Are We All Junior G-Men Now?
We Are At Fault for Helicopter Pilots' Deaths

Doing Away With Reasonable Doubt

I wonder sometimes whether jurors agonize much over standards of proof. Sit and actually listen sometime to a judge's instruction on the topic. A layman's eyes can't help but to glaze over.

In State v. Jackson, our [The Connecticut] Supreme Court decided it was time to toss some of the mumbo jumbo aside. It endorsed language singularly lacking in conceptual rigor. Jurors in criminal cases, the high court held, need only be "firmly convinced" of a defendant's guilt in order to convict. Why not be honest about it and permit jury nullification, too?

Here's the new mantra: "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."

This is thin and cynical gruel. 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.

My sense of juries is that they try to do the right thing with what they are given. They struggle to determine facts and work to understand the law provided them. Dumbing down the reasonable doubt standard trivializes a bedrock principle in the criminal law. The standard is intended to be high and difficult. It is better that 10 guilty men go free than one innocent person be convicted, we used to believe.

The author of the new instruction, New Haven Superior Court Judge Jon C. Blue, had this to say about the dumbed-down charge: "Over the years, I've become convinced that jurors' eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties. I believe," Blue stated, "it needs to be modernized, simplified, put into plain language but, obviously, appropriate language."

Frankly, my eyes often glaze over when Judge Blue speaks. He can make good morning sound like an unfinished doctoral dissertation.

I've not noticed jurors stumble over reasonable doubt any more than the dozens of other topics with which they grapple. On Blue's reasoning we should perhaps eliminate all discussion of such mental states as intent, specific intent, recklessness and negligent.

I don't know whether to hope the Jackson decision will be reviewed by the U.S. Supreme Court. Imagine what the new Roberts court could do with reasonable doubt. Perhaps it would endorse the "where there's smoke there's fire" rule. You know the doctrine. It's the one that views the presumption of innocence as an expensive luxury.

Reprinted with permission of The Connecticut Law Tribune.