The Unraveling of Reasonable Doubt

Probably not a substantial claim: may not pass S4 (based).

Many appellate courts in the U.S. advise trial judges to tell juries that conviction requires belief in guilt beyond a reasonable doubt full stop, without spelling out what that means.

“many appellate courts in the U.S. advise trial judges to tell juries that conviction requires belief in guilt beyond a reasonable doubt full stop , without spelling out what that means.”

May combine two claims.

All but one of the versions of BARD reprise have been extensively used by trial judges and endorsed by appellate courts; the remaining one finds many advocates among academic lawyers but virtually none among judges.

“All but one of the versions of BARD that I will reprise have been extensively used by trial judges and endorsed (if sometimes later disowned) by appellate courts. The remaining one finds many advocates among academic lawyers but virtually none among judges.”

May combine two claims.

In our ordinary lives, even sizable doubts cause little or no hesitancy to act; many, perhaps most, important life decisions are taken under conditions of significant uncertainty, where doubt is not only rational but rampant.

“In our ordinary lives, even sizable doubts cause little or no hesitancy to act. Many, perhaps most, of the important life decisions are taken under conditions of significant uncertainty, where doubt is not only rational but rampant.”

May combine two claims.

England recently abandoned its two-hundred-year-old practice of having judges instruct jurors about the nature of reasonable doubt; jurors there are simply told that conviction requires that they must be 'sure' of the guilt of the accused.

“England, which has the same common law tradition as our own, has recently abandoned its two-hundred-year-old practice of having judges instruct jurors about the nature of reasonable doubt. Instead, jurors there are simply told that conviction requires that they must be 'sure' of the guilt of the accused.”

• cites [3]Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

In Burnett v. Nebraska, the appellate court held that defining reasonable doubt as a doubt for which a reason could be given was error and reversed the guilty verdict.

“This seemingly innocuous language was faulted on appeal; the appellate court held that this definition was in error and the guilty verdict was reversed.”

• cites Burnett v. StateNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Virtually all appellate courts warn that most efforts to explain BARD either create confusion in the minds of jurors or else mischaracterize the appropriate burden of proof.

“Virtually all appellate courts warn that most efforts to explain BARD either create confusion in the minds of jurors or else mischaracterize the appropriate burden of proof that is the essence of BARD.”

Classified as probably not a substantial claim.

The most common excuse for discouraging a definition of BARD is that BARD is 'self-evident' or 'self-defining,' and thus not in need of further commentary.

“The most common excuse is that BARD is 'selfevident' or 'self-defining,' and thus not in need of further commentary.”

Classified as probably not a substantial claim.

A Pennsylvania appeals court held that a reasonable doubt need not be one for which a juror can give some proper reason; it may exist without the juror being able to formulate any reason.

“In order to be 'reasonable,' the doubt must be substantial as opposed to fanciful, but it is not essential that a juror be able to give 'some proper reason for entertaining it'; it may exist without his being able to formulate any reason for it . . . .”

• cites State v. DauphineeNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Although lower court judges sometimes explain BARD to jurors in probabilistic terms, virtually no appellate court in the land will endorse such a gloss of reasonable doubt.

“Although lower court judges from time to time explain BARD to jurors in these terms, virtually no appellate court in the land will endorse such a gloss of reasonable doubt.”

• cites Massachusetts v. SullivanNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

• cites McCulloch v. StateNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

The Seventh Circuit argued that 'Reasonable doubt' must speak for itself, jurors know what is reasonable and are familiar with doubt, and judges' and lawyers' attempts to inject other catch-phrases only muddy the water, so it is inappropriate for judges to give an instruction defining reasonable doubt and for trial counsel to provide their own definition.

“'Reasonable doubt' must speak for itself. Jurors know what is 'reasonable' and are quite familiar with the meaning of 'doubt.' Judges' and lawyers' attempts to inject other amorphous catch-phrases into the 'reasonable doubt' standard, such as 'matter of the highest importance,' only muddy the water. . . . It is, therefore, inappropriate for judges to give an instruction defining 'reasonable doubt,”

• cites U.S. v. GlassNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing).

The Seventh Circuit Court of Appeal in 1982 stated, 'We have repeatedly admonished district courts not to define 'reasonable doubt'.'

“As the Seventh Circuit Court of Appeal put it in 1982, 'We have repeatedly admonished district courts not to define 'reasonable doubt'.'”

• cites U.S. v. Martin-TregoraNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

In that study, among jurors, 26 percent were willing to convict on probabilities below 0.7 and a bare majority (54 percent) thought probabilities of 0.9 and above should be required for conviction.

“Among jurors, by contrast, 26 percent were willing to convict on probabilities below 0.7 and a bare majority (54 percent) thought that probabilities of 0.9 and above should be required for conviction.”

• cites John Cohen and Ian ChristensenNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

The U.S. Ninth Circuit noted that the term beyond a reasonable doubt may be in common usage by the populace, but there is no demonstrable or reliable evidence that a reasonably appropriate definition is in common usage or well understood by prospective citizen jurors.

“As the justices of the U.S. Ninth Circuit sagely noted: [t]he term [sic] beyond a reasonable doubt . . . may be in common usage by the populace of this nation, but there is no demonstrable or reliable evidence . . . that a reasonably appropriate definition is in common usage or well understood by prospective citizen jurors.”

• cites U.S. v. WittNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based). May combine two claims.

At the federal level, four of the eleven U.S. circuit courts require a definition, failure to give one being grounds for reversal.

“Four of the eleven U.S. circuit courts require a definition, failure to give one being grounds for reversal.”

May combine two claims.

In that study, among judges, fully a third located the required probability between 0.7 and 0.9, and almost all the rest pegged it above 0.9.

“Among judges, fully a third located it between 0.7 and 0.9, almost all the rest pegging it above 0.9.”

• cites John Cohen and Ian ChristensenNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing).

Another fifteen states require judges to define BARD for jurors.

“Bycontrast, another fifteen states require judges to define BARD for jurors.”

Probably not a substantial claim: may not pass S4 (based). May combine two claims.

Most jury instructions say nothing about the kind of evidence necessary for conviction, focusing instead almost entirely on the subjective state of the juror.

“most jury instructions say nothing about the kind of evidence necessary for conviction, focusing instead almost entirely on the subjective state of the juror”

Classified as probably not a substantial claim.

Six years later, the Seventh Circuit asserted that 'no attempt should be made to define reasonable doubt.'

“Six years later, and faced with lower-court judges who were still explaining reasonable doubt to perplexed jurors, the judges of the Seventh Circuit were even more insistent, asserting that 'no attempt should be made to define reasonable doubt.'”

• cites U.S. v. HallNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

The Supreme Court has never made up its mind whether reasonable doubt should be defined, holding, as Justice O'Connor wrote in 1994, that the Constitution is noncommittal about whether trial judges may or must define reasonable doubt.

“The Supreme Court, for its part, has never made up its mind whether reasonable doubt should be defined, holding, as Justice O'Connor wrote in 1994, that the Constitution is noncommittal about whether trial judges may or must define reasonable doubt.”

• cites Victor v. NebraskaNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing).

Some courts worry that telling a juror he needs some reason for his doubts might put undue psychological pressure on him.

“Some courts fret that it might put undue psychological pressure on a juror to tell him that he needs some reason for his doubts before he can consider them to be reasonable.”

• cites U.S. v. DavisNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S4 (based). May combine two claims.

The standard of proof is the most important and most widely discussed of the four precepts.

“Of these four precepts, the standard of proof is the most important and the most widely discussed.”

Probably not a substantial claim: may not pass S3 (load-bearing). May combine two claims.

The Supreme Court of Nevada agrees that the idea of reasonable doubt is inherently qualitative, and that any attempt to quantify it may impermissibly lower the prosecution's burden of proof and is likely to confuse rather than clarify.

“The Supreme Court of Nevada agrees: 'The idea of reasonable doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify.'”

• cites McCulloch v. StateNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing).

In Pennsylvania v. Baker, the court held that a reasonable doubt may exist in the mind of a juror without his being able to formulate a reason.

“Or we find this similar gem of wisdom from Pennsylvania v. Baker : 'A reasonable doubt may exist in the mind of a juror without his being able to formulate a reason.'”

• cites State v. BakerNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim. May combine two claims.

The Supreme Court of Wisconsin has held that an instruction that a reasonable doubt is a doubt for which a reason can be given based on the evidence is correct, and that a doubt cannot be reasonable unless a reason therefor exists, and if such reason exists, it can be given.

“The Supreme Court of Wisconsin has held specifically that 'An instruction in a criminal case that a reasonable doubt is a doubt for which a reason can be given based on the evidence in the case, is correct,' adding for good measure, 'A doubt cannot be reasonable unless a reason therefor exists, and, if such reason exists, it can be given.'”

• cites Butler v. StateNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S4 (based).

Judges generally reject the high-probability formulation of BARD out of hand.

“Judges, as I have already insinuated, generally reject this formulation of BARD out of hand.”

Probably not a substantial claim: may not pass S4 (based).

Recent studies suggest that two of every three capital cases (68 percent) that pass through the appellate sieve are overturned.

“Recent studies suggest that two of every three capital cases (68 percent) that pass thorough this appellate sieve are overturned.”

Probably not a substantial claim: may not pass S3 (load-bearing).

In 2001, according to the Department of Justice, some 16,000 murders were committed in the United States.

“Some 16,000 murders were committed in the United States.”

• cites Department of JusticeNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S3 (load-bearing).

In 2001, some 150 felons received a death sentence.

“Some 150 felons received a death sentence.”

• cites Department of JusticeNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

Enlightenment philosophers and jurists came to realize that in human affairs no full certainty was to be had; the next best thing was 'moral certainty.'

“philosophers and jurists during the Enlightenment came to realize that in human affairs (as opposed, say, to mathematics or logic), no full certainty was to be had. The next best thing, according to such philosophers as John Locke and John Wilkins, was what they called 'moral certainty.'”

• cites John LockeNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

• cites John WilkinsNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

May combine two claims.

The Supreme Court has of late been conceding that the analogy between ordinary-life decision making and BARD can be misleading and has proposed an alternative: explaining what a reasonable doubt would be.

“the Supreme Court has of late been conceding that the analogy just discussed can be misleading and has proposed an alternative. Specifically, the justices have shifted from trying to explain what a belief beyond reasonable doubt is to explaining what a reasonable doubt would be.”

• cites Holland v. U.S.Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

The confusion and lack of clarity surrounding BARD implies that in any given criminal trial, both the accused and the prosecution face a crapshoot because they cannot predict what level of proof will be necessary.

“The confusion and lack of clarity surrounding BARD immediately implies that, in any given criminal trial, both the accused and the prosecution, unable to predict what level of proof will be necessary, face a crapshoot.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based). May combine two claims.

The concept of proving guilt beyond a reasonable doubt (BARD) is obscure, incoherent, and muddled.

“the concept of proving guilt beyond a reasonable doubt (hereinafter, BARD ) - the only accepted, explicit yardstick for reaching a just verdict in a criminal trial - is obscure, incoherent, and muddled.”

May combine two claims.

Justice in the sense of fairness and due process cannot be assured, nor is it even likely, in a system where different judges recommend, and different juries use, discrepant standards for guilt and innocence.

“Clearly, justice in the sense of fairness and due process cannot be assured, nor is it even likely, in a system where different judges recommend, and different juries use, discrepant standards for guilt and innocence.”

Probably not a substantial claim: may not pass S2 (checkable). May combine two claims.

The Massachusetts and Nevada statements are no argument against using the language of probabilities per se but against a failure to specify that a very high probability is required to convict.

“Moreover, this is no argument against using the language of probabilities per se but against a failure to specify that a very high probability is required to convict.”

Probably not a substantial claim: may not pass S2 (checkable).

There can be no acceptable exegesis of BARD that fails to make clear that convictions cannot be grounded on ill-considered foundations any more than acquittals can.

“There can be no acceptable exegesis of BARD that fails to make clear that convictions cannot be grounded on ill-considered foundations any more than acquittals can.”

Classified as probably not a substantial claim.

The different definitions of BARD are not different glosses on the same notion but fundamentally different conceptions of the kind and level of proof necessary to convict someone.

“What we face here are not different glosses on the same notion but fundamentally different conceptions of the kind and level of proof necessary to convict someone.”

Classified as probably not a substantial claim.

Most of the definitions of BARD fail to characterize the same underlying idea.

“What is troublesome is that most of these definitions fail to characterize the same underlying idea.”

Probably not a substantial claim: may not pass S3 (load-bearing).

A committee of distinguished federal judges, reporting to the Judicial Conference of the United States, has criticized all such glosses on BARD that assimilate it to ordinary situations of personal choice and decision making because the analogy seems misplaced.

“A committee of distinguished federal judges, reporting to the Judicial Conference of the United States, has criticized all such glosses on BARD that assimilate it to ordinary situations of personal choice and decision making because the analogy it uses seems misplaced.”

