Proof of guilt beyond a reasonable doubt - what does it mean?
REASONABLE DOUBT: The words âbeyond a reasonable doubtâ are
the best known in the English language and represent the most venerable
concept to the legal profession.
What these words really stand for has special significance in the
world we live in which increasingly requires us to balance the interests
of social justice and social security.
We are required to evaluate the right of a person to claim his
innocence against the heavy burden cast on a State to put a dangerous
person away in the overarching interests of security of the people.
It is a platitude to say that proof beyond a reasonable doubt of a
personâs guilt is sacrosanct. So sacrosanct that it stands tall as the
only standard regarding the conduct of a person which requires such
rigid parameters of reprehendsibility.
We take so many decisions in our lives where we might have a
reasonable doubt but still go ahead -decisions such as entering into a
marriage, buying a house or accepting a job. One might well ask why then
should this criterion apply only to crimes.
Arguably, the requirement of proof beyond a reasonable doubt is based
on the theory that it is better to let ten guilty persons go free than
convict one innocent person.
This theory was enunciated by English Jurist William Blackstone, and
the ratio 10:1, called the âBlackstone ratioâ gives expression to the
classic Anglo-American moral principle of the presumption of innocence.
Presumption of innocence is a legal right that the accused in
criminal trials has in many modern nations. It states that no person
shall be considered guilty until finally convicted by a court.
The burden of proof is thus on the prosecution, which has to convince
the court that the accused is guilty beyond a reasonable doubt. In
principle, the defence does not have to âproveâ anything.
However, the defence may present evidence tending to show that there
is a doubt as to the guilt of the accused.
There are several legal instruments both national and international,
which espouse the presumption of innocence.
The Universal Declaration of Human Rights, Article 11, states:
Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which
he has had all the guarantees necessary for his defence.
The Convention for the Protection of Human Rights and Fundamental
Freedoms of the Council of Europe says in Article 6.2: âEveryone charged
with a criminal offence shall be presumed innocent until proved guilty
according to lawâ.
This convention has been adopted by treaty and is binding on all
Council of Europe members. Currently (and in any foreseeable expansion
of the EU) every country member of the European Union is also member to
the Council of Europe, making this requirement stand for EU members as a
matter of course.
In Canada, Section 11(d) of the Canadian Charter of Rights and
Freedoms states: âAny person charged with an offence has the right ...
to be presumed innocent until proven guilty according to law in a fair
and public hearing by an independent and impartial tribunalâ.
In France, Article 9 of the Declaration of the Rights of Man and the
Citizen stipulates that âEvery man is supposed innocent until having
been declared guilty,â and the preliminary article of the French Code of
Criminal Procedure says âany suspected or prosecuted person is presumed
to be innocent until his guilt has been establishedâ.
The jurorsâ oath of France reiterates this assertion. Although proof
beyond a reasonable doubt is the bulwark of individual freedom,
strangely, the phrase does not appear in constitutional documents,
certainly not in the American Constitution or the Bill of Rights.
It was not until 1970 that the United States Supreme Court decided
that the âbeyond a reasonable doubtâ criterion was required by the Due
Process clause of the United States Constitution.
The basic principle of the âbeyond a reasonable doubtâ requirement is
that it does not go to prove the guilt or the innocence of the
defendant. It merely means that if there is no proof beyond a reasonable
doubt the defendant cannot be found guilty of the crime he is alleged to
Therefore, at acquittal, the fact that a jury cannot find proof
beyond a reasonable doubt does not necessarily mean the defendant was
Associated with the concept is that the jury is not expected or
required to adjudicate on the defendantâs innocence or guilt. The
finding of not guilty by a jury is merely a legal conclusion that the
prosecution has not met its burden of proof.
A compelling reason for the phrase âbeyond a reasonable doubtâ to
remain, in the words of Sir Winston Churchill âa riddle wrapped in a
mystery inside an enigmaâ is the extent to which the words âreasonable
doubtâ have been defined.
In the 1975 United States case of People v. Garcia the court held
that one cannot legally accept the argument that a reasonable doubt
means just what it states: that it is a doubt based upon reason.
The questions that arise from this determination are: does proof
beyond a reasonable doubt mean that the State must prove its case beyond
all doubt; does the State have to prove its case beyond a shadow of a
doubt; is reasonable doubt a speculative doubt, a feeling in oneâs
Vincent Bugliosi, one of the most successful prosecutors in the
United States once said that in all his addresses to the jury he
exhorted the jury: âthe prosecution then, has the burden of proving the
guilt of this defendant to the exclusion of all reasonable doubtâ.
Thus Bugliosi skilfully got rid of the enigma posed by the words
âbeyondâ. He went on to tell the jury that a reasonable doubt is not a
mere possible doubt, because everything relating to human affairs and
depending upon moral evidence is open to some possible or imaginary
Therefore, a reasonable doubt is a sound, sensible, logical, doubt
based on evidence. As a prosecutor, Bugliosi would then close in on the
Jury, urging them that, according to the evidence there is absolutely no
reasonable doubt as to the guilt of the defendant.
