Another law blog, Sui Generis, , asks the reader (kinda like a game show) to define “beyond a reasonable doubt.”  One person defined it as “Not a speculative doubt but an actual doubt that a reasonable person would have based on the evidence or lack of evidence.”  In an effort to be kind, I will not go so far as to say that this definition sucks.

The sad truth is that no one has ever been able to come up with a viable definition of this phrase, probably the most important in criminal law.  Some of my clients, on the other hand, are of the belief that they completely understand what this burden of proof means, and conveniently define it in such a way as to make clear that they cannot possibly be convicted.  I remind them, when they do this, that they aren’t on the jury and don’t get a vote.  Defendants often make the mistaken assumption that they get to pick and choose their reality in a way that best serves their interests.  This presents a problem for the lawyer, who is obligated to bring them back to reality, a place that is often not particularly hospitable to them.

So what is “beyond a reasonable doubt?”  The judge doesn’t really know, though he’s unlikely to admit it.  The jurors may think they know, but they will never have the opportunity to tell us what they think it means before reaching their verdict.  And the lawyers can’t define it, but know that they need to use it to persuade the jury that it wasn’t met. 

Ultimately, it is a meaningless phrase that characterizes a big, wavy line that changes from person to person, case to case, court to court.  It is up to the lawyer to give this fuzzy line meaning, and to convince a jury that wherever that line may be, it has not been crossed.  It is the difference between a happy life with your family, and a very difficult life in prison.  The crux of the matter is that this is just another of those vague things that we create, trial after trial, as part of our arsenal of weapons in the defense of a client.  Law is not a science, but an art.  We paint the picture of doubt, and sell it to the jury as being eminently reasonable.  At the same time, we sell guilt as being wholly unreasonable.  How well we are able to sell our position defines beyond a reasonable doubt.