The Jury: A Scapegoat for the Law

Marlene Newell

August 10, 2005

Our Constitution puts the burden of proof on the Government in criminal cases, in large measure to offset the tremendous advantage it has to collect evidence and to pursue prosecution. Only probable cause is needed to intrude into our personal lives, to bring criminal charges against us, and to bind us over for trial.

Theoretically, jurors are to presume the defendant is innocent and require the Government to prove its case beyond a reasonable doubt. Ostensibly, that provides enough protection to the truly innocent. However, we are seeing an increasing number of exonerations. These are wrongful convictions of truly innocent persons, not just cases overturned on a technicality. Recently, Supreme Court Justice John Paul Stevens commented that "a substantial number of death sentences have been imposed erroneously," which "indicates that there must be serious flaws in our administration of criminal justice" (, "Justice: 'Serious flaws' in death penalty," Aug 7, 2005). "According to the anti-capital punishment Death Penalty Information Center, more than three dozen death row inmates have been exonerated since 2000" (ibid).
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a death penalty proponent, disagrees with Justice Stevens, remarking that "20 or 30 cases out of 8,000" doesn't "constitute a broken system" (ibid). However, Scheidegger isn't taking into consideration all wrongful convictions. James McCloskey, Director of Centurion Ministries, Inc., believes "that the innocent are convicted far more frequently than the public cares to believe, and far more frequently than those who operate the system dare to believe" (Convicting the Innocent). McCloskey believes 10% of all convictions are wrongful, and cites the seven causes of wrongful convictions (ibid).

Yes the death penalty does add an urgent element to the subject, but life in prison without the possibility of parole and very long sentences of 25-50 years or more totally destroy a person's life. Even lesser punishments, when wrongful, impose on the innocent tremendous personal loss of family associations, reputation, and income.

To be sure, wrongful acquittals also occur, and once tried for the crime, these guilty persons cannot be tried again. But every wrongful conviction also sets a guilty person free, and by the time the innocent person is exonerated, the evidence needed to identify and convict the guilty person may no longer exist. In the meantime, the criminal is free to commit other crimes. So, convicting the innocent presents the bigger problem.

The role of the Jury

Are Juries to blame for these wrongful convictions? Carl F. Worden, with the Sierra Times, an internet publication, thinks so. He ran a spirited article on the lack of evidence against Scott Peterson, and expressed the opinion that "as a responsible citizen and potential juror, I am required to assume innocence unless proven guilty to the extent that there is simply no question about it" (Bad Jurors). 46% of the respondents disagreed with that "stupid" principle (ibid). He suggests jurors "wouldn't be quite so loose with other people's lives if they faced execution themselves following exoneration of a person they wrongly convicted and recommended for death" (ibid).

McCloskey is more compassionate to jurors, noting the nature of the evidence they have to work with is often contradictory and incomplete.

The unschooled public largely and erroneously believes that convictions are mostly obtained through the use of one form of tangible evidence or another. This naive impression is shaped by watching too many TV shows like Perry Mason or Matlock. The reality is that in most criminal trials the verdict more often than not hinges on whose witnesses -- the state's or defendant's - the jury chooses to believe. It boils down to a matter of credibility. There is no "smoking gun" scientific evidence that clearly points to the defendant.

This puts an extremely heavy burden on the jury. It must somehow ferret out and piece together the truth from substantially inconsistent and contradictory testimony between and within each side. The jury is forced to make one subjective call after another in deciding whom to believe and what inferences to draw from conflicting statements. (Convicting the Innocent, emphasis added).

If there is no clear evidence to point to the defendant, why doesn't the jury acquit? The surprising answer is, the beyond reasonable doubt requirement won't let them.

The real meaning of 'beyond reasonable doubt'

Like most Americans, I have labored under the notion that the reasonable doubt standard of proof was put into place as a protection against the innocent being wrongfully convicted. According to Steve Sheppard, Associate Professor at the University of Arkansas School of Law, the contrary is true: "Despite its later prominence as a shield against wrongful conviction, the instruction was not devised to protect more fully the innocent. Rather it was pursued as a means of more easily convicting the accused" (The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof have Weakened the Presumption of Innocence, March 1, 2003, p. 4. Notre Dame Law Review, Vol. 78, May 2003 ).

