Caveat: I am neither a lawyer nor a legal historian, but rather a scholar of English literature and language. That said, I am about to claim that legal historians are wrong when they claim “the standard of proof” originated with the Boston Massacre trial of British soldiers in 1770.

• For example, The Boston Massacre Historical Society website says: “It was the first time a judge used the phrase ‘reasonable doubt.’"

This is patently incorrect. As previous posts have noted, the phrase “reasonable doubt” and its close cousins were used in trials before the Boston Massacre Trial, including in the Old Bailey as early as 1743.

“Reasonable doubt” derives from the long tradition of English common law, not from the United States’ Constitution.

Furthermore, the phrase was not used often in American trials until well into the 20th century. The U.S. Supreme Court’s In Re Winship (1970) decision established the phrase as the standard of proof when it erroneously claimed the phrase “beyond a reasonable doubt” was “crystallized” by 1798. (The decision cites McCormick’s Evidence [1954] as its “proof” of this, but McCormick himself cites no sources or evidence.)

I admit I may be misunderstanding the phrase “standard of proof,” though. I associate the phrase with “burden of proof,” because in common English a “standard” is a high benchmark, such as the heavy burden to be born by the prosecution in a trial. Lawyers may mean something entirely different by “standard.” Lawyers’ standards may be much lower than mine. I would not be surprised if this were so. 

When referring to the “standard of proof” as “beyond a reasonable doubt,” lawyers may mean that the Boston Massacre Trial is an example of the idea that defendants should be convicted on less-than-convincing proof. If that is what lawyers mean, then we are in partial agreement about the Boston Massacre Trial.

This is key: I am convinced that the phrase “beyond a reasonable doubt” as a standard of proof in American criminal trials runs contrary to the spirit of the American Constitution and Bill of Rights.

Historical Reminder: What was the Boston Massacre Trial?

In March 1770—if you’ve forgotten—America was a colony of Great Britain, ruled by British-appointed governors under the laws of Great Britain and policed, for the most part, by British military. Boston was a British port governed essentially under British maritime law. American colonists were growing increasingly frustrated by British regulations and taxation of their sea trade. Boston began to break out in riotous protests.

On March 5, a number of soldiers gathered to disperse a crowd. Something went wrong. One of the soldiers unexpectedly fired on the crowd. In the end, 5 people died. The acting governor of Massachusetts, Thomas Hutchinson, rushed to the scene. He claimed he had not authorized the use of force, and the officers of the guard also claimed they had not issued orders to fire.

The incident put the British authorities in a difficult situation: on the one hand, they had to maintain order and enforce the port authority; on the other, they had to placate the colonists who were outraged at “the massacre.” So, they did what all governments do in such situations: they blamed the soldiers. But, instead of subjecting the soldiers to courts martial under maritime law, they decided to make a spectacle of the case and to try them for murder under English common law. Captain Thomas Preston was prosecuted and acquitted. He immediately went home to England where he wrote a widely read account of the situation. The privates involved were tried separately. Two were ultimately convicted of manslaughter.

• (I’ve looked into maritime law of the period, and I’m beginning to suspect that a maritime trial might have required the prosecution to prove to a higher standard that the soldiers were operating outside their official responsibilities. This, I suspect, is another reason they were tried as civilians. On the other hand, is it possible that the Boston Massacre Trials were conducted in a quasi courts martial context and consequently were using a lower standard of proof than would normally be applied in British common law? The trials were conducted in a British colony, by a British-trained judge, and all participants, including the lawyers, witnesses, and jurors, were British subjects. British common law was the controlling authority. In addition, the defendants were British army troops who were considered to be subject to the military justice code, namely, the 1745 Acts of War. The alleged crime was committed by soldiers in the course of their guard duties at the Boston port.)

The Boston Massacre Trial

I’m not quibbling over who first invented the phrase “reasonable doubt.” I don’t really care whether it was first uttered in 1770 or 1740 or even 1970. What I do care about is what the phrase was originally designed to convey and what today American courts assume the phrase means. I care because I think the phrase daily leads to criminal convictions based merely on the preponderance of the evidence.

