Reasonable gibberish

(alternate tagline: because juries never convict anyone anyway)

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.  It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt.  It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision.  It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.  Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

This is, of course, the model jury instruction. I request one that’s substantially different and lifted from State v. Jackson, which I’ll get to in a minute. But look at that definition above. The first sentence itself is so meaningless and confusing that I bet everyone who hears it spends the next 5 minutes trying to figure out just what it means and thus misses the exposition. Emphasizing the word “reasonable” simply leads people to say “proof beyond a reeeasonable doubt”, without any further clue as to how that is to inform their decision. Furthermore, what the hell is a reasonable doubt anyway? Chicken, egg, etc.

The real problem, though, comes when we start defining what “reasonable doubt” isn’t. This indoctrination and confusion starts with jury selection. Prosecutors in these parts read from a script and the script has this explanation:

Now, you may have heard of the phrase proof beyond a reasonable doubt. If you’re selected to sit on this jury, the judge will give you the exact definition, so I’m not going to do that. What I can tell you is that proof beyond a reasonable doubt isn’t proof to an absolute certainty or 100% proof. That’s an impossible standard. [Insert joke about packing up bags and going home or setting a 9am tee time.]

Of course, when the juror-of-average-intelligence follows up with the logical question of, well, if it isn’t 100%, then how much is it, we are all too quick to disavow any statistical attachment to reasonable doubt. We can’t put a number on it. You’ll know it when you see it, just like obscenity and chicken sexing. This loosey-goosey definition of reasonable doubt leads to the same pitfalls when applied to criminal law as it does when applied to obscenity. It means different things to different people.

The “not absolute certainty” instruction also, in my opinion, seeks to lessen the state’s burden in a sneaky, roundabout way: the logical conclusion is that a juror will remember that and say to herself or her fellow jurors: look, we don’t have to be absolutely certain. Close enough is good enough. And you can’t really argue with that, because we don’t know what the standard is in the first place. Scott, writing in the post I linked to above, says it better:

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them.  We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them.  It’s not their fault.  Not in the slightest.  It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

And it is precisely this imprecise and vague meaning of reasonable doubt that the State craves. Research into the psychology of jurors has shown that people are predisposed to convicting someone who is on trial, that jurors are more often likely to side with the State and their show of power. It’s an “us vs. them” mentality and this vague definition teases that out and exploits them. Reasonable doubt is replaced with “I think he did it and if I don’t have to be absolutely certain he did, then this feeling is good enough”. No matter how hard you try, it is extremely difficult to overcome this bias in jury selection and argument, because there’s nothing contrary to argue. You can’t stand up there and give them another definition that makes it clear to them just how high the State has to jump to convince them.

Back to Judge Blue, then. In his valiant attempt to bring sanity to and make concrete this most important concept in criminal justice, he penned the following instruction, which is a slight variation of the charge on reasonable doubt recommended by Justice Ginsburg of the Supreme Court of the United States in Victor v. Nebraska, 511 U.S. 1, (1994). It is a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts:

The state has the burden of proving each and every element necessary to constitute . . . the crime charged. And I’ll instruct on those elements later in my charge. The defendant does not have to prove his innocence in any way or present any evidence to disprove the charge against him. The state has the burden of proving the defendant’s guilt beyond a reasonable doubt. Some of you may be aware that in civil cases jurors are told that it’s only necessary to prove that a fact is more likely true than not true. In criminal cases, the state’s proof must be more powerful than that: It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

The irony is that, in State v. Jackson, the defendant appealed, arguing that this instruction diluted the State’s burden. I suspect, however, that it was appealed only so as get the seal of approval from our Supreme Court, which it did.

Is this definition perfect? No, but it is a step in the direction of providing a concrete explanation of standard to which jurors must hold the State. “Firmly convinced” is a phrase that has more meaning than “a real doubt, an honest doubt”. A juror can ask herself: Am I firmly convinced of this man’s guilt? It’s easier to answer than “Do I have reasonable doubt?”

It is, of course, easier for the courts to “let it be”, but I take that as an instruction to judges, not lawyers. We should routinely object to that nonsense definition I first quoted. Read it again. Tell me if any of it makes sense to you. Can the word “reasonable” be used any more times in a single paragraph? Reasonable men and women having reasonable doubts about reasonable hypothesis.

It is reasonable to think that reasonable people will reasonably be confused by this. And it is reasonable to think that it reasonably leads to reasonable men being convicted for lack of reason.

Reason does make cowards of us all.