In 2006 I downloaded a paper posted online by James Q. Whitman of the Yale Law School, “The Origins of ‘Reasonable Doubt.’” I’m glad I downloaded it when I did, because he has since taken it off the web and published his full study as The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2007, Yale University Press). (At $40 it’s actually quite reasonably priced for a legal treatise, but the PDF was free.)

I’ve used Prof. Whitman’s web article extensively in my historical fiction research since I first found it. The connections he finds between religion and the law are fertile ground for mysteries, crime stories, and courtroom dramas.

Prof. Whitman’s premise is (in brief) that “reasonable doubt” is a construct used for centuries by British courts to make conviction of one’s peers for serious crimes palatable to a jury. The Judeo-Christian tradition makes “bearing false witness” and all false accusations (as well as false convictions) a serious sin. What devout Christian who believes killing is a sin could send a person to the gallows? After all, “Justice is mine, saith the Lord,” not the purview of the average juror.

I wish the Justices of the U.S. Supreme Court would read Mr. Whitman’s book. The standard of proof in American courts should not be proof “beyond a reasonable doubt,” because that standard is low, not high. In addition, Mr. Whitman is absolutely correct when he says:

• “The formula ‘reasonable doubt’ is, after all, hardly easy to interpret. How exactly are you supposed to know when your doubts about the guilt of the accused are “reasonable”? Jurors are sometimes understandably baffled.”

As a language-lover, I would say, jurors are supposed to be baffled by the phrase, “beyond a reasonable doubt,” because that’s what the British judges and prosecutors intended to do when they contrived this “monstrous coinage.” The phrase was utterly incomprehensible in the 18th century, and it’s now always misinterpreted.

Whenever a jury hangs these days, I’m convinced its because some of the jurors interpreted “beyond a reasonable doubt” to mean that criminal guilt can be assessed based on a “reasonable” amount of evidence, and some of the jurors interpreted it to mean innocence should be assumed if you wonder whether someone other than the defendant could have done it. Neither is a very rational approach to examining evidence.

Which leads me to several other issues: forensic “evidence,” “absence of evidence is not evidence of absence,” the arcane Scholastic construct called “case law,” crime “statistics,” and so much more . . . .