Academic journal article Washington and Lee Law Review

Reasonable Doubt and Relativity

Academic journal article Washington and Lee Law Review

Reasonable Doubt and Relativity

Article excerpt

Table of Contents

I.Introduction....................1445

II.Due Process and Reasonable Doubt....................1447

A. Misleading Refinements....................1449

1. An Alternative Hypothesis....................1449

2. Searching for Truth....................1450

3. More Than a Feeling....................1452

4. The Important Affairs of Life....................1453

5. Unreasonable Doubts....................1454

B. Reasonable Doubt is Not Self-Defining....................1455

1. What's in a Name?....................1456

2. The 60/65 Rule....................1460

III. A Legal Theory of Relativity....................1462

IV. The Study....................1467

A. Hypotheses..................... 1467

B. Research Platform....................1468

C. Participants....................1468

D. Methodology....................1470

E. Findings....................1472

V.Explaining Reasonable Doubt: It's All Relative....................1478

VI.Study Limitations and Potential Criticisms....................1482

A. Case Summary Method....................1484

B. Single Fact Pattern....................1486

C. Lack of Juror Deliberations....................1488

D. Participant Attention Level....................1490

E.Participant Bias....................1492

VII. Conclusion....................1494

VIII. Appendix....................1495

I. Introduction

The Constitution protects a criminal defendant from conviction unless the state can prove his or her guilt beyond a reasonable doubt.1 The problem, however, is that this burden of proof is only as formidable as the words used to describe it to the jury.

When instructing juries on reasonable doubt, many courts go to great lengths to explain the concept. Unfortunately, these definitions often do more harm than good. Some definitions create confusion; others actually diminish the state's burden of proof below the constitutionally mandated standard; and yet others are so flawed they actually shift the burden to the defendant.2

Given these risks, other courts have decided that reasonable doubt should not be explained at all, as there is no better way to describe the concept than the two words themselves. However, a wealth of empirical research demonstrates that reasonable doubt is not self-defining.3 That is, when left unexplained, the reasonable doubt standard offers no greater protection against conviction than the preponderance of evidence standard or the clear and convincing evidence standard.4

How, then, should courts explain the criminal burden of proof to jurors? This Article advocates for a relative, context-based approach to instructing jurors on reasonable doubt. In other words, to provide the jury with necessary points of reference to appreciate how high this burden of proof actually is, the reasonable doubt standard should be explained on a relative basis by comparing and contrasting it with the two lower, civil burdens of proof.5

This approach is rooted in the psychological principle called "contrast effects,"6 and is now supported by empirical evidence as well.7 In this Article, I present the results of my controlled experiment where 379 mock jurors read the same case summary of a hypothetical criminal trial.8 Participants were then randomly assigned to two groups, each of which received a different reasonable doubt instruction: Group A (N=181) received an instruction that left reasonable doubt unexplained; Group B (N=198) received an instruction that explained the concept on a relative basis, within the context of the two lower, civil burdens of proof.9

Group A, which received the undefined instruction, acquitted the defendant at the rate of 32.6 percent; Group B, which received the relative, context-based instruction, acquitted the defendant at the higher rate of 42.4 percent.10 This was a 30 percent increase in the acquittal rate and was statistically significant at p < . …

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