5 LPRISK 267
FOR EDUCATIONAL USE ONLY
QUANTIFYING THE STANDARD OF PROOF BEYOND A REASONABLE DOUBT: A COMMENT
ON THREE COMMENTS
Jon O. Newman
United States Court of Appeals for the Second Circuit, 450 Main St. Hartford,
CT 06103, USA
Copyright © 2007 by Oxford University Press; Jon O. Newman
[Received on 24 April 2007; accepted on 2 May 2007]
A trio of recent articles (Tillers & Gottfried, 2006 (T&G); Franklin, 2006 (Franklin); Weinstein & Dewsbury,
2006 (Weinstein)) in this journal concerning the quantification of the 'reasonable doubt' standard of criminal law has
prompted me to express these brief comments.
From different perspectives, these authors have interestingly discussed the issues of whether the 'reasonable
doubt' standard can be quantified and whether quantification, however expressed, should be presented to juries con-
sidering whether a defendant's guilt has been proven by the requisite standard. Without joining the debate on these
issues, I write to suggest that all these distinguished authors have not brought sufficient clarity to exactly what it is
they believe should be quantified and communicated to juries. Judge Weinstein says that he would like to tell a jury,
'Were I the trier of fact, I would require a probability of guilt of no less than 95%.' (Weinstein at 7, emphasis added).
Professors Tillers and Gottfried refer to 'quantification of the reasonable doubt standard in terms of odds, probabilit-
ies or chances' and provide an example of an instruction that permits a juror to convict 'only if the juror believes that
there is more than a 95% chance that the defendant is guilty.' (T & G at 9, emphases added). Professor Franklin sug-
gests that 'any probability less than 0.8 should be declared less than proof beyond reasonable doubt in all circum-
stances.' (Franklin at 2, emphasis added).
My concern is that words such as 'probability', 'odds' and 'chances' are not clear to the average juror. Indeed, as
used by these writers, they are not clear to me. Let me first explain why uncertainty arises in my mind, and, I sus-
pect, may well arise in the minds of jurors, and then turn to a verbal formulation that I think might be preferable, re-
gardless of the percentage selected.
For many people 'probability' will mean the degree of likelihood that a future event will occur. For example, a