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Proof of guilt beyond a reasonable doubt - what does it mean?

REASONABLE DOUBT: The words “beyond a reasonable doubt” 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 person’s 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.

Legal right

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 “Blackstone ratio” 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 ‘prove’ 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: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

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: “Any 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 tribunal”.

In France, Article 9 of the Declaration of the Rights of Man and the Citizen stipulates that “Every man is supposed innocent until having been declared guilty,” and the preliminary article of the French Code of Criminal Procedure says “any suspected or prosecuted person is presumed to be innocent until his guilt has been established”.

The jurors’ 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 “beyond a reasonable doubt” criterion was required by the Due Process clause of the United States Constitution.

The basic principle of the “beyond a reasonable doubt” 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 have committed.

Therefore, at acquittal, the fact that a jury cannot find proof beyond a reasonable doubt does not necessarily mean the defendant was innocent.

Concept

Associated with the concept is that the jury is not expected or required to adjudicate on the defendant’s 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 “beyond a reasonable doubt” to remain, in the words of Sir Winston Churchill “a riddle wrapped in a mystery inside an enigma” is the extent to which the words “reasonable doubt” 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 one’s bones?

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: “the prosecution then, has the burden of proving the guilt of this defendant to the exclusion of all reasonable doubt”.

Thus Bugliosi skilfully got rid of the enigma posed by the words “beyond”. 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 doubt.

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 “When Are Doubts Reasonable?” 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.

Reasonable doubt

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 “that man is innocent unless the prosecution convinces me beyond all reasonable doubt that he is guilty”.

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 “beyond a reasonable doubt” 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 one’s satisfaction, that when you leave the court you will sleep well that night.

Shapiro goes on to say that proof beyond a reasonable doubt of a person’s guilt is when you believe that your decision is one you can live with for the rest of your life.

He says: “if you get that pit in your stomach feeling that you are not sure of your decision, that’s when you have a reasonable doubt. No one should be expected to define reasonable doubt as you ought to “know it when you see it”.

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 “reasonable doubt” is self-explanatory and entirely incapable of being defined makes the law, which is called “the queen of humanities” lose some of its luster and credibility.

My first experience with the term “beyond a reasonable doubt” 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 person’s life in their hands.

Professional opinion

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 2001.

The Air India disaster was history’s 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.

History

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 controversial acquittals.

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 guilt.

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: “better for whom?”

The writer is the Co-ordinator, Air Transport Programmes International Civil Aviation Organisation, Montreal, Canada.

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