{[ promptMessage ]}

Bookmark it

{[ promptMessage ]}

11-18-09 reasonable_doubt-3

11-18-09 reasonable_doubt-3 - Law Probability and Risk(2006...

Info icon This preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
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’ J ACK B. W EINSTEIN Senior Judge United States District Court, Eastern District of New York United States Courthouse, 225 Cadman Plaza East, Brooklyn, NY 11201 AND I AN D EWSBURY 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 W EINSTEIN , J. B., M ANSFIELD , J. H., A BRAMS , N. & B ERGER , M. A. (1997) Evidence , 9th edn. The Foundation Press, pp. 1087–1158; ibid. at 1156–1158 (instructing juries in criminal cases). c The Author [2007]. Published by Oxford University Press. All rights reserved.
Image of page 1

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
168 J. B. WEINSTEIN AND I. DEWSBURY 2. Variability among jurors Based on their genetic differences and divergences in experience, variations among jurors—a cross- section of the community under our practice—are huge. This affects the jury’s impression of such matters as what the rules of law are and ought to be, evaluation of credibility of witnesses and the inferences to be drawn from the evidence.
Image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern