.\u00a0 John Adams (who would go on to become the second President of the United States of America) appeared for the defense. \u00a0On the other side, arguing for the Crown, was Robert Treat Paine.\u00a0 Adams, defending the British soldiers, argued in his closing arguments that \u201cthe best rule in doubtful cases, is, rather to incline to acquittal than conviction\u2026. If you doubt the prisoner\u2019s guilt, never declare him guilty\u2026\u201d((Legal Papers of John Adams, Vol. 3, p. 243.))\u00a0 Paine agreed that jurors had to acquit if they had doubts; however, he argued that their doubts must be reasonable:<\/p>\n 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\u2026((Legal Papers of John Adams, Vol. 3, p. 271.))<\/p>\n The judges\u2019 instructions to the jury were only partially preserved so it is not clear if they used the reasonable doubt<\/em> language.((Morano, p. 517.)) \u00a0Chief Justice Matthew Hale instructed the jury: \u201cWhere you are doubtful, never act; that is, if you doubt the prisoner\u2019s guilt, never declare him guilty; this is always the rule, especially in cases of life.\u201d((Legal Papers of John Adams, Vol. 3, p. 243.)) \u00a0Superior Court Justice Peter Oliver instructed the jury that \u201cif upon the whole, ye are in any reasonable doubt<\/em> of their guilt, ye must then, agreeable to the rule of law, declare them innocent.\u201d((Legal Papers of John Adams, Vol. 3, p. 309, (emphasis added). ))<\/p>\n The next spate of cases using reasonable doubt<\/em> 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\u2019s comments summing up the evidence.\u00a0 In their comments, judges would occasionally provide guidance for the jurors to follow during their deliberations.\u00a0 For instance, judges would instruct the jury to acquit if:<\/p>\n With different judges formulating the degree of proof differently and using the term reasonable doubt<\/em> inconsistently, the reasonable doubt<\/em> standard of proof does not appear to have crystallized as the<\/em> standard yet.<\/p>\n It was not until the nineteenth century that reasonable doubt<\/em> as a standard of proof was incorporated into the US jurisprudence.\u00a0 US states gradually accepted the reasonable doubt <\/em>standard in their own time.((To trace the development of the reasonable doubt<\/em> standard in different US States, see<\/em> Morano, p. 520-21\u037e Shelagh Kenney, Note, Fifth Amendment Upholding the Constitutional Merit of Misleading Reasonable Doubt Jury Instructions<\/em>, 85(4) J. Crim. L. & Criminology 989, 989-95 (1995). ))<\/p>\n One of the most famous reasonable doubt<\/em> cases of the time comes from the Supreme Court of Massachusetts.\u00a0 The 1850 case of Commonwealth v. Webster<\/em>,((Commonwealth v. Webster<\/em>, 59 Mass. 295 (1850) (hereinafter \u201cWebster<\/em>\u201d). )) 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<\/em> have become legendary:<\/p>\n Then, what is reasonable doubt?\u00a0It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt<\/em>; 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<\/em> moral certainty<\/em>, 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<\/em>; a certainty that convinces and directs the understanding<\/em>, and satisfies the reason\u00a0and judgment, of those who are bound to act conscientiously <\/em>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.((Webster<\/em>, at 320 (emphasis added). ))<\/p>\n Chief Justice Shaw\u2019s definition of reasonable doubt<\/em> went on to be widely adopted by other courts, and was discussed and considered by the US Supreme Court.<\/p>\n One of the first cases in which the US Supreme Court addressed the issue of the definition of the reasonable doubt<\/em> standard was Miles v. United States<\/em>.((Miles v. United States<\/em>, 103 U.S. 304, 312 (1881) (hereinafter \u201cMiles<\/em>\u201d). )) \u00a0As one of the grounds of error, the petitioner referred to the jury instruction defining reasonable doubt<\/em>:<\/p>\n The prisoner\u2019s guilt must be established beyond reasonable doubt.\u00a0 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\u2019s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to\u00a0his own dearest personal interests.((Miles<\/em>, at 309.))<\/p>\n The US Supreme Court found no error in this instruction, although it explicitly recognized the dangers of attempting to define the term reasonable doubt<\/em>. Relying on several state cases, including Webster<\/em>, the Court reasoned:<\/p>\n Attempts to explain the term \u201creasonable doubt\u201d do not usually result in making it any clearer to the minds of the jury. The language\u00a0used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority.((Miles<\/em>, at 312, citing Webster<\/em>; Arnold v. State<\/em>, 23 Ind. 170 (1864); State v. Nash<\/em>, 7 Iowa 347 (1858); State v. Ostrander<\/em>, 18 Iowa 435 (1865); Donnelly v. State<\/em>, 26 N.J.L. 601 (1857); Winter v. State<\/em>, 20 Ala. 39 (1852). ))<\/p>\n In Hopt v. Utah<\/em>,((Hopt v. Utah<\/em>, 120 U.S. 430 (1887) (hereinafter \u201cHopt<\/em>\u201d). This appeal arose out of Hopt\u2019s 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\u2019s execution, which frustrated the people of Utah and caused the public lynching of five alleged criminals. See<\/em> Kimberly S. Hanger, The Frederick Hopt Murder Case: A Darker Side of Utah Territorial History<\/em>, 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<\/em>, noting that \u201cthe words \u2018to a reasonable and moral certainty\u2019 add nothing to the words \u2018beyond a reasonable doubt;\u2019 one may require explanation as much as the other.