Dressler, p. 10-14, “Proof of Guilt at Trial”


1. “Proof Beyond a Reasonable Doubt”


The presumption of innocence requires the “beyond a reasonable doubt” standard of guilt.


The court in re Winship argued that the costs to an individual of conviction are so high that they should not be convicted when there is reasonable doubt of their guilt.  The court said that the benefit of the standard is that it assures public confidence in the system, and in particular, the standard inspires confidence that innocent people don’t get convicted.


Justice Harlan says that the cost of the “beyond a reasonable doubt” standard is that some guilty people will go free.  He says, however, that society at large believes it is much worse to convict someone who is innocent.  Therefore, he implies that the benefits of the standard outweigh the costs.


Notes and Questions


1.     Is it better to let a guilty person go free than to convict an innocent person?  I don’t think it’s obvious.  I think it depends on the nature of the crime and the person being judged.  There is a larger cost in letting someone go free if they are likely to commit another costly crime, especially a violent crime.  On the other hand, the cost of convicting an innocent person for a minor crime would greatly outweigh the cost of acquitting someone guilty of a minor crime.  I think the standard of guilt should depend on, among other things, the seriousness of the offense and how likely it is to be repeated.  So I don’t feel especially committed to Harlan’s position, and extra super not committed to Blackstone’s ten-for-one position.

2.     What do we mean by onerous?  Well, onerous means burdensome, so this is kind of repetitive.  Putting numbers on reasonable doubt is just playing games, I think.  The definition of reasonable doubt should be directly related to the purpose of the standard.  If the correct number of innocent people to convict is zero, then the standard should be 100% sure, in which case no one should ever be convicted.  This doesn’t pass a cost-benefit test.  We want to pick the level of certainty at which the costs and benefits balance.

3.     Here we have the rules about how a jury can be instructed as to reasonable doubt.  We are given an example of jury instructions that were found unconstitutional.  The court said these instructions were no good because they would suggest to the common slob a standard of guilt below the one required by the Constitution as interpreted by the Supreme Court.

4.     What do I think of each set of jury instructions from the standpoint of a juror, and how about from the standpoint of a defense attorney?

a.      The language of the “Moral Certainty” instruction is confusing, but that may be because it’s rather dated.  I would be very confused as a juror today.  If I were a juror in 1850, and the terms had commonly understood meanings, then it would be helpful, except if the meanings were so commonly understood that nothing needed to be said.  If I were a defense attorney, I think I would like these instructions precisely because they are confusing and might get my client off even if he or she is clearly guilty.

b.     This language is clear and modern.  It makes the comparison between standards of proof in civil and criminal cases.  It uses phrases like “firmly convinced”, “real possibility” and “benefit of the doubt” that are easily understandable.  I think as a juror I would be more confident in my decision if I was given these instructions.  As a defense attorney, I think I would like the words “benefit of the doubt”, because these are kind of generous words.  They make it sound as though finding someone not guilty is enlightened or a good deed.

c.     This language is confusing, especially for 1997.  The idea is that to convict someone, you must either lack an “abiding conviction of guilt”, or that conviction of guilt must fluctuate.  This is a pretty high standard for reasonable doubt that I think I would find desirable as a defense lawyer.  The only bad part of these instructions if I represent the defendant is that is explicitly says when you must not return a verdict of not guilty.

d.     If a reasonable doubt is “just precisely what it says”, why do I need to hear these instructions?  I think I would find it useful to hear that proof beyond a reasonable doubt is proof I would be willing to act upon without hesitation.  That’s a pretty subjective standard, though, and it would depend on how risk averse I am in the face of incomplete information.  I don’t think the defense attorney would like this one at all, because in people’s ordinary lives they might be willing to take risks that are subjectively reasonable but objectively ridiculous.

5.     I don’t think the “No Hesitation” instructions suggest that a doubt based on reason means that you must have a reason for it.  However, intuition cannot be said to be based on reason, and thus I think these instructions would preclude a juror from going by his or her gut.


2. Enforcing the Presumption of Innocence


Case: Owens v. State


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