• cites Federal Judicial Center, Pattern Criminal Jury InstructionsNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim.

The benefit of the doubt insists that, if the verdict is at all a close call, jurors must err on the side of the defendant.

“The benefit of the doubt insists that, if the verdict is at all a close call, jurors must err on the side of the defendant.”

Probably not a substantial claim: may not pass S2 (checkable).

Saying to a juror that he ought not to convict unless he has strong and abiding convictions about the guilt of the accused is unacceptable because it confuses a (possibly) necessary condition with a sufficient one.

“Saying to a juror that he ought not to convict unless he has strong and abiding convictions about the guilt of the accused is unacceptable because it confuses a (possibly) necessary condition with a sufficient one.”

Probably not a substantial claim: may not pass S4 (based).

A third problem with making BARD explicitly probabilistic is the long-held legal dogma that conviction requires the juror's state of mind to be one of 'firm belief in guilt,' that is, the juror must be 'fully convinced.'

“Athird problem with making BARD explicitly probabilistic is the long-held legal dogma that conviction of the accused requires that a juror's state of mind be one of 'firm belief in guilt,' that is, the juror must be 'fully convinced.'”

Classified as probably not a substantial claim.

Requiring jurors to be able to express such doubts to fellow jurors, or at least to themselves, is perfectly compatible with the presumption of innocence and the placing of the full burden of proof on the prosecution.

“Requiring them to be able to express such doubts to fellow jurors, or at least to themselves, is perfectly compatible with the presumption of innocence and the placing of the full burden of proof on the prosecution.”

Probably not a substantial claim: may not pass S2 (checkable).

The idea that BARD can be associated with a determinate meaning even while judges and jurors locate it at such different points on the scale of probabilities should be a grave worry.

“The idea that BARD can be associated with a determinate meaning even while judges and jurors locate it at such different points on the scale of probabilities should be a grave worry.”

Probably not a substantial claim: may not pass S3 (load-bearing).

The analogy between reason giving by a juror and defense constructing by the accused is a red herring.

“As for the analogy in these passages between reason giving by a juror and defense constructing by the accused, the parallel is a red herring.”

Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based).

The Wisconsin requirement stands directly opposed to the view of the U.S. Supreme Court that this is an incorrect construal of BARD.

“Instead, it stands directly opposed to the view of the U.S. Supreme Court that this is an incorrect construal of BARD.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based). May combine two claims.

The current understanding of proof beyond a reasonable doubt is grievously inadequate, deliberately unclear, wholly subjective, and open to about as many interpretations as there are judges.

“this notion of proof is grievously inadequate, deliberately unclear, wholly subjective, and open to about as many interpretations as there are judges”

Classified as probably not a substantial claim.

One source of judicial worry about specifying probabilities is that any specification of a degree of belief necessary for guilt involves an explicit admission that wrongful convictions will inevitably occur.

“One source of their worry is this: Any specification of a degree of belief necessary for a finding of guilt (such as 95 percent confidence) involves an explicit admission that wrongful convictions will inevitably occur.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

Believing firmly in, or having an abiding conviction about, someone's guilt is not the same as having no doubts for which you can give a reason.

“Believing firmly in, or having an abiding conviction about, someone's guilt is not the same as having no doubts for which you can give a reason.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

Although the bare term 'probability' may have the implications that worry Blackmun and Souter, the phrase 'high probability' suggests nothing so weak as mere possibility or plausibility or even bare likelihood.

“Although the bare term 'probability' may (but probably does not) have the implications that worry Blackmun and Souter, the phrase 'high probability' suggests nothing so weak as mere possibility or plausibility or even bare likelihood.”

Probably not a substantial claim: may not pass S2 (checkable).

The analysis in these cases tears asunder the distinction between doubt and reasonable doubt.

“Ultimately, this analysis tears asunder the distinction between doubt and reasonable doubt.”

Classified as probably not a substantial claim.

In asking jurors to decide whether their belief in guilt is abiding, the courts really seem to be asking whether the belief is held firmly and unwaveringly.

“The legal literature on this question tends to suggest that, in asking jurors to decide whether their belief in guilt is abiding, the courts really seem to be asking whether the belief is held firmly and unwaveringly.”

Classified as probably not a substantial claim. May combine two claims.

If doubts that lead to acquittal must be rational, then beliefs in guilt that lead to conviction must be rationally well founded.

“If it is important to stress that doubts, if they lead to acquittal, must be rational doubts, it is likewise crucial to insist that beliefs in guilt, if they lead to conviction, must be rationally well founded.”

