By PAUL CAMPOS
SCRIPPS HOWARD NEWS SERVICE
One of the American legal system's wiser decisions has been its refusal to define the term "reasonable doubt" in a meaningful way. This often annoys academics, who are unhappy with the notion that such a key concept remains so vague.
What does "guilty beyond a reasonable doubt" mean? That you're 95 percent certain the defendant is guilty? 99 percent? As things stand, judges provide juries with vague platitudes about "the sort of doubt that would cause you to hesitate in an important matter," or being sure "to a moral certainty" of the defendant's guilt.
This is a good thing for a number of reasons. First, statistical definitions of guilt and innocence would force us to face facts about crime and punishment that no one wants to think about too closely. If pressed, I suppose most people would say that "beyond a reasonable doubt" ought to mean "practically certain." But if we need to be practically certain of, say, a child molester's guilt before convicting him, this guarantees that the vast majority of child molesters will escape conviction.
The flip side of this point is that if we don't require ourselves to be practically certain of someone's guilt of a heinous crime before convicting them, then that guarantees a significant portion of people found guilty will be innocent of the crimes with which they're charged.
That also seems fundamentally unacceptable. There's no completely satisfactory way to escape this dilemma, of course, but our legal system has dealt with it through an ingenious tactic.
By not defining "beyond a reasonable doubt," the system encourages informal decision making on the part of jurors that, even if it is often only half-conscious and fraught with dangers, it is still superior to a more formal process.
Consider the Michael Jackson case. Jackson was on trial for, among other things, molesting a boy. The evidence against him in regard to this particular charge was strong, but problematic. A panel of statisticians, asked if Jackson had been shown to be guilty of this charge beyond a reasonable doubt, would probably have answered "no."
On the other hand they might well have concluded that it seemed practically certain Jackson was a child molester, even if some ambiguity remained in regard to the accuser in this particular case.
If this is a fair description of the factual situation in Jackson's case (it might not be, but the point is that many cases will feature this type of dilemma), then the formal rule that governs our criminal justice system required Jackson to be acquitted of this particular charge.
That's the formal rule but every lawyer knows that, in this sort of situation, Jackson ran a serious risk of being convicted anyway.
I'm not sure this is an altogether bad thing. If you as a juror have some doubt regarding the defendant's guilt of the crime with which he is charged, but are practically certain, on the basis of the evidence presented at the trial, that he has committed legally identical crimes in the past, is it even inaccurate to say that you're certain of the defendant's guilt beyond a reasonable doubt?
After all, part of the calculus of what reasonable doubt means could well include whether you're practically certain the defendant is guilty of this crime, if not necessarily this charge.
It's probably for the best that our legal system gives enough informal power to juries that they can make such decisions case by case. Such power can be abused, but on the whole the alternatives seem even worse.
I'm just glad I've never had to serve on a jury -- and with any luck this column has helped assure that I never will.
X Paul Campos is a law professor at the University of Colorado.