The Boston Massacre Trial, I’m sure, was not the source of the phrase, but it is certainly a trial that helped to formulate the phrase and its meaning as a tool for prosecution of crimes for which there is only circumstantial evidence that must be evaluated by a jury. (Yes, I know that in law circumstantial evidence is as valid as direct evidence. What I’m saying is that direct evidence has slightly more weight in a juror’s mind than does circumstantial evidence. For example, an eyewitness account by a credible eyewitness can contradict some circumstantial evidence.)

I reviewed a digital copy of the Boston Massacre Trial transcript in Northwestern University’s Law Library: “The Trial of William Weems, James Hartegan, etc. for the Murder of Crispus Attucks, etc. on Monday Evening, the 5th of March 1770, Taken in shorthand by John Hodgson, Boston, 1770.” (Excerpts of this transcript are available online Digital History if you would like to read them.)

The cast of characters:

• Judge: Several men are named as judges. I’m not sure which of these actually spoke the words “reasonable doubt.”
• Prosecution: Samuel Quincy and Robert Treat Paine
• Defense: John Adams (future President), Josiah Quincy, and Robert Auchmuty

Here’s what the judge said:

“If upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent … to return such an one [verdict] as that your hearts may not reproach you so long as you live.”

For the defense John Adams said:

“We are to look upon it as more beneficial, that many guilty persons should escape unpunished than one innocent person should suffer” (I believe he said he was quoting Beccaria, but I thought Blackstone said this, and online I found Franklin cited as the source). “…the best rule in doubtful cases is rather to incline to acquittal than conviction” (quoting “Lord Chief Justice Hale”).

The prosecutor was Samuel Quincy. Here’s his interesting take on the situation:

“I shall therefore rest the case as it is, and doubt not but the evidence, as it now stands, the facts, as far as we have gone against the prisoners of the bar, are fully proved and until something turns up to remove from your minds the force of that evidence you must pronounce them guilty.” (Interesting, isn’t it?)

Please note: The judge and prosecutor are the ones who refer to “doubt” and “reasonable doubt of their guilt,” not the defense.

Why did they do this? Because the judge and prosecution wanted the soldiers to be found guilty. They wanted the jurors to understand that the burden of proof was on the defense—that facts and reason were clearly on the side of the prosecution.

This, IMHO, is the real meaning of “reasonable doubt”: there is no such thing as “reasonable doubt.”  There are “reasons” and there are “doubts,” not reasonable doubts, so there can be no doubt of guilt and no reason not to convict.

Think about the argument John Adams was making: he was not arguing that the soldiers did not fire on the crowd and kill people (reasons and facts). He was arguing that there was doubt about whether or not the soldiers believed they were under orders to fire, that is, whether they were acting under the terms of their official duties. The facts were not in question, not in doubt. The only doubt was how the soldiers understood their orders. Were their orders standing orders to defend the port? The officers and governor claimed that the soldiers could only act if in the moment before the first shot was fired, someone in authority shouted “Fire!” But John Adams claimed that the soldiers knew their duty from long-standing instruction by their officers. He is asking the jury to recognize that what the soldiers believed at the time of the incident was not a fact that could ever be known: there could only be doubt that they were acting intentionally unlawfully and out of malice, not self-defense and duty.

The judge was arguing that facts are facts. The only reason to acquit would be one based on facts. Mere doubts about state-of-mind were insufficient.

Remember: This was not a trial of facts. No one claimed shots weren’t fired. No one claimed people did not die. No one claimed an officer or the governor shouted “Fire!” The only issue was whether the soldiers fired on the rioters in their official capacity or not.

Adams’ argument prevailed for all but two of the soldiers, who were convicted of manslaughter. They ultimately claimed “benefit of clergy” (that is, literacy) and were sentenced to nothing but a branding.

But today, how many defendants are condemned to death (not merely branding, which is thought to be “cruel and unusual”) because of circumstantial evidence for which there is no fact to contradict? This, it seems to me, is why Scott Peterson is on death row today. The prosecution mounted a circumstantial case which no “reasons to doubt” could overcome, because there were no facts to prove his innocence.