Beyond reasonable doubt

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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

“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 be convicted of a crime for which there is no evidence. Even if you definitely did it.

This is a matter of epistemology. 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 put 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.

“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. 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.

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.

Reasonable doubt

Now 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.

See also

• Circumstantial evidence
• Direct evidence
• Miscarriages of justice