“What Theological Roots of Reasonable Doubt Might Teach Us”
Unlike some esoteric legal terms, the term “reasonable doubt” is familiar to most Americans. Anyone who has sat in jury service in a criminal trial or watched a legal drama has likely encountered the phrase. What many are unaware of is that modern scholarship has uncovered the lost theological meaning and history of the term. A recovery of these roots could aid in reforming the criminal justice system towards more moral and humane ends.
As a public defender in rural Georgia, I took part in several jury trials during my first year of law practice. One of the most important pieces of any trial, I learned, is the closing argument — the opportunity to make one’s case to the jury. What’s more, an indispensable component of any closing argument is the explanation of the state’s burden of proof. Given that a conviction — and therefore punishment and sentencing — hinges on this standard of proof, criminal defense attorneys and prosecutors alike focus much attention on how to explain this opaque and archaic phrase to a jury. The judge’s role is to give what is called a jury charge, which defines the law of reasonable doubt. The typical pattern jury charge in Georgia where I practice, for example, defines reasonable doubt as
just what it says. A reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, or a conflict in the evidence. After giving consideration to all of the facts and circumstances of this case, if your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law, and you must acquit the defendant. But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.
As one would expect, this legal explanation is often not very helpful to jurors in determining the outcome of a given case. Prosecutors and defense attorneys do their best to explain the standard and apply it to the facts in the case in a way that will help their respective positions most. Prosecutors, for example, are fond of explaining reasonable doubt as common sense, and comparing it to a jigsaw or puzzle. The famous analysis usually goes something like this: a puzzle need not contain every single piece for one to see what the larger picture is. The implication being that a case having missing pieces or holes, or some doubt, does not equate to reasonable doubt.
Criminal defense attorneys, on the other hand, often take a more technical approach, and explain the most common standards of proof used in the legal system on a scale of somewhere from one to one hundred: reasonable suspicion, probable cause, preponderance of the evidence, clear and convincing evidence, and beyond reasonable doubt (the emphasis being that reasonable doubt is clearly the highest burden of proof in the American legal system). It is not uncommon to hear a criminal defense lawyer explain reasonable doubt this way: If someone wants to sue you and take your car or your house away from you, that requires a preponderance of the evidence (more than 50 percent); if the state wants to take your children from you, that requires clear and convincing evidence (this is much higher than 50 percent); but if the state wants to take your freedom away, this requires evidence beyond a reasonable doubt (not 100 percent or scientific certainty, but close to it).
Given the exacting nature of the reasonable doubt standard, many assume that it was developed to protect the innocent from false convictions, giving meaning to Blackstone’s famous quip “that it is better that ten guilty persons escape than that one innocent suffer.” This assumption, however, has been challenged by the Yale legal historian James Q. Whitman in recent years. In a monograph published in 2008, Whitman explores the historical meaning of reasonable doubt, its surprising theological beginnings, and the potential ways in which a revival of this understanding could positively impact the law.
Whitman argues that reasonable doubt was actually “not primarily intended to protect the accused” but was rather “originally concerned with protecting the souls of the jurors against damnation” (2-3). According to Whitman, this was because medieval Christians took Jesus’s command in Matthew seriously – judge not lest ye be judged. Judging wrongly was a potentially mortal sin that put jurors (and judges) in danger of eternal damnation. As a result, Whitman shows how theologians developed the concept of reasonable doubt to assuage the consciences of anxious jurors so that they could convict someone without risking their own spiritual safety.
In its original form, [reasonable doubt] had nothing to do with maintaining the rule of law in the sense that we use the phrase, and nothing like the relationship to the values of liberty we ascribe to it today. It was the product of a world troubled by moral anxieties that no longer trouble us much at all. This makes it unsurprising that our law should find itself in a state of confusion today (4).
Whitman explains that reasonable doubt was developed to give jurors “moral comfort” in order to convict, not necessarily to arrive at “factual proof” as it is relied upon today (6). The result in Whitman’s view is that we use the reasonable doubt standard to “convict accused persons under a reasonable doubt standard that we do not understand” (7). It was only later in the eighteenth century, Whitman maintains, that jurors became increasingly less concerned with the “old medieval peril” of wrongful judgment, and blood punishments began to be replaced by punishments such as forced labor (187). This trend continued into the modern era. The result is a disconnect from the original meaning, context, and purpose of the reasonable doubt standard.
Given this history, Whitman concludes that reasonable doubt “has never succeeded in fully functioning as a rule of factual proof” due to the fact that we “embarked on the hopeless project of transforming an old moral comfort procedure into a modern factual procedure” (203-205). As Whitman sees it, the result has been that many modern jurors are at a loss as to how to interpret and apply reasonable doubt. This has left us with the quandaries of determining when and if doubt is reasonable or unreasonable, and whether reasonable doubt is to be interpreted objectively or subjectively, among other concerns.
