Because I’m strange and compulsive, awhile ago I went through an exercise involving “reasonable doubt”—just for the fun of it. I used Justia’s beta search function to see how often the phrase and related phrases occurred in Supreme Court decisions from about 1820 to 2006. I don’t promise this is an accurate count, only that this is what I counted late in 2006.

I used Justia’s proximity search function on the words “reasonable” and “doubt.” Then I examined the decisions in which the two words appeared in close proximity and derived 12 variations on the phrase, some of which were used only once and others that were used nearly 100 times. Because I have recently heard the phrase “shadow of a doubt” used disparagingly, I listed its use by year (see below).

Here’s what I found (roughly):

“beyond a reasonable doubt” about 38 = from 1895 to 2006 (this is the In Re Winship [1970] phrase)

“beyond reasonable doubt” = about 90 from 1835 to 1993 (This is the clear “winner,” and I would claim that it is more easily comprehensible by jurors than the currently popular “a reasonable doubt.”)

“beyond all reasonable doubt” = about 45 from 1820 (in the Amistad decision [I may be confused. I thought the Amistad trial in which John Quincy Adams participated was in the 1840s. Maybe this is a different Amistad?]) to 1993 (in the important “standard of proof” decision Victor v. Nebraska)

“beyond doubt” = about 4 from 1875 to 1950

“no doubt from the evidence” in 1881

“every reasonable doubt” in 1876

“some reasonable doubt” in 1930

“apart from and beyond the reasonable presumption” in 1875

“there can be no reasonable doubt” in 1876

“is a reasonable doubt” in 1955

“shadow of doubt” = about 10 in 1796, 1845, 1882, 1900, 1926, 1952, 1969, 1979, and 1984 (all in civil cases)

“shadow of a doubt” = about 20 in 1875, 1897, 1899, 1961, 1964, 1967, 1968, 1969, 1973, 1976, 1977, 1978, 1979, 1980, 1989, 1998, 2000 (some duplicates and both civil and criminal)

OK. So what? Well, I’ve heard several legal commentators say something to the effect that “reasonable doubt isn’t just any doubt or a shadow of a doubt.” But if this list is even approximately illustrative of the definition of “the standard of proof” in criminal trials, then it is clear that the Supreme Court’s 1970 In Re Winship “crystallization” of the phrase is far from “definitive” and has not been in general use since 1798 after all.

At least IMHO—and, remember, I am not a lawyer.