Robert Jakubowicz: What constitutes reasonable doubt?



The jurors in the George Zimmerman trial were told by the judge that they must apply the standard of reasonable doubt in deciding his guilt or innocence.

Their verdict means that they collectively had that doubt. But judging by the reaction of many watchers of this trial, a significant part of the general public did not have such a doubt. The reason for this difference is the confusion over what kind of doubt this is supposed to be. Some legal scholars still debate over whether or not there is a definite meaning for it.


James Q. Whitman, a Yale law school criminal law professor, legal historian, and author of a book entitled, "The Origins of Reasonable Doubt," is not surprised. He says there is confusion because this rule originally was not intended to protect a person accused of a crime. Early Christians, according to Whitman, feared the vengeance of God and eternal damnation if they wrongly judged a person of committing a crime. They considered it safer for their salvations not to make such judgments if they had any doubts. This fear and religious anxiety led to the formulation of the reasonable doubt standard to protect these early jurors, not the accused. It was used to assure them that they could convict somebody on this basis without risking their salvation.

Over time this theologically-based idea about doubt was incorporated into early common law in England where it evolved into a judge-made unwritten law to protect an accused charged with a crime. Although the fear of eternal damnation waned for wrongfully judging a person to be guilty of a crime, there still remained a dread of condemning the innocent. Whitman said this was especially the case by the end of the 18th century, in England and in colonial America where the colonists brought this common law jurisprudence with them. As a way of alleviating this dread of figuratively having the blood of an innocent person at an early juror's door, the common law version of the reasonable doubt rule was changed to protect the accused.

This unwritten rule of proof beyond a reasonable doubt in criminal cases became so ingrained in early America as part of the common law that it became the required measure in criminal cases for a jury to use in rendering a verdict. It appears to have become so well accepted that the drafters of the Constitution and the Bill of Rights did not make any mention of it. It was simply followed as an unwritten right of an accused in criminal trials until 1970 when the U.S. Supreme Court in a split decision said that the Due Process Clause protects the accused against conviction except for proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.

An ongoing problem with this right is the lack of a definition of what constitutes reasonable doubt. Basically, trial judges instruct juries that because everything is open to some doubt, a juror, after comparing and considering all the evidence, must not have abiding conviction to a moral certainty about the truth of the charges. Judges are discouraged to say much more because verdicts have been overturned by judge's straying from the above difficult to understand statement. Some examples of these embellishments by judges include a jury being told it is when they are left with a reservoir of doubt, or when jurors have an unsatisfied conscience.

I do not know the exact instruction the judge gave about the rule in the Zimmerman case, but basically this is what the jurors had to be instructed to decide -- whether they had a moral certainty, a binding conviction, after considering all the evidence against Zimmerman, that he unjustifiably killed Trayvon Martin. They also would have been told that Zimmerman would be justified to use a firearm in Florida if they found that he feared for his life or incurring serious bodily injury. If he unjustifiably killed Martin with malice (anger, hatred, racism) the jury could decide on second degree murder, or if they found it was an unjustified killing without malice, they could return a verdict of manslaughter.


The crucial part of that case was the actual physical confrontation between Zimmerman and the victim. There were no eyewitnesses, except for a person a distance away who thought he saw Zimmerman pummeled on the ground by the victim, some blood and a puffed nose on Zimmerman, and dueling testimony by relatives over whose screams could be heard during the fight. The rest of the evidence from the dummy used in the trial to the forensic experts about what likely happened during the physical encounter were just props to aid the jurors in figuring out what happened at that deadly encounter.

The reasonable doubt standard works badly in circumstantial cases like this one because it was never intended to protect the accused and the degree of doubt lacks a meaningful definition. The result of its inadequacy is guess work as to this doubt by a jury, and a divided nation having doubt over the verdict.

Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.


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