\u201d((Hopt<\/em>, at 440.))<\/p>\n The US Supreme Court regarded with favor the trial judge\u2019s reference to weighty and important concerns in the jurors\u2019 lives,((Hopt<\/em>, at 441.)) \u2013 \u201c\u2026willing to act upon in the more weighty and important matters relating to your own affairs\u2026\u201d((Hopt<\/em>, at 439.)) \u2013 approving of the use of analogies when instructing juries on the meaning of reasonable doubt<\/em>.<\/p>\n The reasonable doubt standard in the US<\/em><\/strong><\/p>\n A watershed moment for the reasonable doubt<\/em> standard occurred in 1970, when the US Supreme Court in In re Winship<\/em> granted the reasonable doubt<\/em> standard constitutional status.((In re Winship<\/em>, 397 US 358 (1970) (hereinafter \u201cWinship<\/em>\u201d). ))<\/p>\n In Winship<\/em>, the US Supreme Court dealt with the issue of \u201cwhether proof beyond a reasonable doubt<\/em> is among the \u2018essentials of due process and fair treatment\u2019 required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.\u201d((Winship<\/em>, at 359.)) \u00a0In that case, the State of New York set a standard for juvenile criminal proceedings by \u201cpreponderance of evidence.\u201d((Winship<\/em>, at 360.)) \u00a0The US Supreme Court explicitly held that \u201cthe Due Process Clause [of the Fourteenth Amendment to the US Constitution((The Fourteenth Amendment to the US Constitution provides that no State \u201cshall deprive any person of life, liberty, or property, without due process of law.\u201d ))] 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.\u201d((Winship<\/em>, at 364.))<\/p>\n The Court put forward two reasons to support its holding.\u00a0 First, the Court reasoned that the reasonable doubt<\/em> standard \u201cis a prime instrument for reducing the risk of convictions resting on factual error\u201d since \u201c[it] provides concrete substance for the presumption of innocence, \u2026 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.\u201d((Winship<\/em>, at 363.)) \u00a0Second, the Court reasoned that the reasonable doubt<\/em> standard is \u201cindispensable to command the respect and confidence of the community in applications of the criminal law,\u201d giving individuals the confidence that \u201c[their] government cannot adjudge [them] guilty of a criminal offence without convincing a proper factfinder of [their] guilt with utmost certainty.\u201d((Winship<\/em>, at 364.))<\/p>\n The Court did not define reasonable doubt<\/em>; nor did it address the issue of whether the reasonable doubt<\/em> standard should be explained to the jury and to what extent.\u00a0 The reasonable doubt<\/em> standard was constitutionalized with little consideration of its operation and effect.\u00a0 The failure to address the relationship or conflict between the reasonable doubt<\/em> and the ideas reflected in such terms as certainty<\/em> and moral certainty<\/em>, has led the US Court to revisit the issue and discuss the reasonable doubt<\/em> instructions in Cage v. Louisiana<\/em>,((Cage v. Louisiana<\/em>, 498 U.S. 39 (1990) (hereinafter, \u201c![\"\"](\"https:\/\/i0.wp.com\/www.samefacts.com\/archives\/calvin%20on%20reasonable%20doubt.gif?resize=541%2C181\")
For instance, Professor Anthony A. Morano suggests that it was actually \u201ca prosecutorial innovation that had the effect of decreasing <\/em>the burden of proof in criminal cases.\u201d((Morano, p. 517.)) \u00a0Contrastingly, according to historian John H. Langbein, the reasonable doubt<\/em> standard was developed in England in the mid-1780s as part of an effort to create procedural protections of the accused, \u201cin association with the ripening adversary system.\u201d((Langbein, Adversary Criminal Trial, p. 33.)) \u00a0Professor Barbara J. Shapiro finds origins of the reasonable doubt<\/em> standard in the seventeenth century philosophy of reason, as an effort to find \u201cmoral certainty.\u201d((Shapiro, Doubt, p. 4.)) \u00a0Professor James Q. Whitman argues that although the reasonable doubt<\/em> 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 \u201csouls of the jurors.\u201d((Whitman, p. 3.))<\/p>\n![\"imagecucking_stool\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/05\/imagecucking_stool.jpg?ssl=1\")
<\/a>Ordeals were procedures for invoking the \u201cjudgment of God\u201d to determine the fate of an accused of a crime.\u00a0 Most typical ordeals involved \u201chot iron\u201d or \u201ccold water.\u201d\u00a0 The ordeal of hot iron required the accused to hold a piece of red-hot iron.\u00a0 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.\u00a0 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. \u00a0A priest was present during the procedure and would pray to God to bless the water or iron and to deliver his judgment.((Baker, p. 5. For more on history of trial by ordeal, see<\/em> Thomas P. Gallanis, Ordeal: English Common Law, in<\/em> 4 Oxford Encyclopedia of Legal History (Stanley N. Katz ed., Oxford University Press 2009).<\/em> ))<\/a><\/p>\n\n