Friday, October 16, 2009

Reasonable Doubt - What is It? (10/16/09)

A comment by Anonymous to an earlier blog here addressed whether, as a variation of a theme of jury nullification in reaction to prosecutorial overreaching, juries might require that guilt be "super proven." I thought my readers might find some background discussion on the criminal burden of proof issue. I offer some materials from my Federal Tax Crimes book (the one in process for the next edition).


In a criminal tax prosecution, just as any other criminal prosecution, the Government bears the burden of proving guilt beyond a reasonable doubt. The Supreme Court has explained the compelling need for this burden as follows:
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence -- that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” . . . “[A] person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”
The Court then held that “we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Courts and commentators have noted the utilitarian function of burdens of persuasion to a civilized society such as we imagine ours to be. In criminal cases, societally, it is oft stated that it is better to acquit a guilty person than convict an innocent one; Blackstone even stated that it is better to acquit 10 guilty persons than convict one innocent one. But, even in this simple – perhaps simplistic – construct for analysis, can or are we willing to say that it is better to acquit 100 guilty persons than convict one innocent person? And, when we layer on the fact that different major crimes present different risks to the community, can the equation of the risks of conviction of the innocent be assessed differently in different cases and contexts? Specifically, for example, while we might be able to let 10 or even 100 tax evaders go free rather than convict one innocent person of tax evasion, would we want the same odds to apply to persons accused of terror? You see where I am going, since we are never going to have a standard requiring certainty – whatever that is – we are necessarily going to have a standard that allows the innocent to be convicted. So, what do we give jurors – the usual guilt or innocent finders in criminal cases – to help them keep the risk of conviction of innocent persons to an acceptable level? We give them an elusive “one-size fits all” instruction on the meaning of beyond a reasonable doubt to which I now turn.

There is no universally accepted instruction to the jury defining reasonable doubt. Some courts and commentators urge that the bare words should be used with no attempt to further define the term. Other offerings of instructions provide more words, if perhaps uncertain guidance and clarity; indeed, dare I say it, there is even reasonable doubt about precisely what reasonable doubt is. Some perhaps would argue that this is a good state of affairs, for it permits the jury in its collective wisdom to shape the fact finding process to its perception of the needs of the community and the individual charges and defendant. Still, because jury charges are so important in the process of a criminal trial, I offer a sampling of instructions to the jury.

A leading and oft quoted form book offers the following to assist the jury in applying the reasonable doubt standard:
The question naturally is what is a reasonable doubt. The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must ... be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.

As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

The Fifth Circuit’s pattern jury instructions adds to the mix the presumption of innocence:


The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all [and no inference whatever may be drawn from the election of a defendant not to testify]. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any “reasonable doubt” concerning the defendant's guilt.

A “reasonable doubt” is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.


Delete bracketed material if defendant testifies.
Trial lawyers love to describe burdens in percentage terms. In the ordinary civil case, the party bearing the burden of persuasion must prove by a preponderance of the evidence which is quantified as evidence which the trier assesses as proving the key fact to be more likely than not – i.e., in excess of 50%. Now, if you were going to state the percentage for beyond a reasonable doubt, what would it be? One author states the inquiry as follows:
Consider what “proof beyond a reasonable doubt” actually mandates that the jury do. Surely it requires more proof than the preponderance of the evidence standard, which governs in civil cases. As commonly explained to civil juries, the preponderance standard is quantified as any amount of certainty greater than 50%, and proof beyond a reasonable doubt must mean more than that. But how much more proof than a preponderance is needed in a criminal case? The quantity of certainty is never quantified; instead, it is kept quite vague. Is 90% certainty required? 95%? 99%? Or could the amount of certainty be much lower, say perhaps 75%?
Indeed, whatever the “percentage” level of certainty imagined to be inherent in the standard, it is reported that “research has consistently shown that the jurors in criminal cases will often be satisfied with much less certainty than is conventionally assumed.”

Consider again the following from Judge Posner:
Judges, when asked to express proof beyond a reasonable doubt as a probability of guilt, generally pick a number between .75 and .90 (depending on the judge), and jury quantifications are similar. These may seem shockingly low figures, implying that as many as a quarter of the people convicted of crime are innocent.
Judge Posner notes that prosecutorial selectivity in picking cases to prosecute substantially mitigates the risk that the innocent will be convicted. Still, assuming that there were no prosecutorial selectivity mitigating factors, are you concerned that judges and jurors in 20 or 25% doubt could return a verdict of guilty in a criminal case?