This approach brought Bugliosi 125 convictions out of 126 criminal
cases he handled at trial.
Alan Dershowitz of Harvard Law School, in an article âWhen Are Doubts
Reasonable?â says that for him the reasonableness of the doubt required
to acquit should depend on the seriousness of the crime and the severity
of the punishment. Based on this approach, Dershowitz concludes that no
doubt is reasonable if the punishment is death (in other words there
should be absolutely no doubt of guilt in order to convict). Very little
doubt should be deemed reasonable if the punishment is life imprisonment
and if the punishment is merely a fine or a suspended sentence, the
required degree of doubt might be greater.
In practical terms it is difficult to accept the thought that members
of a Jury would, at the outset of a trial, look at the defendant and
convince themselves âthat man is innocent unless the prosecution
convinces me beyond all reasonable doubt that he is guiltyâ.
According to Richard M. Strassberg, a lawyer who served both as
prosecutor and defence attorney at various stages of his career at the
Bar in New York, when he was a prosecutor he was struck by the enormity
and exactitude of the standard of proof beyond a reasonable doubt.
However, when he became defence attorney he was equally struck by the
irony of the words as juries often tended to disregard the requirement
of proof âbeyond a reasonable doubtâ and convicted the defendant on a
commonsensical evaluation of guilt.
Robert M. Shapiro, lead defense counsel in the famous trial which
concerned O.J. Simpson, a famous football player and Hollywood star who
was accused of the murder of his wife, says that reasonable doubt is
more a feeling; a belief that a case has been proven to oneâs
satisfaction, that when you leave the court you will sleep well that
Shapiro goes on to say that proof beyond a reasonable doubt of a
personâs guilt is when you believe that your decision is one you can
live with for the rest of your life.
He says: âif you get that pit in your stomach feeling that you are
not sure of your decision, thatâs when you have a reasonable doubt. No
one should be expected to define reasonable doubt as you ought to âknow
it when you see itâ.
The perceived flippancy of this visceral approach to one of the most
morally sensitive concepts of jurisprudence and the often demonstrated
abject intellectual cowardice of some courts and members of the legal
profession in approaching this subject on the basis that the term
âreasonable doubtâ is self-explanatory and entirely incapable of being
defined makes the law, which is called âthe queen of humanitiesâ lose
some of its luster and credibility.
My first experience with the term âbeyond a reasonable doubtâ was in
1975 when, as a student of the Faculty of Law, University of Colombo, I
attended a murder trial at the Anuradhapura High Court. The prosecutor
was my brother Gamini (who later became a Judge of the Court of Appeal).
Judge Devendra, in his concluding words to the Jury was supportive of
the presumption of innocence and advised the Jury that if they had any
doubt as to the guilt of the accused they should acquit him.
This made me realise what an enormous burden lay on both the Judge
and Counsel who had the responsibility of a personâs life in their
Thirty years later, I had occasion to render a professional opinion
on the judicial proceedings involving the 1985 bombing of an Air India
jet (flight 182), the most dastardly terrorist act in modern history
until the attack on the World Trade Centre in New York in September
The Air India disaster was historyâs worst airline mass murder. The
flight from Canada was bound for Mumbai when the aircraft exploded
31,000 feet above the Irish coast killing 250 adults and eighty
children. The world grieved and called for justice.
In what was the most complex criminal case in Canadian history which
ended in March 2005, Mr. Justice Ian Bruce Josephson, while recognising
that those who died were innocent victims of a diabolical act of
terrorism, asserted that there could be no lowering of the standard of
proof from that required in any criminal trial.
Judge Josephson emphasised that justice would not be achieved if
persons are convicted on anything less than the requisite standard of
proof beyond a reasonable doubt. The trial ended with two highly
Going back to the moral basis of the requirement of proof beyond a
reasonable doubt which is calculated to ensure that no single innocent
person is convicted, it must be noted that in many authoritarian regimes
the prosecution case is, in practice, believed by default unless the
accused can prove he is innocent, a practice called presumption of
This practice is antithetical to the Anglo-American principles of
freedom, civil liberty and human dignity and therefore unacceptable to
democracies throughout the world.
It is also contrary to the Rule of Law, which is the principle that
governmental authority is legitimately exercised only in accordance with
written, publicly disclosed laws adopted and enforced in accordance with
established procedure. The principle is intended to be a safeguard
against arbitrary governance.
However, as we continue to live in challenging times, it is well
worth pondering on the story of the Chinese law professor who listened
as a British lawyer extolled the virtue of the principle, that it was
better for ninety-nine guilty men to go free than execute one innocent
man. The Chinese professor pondered for a moment and asked: âbetter for
The writer is the Co-ordinator, Air Transport Programmes
International Civil Aviation Organisation, Montreal, Canada.