Probably not a substantial claim: may not pass S2 (checkable).

Persuasion of guilt is of no probative value unless it derives from a careful reflection on, and wise inferences from, the evidence.

“such persuasion is of no probative value unless it derives from a careful reflection on, and wise inferences from, the evidence.”

May combine two claims.

The four precepts (standard of proof, presumption of innocence, benefit of the doubt, burden of proof) are not grounded in epistemic motives but have profound epistemic consequences.

“while not grounded in epistemic motives, they have profound epistemic consequences.”

Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based).

The BARD as high probability approach is far more popular with legal scholars and the general public than among judges.

“According to this approach, far more popular with legal scholars and the general public than among judges, the right way to understand belief beyond a reasonable doubt is to say that any such beliefs must be highly probable.”

Probably not a substantial claim: may not pass S3 (load-bearing).

The American legal system widely operates on the assumption that the principal players need not give (and perhaps need not even have) reasons for their decisions.

“It is worth remarking, even if one is unsure what to make of it, that the American legal system widely operates on the assumption that the principal players need not give (and perhaps need not even have) reasons for their decisions.”

Probably not a substantial claim: may not pass S1 (asserted), S3 (load-bearing). May combine two claims.

The criminal standard is meant to be much higher than the civil standard, so the relevant probabilities for conviction would have to be much higher (0.9 or 0.95 are commonly cited unofficial estimates).

“The criminal standard, of course, is meant to be much higher than the civil standard, so the relevant probabilities would have to be much higher for conviction (0.9 or 0.95 are commonly cited unofficial estimates).”

Probably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing).

The construal of BARD as a doubt for which a reason could be given appears almost tautologous and thus harmless, if bordering on uninformative.

“This construal of BARD appears to be almost tautologous and thus harmless, if bordering on the uninformative.”

Classified as probably not a substantial claim.

It is quite unclear what level of probability should be associated with BARD.

“Finally, even if the worries about the broader social message being sent by the use of probabilities could be quelled, it is quite unclear what level of probability should be associated with BARD.”

Classified as probably not a substantial claim.

A juror cannot certify that her doubts are reasonable doubts unless she can actually formulate them to herself and scrutinize them, preferably with the aid of fellow jurors.

“What I think that juror cannot possibly do is to certify that those doubts are reasonable doubts unless she can actually formulate them to herself and scrutinize them, preferably with the aid of fellow jurors.”

Probably not a substantial claim: may not pass S2 (checkable).

The idea that reasonable doubt must already be clear to all because ordinary people understand each of its two constituent terms is laughable.

“The idea that reasonable doubt must already be clear to all because ordinary people understand each of its two constituent terms is laughable.”

Classified as probably not a substantial claim.

If a juror believes a proposition has a likelihood of 95 percent, the 5 percent uncertainty implies the juror is less than 'fully convinced.'

“How, you may ask, can you be fully convinced of a proposition that you believe to have a likelihood of (for example) 95 percent? Indeed, the 5 percent uncertainty implies that the juror is less than 'fully convinced.'”

Probably not a substantial claim: may not pass S4 (based).

If jurors had a confidence of 95 percent in guilt, this would generally suggest that as many as one in every twenty innocent defendants will be wrongly convicted.

“For instance, if jurors could somehow discover that they had a confidence of 95 percent in the guilt of the accused, this would generally suggest that as many as one in every twenty innocent defendants will be wrongly convicted.”

Classified as probably not a substantial claim.

A demanding standard of proof such as 'beyond a reasonable doubt' enjoins jurors to acquit the defendant even if they think he is probably guilty, since only a firm, settled belief in that guilt justifies a conviction.

“a demanding standard of proof such as 'beyond a reasonable doubt' enjoins jurors to acquit the defendant even if they think he is probably guilty, since only a firm, settled belief in that guilt justifies a conviction.”

Probably not a substantial claim: may not pass S2 (checkable).

Because the most natural rendering of reasonable doubt in ordinary language is a doubt for which you can give a reason, this alone is sufficient to undermine the Seventh Circuit's claim that the meaning of BARD can be simply 'read off' from its constituent terms.

“Because that is its most natural rendering in ordinary language, this alone is sufficient to undermine the Seventh Circuit's claim that the meaning of BARD can be simply 'read off ' from its constituent terms.”

Classified as probably not a substantial claim.

