Jeff Gamso opens a post about how our belief clouds critical thinking by offering the spectrum of evidentiary tests available on the market.

The constitutional measure is Beyond a Reasonable Doubt.  It’s near an end point on a legal continuum of evidentiary certainty:

• Mere Scintilla
• Reasonable Suspicion
• Probable Cause
• Preponderance of the Evidence
• Clear and Convincing
• Beyond a Reasonable Doubt
• Residual Doubt
• Beyond All Doubt

Legislatures and courts have tried, at one time or another, to explain or define all of those terms.  So have lawyers.  Only two of them have anything like clarity.

“Preponderance of the Evidence” means more likely than not.

“Beyond All Doubt” means absolute certainty.  Which, of course, isn’t the same as truth, since it’s perfectly possible to be absolutely certain of things that are not so.  (Consider the beliefs, once widely held, that the earth is flat and is the center of the universe.  Or consider the belief, now too-widely held, that Barack Obama was born in Kenya.)

Years ago, a committee was formed to reform the jury charge in New York intended to explain “beyond a reasonable doubt” to normal people.  I was asked to serve on the committee and, before answering, sat down and tried to scribble some thoughts on the subject down on paper.  This was back when pen and paper were still in use.  I had nothing. I demurred, as I didn’t believe I had anything to add to the mix and that someone smarter than I would be needed.  The committee ultimately came up blank as well, and was never heard from again.

As might be suspected, I read quite a bit.  Unlike others, however, I don’t understand too much of what I read.  I see the words, strung together one after another, but as I read them silently, than repeat them aloud, they make no sense to me.  It appears as if they should say something, and I get an impression of meaning, but when I test myself by muttering, what exactly does that mean, I can’t explain it.  I spent a lot of time reading Orwell as a boy.

I like the preponderance of evidence test because I know what it means.  A mere 50.001 percent of evidence takes it.  More likely than not.  It’s quickly explained and easily understood.  Its application is another matter, since what makes something more likely than not is left to each individual’s experience and sensibilities.  For someone inclined to believe that police would have no reason to lie, the argument that they have manufactured testimony to fill in the gaps might fail miserably.  For someone who believes that testilying is commonplace, the argument may prove obvious. 

We view the conduct of others through the prism of what we want to believe to be true of ourselves.  We often see our own sensibilities just a little better than we really deserve.  We aren’t as good as we want ourselves to be,  We aren’t as honest with ourselves as we demand of others.  So if we’re put to the test of judging the conduct of others, we hold them to a standard higher than we would meet.  [Addendum: This is true of morality as well, where we think a bit too highly of ourselves.]

But what of the constitutional test, beyond a reasonable doubt?  New York pattern jury instructions begins its “explanation” in the negative:

What does our law mean when it requires proof of guilt “beyond a reasonable doubt”?

The law uses the term, “proof beyond a reasonable doubt,” to tell you how convincing the evidence of guilt must be to permit a verdict of guilty. The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty. Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt. On the other hand, it is not sufficient to prove that the defendant is probably guilty. In a criminal case, the proof of guilt must be stronger than that. It must be beyond a reasonable doubt.

How curious that the first thing we tell a jury is that “there are very few things in this world that we know with absolute certainty.”  As Gamso’s post goes on to say, there are many things in this world we believe with absolute certainty.  Our belief may be wrong, but that doesn’t stop us from being absolutely certain about it.  The fear here comes from the prosecution (which the jury instructions call the People, as in the People of the State of New York, the way the prosecution prefers the jury to think of it so that they represent them, the People on the jury, from criminal defendant) that the jury might expect too much of it. 

Nothing in the opening paragraph informs what beyond a reasonable doubt is, just what it isn’t.  The closest it comes is repeating the undefined words.  By definition, that doesn’t help.  Next comes the best effort at an explanation.

A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt.

What distinguishes an actual doubt from an imaginary doubt? Since it’s an honest doubt (as opposed to dishonest?) for which a reason exists, must an actual doubt require a reason?  If so, then it must not be sufficient to simply believe, as people do when it comes to cops never lying or DNA being beyond dispute.  It’s thus incumbent on the doubting juror to have a reason, which means that he can explain that reason to his fellow jurors.  The ability to enunciate a reason, and one that is actual and not imaginary, is a unspoken requirement of jury service, if one is to question guilt.  

It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.

A reasonable person.  Ask the jurors to raise their hand if they believe themselves to be an unreasonable person. 

Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant’s guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant’s identity as the person who committed the crime.

And finally, we arrive at the point of the explanation: Proof that leaves you so firmly convinced of guilt that you have no reasonable doubt.  The only operative words are “firmly convinced,” since returning to the language to be defined is worthless. 

We are firmly convinced of many things which seem to be true but for which we have no evidence.  They are our articles of faith, the basics upon which our belief system exists.  Many come from our parents, who believed them and taught them to us. Others from our friends, the television (which would never lie to us), and even the internet. 

These are the things upon which we make the most important decisions in our lives.  Not just mere important decisions, but the most important ones, critical one, life and death ones.  And they invariably rely on our trust that they are true, because we believe them to be true.  It’s not like each of us can individually test the truth of every single belief we hold, and if we didn’t have articles of faith upon which to make decisions, we would never be able to decide anything.  We would just stand there, paralyzed.

Judges know that the instructions for “beyond a reasonable doubt” are meaningless.  They adhere to the pattern most of the time because it’s terribly risky to try something different.  It’s almost a recipe for reversal.  But they know that the instructions are incomprehensible.  Judges, scholars, lawyers, smart people who entered the law because of their inability to stomach the sight of blood, have all tried to come up with better, comprehensible instructions.  No one has ever done so. 

Guilty people get convicted.  So do innocent people.  And no one can explain to a jury how to distinguish between the two.  Words are given them that mean nothing, strung together to give the impression of meaning, though no comprehensible meaning can be discerned.  Defendants are convicted because a jury believes.  And lawyers and judges keep repeating the words “beyond a reasonable doubt” because we want to believe it means something.