Sheppard argues that the purpose of the reasonable doubt instruction is to constrain the juror and prevent him from acting independently in determining guilt.

Over time the burden upon the juror who would acquit has grown, and so the evidence necessary for the state to convict has lessened. This change in the burden of proof has profound implications for the prosecutor’s burden of persuasion. The new understanding of reasonable doubt can reverse the operation of the presumption of innocence. (ibid)

In earlier times,

the decision of each juror . . .was not a question for the law but a matter of private conscience. As a matter of conscience, the opposite of certainty was doubt. Someone without doubts was certain; someone with doubts was not. Thus, eighteenth century jurors were told if they were doubtful, they should acquit. The decision was left in the unfettered hands of the juror and his “good sence.”

Thus stood matters at the dawn of the republic. The jury was invested with its traditional obligation to try the facts of cases. This discretion was held in each individual juror, of whom the law expected care but in whose sentiments the decision resided, with no requirement of justification to anyone but God Almighty. (ibid p. 6-8)

As justification for placing so much trust in a jury of ordinary persons, Sheppard quotes from G. K. Chesterton's "Tremendous Trifles":

Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. When it wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing around. The same thing was done, if I remember right, by the Founder of Christianity. (ibid, p. 72)

Sheppard traces the metamorphoses of "reasonable doubt" from Bishop John Wilkins (1614-1672) to the present day. Wilkins verbalized the concept of moral certainty:

on a sufficiency of evidence or confidence in the evidence, because a matter of moral certainty had to be so certain that no one without a prejudice would dissent from it. At a lesser degree of confidence arising from the same evidence, Wilkins found not moral certainty but only opinion and probability. Thus, Wilkins believed that when evidence for a point is less than that which would necessitate every unprejudiced person’s assent, the point was, as he put it, a matter of reasonable doubt." (ibid, p. 12).

This moral certainty standard by Wilkins is a remarkably high standard, and one that I believe most Americans think of when they hear the words "beyond a reasonable doubt," and why so many have such confidence in jury convictions. But as Sheppard points out, that is not the current legal meaning of "beyond a reasonable doubt."

Sheppard notes that as late as the end of the 17th century, even prosecutors strove for the moral certainty burden of proof. He cites the case of Lord Stafford's 1680 trial, in which the prosecutors said they had already produced "presumptive evidence which will induce a moral persuasion,' and would further produce "such positive Evidence as will make a judicial certainty” (ibid, p. 13).

In the colonial courts, "reasonable doubt was, by definition, merely a doubt held by a reasonable person" (ibid, p. 18). John Adams, in Rex v. Wemms, one of the Boston Massacre cases, argued: “Where you are doubtful never act; that is, if you doubt the prisoners guilt, never declare him guilty; this is always the rule, especially in cases of life” (ibid, p. 23). According to Professor Anthony Morano, in Rex v. Wemms the reasonable doubt rule "had the effect of reducing the prosecutor’s burden of proof." Morano argued that "new rules of evidence" allowing "the defendant to produce exculpatory evidence" but restricting "the material the prosecution could present" made it "more difficult" to prove "a case beyond all doubt," and that motivated prosecutors to seek the reasonable doubt rule (as quoted in ibid, p. 24).

The next step in the metamorphoses, according to Sheppard, is the merger of moral certainty and reasonable doubt:

In the early years of the nineteenth century, there were three essential forms for talking about the jurors’ obligations to acquit – if they had any doubts, if they lacked moral certainty, or if they had reasonable doubts. Certainly, for many writers, lawyers, judges, and jurors, these ideas were synonymous. Even so, it is also evident, if from nothing else by John Adams’s preference for doubt and Robert Paine’s preference for reasonable doubt in the Boston Massacre cases, that prosecutors preferred a limit of juror doubt to a reasonable doubt. (ibid, p. 28)

Gradually, the “any doubt standard was replaced with a hybrid view of moral certainty and reasonable doubt." In 1822, Thomas Starke required reasonable doubt to be "significant," not “light conjectures” or “remote suppositions" (ibid, p. 30).