Almost all familiar glosses on BARD define it in terms of the target mental state of the juror.

“almost all the familiar glosses on BARD (as moral certainty, as firm or abiding conviction, as a belief on which you would base important actions, and so on) define it in terms of the target mental state of the juror.”

• cites [49]Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S2 (checkable).

The explicit rationales for discouraging a definition of BARD avoid admitting that the notion itself is deeply confused.

“The explicit rationales for discouraging a definition of BARD avoid admitting that the notion itself is deeply confused.”

Classified as probably not a substantial claim. May combine two claims.

Since we cannot be completely certain about anything to do with human affairs, jurors can never be fully certain of the guilt of an accused party.

“Since (as BARD recognizes) we cannot be completely certain about anything to do with human affairs, this entails that jurors can never be fully certain of the guilt of an accused party.”

Probably not a substantial claim: may not pass S3 (load-bearing).

Some courts have argued that the language of 'firm conviction of guilt' represents a serious weakening of the BARD standard and makes the prosecutorial burden much lighter than when 'moral certainty' was required.

“It only further muddies the waters that some courts have argued that the language of 'firm conviction of guilt' represents a seriously weakening of the BARDstandard and that it makes the prosecutorial burden much lighter than it had been when 'moral certainty' was required.”

• cites State v. CrenshawNot matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Classified as probably not a substantial claim.

BARD is supposed to set a high standard for conviction, higher than we ordinarily insist on in our practical affairs.

“BARD, after all, is supposed to set a high standard for conviction, higher than we ordinarily insist on in our practical affairs.”

Probably not a substantial claim: may not pass S2 (checkable).

It is difficult to resist the conclusion that what really drives the growing reluctance to define BARD is not so much the fiction that its meaning is clear to all, but the judiciary's worry that the coexistence of conflicting definitions of BARD would bring to public notice the fact that no univocal sense can be attached to the phrase 'beyond a reasonable doubt.'

“It is difficult to resist the conclusion that what really drives the growing reluctance to define BARD is not so much the fiction that its meaning is clear to all. It is instead the judiciary's worry that the coexistence of conflicting definitions of BARD - of the sort that would vividly show up if judges were free to explain BARD to jurors - would bring to public notice the fact that no univocal”

May combine two claims.

These principles function to make it harder to convict any defendant, whether innocent or guilty; each amounts to putting pressure on the scales of justice to skew the verdict in the defendant's favor.

“such principles function to make it harder to convict any defendant, whether innocent or guilty. Each amounts to putting gentle (and sometimes not-so-gentle) pressure on the scales of justice to skew the verdict in the defendant's favor.”

Probably not a substantial claim: may not pass S2 (checkable), S3 (load-bearing), S4 (based).

The Nevada court's observation that a judge might define the probability at too low a level is readily remediable by setting the requisite probability quite high.

“The Nevada court's observation that a judge might define the probability at too low a level is readily remediable by setting the requisite probability quite high.”

Classified as probably not a substantial claim.

BARD is failing on most of the multiple tasks it has been expected to perform.

“On most of these scores, BARD is failing.”

Probably not a substantial claim: may not pass S3 (load-bearing), S4 (based).

The Massachusetts and Nevada statements are not arguments but bare assertions.

“These, of course, are not arguments but bare assertions.”

Probably not a substantial claim: may not pass S2 (checkable).

No canonical notion of reasonable doubt is on offer.

“I believe that the proper moral to draw from this sordid story is that no canonical notion of reasonable doubt is on offer.”

Probably not a substantial claim: may not pass S2 (checkable).

'Reasonable doubt,' like many other compound terms of art, carries a freight not implied by either of its constituents.

“'Reasonable doubt,' like many other compound terms of art (think of 'civil servant' or 'black box'), carries a freight not implied by either of its constituents.”

May combine two claims.

A vacuous BARD instruction is not likely to be reversed, while one with content may well be.

“A vacuous BARD instruction is not likely to be reversed, while one with content may well be.”

Classified as probably not a substantial claim.

If a juror feels doubtful about guilt but cannot identify or formulate the reason for that doubt, she cannot decide whether the doubt is rational or irrational.

“If a juror feels doubtful about guilt but cannot even identify or formulate the reason for that doubt, then how can she possibly decide whether the doubt in question is rational or irrational?”

Probably not a substantial claim: may not pass S2 (checkable).

Identifying BARD with any level of probability less than unity would explicitly acknowledge that the system officially condones a certain fraction of wrongful convictions.

