Law students are taught that the ‘beyond a reasonable doubt’ standard is the bedrock of the justice system, one that is desirable because, as Blackstone declared, it is “better that ten guilty persons escape than that one innocent suffer.” But does that resonate with jurors? In other words, when a lawyer argues that “the prosecution can’t prove this person guilty beyond a reasonable doubt’ is the message not one of innocence but of a concession of probable or potential guilt? Does it smack of gamesmanship? And is it easy for lay persons, not in the halls of academe but in courts in cities where crime may be prevalent, to apply?
These questions were brought to mind when reading a news account of a high profile murder trial with substantial evidence of guilt but also some reasons to doubt. As reported in the news media (not necessarily the source for a verbatim accounting of a courtroom proceeding), the defense lawyer’s opening emphasized that there was no physical evidence linking the accused to the killings, no gun was recovered, no one saw the defendant with a gun or shooting the two victims.
What came next was the more provocative discussion. After explaining that there was evidence of another, unidentified man in the house at the time of the killings, the lawyer asked “Who is that male? Is he the shooter? We don’t know.”
I highlight this not to critique the choice of words and contrast them with another way of telling that story, although “we don’t know” might sound puzzling to a jury confronted with the fact that the defendant does know, since he was in the house as well. What was really meant was that on this evidence no one can know with certainty. Instead, I write to highlight the dilemma – can lay jurors cognitively accept that ‘the defendant might be guilty, but we must acquit anyway?’ Or, as Professor Cass Sunstein wrote in an article discussing the George Zimmerman verdict, “[i]f the reasonable doubt standard were put to a vote, would a majority support it?” (last visited September 27, 2015).
Here, some background is necessary. First, there is ample research confirming that jurors have widely varying views of the level of certainty the reasonable doubt standard requires. As reported in 1998 after a study of actual jurors, 56 jurors (comprising about 31% of the 183 criminal trial jurors responding) apparently believed that the judges’ instructions required or permitted them to convict a defendant who failed to disprove his guilt, if the state had produced “evidence . . . that tended to show that the defendant may have committed the crime.” HOW WELL DO JURORS UNDERSTAND JURY INSTRUCTIONS? A FIELD TEST USING REAL JURIES AND REAL TRIALS IN WYOMING, 33 Land & Water L. Rev. 59, 98 (1998).
What else is known? The concept is elusive as described. A more apt wording would be to say “convict when there is no longer any reasonable doubt about whether the person is guilty” or “convict only when you are so sure of guilt that you are beyond having a reasonable doubt” or “you begin the process by doubting that the person is guilty and believing s/he is innocent; and you may convict only when you no longer have a reasonable reason to doubt that there is guilt.” Even these alternative phrasings are awkward, but they at least give some directionality.
But how the doubt analysis proceeds is only helpful if there is agreement about how large or small a reasonable doubt can be. Jurors and potential jurors, polled on what probabilistic level suffices, seem to average out at about 85% certainty, but range from as low as 64% to as high as absolute certainty. Simon, IN DOUBT: THE SPYCHOLOGY OF THE CRIMINAL JUSTICE PROCESS, 195-196. And, of course, 85% certain to one person may equate to 65% for another – the metric is idiosyncratic.
Another problem is lawyers’ inability to explain the concept lucidly. Examples abound of defense lawyers making the standard too easy for the prosecution to meet, as when one told the jury the story of going to buy a used carand having a reasonable doubt after observing a dozen defects – a cracked windshield, a leaky tire, a ‘knock’ when starting the engine. Why there had to be a dozen problems before there was a reasonable doubt about whether this was a safe car was never explained, and certainly acted to the detriment of the accused.
Yet none of this answers the fundamental question of whether jurors embrace, or even tolerate, the idea of voting “not guilty” when there is some – or strong – reason to think the accused committed the crime but some reason to doubt. And there is no clear research on this point – either on juror comfort with this standard or how a lawyer makes the jury accepting of this daunting task.
The answer may be to avoid the predicament entirely, and find in the evidence or lack thereof a cogent narrative other than ‘they can’t prove it.’ But sometimes perhaps rarely but sometimes – that may be all there is. The question is – what then?
The starting point may be not with the lawyer’s words but with those of the Judge, both in timing and content. A study nearly forty years old showed that jurors instructed about the reasonable doubt standard before hearing any evidence were more likely to vote for an acquittal than those instructed at the end of the case. Kassin and Wrightsman, “On the requirements of proof: The timing of judicial instruction and mock juror verdicts,” Journal of Personality and Social Psychology, Vol 37(10), Oct 1979, 1877-1887. And a change in language from “you need not be absolutely sure that the defendant is guilty” to “if you are not sure and certain of his guilt, you must find him not guilty” reduced the conviction rate. Kerr et al, “Guilt beyond a reasonable doubt: Effects of concept definition and assigned decision rule,” Journal of Personality and Social Psychology (Impact Factor: 5.08). 07/1976; 34(2):282-294.
And the lawyer? The scary but potentially necessary approach is to assess this in jury selection. This may start with a question such as “explain what you think ‘beyond a reasonable doubt’ means” and see both how the person describes and feels about it. Another option is an open-ended question such as in this country a juror may not vote “guilty” if guilt is possible or even probable. A juror may vote “guilty” only if guilt is proved to a high level of certainty. Are you comfortable with that?
The follow-up question would then be “and could you do that and feel okay, no matter how serious the crime?” This is because “open-ended questions are often superior to close-ended questions for obtaining accurate information.” SYMPOSIUM:III. THE JURY IN PRACTICE: AVOID BALD MEN AND PEOPLE WITH GREEN SOCKS? OTHER WAYS TO IMPROVE THE VOIR DIRE PROCESS IN JURY SELECTION, 78 Chi.-Kent L. Rev. 1179, 1196 (2003).
The danger remains that the jury will take such questions, if posed by defense counsel, as a concession that “my client might indeed be guilty but…,” and this might be one of those times where lawyers want to surrender control in favor of having the question come from the judge. But knowledge here may indeed be power, so someone has to ask. And with a jury primed to the importance of the reasonable doubt standard, it might welcome the argument, maybe not as “we don’t know” but “the Government can’t show…”