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The Origins of Reasonable Doubt

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial

Copyright Date: 2008
Published by: Yale University Press
Pages: 288
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  • Book Info
    The Origins of Reasonable Doubt
    Book Description:

    To be convicted of a crime in the United States, a person must be proven guilty "beyond a reasonable doubt." But what is reasonable doubt? Even sophisticated legal experts find this fundamental doctrine difficult to explain. In this accessible book, James Q. Whitman digs deep into the history of the law and discovers that we have lost sight of the original purpose of "reasonable doubt." It was not originally a legal rule at all, he shows, but a theological one.

    The rule as we understand it today is intended to protect the accused. But Whitman traces its history back through centuries of Christian theology and common-law history to reveal that the original concern was to protect the souls ofjurors. In Christian tradition, a person who experienced doubt yet convicted an innocent defendant was guilty of a mortal sin. Jurors fearful for their own souls were reassured that they were safe, as long as their doubts were not "reasonable." Today, the old rule of reasonable doubt survives, but it has been turned to different purposes. The result is confusion for jurors, and a serious moral challenge for our system of justice.

    eISBN: 978-0-300-15010-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. List of Illustrations
    (pp. vii-viii)
  4. Acknowledgments
    (pp. ix-x)
  5. Introduction
    (pp. 1-8)

    No person in the United States of America can be convicted of a crime unless that person’s guilt is proven with certainty. Mere probability of guilt is not enough: if the accused does not willingly plead guilty, all the essential elements of guilt must be proven to a jury, and they must be proven “beyond a reasonable doubt.”¹ It would be hard to name a doctrine more familiar, or more basic to the American sense of justice. Indeed, the requirement of proof “beyond a reasonable doubt” is so fundamental that the Supreme Court has read it into our constitutional law,...

  6. 1 Of Factual Proof and Moral Comfort
    (pp. 9-26)

    “Judge not lest ye be judged!” is hardly more than a pretty piety for us. In past centuries, though, this injunction and others like it carried a positive threat—a threat taken very seriously, and one that had a significant impact on the shaping of the criminal trial.

    Legal procedures in the premodern world were not like legal procedures today. They did not always aim only at achieving certainty in cases where the guilt of the offender was unknown. Nor did they aim only at providing procedural safeguards for the accused. Instead, they were often designed to help relieve the...

  7. 2 The Christian Judge and the Taint of Blood: The Theology of Killing in War and Law
    (pp. 27-50)

    To our premodern ancestors, criminal trial was about one thing above all: shedding blood. Let the conscientious juryman “tremble,” lest he be “guilty of [the defendant’s] Murther.” So wrote Sir John Hawles in hisEnglishman’s Right.¹ In a trial, “the Guilt of theBloodorruinof an Innocent man [is]Bandyedto and fro, andshuffled offfrom the Jury to the Judge, and from the Judge to the Jury.”² Hawles’s pamphlet, first published in 1680, was perhaps the most widely circulated piece of writing on the subject of jury trial in the eighteenth century—one of those works...

  8. 3 The Decline of the Judicial Ordeal: From God as Witness to Man as Witness
    (pp. 51-90)

    The next three chapters are about the age of the birth of jury trial: the two and a half centuries from about a.d. 1000 to a.d. 1250. This was a remarkable and momentous period, during which the basic legal institutions of the Western world emerged out of a kind of chaos. At the beginning of this period, half a millennium after the collapse of Roman authority in the West, Europe was an impoverished and insignificant fringe region. The leading civilizations of the time were far away: they were in Islam, in Byzantium, in China of the Song dynasty, in the...

  9. 4 Salvation for the Judge, Damnation for the Witnesses: The Continent
    (pp. 91-124)

    Around 1250, a generation after the Fourth Lateran Council had condemned the ordeals as judgments of blood, an industrious Dominican monk named Vincent of Beauvais set out to compile a compendium of all the wisdom of the world as it was known to his age. Beauvais was a town where medieval Frenchmen were attempting to build the largest cathedral ever erected—an edifice that would collapse disastrously in 1284. Vincent wrote in the same local spirit of magnificent ambition, producing a massive work, known as theSpeculum Majus, orGreat Mirror, which surveyed both the whole history of the world...

  10. 5 Salvation for the Judge, Damnation for the Jury: England
    (pp. 125-158)

    We come at last to jury trial at common law, the subject of this chapter and the next two. The previous chapters have dwelt at length on the Christian traditions of antiquity, and on medieval Continental Europe. This may have seemed a strange exercise to most Americans, who generally think of the common law as more or less purely secular, and more or less purely English in origin. Nevertheless, without knowledge of the broader world of Latin Christendom, it is difficult to understand the rise of jury trial at common law, and impossible, as we shall see in these chapters,...

  11. 6 The Crises of the Seventeenth Century
    (pp. 159-184)

    In the final two chapters, we turn to the seventeenth and eighteenth centuries. These were the centuries of Anglo-American revolutions, during which the core constitutional rights that we associate with American liberty took shape, most prominently in the English Bill of Rights of 1689 and the American Bill of Rights of 1791. These are also the centuries in which jury trial assumed its central place among the political rights associated with the common law. It was, finally, during this period that the reasonable doubt instruction gradually emerged. As we shall see, the emergence of reasonable doubt was directly connected to...

  12. 7 The Eighteenth Century: The Rule Emerges
    (pp. 185-200)

    In a world of believing Christians, inducing jurors to convict could never be entirely easy. This was still true in the eighteenth century, just as it had been true in the thirteenth. To be sure, deep changes had taken place. In the Middle Ages, jurors had to fear vengeance violence. That threat was no longer much present in the eighteenth century. But if the fear of vengeance had vanished, the fear of moral responsibility had not. The risk to the soul still shadowed the trial. As a result, some of the twelve jurors might always be drawn to the safer...

  13. Conclusion
    (pp. 201-212)

    When was the rule of reasonable doubt first stated, and by whom? There is no ultimate right answer: the history of this ancient Christian rule is too long and complex to permit us to identify any one date. If we feel that we must credit the earliest statement of the rule to a particular author, we might begin with Pope Gregory the Great, at the threshold of the Middle Ages. It was Gregory who, enthroned in the half-ruined and sadly impoverished city of Rome, admonished a bishop that it was “a grave and unseemly business to give a judgment that...

  14. List of Abbreviations
    (pp. 213-214)
  15. Notes
    (pp. 215-270)
  16. Index
    (pp. 271-276)