“What should be clear is that identifying BARD with any level of probability less than unity would explicitly acknowledge that the system officially condones a certain fraction of wrongful convictions.”

May combine two claims.

None of the traditional principles (standard of proof, presumption of innocence, benefit of the doubt, prosecutorial burden of proof) is designed to reduce the likelihood of error in a trial; their intended result is to distribute errors in a certain way, ensuring that errors will be predominantly false acquittals rather than false convictions.

“none of these traditional principles is designed to reduce the likelihood of error in a trial. Their intended result is to distribute errors in a certain way - that is, to ensure that such errors as do occur will be predominantly false acquittals rather than false convictions.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

Elimination of capital punishment would contribute mightily to an environment for dispassionate discussion about the relative costs of legal mistakes and different standards for different crimes.

“Its elimination would contribute mightily to an environment in which a reasonably dispassionate discussion about the relative costs of different kinds of legal mistakes could take place and where a reasoned discussion about the possibility of different standards for different crimes could occur.”

May combine two claims.

Without that distinction, reasonable doubt reduces to doubt per se, and since any contingent statement can be doubted, current instructions are tantamount to demanding certainty in order to convict.

“Without it, reasonable doubt simply reduces to doubt per se, and, since any contingent statement can be doubted if we are so minded, the currently accepted instructions are tantamount to demanding certainty in order to convict.”

Probably not a substantial claim: may not pass S2 (checkable).

Divested of substantive content by judicial findings, BARD now serves at best as an admonition to jurors not to take their tasks lightly.

“Divested of its entire substantive content by a series of well-meaning but ill-advised judicial findings, it now serves at best as an admonition to jurors not to take their tasks lightly.”

May combine two claims.

Even among murders punishable by death, the death sentence is still highly unusual because prosecutors need not request it and juries or judges may hesitate to impose it.

“Even among those that are, the death sentence is still highly unusual since prosecutors need not request it, and juries (or judges in bench trials) may hesitate to impose it, often preferring imprisonment to the ultimate sanction.”

Probably not a substantial claim: may not pass S2 (checkable).

Because capital punishment remains and informs the popular stereotype of the risks criminals face, it is difficult to find a hearing for the idea that the criminal standard of proof might be less heavily skewed in the defendant's favor.

“Because capital punishment remains, at least in principle, a sanction open to American courts, and because it informs the popular stereotype of the risks that criminals face before the bar (despite its rarity), it is difficult to find a hearing for the idea that the criminal standard of proof might be less heavily skewed in the defendant's favor than it is.”

Probably not a substantial claim: may not pass S4 (based).

In most areas of life where inquiry after truth is at stake, advice to ensure rational inquiry specifies the kinds of evidence, tests, or proofs necessary for a well-founded belief.

“in most of the areas of life where inquiry after the truth is at stake, the advice offered to ensure that such inquiry is rational specifies the kinds of evidence, tests, or proofs necessary for a well-founded belief.”

Probably not a substantial claim: may not pass S2 (checkable).

So long as definitions of BARD fail to address the robustness of the evidence and remain fixated on the strength of the juror's belief, BARD will remain open to the criticism that it confuses mere strength of belief with warranted belief.

“So long as definitions of BARD fail to address the robustness of the evidence and so long as they remain fixated purely on the strength of the juror's belief, BARD will remain open to the devastating criticism that it confuses mere strength of belief (which may be wildly irrational) with warranted belief.”

Probably not a substantial claim: may not pass S4 (based).

CACE is fully compatible with the presumption of innocence.

“Likewise, CACE is fully compatible with the presumption of innocence.”

Probably not a substantial claim: may not pass S2 (checkable).

What distinguishes a rational doubt from an irrational one is that the former reacts to a weakness in the prosecution's case, while the latter does not.

“What distinguishes a rational doubt from an irrational one is that the former reacts to a weakness in the case offered by the prosecution, while the latter does not.”

Probably not a substantial claim: may not pass S2 (checkable).

The question of how strongly evidence supports the theory of guilt is a question about relations between events, not merely or primarily about the subjective state of jurors' minds.

“The key point is that the question, 'How strongly does the evidence support the theory of guilt?' is a question about relations between (statements describing) events, not merely or primarily a question about the subjective state of the jurors' minds.”

May combine two claims.

If someone is erroneously sent to prison for life, the conviction can be undone by pardon or retrial if exculpatory evidence emerges; if someone is executed, it cannot be undone.

