Beyond reasonable doubt: Difference between revisions

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{{a|casenote|}}The criminal standard of proof under English law:  
{{a|crime|{{wmc|Sherlock Holmes (1922) - 8.jpg|}}}}The criminal standard of proof under English law:  
{{quote|“formerly described as “beyond reasonable doubt”. That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded “so that you are sure”
{{quote|“formerly described as “beyond reasonable doubt”. That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded “so that you are sure”
:—Legal Studies Board guidance <ref>[https://www.google.com/search?q=Judicial+Studies+Board+guidance+standard+proof Let me google that for you]</ref>}}
:—Legal Studies Board guidance <ref>[https://www.google.com/search?q=Judicial+Studies+Board+guidance+standard+proof Let me google that for you]</ref>}}
{{Quote|“Are you trying to say you can’t convict anyone without direct evidence?”
{{Quote|“Are you trying to say you can’t convict anyone without direct evidence?”


“No, but I am saying it should be a lot harder, because without direct evidence you are dependent on probabilities.”
“No, but I am saying it ought to be much harder because, without direct evidence, you rely on probabilities.”
:—Some wag on Twitter}}
:—Some wag on Twitter}}
====Circumstantial evidence, beyond reasonable doubt, and the perfect crime====
====Circumstantial evidence, reasonable doubt, and the perfect crime====
[[Circumstantial evidence]] as “information that changes the [[Bayesian prior|prior probability]].”
{{drop|I|t may seem}} outrageous that there is such a thing as a “perfect” crime, wherein the villain leaves no trace of his dastardly deed and thereby walks away scot-free — but as a general proposition under the common law, it is true: you cannot convict someone of a crime for which there is no [[evidence]]. Even if she definitely ''did it''.<ref>As long as she doesn’t ''admit'' she did it.</ref> Here, again, is our old friend [[Der Sieg der Form über Substanz|form over substance]]: this time the the requirement for ''form'' following the uncomfortable implication of [[epistemology]] that ''we cannot know substance''. Form is ''all we have''. Here is {{author|David Hume}}:
 
It may seem outrageous that it is possible to commit a “perfect crime”, but as a general proposition under the common law one cannot be convicted of a crime for which there is no direct or indirect [[evidence]].  
 
This is a matter of [[ontology]], even metaphysics, sheeted in epistemological scepticism. Here is Berkeley:


{{Quote|“We have no other notion of cause and effect, but that of certain objects, which have been always conjoined together, and which in all past instances have been found inseparable. We cannot penetrate into the reason of the conjunction. We only observe the thing itself, and always find that from the constant conjunction the objects acquire a union in the imagination.”
{{Quote|“We have no other notion of cause and effect, but that of certain objects, which have been always conjoined together, and which in all past instances have been found inseparable. We cannot penetrate into the reason of the conjunction. We only observe the thing itself, and always find that from the constant conjunction the objects acquire a union in the imagination.”
:—{{author|David Hume}}}}
:—{{author|David Hume}}}}
Ther’s almost a bit of Berkeley in this.
If Enlightenment philosophy is a bit much for after-dinner reading, Terry the cook from ''Fawlty Towers'' [[Terry’s law|puts it]] more colourfully:
{{quote|“What the eye don’t see, the chef gets away with.”}}
 
If you want to put someone away, you must ''prove'' it. The defendant does not have to prove ''anything''.


{{Quote|When we do our utmost to conceive the existence of external bodies, we are all the while only contemplating our own ideas. But the mind, taking no notice of itself, is deluded to think it can and does conceive bodies existing unthought of or without the mind; though at the same time they are apprehended by, or exist in, itself.
In the vernacular, the [[Burden and standard of proof|burden of proof]] is on the prosecution. The ''standard'' of proof that the prosecution must attain is “beyond reasonable doubt”. Not “probably”, not “highly likely”: there must be ''no plausible alternative explanation'' for the events.
}}


At some level, if we have ''no'' independent grounds for believing that ''Colonel Mustard murdered Reverend Green'' then, in our epistemology, ''Colonel Mustard did not murder Reverend Green'' even if, unbeknownst to us and unreflected in the available evidence, Colonel Mustard in fact ''did'' murder Reverend Green. We have no justified belief in that proposition.
Here is where the difference between [[direct evidence|direct]] and [[circumstantial evidence]] is stark. If there is reliable witness evidence that the defendant did it, or did ''not'' do it, then the burden and standard can be satisfied easily. There is not much call, or even scope, for doubt.


But we do not need much information to form ''some'' kind of justified belief in it.
But in a case where there is ''no'' direct evidence that the defendant did ''anything'' — no eyewitness testimony, no CCTV, no uncoerced confession nothing — then the circumstantial evidence suggesting that she did do something is going to have to do an awful lot of work. It must, create an overwhelming probability that there was a murder, that the defendant was responsible, and that it was not a non-culpable death, or that it was but the defendant was not responsible for it.


