Law prof: Presumption of innocence eroding

By Lou Marano
Published 5/20/2003 6:08 PM

WASHINGTON, May 20 (UPI) -- The concept of "reasonable doubt" is being redefined in a way that makes it easier for prosecutors to gain convictions, a law professor said.

The presumption of innocence is well known, as is the principle that a juror should vote to convict a criminal defendant only if the juror believes the accused to be guilty "beyond a reasonable doubt." But University of Arkansas law professor Steve Sheppard has found that courts are increasingly changing the definition of reasonable doubt, particularly in judges' instructions to juries, in a way that is eroding the presumption of innocence.

The meaning is changing from doubt a reasonable person might have after hearing the state present its case to doubt for which one can articulate a reason, shifting the burden of proof from the state to the defense.

Under this rubric, a juror with a gut feeling that the defendant is innocent seldom holds out long against the other 11 jurors who are scrupulously following the judge's instructions.

"Hung juries" are infrequent. "From juror exit interviews we know that more often than not, the holdout caves," Sheppard said.

"Are we aware that the state has put its thumb on the scales of justice?" he asked. Sheppard is author of the article "The Metamorphosis of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence," which appears in the current issue of the Notre Dame Law Review.

Sheppard, a great admirer of juries, said he is concerned with the idea of bringing in laymen and then telling them not only what to do but how to think. "Then if someone is wrongfully convicted, it's not the law's fault ?- the jury did it. ... We limit jurors' independence at the very moment we hold them most accountable."

Lawyers for both sides are required to provide sets of instructions for judges to read to juries, and judges select which ones they will use.

"The instructions in most instances will originate with one of the lawyers, and quite frequently it'll be the prosecutor," Sheppard said. "The prosecutor does this routinely, and the judge sees that prosecutor over and over and over, so usually the prosecutor's going to win that argument. ... And the attorneys will argue directly to juries what (reasonable doubt) means."

Guilt beyond a reasonable doubt has always been a prosecutor's tool, Sheppard told United Press International in a phone interview, but it dates only to treason trials in Ireland in the 1760s and 1770s. Before that the jury was told it had to be convinced of guilt, a stricter standard. That's where we get the word conviction.

The first recorded use of guilt beyond a reasonable doubt in the American colonies was by the prosecution in the 1770 trial of the British soldiers involved in the Boston Massacre. The defense counsel -- framer of the Constitution and future President John Adams -- argued that guilt beyond a reasonable doubt lowered the standard of proof. Adams maintained that the jury should not convict unless it was absolutely convinced of guilt.

The lay jury is a very unusual office in the law, Sheppard said, and jurors didn't have anything like independence until the early 18th century. "A juror could be arrested for bringing in the wrong verdict," he said. Instructions to the jury became important.

(If you didn't accept a jury trial, you couldn't be convicted. So people would choose to be crushed with weights to keep their blood from being "tainted" and their property forfeited to the crown. The last words of those who wanted to protect their families was, "More weight." Sheppard said the last pressing he is aware of occurred in Cambridge, England, in 1741.)

Over the years, there was disagreement about what "reasonable" means. "Literally 25 different definitions bounced around the American courts throughout the 19th century, and there still are at least a dozen," Sheppard told UPI.

A judge's instruction upheld by the Second Circuit Court of Appeals defined reasonable doubt as "doubt for which you can give a reason if called upon to do so by a fellow juror."

One of the problems with this standard is that it hinders the juror whose doubt is based on the belief that the totality of the evidence is insufficient, Sheppard said in a summary prepared with Carolyne Garcia, University of Arkansas science and research communications officer. Yet these are precisely the circumstances in which the rhetoric of the law requires acquittal.

Sheppard said the requirement of articulability is subject to infinite reduction. For example, if a juror says a certain witness is not credible, he might be ask to explain why. "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," he said.

The presumption of innocence is replaced by a presumption of guilt.

A juror who votes to convict needs only to say, "I think he's guilty." But a juror who votes to acquit must articulate precisely why he doubts the state's case.

Copyright 2001-2004 United Press International