Beyond reasonable doubt: Difference between revisions

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{{a|crime|}}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 must rely 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====
 
{{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.”}}


{{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.
If you want to put someone away, you must ''prove'' it. The defendant does not have to prove ''anything''.
}}
“Colonel Mustard murdered Reverend Green” is a statement asserting a causal relationship between Colonel Mustard ’s action and Reverend Green’s death. Contrast it with “Colonel Mustard discharged a loaded firearm at Reverend Green, and at the same moment Reverend Green died of a gunshot wound.” this statement asserts only a ''correlation'' between Colonel Mustard ’s action and Reverend Green’s death, but (absent evidence of another shooter, we might safely infer a causal relationship from the correlation.


But say we discover Reverend Green is dead, with no information about where Colonel Mustard was nor what he was doing at the time.
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 then, ''in our epistemology'', Colonel Mustard ''did not'' murder Reverend Green, however much we might suspect it.  We have no justified belief in that proposition.  


For it to be murder we must have something that, logically, makes us justified in our inference that it is murder to a certain — high — degree of confidence.
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.


That something is evidence, and it comes on two kinds: direct and circumstantial. [[Direct evidence]] speaks directly to [[causation]]. [[Circumstantial evidence]] speaks to ''[[correlation]]'' — that the circumstances are “[[consistent with]]” the allegation.
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====
{{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.


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''. 


====Reasonable doubt====
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.
{{Drop|N|ow [[doubt]] is}}, in some ways, a positive belief and reasonable doubt implies one has weighed up possible alternatives and discarded them for stop this is somewhat intention with the idea that the prosecution must prove it's case and that the defense they need to prove nothing so stop for to introduce the idea of reasonable doubt one must either rely on the constructive imagination of jurors about whom you know nothing to confect plausible doubts in light of what they have been shown by the prosecution in dash this is the theory of the case and dash or one must go to the trouble of presenting those reasonable doubts for the Jerry to save them the job of conflicting them by themselves.
 
It is a brave defense council indeed who will put her clients future in the hands of a juries experience and imagination and capacity for creative thought.
{{sa}}
{{sa}}
*[[Circumstantial evidence]]
*[[Circumstantial evidence]]
*[[Direct evidence]]
*[[Direct evidence]]
*[[Miscarriages of justice]]
*[[Miscarriages of justice]]
{{ref}}{{nld}}
{{ref}}

Latest revision as of 17:11, 24 August 2024

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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.