Those grounds fall into two categories: those that ''directly confirm or contradict it'' — which may take the form of an eye witness report that “Colonel Mustard murdered Reverend Green in the library with a lead pipe”, recorded video and audio of him doing so, Colonel Mustard’s confessions and so on which, if accepted , settle the matter — we call this “[[direct evidence]]” — and information that changes the probability of the proposition being true — Colonel Mustard’s alibi, a till receipt for a lead pipe, a long-standing feud between the two. This we call ''[[Circumstantial evidence|circumstantial]]'' evidence.  
====Reasonable doubt====
{{Drop|N|ow [[doubt]] is}}, in some ways, a positive belief: ''reasonable'' doubt implies you have proactively weighed up possible alternatives and discarded the outlandish ones.  


Direct evidence is in a way, a subset of circumstantial evidence in that it changes the probability of the event to 100% (or zero), and therefore the only question that remains is “how ''reliable'' is the evidence?” Was the witness mistaken, or lying? Was the confession coerced? Doubt about reliability may change its weighting to less than 100%
There is, therefore, some tension here between crystalline legal theory — ''viz''., the defence need not prove a fig — and the practical reality that it is in the defendant’s interest that ''someone'' casts doubt into jurors’ minds. Since the Crown plainly won’t be doing that, the defence must either rely on the jury to confect plausible doubts by themselves, or ''it must plant them there''. 


Circumstantial evidence requires the same assessment for reliability, but before that there is a question: even if completely reliable, how much does the evidence change the probability of the event in the first place. Colonel Mustard might be a plumber, so habitually in possession of lead piping. He may have bought the lead pipe, but then been robbed of it. Miss Scarlett, Mrs White, Mrs Peacock and Professor Plum may each have had access to lead pipe too. There may have been an unseen intruder with a lead pipe.
It is a brave defence counsel indeed who puts her client’s future in the hands of a jury’s  imagination and capacity for creative thought.
{{sa}}
{{sa}}
*[[Circumstantial evidence]]
*[[Direct evidence]]
*[[Miscarriages of justice]]
*[[Miscarriages of justice]]
{{ref}}{{nld}}
{{ref}}

Latest revision as of 17:11, 24 August 2024

Crime & Punishment
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The criminal standard of proof under English law:

“formerly described as “beyond reasonable doubt”. That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded “so that you are sure”

—Legal Studies Board guidance [1]

“Are you trying to say you can’t convict anyone without direct evidence?”

“No, but I am saying it ought to be much harder because, without direct evidence, you rely on probabilities.”

—Some wag on Twitter

Circumstantial evidence, reasonable doubt, and the perfect crime

It may seem outrageous that there is such a thing as a “perfect” crime, wherein the villain leaves no trace of his dastardly deed and thereby walks away scot-free — but as a general proposition under the common law, it is true: you cannot convict someone of a crime for which there is no evidence. Even if she definitely did it.[2] Here, again, is our old friend form over substance: this time the the requirement for form following the uncomfortable implication of epistemology that we cannot know substance. Form is all we have. Here is David Hume:

“We have no other notion of cause and effect, but that of certain objects, which have been always conjoined together, and which in all past instances have been found inseparable. We cannot penetrate into the reason of the conjunction. We only observe the thing itself, and always find that from the constant conjunction the objects acquire a union in the imagination.”

David Hume

If Enlightenment philosophy is a bit much for after-dinner reading, Terry the cook from Fawlty Towers puts it more colourfully:

“What the eye don’t see, the chef gets away with.”

If you want to put someone away, you must prove it. The defendant does not have to prove anything.

In the vernacular, the burden of proof is on the prosecution. The standard of proof that the prosecution must attain is “beyond reasonable doubt”. Not “probably”, not “highly likely”: there must be no plausible alternative explanation for the events.

Here is where the difference between direct and circumstantial evidence is stark. If there is reliable witness evidence that the defendant did it, or did not do it, then the burden and standard can be satisfied easily. There is not much call, or even scope, for doubt.

But in a case where there is no direct evidence that the defendant did anything — no eyewitness testimony, no CCTV, no uncoerced confession nothing — then the circumstantial evidence suggesting that she did do something is going to have to do an awful lot of work. It must, create an overwhelming probability that there was a murder, that the defendant was responsible, and that it was not a non-culpable death, or that it was but the defendant was not responsible for it.

Reasonable doubt

Now doubt is, in some ways, a positive belief: reasonable doubt implies you have proactively weighed up possible alternatives and discarded the outlandish ones.

There is, therefore, some tension here between crystalline legal theory — viz., the defence need not prove a fig — and the practical reality that it is in the defendant’s interest that someone casts doubt into jurors’ minds. Since the Crown plainly won’t be doing that, the defence must either rely on the jury to confect plausible doubts by themselves, or it must plant them there.

It is a brave defence counsel indeed who puts her client’s future in the hands of a jury’s imagination and capacity for creative thought.

See also

References

  1. Let me google that for you
  2. As long as she doesn’t admit she did it.