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 convict someone of a crime for which there is no evidence. Even if she definitely did it. 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

• Circumstantial evidence
• Direct evidence
• Miscarriages of justice