Don't doubt reasonable doubt

THE government had presented strong evidence, the judge thought: positive identification from the holdup victim; unshaken testimony from a police officer that after responding to the store owner's call he had found the defendant hiding under a nearby porch; equally unrefuted testimony from another officer of finding a few feet from the porch a pistol that precisely matched the store owner's description of the robber's weapon. Moreover, when the policemen searched the defendant just after arresting him they found in his pocket bills totaling just the amount the store owner said he had given up - and inside the wad, the store owner's watch.

The accused had willingly taken the stand. He had, he said, given his friend a lift to the store, then waited for him down a side street. Concerned after a 10-minute wait, he left the car and walked to the store. Just before he reached it, he said, the friend had come scurrying out, shouting ``Run.''

Frightened, the defendant ran into a backyard and under the porch where the police found him. The money and the watch, he said, were both his.

Looking at the jury during the defendant's testimony, and closing arguments, the judge was sure the defendant had won no converts. Now, toward the end of the second full day of jury deliberation, the judge began to wonder. Was the jury having serious trouble with the facts, or were the jurors merely viewing the evidence with excruciating care?

``Reasonable doubt.'' Was that the problem? In his final charge, the judge, obeying the law and the appellate courts, had told the jurors that the defendant was innocent until the prosecution proved him guilty; that the defendant had no obligation to persuade the jury of anything; and that a guilty verdict required the government to convince them beyond a reasonable doubt; that is, to a moral certainty.

Was the standard too high? Was the constant reiteration, which a proper jury charge required, paralyzing the jurors' ability to reach a conclusion which (to the judge at least) seemed inescapable? In this time of palpably increased criminal activity, should the courts begin to reduce the government's burden?

True, the reasonable-doubt criterion is by now constitutionally mandated. Yet the United States Constitution, as Chief Justice Charles Evans Hughes once remarked, is what the judges say it is. Beyond that, the concept of reasonable doubt is not self-defining.

Should judges begin to state it in terms that would lower the barrier? Some courts in fact have begun the process, although in a less-than-forthright manner. They explicitly decline to tell the jury anything beyond a mere statement of the term. ``Proof beyond a reasonable doubt'' thus means whatever quantum of evidence happens to satisfy a particular jury.

The thought made the judge uncomfortable. Apart from all the arguments about the conduct of searches, seizures, and wiretaps, and about the prosecution's obligation to play fair with the defendant, our society pretty much agrees that convicting a person of a crime is and should be a serious matter.

This does not mean favoring the defendant. It means a belief that easing the prosecution's task threatens the liberty of everyone.

These philosophical musings did not calm the judge's concern about his overly deliberative jury. Only when he heard the foreman say ``Guilty'' could the judge admit to himself that speed of decision does not relate to fairness of a verdict or to the standard the jury uses to reach it. In short, he realized, we do not yet have reason to doubt the justice of ``reasonable doubt.''

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