In his 1850 opinion in Commonwealth v. Webster, Massachusetts Chief Justice Lemuel Shaw penned the definition of reasonable doubt that would be used for the next century:

What is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt. (quoted in ibid, 33, underlining added).

I added the underlining to Shaw's definition in order to highlight the portions that were used by Judge Delucchi in his instructions to the Jury at the beginning of the trial.

Reasonable doubt is defined as follows. It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. That's the definition of reasonable doubt.

What is missing from Shaw's definition of reasonable doubt is the need for the Juror to be able to articulate the doubt, "it could be had by the failure to convince to a level of certainty" (ibid, p. 34). And Sheppard argues that Shaw's definition still suggests that reasonable doubt is

no more than a doubt held by a reasonable person. What distinguished reasonable doubt from all other doubts was precisely that a reasonable person would form the doubt based not on general preoccupations relating to human affairs but upon a consideration limited to the evidence presented in the case at hand. As Justice Shaw put it, the doubt was to be formed, if it was formed, from the context of the case as a whole, a rich matrix of “the entire comparison and consideration of all the evidence.” (ibid, p. 34).

The demand that jurors be able to articulate their doubt in order for it to be reasonable resulted from the effort to "introduce greater predictability and scientific rationalism to the methods of American adjudication" in the Nineteenth and Twentieth centuries (ibid, p. 37). "The idea that a juror must be able to state the doubt on which to acquit the defendant goes very far afield from our view of the prosecution having to prove its case to the juror’s judgment of certainty" (ibid, p. 38).

John Wilder May penned the first demand for articulation. As a footnote in the 1876 edition of Simon Greenleaf's Evidence, he wrote:

All the authorities agree that such a doubt must be actual and substantial, as contradistinguished from a mere vague apprehension. An undefinable doubt, which cannot be stated with the reason upon which it rests, so that it may be examined and discussed, can hardly be considered a reasonable doubt, as such a one would render the administration of justice impracticable. (ibid, p. 39, emphasis added)

Sheppard argues that May was misleading in his claim that "all authorities agree," as "no other authorities had supported this proposition and the cited three cases had little to do with it" (ibid).

In United States v. Butler, (1877), U. S. Chief Justice Morrison Waite noted that a reasonable doubt "need not be sufficient to convince another," but "must be a doubt for which a reason may be assigned" (ibid, p. 41), thus requiring that the doubt be articulated. Sheppard argues that

The requirement that . . . a juror be able to explain a doubt in order to hold a reasonable doubt, has created a distinct dynamic of what type of reason can be assigned successfully. The need to assign a doubt implies that a generic doubt would be insufficient, such as “I doubt the prosecutor’s case.” Such a doubt would strike many hearers of the instruction as too broad or diffuse to be anything more than a mere doubt or a speculative doubt, and not one that “you can give a good reason for.” Thus, a doubt must be focused upon either a specific insufficiency in a prosecutor’s case, or upon a specific proposition in the defense’s case. (ibid, p. 45)

Sheppard explains that if a juror's doubt is, "I didn't think the state's witness was credible," it would not be considered a reasonable doubt unless the juror could give a precise reason why the witness was not credible. Furthermore, "a juror who lacks the rhetorical skill to communicate reasons for a doubt is then, as a matter of law, barred from acting on that doubt. This bar is more than a basis for other jurors to reject the first juror’s doubt. It is a basis for them to attempt to convince that juror that the doubt is not a legal basis to vote for acquittal" (ibid).

When the U.S. Supreme Court enshrined "reasonable doubt" as the Constitutional guarantee to every defendant, In re Winship (1970), "rather than giving greater protection to defendants . . . [it] hastened the demise of many of the remaining protections that had persisted despite the diminished standards of reasonable doubt" (ibid, p. 48). In Cage v. Louisiana, the U.S. Supreme Court did strike down the use of the words "grave uncertainty" and "actual substantial doubt," deciding that these words "suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard” (ibid, p. 51).