“If someone is erroneously sent to prison for life, there is always the prospect that the conviction, if false, can be undone by pardon or retrial, if suitably exculpatory evidence emerges. If someone is executed, it cannot be undone.”

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

An inarticulable, or even an unarticulated, doubt cannot claim to be a rational one.

“As we have seen, an inarticulable, or even an unarticulated, doubt cannot claim to be a rational one.”

Probably not a substantial claim: may not pass S4 (based). May combine two claims.

CACE is presumably intelligible to juries and familiar to judges because civil trials already make frequent use of it.

“It has the added virtue of presumably being intelligible to juries and familiar to judges, since civil trials already make frequent use of it.”

May combine two claims.

Subjective criteria of BARD get at only half of the demand that juries not convict if they have a rational doubt, and cannot address the rationality of the juror's confidence.

“Subjective criteria of the sort that appellate courts favor get at only half of this demand. They tell the juror that he must have no doubts. But, precisely because they are purely subjective criteria, they cannot address the question about the rationality of the juror's confidence, or lack of confidence, in the guilt of the accused.”

Probably not a substantial claim: may not pass S4 (based).

The history of Anglo-American criminal law and of the BARD standard is inexorably bound up with capital punishment.

“The history of Anglo-American criminal law and of the BARD standard is inexorably bound up with capital punishment.”

May combine two claims.

Simply identifying levels of confidence required from jurors does nothing to enhance verdict validity, nor does it assist juries in distinguishing reasonable doubts from unreasonable ones.

“Simply identifying levels of confidence required from jurors does nothing to enhance verdict validity, nor does it assist juries in attempting to distinguish reasonable doubts from unreasonable ones.”

Classified as probably not a substantial claim.

The various characterizations of BARD seem vacuous or unsatisfactory because they avoid talking about the structure of proof or the kind of case the prosecution must present and focus on the juror's mental state.

“One reason that the various characterizations of BARD we have surveyed seem so vacuous or unsatisfactory is that they studiously avoid talking about the structure of proof or about the kind of case the prosecution must present. Instead, they focus single-mindedly on the mental state of the juror.”

Probably not a substantial claim: may not pass S2 (checkable).

BARD in its present form does not provide the slightest clue to jurors as to what a convincing proof of guilt should look like.

“What it does not do in its present form is to provide the slightest clue to jurors as to what a convincing proof of guilt should look like.”

May combine two claims.

While capital punishment still exists in the United States, most felonies are no longer punishable by death, murder being the only significant exception.

“While capital punishment still exists in the United States, most felonies are no longer punishable by death, murder being the only significant exception. 51”

• cites [51]Not matched

  Couldn’t be matched to a paper in Crossref, so it can’t be checked.

Probably not a substantial claim: may not pass S2 (checkable), S4 (based).

The existence of capital punishment, as well as the safeguards set up to avoid wrongful capital punishment, cast a very long epistemic shadow over the whole of the criminal law.

“The existence of capital punishment, as well as the safeguards set up to avoid wrongful capital punishment, cast a very long epistemic shadow over the whole of the criminal law.”

Probably not a substantial claim: may not pass S4 (based).

With the abandonment of capital punishment as the customary sentence, the sensible policy emerged of varying punishment according to the severity of the crime.

“With the abandonment of capital punishment as the customary sentence, the sensible policy emerged of varying the punishment, according to the severity of the crime.”

Probably not a substantial claim: may not pass S4 (based).

Various confused and mutually conflicting versions of BARD abound in the justice system.

“Various confused and mutually conflicting versions of BARD abound in the justice system.”

Probably not a substantial claim: may not pass S4 (based).

Since BARD emerged when guilty felons uniformly faced the death penalty, the standard for conviction was properly set very high.

“Since the criminal standard of proof, BARD, emerged at a time when guilty felons uniformly faced the death penalty, the standard for conviction was properly set very high.”

• AssumptionRests on an assumption: When BARD came into widespread use, all felonies carried the same punishment, and that punishment was death.

Probably not a substantial claim: may not pass S2 (checkable).

BARD has become a mantra rather than a well-defined standard of proof.

“'Beyond reasonable doubt' has become a mantra rather than the well-defined standard of proof that it once was.”

Probably not a substantial claim: may not pass S4 (based).

BARD was not a part of the common law when the Constitution was adopted.

“not the least of these being that BARD was not a part of the common law when the Constitution was adopted.”