Real Talk!

Okay, I’m about to admit something. Since the 1993 televised trial of the brothers Menendez, I have been known to tune into Court TV. Yes, I watched a lot of the Simpson trial, the Peterson trial and most recently, the Spector trial.

I’ve watched bits and pieces of a lot of trials, of non-celebrity people, too. It isn’t a voyeuristic thing- I enjoy the posturing, the science and the politics, the language and the attempts to manipulate- I’m looking past the celebrity and blood & guts.

Here is the confession part: In my brain, the term “beyond a reasonable doubt” has been a source of aggravation, of and on, for at least the past 14 years. It’s a term used in the instructions given to juries, in both Canada and the United States, and probably other countries, too. It’s been used since the 1500s!

I’ve tried breaking it down… dissecting the words and trying to fit it with my own vocabulary- and also, researching dictionary for the words and their meanings, what they vaguely suggest and how the phrase is supposed to be interpreted.

Beyond: extending past a point
Reasonable: making common sense, logical and rational
Doubt: uncertain, to have misgivings

Still, I can’t seem to make that term “beyond a reasonable doubt” makes sense. Past the point of a logical doubt? Argh. There are lucid moments, in which I am comforted that the meaning is intended… but there are times when I believe the phrase is practically an oxymoron.

I did a bunch of googling and random polls of the usual suspects. I have to admit that I was relieved to discover that I am not the only one with a problem connecting the dots. Even various courts have added a word, here or there, in attempt to clarify the intention of the phrase. Some courts have ordered that it is meant to be nebulous and therefore must remained unchanged.

In 1850, the Massachusetts Supreme Judicial Court defined reasonable doubt as a mental state in which jurors “cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”

Most interpretations seem to have something to do with “a high level of probability”… or that reasonable doubt doesn’t mean a “possible doubt” it means a substantial doubt- however, it does not mean an absolute certainty, either.

Clear as mud.

Since the 1850 Massachusetts decision, a number of judges added the words “to a moral certainty” to their instructions. This standard of proof doesn’t require that the evidence is so conclusive that all reasonable doubts are removed from the mind of the ordinary person. Justice Ruth Bader Ginsburg noted, “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt”.

Around 1994, the United States Supreme Court warned that a common definition of reasonable doubt that refers to jurors’ “moral certainty” of guilt was outdated and potentially confusing.

Ya think?

Several Federal appellate circuits have dealt with the problem of defining reasonable doubt by instructing trial judges NOT to provide any definition at all.

A 1970s article in the Journal of Applied Behavioral Science, Vol. 6, No. 2 by Rita James Simon stated that:

“Reasonable doubt is one a reasonable person has after carefully weighing all the testimony and is one a reasonable person would act or decline to act upon. It is not a capricious doubt or a fanciful doubt or a doubt arising in anyone's mind because of any sympathy for the defendant. It is in essence what the words obviously mean-a reasonable doubt. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. “

“From anecdotal evidence, it seems that most juries translate the phrase "beyond a reasonable doubt" into "almost certain," "practically sure," "with only the slightest doubt"; or, if we were to restate the instruction in terms of a percentage or a probability, over a 90 per cent likelihood that the defendant committed the act for which he was charged.”

There have been juries that have had some very 'different' interpretations of "reasonable doubt" and they have brought forward verdicts (based on their interpretation) that may have had completely opposite results, had there been clarification.

On Court TV, there has recently been a lot banter about how rich celebrities can afford to hire doubt instigators. Throw enough “doubt” into the mix and you have the jury stymied.

I've read several reports in which lawyers believe that the U.S. civil instruction that requires a verdict through “a preponderance of the evidence” is easier to understand. In other countries, it is known as a balance of the probabilities.

Good thing I don’t have any plans to have my life decided by anyone trying to sort out their responsibility based on language that dates back to the 1500s- but where does it stop?

Do you suppose that some day, we’ll be giving jury instructions using today’s urban street language?

They tell me that “Snap! That dude has the street cred for wicked rad-bad.” now means “Wow, this guy is credible and well respected for doing things that are good, even if they aren’t considered the current trend.”

And “He’s nasty” means “He is ridiculously good at what he’s doing”.

Do you think that we might need a translator?

Words can be both powerful and powerfully misunderstood. That much I know, beyond a reasonable doubt.