Sheppard notes that the meaning of reasonable has also changed over the years. It is "less often synonymous with 'good judgment' or 'based on reason' . . . and more often synonymous with 'having reasons' . . . such that a reasonable doubt must be identifiable, quantifiable, and at the least articulable" (ibid, p. 55). However, in 1996, the New Jersey Supreme Court held that “Jurors may harbor a valid reasonable doubt even if they cannot explain the reason for the doubt" (ibid, p. 56).

The net effect

The question is, does the requirement for a doubt to be articulable lower the burden of proof required to convict or reverse the burden of persuasion? In 1978, the First Circuit Court struck down an articulable doubt instruction, but the U. S. Supreme Court has yet to address this issue (ibid, p. 57-58). Sheppard notes that "the Court has yet to recognize that it has allowed a 'reasonable' doubt to become synonymous with an articulable doubt, that a 'reasonable doubt' is no longer a doubt held by a reasonable person, and that it is very far from a private judgment " (ibid, p. 58).

Sheppard argues that "one of the effects of the reasonable doubt instruction . . . is to alter the presumption of innocence" (ibid, p. 59). "More specifically, the articulable doubt standard has been directly attacked by federal and state judges on the grounds that it reverses the presumption on innocence. This concern is highlighted in cases in which a holdout juror is required to explain that juror’s point of view, after which the holdout accepts the majority’s view of the verdict" (ibid, p. 67-68).

Sheppard provides more specific descriptions of his concern:

Although empirical research would be needed to determine whether this result occurs as easily as it appears, it seems likely from the cases that articulability may work in the following way: A juror who would vote to convict may feel quite comfortable in the jury room in saying, “I think he’s guilty,” or at most, “The state has proved his guilt to me beyond a reasonable doubt.” There is no apparent sense that such a juror is required to relate or even understand the state’s case in detail.

A juror who would vote to acquit following an articulability instruction faces a different requirement. Because a reasonable doubt is one for which a reason must be given, this juror would seem to be obliged to say precisely what the doubt with the state’s case is and why it is reasonable. A mere declaration that the juror is not convinced does not seem enough; it lacks the specificity suggested.

Of course, if the juror is not convinced, then according to the presumption of innocence, the juror is supposed to feel free to vote to acquit. This supposition may be false in the light of the tremendous imbalance in favor of the state suggested by an articulable doubt instruction. (ibid, p. 68-69)

Furthermore, Sheppard continues, "the instruction represents an attempt by the experts of the legal system to impose a series of limits on how the jurors will use their discretion. They are not to act independently but only as the law would have them act in their role. This particular limit on discretion is one that might be fundamentally immoral . . . because the juror must accept the legal and social responsibility for the decision. Simply put, the juror is blamed for the law's errors" (ibid, p. 69-70).

The jury is a scapegoat for the law. The juror immunizes the police, judge, and lawyers from mistakes prior to trial. Judges will not correct mistakes made by police or the lawyers or other judges unless the jury would likely have reached another decision if the mistake had not occurred. And, jurors immunize mistakes made after the trial. Judges need not much concern themselves that the condemned defendant is innocent, as that was a job for the jury. An actual error, the wrongful conviction of an innocent, is simply the fault of the jury.

Given that the law places moral blame for errors made by legal officials on the juror, any limit on the juror’s careful judgment that is required by law must be viewed with deep suspicion. The contradictory obligations of a legal barrier to independent judgment at a moment when the law demands independent judgment must be seen as an immoral burden upon the juror.  (ibid, p. 71)


I agree with Carl Worden that many American citizens are irresponsible, if not immoral, in the hasty way they judge guilt and with so little evidence. But I also believe the majority of Americans still take the responsibility of being a juror very seriously and want to arrive at a correct verdict. But, as explained by Sheppard, the reasonable doubt instruction currently in vogue, with its requirement that unconvinced jurors be required to articulate their doubts, undoubtedly prevents many of them from voting their conscience when that vote would be for acquittal.