11-18-09 reasonable_doubt-3

11-18-09 reasonable_doubt-3 - Law, Probability and Risk...

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Unformatted text preview: Law, Probability and Risk (2006) 5 , 167 − 173 doi:10.1093/lpr/mgl016 Advance Access publication on January 15, 2007 Comment on the meaning of ‘proof beyond a reasonable doubt’ JACK B. WEINSTEIN Senior Judge United States District Court, Eastern District of New York United States Courthouse, 225 Cadman Plaza East, Brooklyn, NY 11201 AND IAN DEWSBURY Student Law Clerk to Judge Weinstein [Received on 30 October 2006; revised on 8 November 2006; accepted on 10 November 2006] In view of the variety of predispositions among jurors regarding the meaning of proof ‘beyond a reasonable doubt’, some quantitative definition of the probability of guilt required for conviction in addition to descriptive phrasing— in particular stressing the importance of avoiding conviction of the innocent—is desirable. Some flexibility should be left to the discretion of the jurors. Whether any articulation of a standard—in words or percentages—will have an appreciable effect on the rate of improper convictions is not clear. Keywords: burden of proof; reasonable doubt; quantification; jury instructions. 1. Introduction Prof. Tillers’s and Jonathan Gottfried’s analysis supporting a quantified jury instruction on the mean- ing of proof beyond a reasonable doubt is persuasive. That it will be adopted in practice seems doubtful, for some of the reasons suggested by Prof. Franklin and in our Comment. In the usual civil case, the law does not favour either party, except that it slightly prefers the status quo. ‘More probable than not’, with the burden of getting over equipoise, satisfies society’s need for stability and is relatively easy for the jury to understand. If, for some policy reason, the law wants to make it harder or easier for the proponent to win, it puts its thumb on the scale with a variety of burden formulations. 1 In a criminal case, the law tilts in favour of defendants; it prefers that some guilty go free rather than that some innocents be convicted. The questions are (1) how high the required minimum prob- ability should be set and (2) how should the test be articulated. Quantification is one way of stating the standard. Requiring a combined descriptive explanation and an explicit percentage would likely work well for the thousands of jurors we have observed. 1 See, e.g. United States v. Fatico , 458 F. Supp. 388 (E.D.N.Y. 1978); Vargas v. Keane, 86 F.3d 1273 (2nd Cir. 1996) and United States v. Copeland, 369 F. Supp.2d 275 (E.D.N.Y. 2005), cited by Prof. Tillers. See also WEINSTEIN, J. B., MANSFIELD, J. H., ABRAMS, N. & BERGER, M. A. (1997) Evidence , 9th edn. The Foundation Press, pp. 1087–1158; ibid. at 1156–1158 (instructing juries in criminal cases)....
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This note was uploaded on 01/31/2010 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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11-18-09 reasonable_doubt-3 - Law, Probability and Risk...

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