On "Reasonable Doubt"

What is "reasonable doubt"? And how will Judge Reggie Walton help the jury in the Scooter Libby trial understand the difference between "reasonable" and "unreasonable" doubt? These are the questions that the news media and bloggers will be considering today. I thought it would be fun to take a brief look at these issues, by examining some information from one of the best attorneys of our time, Vincent Bugliosi.

In 1981, Bugliosi authored an article for a legal journal on the distinction between the terms "not guilty" and "innocent," as they are frequently – and incorrectly – considered synonymous. In his book "Outrage," Bugliosi notes that this article was, according to the Index to Legal Periodicals and the Criminal Justice Periodical Index, the first such article on this important topic. This article ("Not Guilty and Innocent – The Problem Children of Reasonable Doubt") shows the connection between the common errors in perception in our legal system.

Bugliosi notes that sources ranging from legal text books to the US Supreme Court frequently err by stating that, "You are here to determine the guilt or innocence of the accused." (No. 11.06 of Federal Criminal Jury Instructions, by DeWitt & Blackmar). In fact, a trial is not about guilt vs innocence. Rather, it is about if the prosecution has proven the defendant is guilty, beyond a reasonable doubt.

If a juror believes the defendant is probably guilty, but that the prosecution did not prove that beyond a reasonable doubt, it is his or her duty to conclude the accused is "not guilty." It doesn’t mean they believe the defendant is innocent. Just that the prosecution did not prove it to the level of "beyond reasonable doubt." Hence, it is extremely important that the jurors understand what reasonable doubt is.

In the book "Outrage," Vince Bugliosi points out that in the OJ Simpson trial, members of both the prosecution and defense teams incorrectly told the jury that "reasonable doubt" was defined as "doubt based upon reason." (Only Chris Darden pointed out that this was not accurate.) This incorrect definition favors the defense in criminal cases, because by nature, people assume that they are "reasonable," and that this implies that any "possible" doubt is therefore "reasonable."

Bugliosi writes that, "In fact, the jury instruction obliquely alludes to this when it says that reasonable doubt ‘is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt’." Some attorneys, including Marcia Clark in the Simpson case, use extreme examples such as "I have a possible doubt that the sun will come up tomorrow. Do I have a reasonable doubt about it? No." By saying this, Clark helped the jurors incorrectly think any doubt that wasn’t comically far-fetched was reasonable.

Bugliosi states that the most confusing word in the phrase "beyond a reasonable doubt" is "beyond." This is because it implies "further" or "more than." He began to substitute the secondary definition of "to the exclusion of," rather than using "beyond."

On page 261-2, he writes, "In my cases thereafter, after explaining to the jury the true sense in which the word ‘beyond’ is used, I would say to the jury, ‘The prosecution, then, has the burden of proving the guilt of this defendant to the exclusion of all reasonable doubt. …. A sound, sensible, logical doubt based on the evidence in the case. …We have eliminated the word ‘beyond’ and we still have a very accurate definition and statement of the doctrine of reasonable doubt’."

In the epilogue, Bugliosi also addresses the concept of "unreasonable doubt," which is those things that defense attorneys are forced to rely upon to try to confuse a jury when they are defending an obviously guilty client. (pages 364-366) In such cases, defense attorneys who have previously earned reputations as highly talented – even to the point of being called members of a "Dream Team" – can come off as looking ordinary at best. I can think of no better example that Team Libby.