Defining Reasonable Doubt

 Posted on July 30,2007 in Uncategorized

From 1991 (Geesa) to 2000 (Paulson), criminal juries in Texas were given this definition of "beyond a reasonable doubt:

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.A "reasonable doubt" is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This is the same definition that federal criminal juries are given in the Fifth Circuit. It's got its good points for the defense - "without hesitation" - and for the government - "based on reason and common sense."

In 2000, the Court of Criminal Appeals, Texas's highest criminal appellate court, decided that jurors should no longer be given the Geesa definition of "beyond a reasonable doubt." The court focused on the third, "without hesitation" paragraph:

If a conscientious juror reads the Geesa charge and follows it literally, he or she will never convict anyone. Considerations utterly foreign to reasonable doubt might make a person hesitate to act. The gravity of the decision and the severity of its consequences should make one pause and hesitate before doing even what is clearly and undoubtedly the right thing to do. Judgments that brand men and women as criminals, and take their money, their liberty, or their lives are deadly serious. They are decisions that make us hesitate if we have any human feelings or sensitivity at all. So to convict, a juror must either ignore the definition, refuse to follow it, or stretch it to say something it does not say.

Noting that in Victor v. Nebraska the U.S. Supreme Court had held that a "reasonable doubt" definition was not required, the Court of Criminal Appeals found that "the better practice is to give no definition of reasonable doubt at all to the jury" and held that Texas criminal juries no longer had to be given a definition of beyond a reasonable doubt.

The criminal bar adjusted to the new lack of a definition by either (a) trying to impose their definition of reasonable doubt on the jury (as always, the prosecutorial approach) or (b) trying to find out what the jurors thought reasonable doubt meant (the defense approach).

This comes to mind today because Norm Pattis (Crime and Federalism) tells us that, faced with the problem of defining reasonable doubt, the Connecticut Supreme Court has taken a different tack. Instead of leaving the definition to the jurors, that court in Jackson v. State (pdf) upheld the trial court's reasonable doubt definition, which was, according to the trial court, "a slight variation of the charge on reasonable dobut recommended by Justice Ginsburg... in Victor v. Nebraska.... a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts." (The intermediate appellate court in Jackson disputed this last assertion.)

The Connecticut definition:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in the world that we know with absolute certainty, and in criminal law 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, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant's guilt, you must give him the benefit of that doubt and find him not guilty.

Norm calls this "thin and cynical gruel," and says:

A police officer can be firmly convinced that there is probable cause for an arrest. Yet the standard is one of the law's lowest. A civil jury can be firmly convinced it is more likely than not that a tort was committed. Yet the preponderance standard is less demanding, at least in theory, than the criminal standard.Detaching proof beyond a reasonable doubt from any conceptual mooring is a mistake. Other definitions at least had the grace of demonstrating that the burden of proof in a criminal case is the law's highest. The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence. Most judges won't give that charge. I suspect they are worried about too many acquittals.

I didn't much care for the Geesa definition of reasonable doubt. Like Scott Greenfield, I was not overly fond of prosecutors' "common sense" arguments (though it took this Simple Justice post to clarify why), but this Connecticut definition is an abomination.

A "jury's" verdict is in fact twelve individual verdicts. When a jury is polled, each juror is asked, "is this your verdict?"; each juror has absolute veto power. Each juror has to decide whether she has a doubt about the accused's guilt and, if she does, whether that doubt is reasonable to her. I don't get to say this often, but the Court of Criminal Appeals got it right - in Texas, jurors can do this.