My research into the phrase “beyond a reasonable doubt” began with the U.S. Supreme Court’s decision in a case involving juvenile justice (an apt name for a strange area of criminal law). In Re Winship (1970) the court established the phrase as a specific, legal requirement, which most states have enshrined in their “pattern jury instructions” for judges to read to juries.

Here’s part of what the court said:

• “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula beyond a reasonable doubt seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.”

The decision also traces the phrase back through a number of prior federal trials:

• Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 155 (1968).
• Miles v. United States, 103 U. S. 304, 103 U. S. 312 (1881);
• Davis v. United States, 160 U. S. 469, 160 U. S. 488 (1895);
• Holt v. United States, 218 U. S. 245, 218 U. S. 253 (1910); Wilson v. United States, 232 U. S. 563, 232 U. S. 569-570 (1914);
• Brinegar v. United States, 338 U. S. 160, 338 U. S. 174 (1949); Leland v. Oregon, 343 U. S. 790, 343 U. S. 795 (1952); Holland v. United States, 348 U. S. 121, 348 U. S. 138 (1954);
• Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958).
• Cf. Coffin v. United States, 156 U. S. 432 (1895).

Now, what struck me in the above was the phrase, “crystallization into the formula ‘beyond a reasonable doubt’ . . . .” Why? Because what the author of the decision did was to mandate the exact phrase, as opposed to some other phrases that were often used prior to 1970: beyond the shadow of a doubt, beyond reasonable doubt, and no doubt, among others. Furthermore, the author claimed an ancient provenance for the phrase—to lend it more authority. He admitted, though, that the precise formulation of the phrase may not have occurred until the 19th century. (It’s worth noting that the earliest cited case was 1881; the significance of this only becomes apparent when you do a historical search for the origin of the phrase, as I have done.)

And why does the exact phrase bother me? Because it is what’s known in rhetoric as an oxymoron—a self-contradiction. Doubt and reasonableness are two different classes of mental state. Doubt is emotional. Reasonableness is logical.

No juror can possibly understand the legal intent in the phrase “reasonable doubt,” let alone “beyond a reasonable doubt.” “Beyond” is a preposition denoting distance and place. “A reasonable doubt” is an intellectual construct, not a physical one. So, the only way a person can construe the phrase “beyond a reasonable doubt” is to construe it to be metaphoric: “reasonable doubt” is metaphorically a barrier or a bar which the juror must cross before convicting someone of a crime.

So why does this matter to jurors? Because, if you’re a juror in a capital murder case, the judge will instruct you that the state has the burden of proof beyond a reasonable doubt. In most trials, the judge will also read you a “definition” of the phrase, which (frankly) isn’t accurate from a linguistic perspective (no matter what pattern-jury-instruction guru and linguist Peter Tiersma claims). If the case is purely circumstantial, when you begin deliberations one of the earliest issues you will debate with your fellow jurors is what constitutes reasonable doubt.

In my opinion—and I am not a lawyer—juries have come to understand that strong suspicion of guilt based on logic and a lack of any alternative murderer are sufficient to convict. In other words, these days doubt about a murder is rarely reasonable.

My next post will discuss the 1970 Winship decision further. Again, I’m not a lawyer, and I probably don’t read legalese the way they do, but it seems to me that the Winship decision defines “beyond a reasonable doubt” far better than recent formulations of the pattern jury instructions (such as California’s).

However, it’s because I’m not a lawyer but a former and potential juror that I care about this issue.