To learn more about corporate and executive criminal liability, follow us on LinkedIn. “Brilliant lawyers with forensic expertise” – Benchmark Litigation. Copyright MoloLamken LLP 2018. I quashed the conviction and wrote for a divided panel: “We cannot say that it is absolutely impossible for a person with secure handcuffs behind his back to extract a significant amount of crack cocaine from his person or clothing and corner him in the room where he was found without leaving a trace of cocaine on his fingers or clothes. But we can say that the possibility of such an incident is so remote that no jury could reasonably determine beyond a reasonable doubt that it occurred. [lxii] I cannot be sure that I would have reached the same conclusion if I had asked whether “any rational judge of the facts could have concluded beyond a reasonable doubt that the essential elements of the crime are essential.” [lxiii] [xxxi] Id. on 18. A widely respected treaty recommends similar wording: a reasonable doubt is “a doubt which would cause a reasonable person to hesitate to act on an important matter in his personal life.” 1 Leonard B. Sand et al., Modern Federal Jury Instructions, § 4.01, Instruction 4-2 (1993).
The phrase “reluctant to act” probably comes from a 1922 court case in Alabama, Posey v. State, 93 So. 272, 273 (Ala. 1922) and was first cited by a federal court in 1939. See Bishop v. United States, 107 F.2d 297, 303 (D.C. Cir. 1939). Some of those who reflect on the reasonable doubt standard have written about how it establishes a high “probability” that the accused committed the alleged crime.
For example, Justice Jack Weinstein wrote, “If I were the trier of fact, I would demand a probability of guilt of at least 95%.” [xxxv] Professor James Franklin wrote: “Any probability less than 0.8 should in all circumstances be declared less than evidence beyond a reasonable doubt.” [xxxvi] Professors Peter Tillers and Jonathan Gottfried, who use a variant of the language of probability, advocate a direction that allows a jury to “convict only if the jury believes there is more than a 95% probability that the accused is guilty.” [xxxvii] Professor Rita James Simon sent a questionnaire to 1,200 federal and state judges asking them what numerical value they attached to the reasonable doubt standard. [xxxviii] Their questions all asked for a number based on “probability”; A typical question was: “Translate the phrase `beyond a reasonable doubt` into a statement of probability.” [xxxix] A large number of judges responded and chose a number. For the survey cited, the median number was 8.8 and the average number was 8.9. However, the questionnaire never explained to judges (or readers of the report) what the term “probability” meant. An indictment by the jury, which quantifies the degree of certainty required to establish guilt “beyond a reasonable doubt,” and a diligent review of the appeal to ensure that a jury has reasonably found guilt “beyond a reasonable doubt” can help ensure that this revered phrase is taken seriously. Another explanation for proof beyond a reasonable doubt is the phrase “hesitating to act.” In Victor v. Nebraska,[xxx] the Supreme Court approved the following version of this formulation: “[t]he recognizable doubt is such a doubt that a reasonable and prudent person in one of life`s most serious and important transactions would pause and hesitate before accepting the facts presented as true and relying on them and acting.” [xxxi] In Holland v. In the United States,[xxxii] the Supreme Court found that the trial judge had defined reasonable doubt “as `the kind of doubt.`” who you are willing to act in the most serious and important cases of your own life,” and explained, “We believe this section of the indictment should have been in terms of the kind of doubt that would make a person hesitate to act, not how they would be willing to act.” [xxxiii] To prove guilt, the prosecutor does not have to dispel all doubts. This would be impossible, because only a witness to a crime can state with absolute certainty that something happened. However, the prosecutor must convince the jury that after reviewing all the evidence, there is only one conclusion, which is that the accused is guilty. In 1960, ten years before Winship made reasonable doubt a constitutional requirement for conviction by trial courts, the Supreme Court first considered whether a conviction had been obtained without due process for insufficient evidence. In Thompson v.
City of Louisville,[xlvii] the “Shuffling Sam” case (so named because a loitering charge was laid against a man standing alone on a café dance floor, dragging his feet to the music), the court ruled that the conviction was unconstitutional because there was no evidence of guilt. [xlviii] “It is not necessary for the government to prove its guilt beyond doubt. The test is a reasonable doubt.