At first, Whitman suggests that the United States should welcome radical reform and redesign the criminal trial (currently modeled on the Continental legal systems) to specifically prioritize fact finding and should dispense with the reasonable doubt standard. However, Whitman recognizes that this is virtually impossible given the long history of reasonable doubt and our legal system’s reluctance to jettison entrenched legal concepts. Instead, in what I think is a superior view, Whitman suggests that we allow the historical roots of reasonable doubt to remind us of the fact “that judging and punishing are morally fearsome acts” (211). Reasonable doubt should also remind us that the legal system exists to “protect the guilty as well as the innocent”(211). “Open hearted human beings condemn others in a spirit of humility, of duteousness, of fear and trembling about their own moral standing,” writes Whitman. “[T]hat is what our ancestors, for all their bloodiness, believed; and it is why they spoke about ‘reasonable doubt’” (212).
In a more concrete application, Whitman’s final plea in his book is that jurors be reminded of the serious moral nature of the decision that they are making, and ends with the following words: “Even in capital cases, though, jurors must be reminded of what is at stake…Instructing jurors forcefully that their decision is ‘a moral one,’ about the fate of a fellow human being, is, in the last analysis, the only meaningful modern way to be faithful to the original spirit of reasonable doubt.” While I am in full agreement with Whitman’s point here, one major challenge in implementing it is that the vast majority of jurisdictions in the United States follow the rule of jury ignorance, where neither the judges nor the lawyers may tell the jurors what the possible punishments may be for the accused after being found guilty. What’s more, in Georgia, jurors are specifically instructed both that they are not to be concerned with sentencing or punishment of the defendant and that their task is merely to determine factual guilt rather than to sit in religious judgment. The Georgia pattern instruction puts it this way:
Another question that is frequently asked and unfortunately worded is whether there is anything that would make you reluctant to sit in judgment of another person. The purpose of the question is to find out if you have any religious holding that would prevent you from voting your decision or conscience in the jury room. That is true for certain religious denominations and some people. However, as jurors, you are not being asked to judge someone or sit in judgment of someone in a religious sense. You are merely being asked to determine the truth of the facts of the case.
Instructions like these, however, do not change the fact that jurors are being asked to perform the morally fearsome act of declaring another human being guilty of a crime. It does not take into account that the guilty verdict alone — depending on the severity of the charges — can have a range of serious consequences for the accused. For example, in many jurisdictions, a conviction can result in mandatory minimum sentence for certain offenses — i.e., a period of incarceration or probation that not even the judge can go below or deviate from. In such an instance, the only individuals responsible for determining what the minimum punishment will be are the district attorney who presents the charge for indictment, the jury who convicts, and the legislature who predetermined the punishment. In the event of mandatory minimum sentences, even the judge’s hands are tied, and any unique and challenging circumstances or mitigation will not make a difference. It is interesting to ask: If jurors knew what the punishments (especially in the cases of mandatory minimum sentences) would be, would this impact jurors’ decisions to convict? Legal scholars Daniel Epps and William Ortman have argued recently that keeping jurors in the dark about sentencing — which is the law in all but two states — leads to harsher results and more punitive sentencing. They argue that if jurors were aware of the possible sentences, they would deliberate more carefully and that this could serve to check our most punitive laws.
If we want a more just and humane criminal justice system, all participants in the system would do well to realize what the ultimate result of their actions are for the accused and society alike. To truly comprehend the consequences of the work that we do in courtrooms may bring us a degree of fear and trembling, even when the individuals deserve the sentences they receive. And it rightly should. Not only do we sometimes convict innocent people, the guilty people we also convict in courtrooms across America are human beings, notwithstanding their actions, however inexcusable and heinous. They are part of our society and are often people we have failed. They are fathers, mothers, sisters, brothers, children, church members, co-workers, friends, and more who are part of the human family. And they are often people who have undergone immense amounts of trauma and pain themselves.
Although condemning people to prison (especially violent offenders) is often necessary for the common good, this grave and awesome act is not one we should take joy or relish in. I agree with Whitman that if we want to be true to the original intent and spirit of reasonable doubt, we should impress upon juries the moral weight of their decisions. Part of impressing that moral weight involves not leaving jurors ignorant of the punishment that could or will result from a conviction. Doing this, however, will take legal reform in many jurisdictions where reasonable doubt has drifted away from its original meaning over the centuries, obscured by time and space. But it will be legal reform well worth the effort. ♦
Peter Wosnik is the owner and founder of Wosnik Law, LLC, which is a trial-based law firm serving the Metro Atlanta area. Wosnik is a graduate of Emory University School of Law (Juris Doctor) and Candler School of Theology (Master of Theological Studies) where he received the Savage-Levey scholarship in law and religion.
Wosnik, Peter. “What the Theological Roots of Reasonable Doubt Might Teach Us.” Canopy Forum, May 6, 2022. https://canopyforum.org/2022/05/06/what-the-theological-roots-of-reasonable-doubt-might-teach-us/.