After the recent trials of Kathleen Hilton and Raynella Dossett-Leath commentators speculated about the role of jury instructions concerning “circumstantial evidence” and “reasonable doubt” as possible sources of juror confusion.

I’ve been researching the etymology of these terms for some time now both as a matter of personal curiosity and for use in my historical mystery fiction. What I have discovered is that these terms are the fraternal twins of the jury system—they were born together and they live parallel lives. They are also very old, so old that they are archaic. As a result most Americans today really can’t parse them. Frankly, it takes a scholar of early modern English (like me) to do that.

A scholar investigates the history of words and phrases like these exactly the way a detective investigates a crime. You follow the clues to see where they lead. In the case of “reasonable doubt” I started with the 1970 Supreme Court case (In Re Winship) in which the phrase “beyond a reasonable doubt” was “crystallized” (one might say “monstrously coined”) back through its sources to the earliest written trial records in England.

The earliest English trial transcripts I could find were those of the State Trials. (I won’t go into what these entail right now. Essentially at one time the only trials deemed worthy of recording were those involving treasonous nobility. For an excellent bibliography, see Duke University’s Research Guide, English Legal History.) None of these trials use the phrase “reasonable doubt,” because when the monarch charged someone with treason there was no doubt about guilt. It was assumed. The only issue in the trial was to expose the vast extent of the crimes. Trials were public humiliations of traitors and vindications of the monarch’s policies, which the traitors had opposed. (IMHO—and I am not a lawyer—the modern equivalent is highly political trials in which the only issue is how much a federal attorney humiliates his political opponents or female celebrities.)

However, in the late 17th century (at the beginning of the Enlightenment), the trials of commoners in the Old Bailey (London’s criminal courthouse) began to be transcribed, and these transcripts are now available to us all online: The Proceedings of the Old Bailey—London’s Central Criminal Court, 1674-1913. (Got to love the Internet!)

Since my interest is in American legal history, I searched the Old Bailey transcripts mainly from the mid-18th century to the early 19th century.

From previous research I had been led to believe that the phrase “beyond a reasonable doubt” or simply “reasonable doubt” originated with the 1770 Boston Massacre Trial. But I quickly found through a simple search for “reasonable” and “doubt” the following uses in England as early as 1743 (Caveat: I don’t swear I thoroughly searched the database):

1743—Old Bailey, Trial of John Waite: where the court has any reasonable doubt

1748—Old Bailey, Trial of Laverick and Priswick: beyond all doubt

1748—Old Bailey, Trial of Tappner, Hobby et al.: beyond a possibility of doubt

1782—Old Bailey, Trial of Thomas Hornsby: have you any reasonable doubt

1783—Old Bailey, Trial of John Higginson: is reasonable probability, if there is nothing but absolute possibility, if on viewing the evidence any reasonable doubt remains on your minds

1783—Old Bailey, Trial of John Clarke: there is any room to doubt the truth of the evidence, you think there is any reasonable cause for doubt

1784—Old Bailey, Trial of Thomas White: if you can find a reasonable conjecture, to warrant reasonable men from making the supposition, is a reasonable supposition, a supposition as a reasonable man can, absolute possibility that he is innocent, consistent with common sense and probability

1784—Old Bailey, Trial of Richard Corbett: if there be any reasonable chance of his innocence, it is better that many guilty persons should escape, than that one innocent one should suffer, if there is a reasonable doubt

1784—Old Bailey, Trial of William Newland: beyond doubt

1786—Old Bailey, Trial of Thomas Plata: if the case admits of any shadow of doubt and of difficulty, it will be a reason for you

1786—Old Bailey, Trial of Joseph Rickards: if you see any reasonable doubt

1786—Old Bailey, Trial of John Simpson: a fact of which there can be no reasonable doubt, if you should not see reason on this representation to entertain any considerable degree of doubt.

1787—Old Bailey, Trial of James Carse: it behooves the prisoner to give a reasonable excuse, undoubtedly be a reasonable one

1789—Old Bailey, Trial of Jacob Canter et al. : I am afraid you will have no doubt about the guilt, if on the contrary you have any fair reason to doubt about his guilt;  if any circumstance appears, on which any reasonable, thinking, sober man can for one moment entertain a serious doubt.

1789—Old Bailey, Trial of George Barrington: to remove all doubt, if any doubt should remain

1789—Old Bailey, Trial of Ester Elias: is any degree of doubt

1790—Old Bailey, Trial of Williams Renwick: beyond the possibility of a cavil, leave reasonable doubts

1796, Feb. 17—Old Bailey, Trial of George Crossley: beyond any reasonable ground of doubt,  beyond a possibility of doubt, beyond all doubt, no rational doubt, if a reasonable doubt can be entertained, if you have any doubt

1796, Feb. 17—Old Bailey, Trial of Richard England: beyond all doubt, beyond a possibility of doubt

1796, Feb. 17—Old Bailey, Trial of John Henry Gade: if on turning it more in mind there should occur any reasonable doubt

1796—Old Bailey, Trial of Matthias Parkes and Thomas Browne: beyond all question and doubt

Something to keep in mind here: In the Old Bailey few defendants had attorneys. Most of the above uses of the variants of the term “reasonable doubt” came from the mouths of judges and state’s attorneys. (Interesting, isn’t it?)

Another note: The preposition “beyond” increases in frequency after 1790. I’ve done a little research on the evolution of this word during the 18th century, and my best guess is that its use as a metaphor for degree is a product of the changes in the language caused by Enlightenment rationality and thought. I can’t prove it, but it does seem that the word was originally unambiguously used only for “place” and “distance.”

So what? Most importantly, the U.S. Supreme Court assertion that the phrase “beyond a reasonable doubt” was well established by 1798 is not true. Scan the above list. Scan my post “List of Reasonable Doubt.”

1) The standard of proof in English common law arose in the English Enlightenment, along with an appreciation of the concept of empiricism.

2) The concept of reasonable doubt is documented in England as early as 1748, not 1770 or 1798.

3) The standard of proof was not invented in America. It is the fruit of English common law, from which early American Constitutional law derives. I would argue (and will in another post) that American law did not begin to develop its unique approach to reasonable doubt until around 1820.

4) The use of “reasonable doubt” as a barrier that the prosecution must overcome was formulated by the state, not by the accused citizens—by the prosecution, not by the defense (as some legal historians have suggested [more specifics to follow in a post on the Boston Massacre]).

5) The use of “beyond” as a degree of certainty is a late addition, which IMHO is the source of half the confusion about the phrase “beyond a reasonable doubt.” The other half has to do with no. 4 above.

To be continued…