Judge Posner’s conclusions are his own, based on his experience and his anecdotal polling of his colleagues. Other attempts at empirical studies of these issues show that judges and suggest that jurors are all over the lot on the issue. In one study of his 10 of his colleagues by Judge Weinstein of the Eastern District of New York, “one gave a probability of 76%, one gave 80%, four gave 85%, two gave 90%, and one gave 95%. 95 In other words, the probabilities hovered around 85%-90%.” In a larger survey of federal judges throughout the country:
Of the 171 judges who responded, 126 had thresholds that were 90% or higher. Eleven judges had thresholds of 75% or below, one of whom was satisfied with a 50% probability. The other study was conducted among Illinois state court judges. On a scale of 1 to 10, the mean level of certainty in this study was 8.9, with a median of 8.8; 63% of the judges responded with a level of 9.0 or higher. Most (but not all) judges, then, tend to see the government's burden much the way Blackstone did [about 90%].
Of course, I noted above that there are unique prosecutorial mitigating factors in tax cases that virtually require that the Government only choose cases to prosecute where the evidence in all except the atypical case produce a conviction. This further mitigates the possibility of conviction of the innocent in tax cases . Moreover, in applying whatever the juries perceive the standard to be (whether it is 80% or 90% or some other number), in tax cases one can argue that a jury will be more like to hold the Government to the burden more stringently than it might for some other type of case (e.g. a terrorist case).


  1. Jack,

    In my humble opinion, prosecutors are not mere advocates before a court. They are ministers of justice. Accordingly, they must be held to a much higher duty than their non-prosecutor counterparts in the bar.

    In our republic (singularly as the federal USA political entity and collectively as respective states or commonwealths), the citizenry has vested in its servants substantial powers to conduct the day-to-day affairs of our government. Within this rather broad grant of powers is the power to administer justice by, among other things, investigating and prosecuting those suspected of committing criminal offenses. To be certain, these powers are subject to clear and intelligible standards, including limitations on the actions of government actors under our federal and state constitutions. Accordingly, our citizens, as "grantors" of this species of a "durable power of attorney" can modify or revoke such powers through their appropriate resort to the various adjudicative and political processes (for example: challenging the constitutionality or invalidity of laws and regulations in the courts, jury nullification, petitioning our governmental actors, voting in regularly scheduled elections, and as we saw earlier this decade with the recall California's Governor, recalling elected officials).

    One time-honored but perhaps greatly underutilized method of checking prosecutorial abuses is resort to what I would humbly consider to be a defendant's top-secret constitutional right: jury nullification. By this I mean that the jury "nullifies" the prosecutor's abuse of power by accepting defense counsel's invitation to weigh the evidence, apply the law as given by the presiding judge, use their common sense, and find that, as a purely factual matter, the prosecution has not "super proven" its case against the defendant "beyond and to the exclusion of every reasonable doubt."

    I would suggest that this approach to "jury nullification" is one that honors the law as well as the jury's and the presiding judge's respective roles.

  2. Anonymous,

    You approach of jury nullification through the back door of "super proven" is interesting. At the risk of oversimplification of what the jury does in a criminal case, I had always imagined that "beyond a reasonable" doubt meant perhaps 90-95% certainty. The standard jury instruction (variously worded) is that certainty is not required, but a very high probablity of certainty is required. What is that standard? I will try to answer that question in a blog today which will be from the current in process version of the next edition of my Federal Tax Crimes Book.

  3. Jack,

    Thank you.

    In my humble opinion, no matter what terms a given Court has for the standard of proof beyond and to the exclusion of every reasonable doubt (such as "an abiding and unwavering conviction to a moral certainty"), I believe that it all comes down to defense counsel's attitude that his or her client arrives in Court each day clothed with the presumption of innocence. That presumption abides until such time as members of the jury, having heard all the evidence as well as the argument of counsel, enter into deliberations, and are so moved by the sheer weight and quality of the evidence that they have reached their collective decision that guilt has not only been proven, but, more importantly, "super proven."

    Strategically and tactically speaking, I believe that one must approach the concept of "super proof" right from the very beginning, meaning before an Indictment is even returned. Those stages (with corresponding strategic and tactical opportunities) include:

    1. Administrative Investigations such as the IRS's CID's investigation and their review process within the local/regional offices of the IRS's Office of Chief Counsel's organization, and if there is a referral to the US DOJ, the "front office" of their Tax Division for the appropriate region, and if there is a further referral for presentation to a grand jury, the appropriate assistant US Attorney.

    2. If the government initiates a prosecution and arrest by a pre-indictment complaint, I believe that a full-course probable cause hearing should be explored in order to put adverse witnesses on the stand and lock-in their stories.

    3. Once an indictment has been returned, I would suggest utilizing an "Arraingment" as an opportunity to put the prosecution as well as the presiding judge or magistrate to their respective burden of clearly and distinctly advising the defendant's of nature of the accusation as contemplated not only by the rules of criminal procedure, but, more importantly, by the Sixth Amendment.

    4. Post-Indictment and Post-Arraignment, I would suggest resort to litigating pre-trial motions aimed at getting discovery, suppressing evidence and their fruits, excluding incompetent evidence, and pinning down the prosecution as precisely as possible through a series of motions for initial as well as supplemental bills of particulars.

    5. At the threshhold of trial, motions in limine, proposed jury questionnaires, proposed jury instructions and trial briefs can serve significant strategic and tactical purposes. I cannot emphasize too strongly that, in the federal court system, counsel specifically request the opportunity to voir dire the venire.

  4. Anonymous said...
    Continuing from the previous post

    6. As for voir diring the venire, I would humbly, yet strongly suggest that counsel place the concept of "super proof" in the venire's as well as the selected trial jury's mind early, often and consistently. In other words: tell 'em what ya gonna tell 'em, tell 'em, tell 'em what you told 'em, and tell 'em all times without confusing or insulting them.

    7. Lastly, and perhaps most importantly, I would strongly suggest "pre-handling" the matter that there will be plenty of "side bars" with the venire as well as the actual trial jury in substantially the following fashion:

    "Ladies and gentlemen, in our nation's court system, we have 2 very distinct and separate functions. The judge, up there, high up on the bench is, with all respect his/her honor as well as to you members of the jury, the law giver. He/she will give you the law. You must accept the law as given. And in that vein as the "law giver", he/she...the judge, will have on-the-record conferences...meetings..."side bars" at the judge's bench with counsel along with the court reporter. You are not supposed to hear what is going on because it is legal argument and all legal matters are left with the judge. Now, when it comes to you, members of the jury. You are here to decide the facts. The judge cannot and certainly will not intrude on your role of being the only ones that decide the facts. It is all up to you. When you retire to the jury room to deliberate and to decide the facts of this case, no one, including the judge is allowed to hear what is going on. You will do your jobs with the utmost privacy. We all guarantee that to you. So, wrapping up hear, we all ask you to give respect to the private legal arguments that go on between counsel and the judge at his/honor's bench because, rest assured, his/her honor, myself, opposing counsel, and all of us for that matter, will respect the privacy of your deliberations behind closed doors."


    Holding the prosecution and the presiding judge and magistrate to their respective burdens under our system requires a sharp mind, a grasp of the nuances of the law (especially, the requirements of our rather fluid creatures of due process of law (both procedural and substantive) and the equal protection of our laws), and the attitudinal disposition to put these governmental actors to their burden to carry out their clear legal duties to not only uphold the law in general but preserve the defendant's rights and privileges in particular. Along these lines, I believe that one must be on the look out for strategic and tactical opportunities to bring the prosecution's case (on a count-by-count or item-by-item, line-by-line, if necessary) to an end.


    I cannot emphasize too strongly that a tax/white collar criminal defense attorney's client depend on that professional's knowledge and disposition to apply that knowledge to preserve the client's right to the enjoyment of life, liberty and all vested as well as contingent property interests.

  5. Anonymous,

    And thank you.

    I suggest that you post your comments to the new blog post I did today on Beyond a Reasonable Doubt. You could just cut and paste it over or change it as you may see fit. One of the problems with the comment is that the search feature in the upper left corner of the blog apparently does not search comments. So excellent comments buried in old blogs may not ever be seen unless they are directly related to the topic of the blog itself so that a search will pick up the comments with the blog.

    Jack Townsend


Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.