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You Say You Want An Explanation

You say you want an explanation
Well, you know…
We all want to understand.
You tell me that it’s only fair
Well, you know…
We all think that’s only right.
But when you talk about the justice system
Don’t you know that you can count judges out.

[Apologies to the Beatles; none to judges.]

I was busy making what I — and at least a few other defense attorneys — thought was a damn good closing argument at trial yesterday, when (unbeknownst at the time to me) my friend Joni was sending me an email asking my opinion on the latest cover of an old Beatles song, “Let It Be,” by the California Fourth District Court of Appeal.

Naturally, Scott “Greenie” Greenfield, who I envy greatly for his ability to write a new blog article every five minutes and to whom, you may have noticed, I give much link-love, beat me to the punch.

Ironically, my closing argument — although made in a bench trial where most attorneys feel it is not normally required — included a discussion of the “beyond a reasonable doubt” standard of proof. Because I was talking to a judge, I made one concession: I did not actually try to explain what “beyond a reasonable doubt” meant. I just made passing reference, as a reminder, that it was the appropriate standard.

I did add that if the judge had doubts — as I “knew” he would — the next question would be whether having such doubts was reasonable, or just a philosophical exercise. I even pointed out that “thinking that, more than likely, ‘there’s a good chance’ this is what happened” didn’t cut it. But beyond that I actually did assume that because he was a judge, he would, in fact, know what it meant. I let it be.

Oh, the irony.

And the stupidity.

The judge, in fact, like the judges of the Fourth Appellate District California Appellate Court, did not know what it meant. Whether or not like the Fourth Appellate District judges, he did not want to know what it meant, I don’t know.

In any event, I disagree with Scott Greenfield that the problem is the phrase’s inherently undefinable quality. The phrase is not indefinable; it’s just that most of us have lost touch with the historical roots that could lead to a clear understanding of the phrase.

But the reasonable doubt standard has a long and creditable history. It was — and should be — important because “it makes guilty verdicts more difficult.”

You see, in the old days, “freedom” wasn’t just another word for nothing left to lose. It wasn’t some word we trotted out to justify otherwise unjustifiable wars meant to enrich the rich and simultaneously reduce the population of the non-rich. It was, instead, a term that held meaning for each and every American. We not only really fought our first war for it, but we colonized — and, no doubt, to our shame decimated the indigenous population of — America because the Europeans who left Europe felt they each possessed inalienable rights to Life, Liberty, and the Purfoot of Happiness.

More importantly, unlike modern Americans, they were children of the Enlightenment. They valued not only freedom, but science. As Jonakait notes,

Americans “believed science to be a supreme expression of human reason.”[1]

There is a canard that Justice Scalia allegedly seeks the “original intent” of constitutionally-based guarantees — well, I suppose it’s not totally baseless, since it’s based on Scalia’s saying that’s what he does, even though he doesn’t — but, at any rate, that won’t help here for two reasons. First of all, the “reasonable doubt” standard is not found in the Constitution. (Oy! Justices Roberts, Thomas and Alito?! Does that mean that no such right to a finding of guilt beyond a reasonable doubt exists?!)[2] Secondly,

Perhaps the most important lesson [from looking into the origins of the reasonable doubt standard] is that when a right was not legislated but evolved, finding its definitive original meaning is impossible. The evolutionary steps of reasonable doubt were not accompanied by explanations that might occur today when a statute is proposed and enacted. We do not have cases from a the [sic] standards [sic] first appearances delineating why it was being used. Contemporaries did not write articles or books about its development, and if they argued about it in court, we do not have those arguments.

It is not just the lack of contemporary commentary, however, that is important. Because the standard evolved, it had neither an individual nor collective drafter. Neither a person nor a specific body decided that the rule should exist. We can look to no historical individual or group who could have authoritatively stated the rule’s original purpose, meaning, or intent. Professor Whitman captures an important point when he says about reasonable doubt that, consequently, “[t]here is no original intent to interpret. All that we can do is try to understand the rule in its original context, which is something quite different.”[3]

That, as Jonakait and Whitman both believe, is no easy task — if it can be done at all — “because we have lost touch with the world that produced the reasonable doubt standard.”[4]

Does this mean that the Fourth Appellate District Court was right and we should just “let it be”?

In a word, “No.” In fact, to the extent that “let it be” means that we refuse to explain things to a jury that asks for an explanation, that’s just fucking insane. There’s no other way to put it. Suppose the court decides to just “let it be” and the jury then falls back on its own resources to come up with an incorrect understanding? If a judge comes up with an example of puzzle pieces such as has been held (when it suits the higher court) to require reversal, what’s to stop the jury from doing the same?

Certainly, if we accept such things as jury nullification, the jury can do whatever it wants. But don’t we usually want juries to follow the law? If the judge cannot adequately explain a phrase of art in the law, such as “beyond a reasonable doubt,” what does that say about the judge? Or the jury? Or the phrase of art?

Part of the problem — at least in California, where I practice law — is with the idiots who designed the jury instructions. In both the older criminal jury instructions (specifically, CALJIC 2.90) and in the newer instructions (specifically, CALCRIM 220), the concept of reasonable doubt is defined as “proof that leaves you with an abiding conviction that the charge is true.”

But where “abiding” may be a word that educated people know, it is not actually a word commonly used by ordinary people. Even worse, the word “conviction” is almost always used by ordinary people these days to mean that you were found guilty of having committed a crime! Few people know the term also means “the state of being convinced.”

Even knowing all those things, how am I to take this definition? Is an “abiding conviction” one where I am convinced of something for a long time? How long? What if jury deliberations only took 5 minutes? (Sadly, shit happens.) Do I have to sit there for another 25? 60? A half-day?

The problem is similar to that which plagues the phrase “to a moral certainty” which some jurisdictions use to “clarify” the ambiguous “beyond reasonable doubt.” As Barbara J. Shapiro has noted,

Only a few quite well-educated older people who have read a great deal of nineteenth-century literature are likely even to have said, “I am morally certain that you left your coat in the restaurant” or “Are you morally certain that you came into the room before he did?” It is the kind of phrase that a screenwriter might put in the mouth of a country storekeeper to suggest a slightly bookish, straight-laced, religious old man still living in an earlier age.[5]

As if things were not bad enough, the last paragraph of CALCRIM 220 states:

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.[6]

This appears to invite the very error that caused one California Appellate Court to reverse for prejudicial error.

In People v. Garcia (1975) 54 C[al]. A[pp]. 3d 61, 126 C[al]. R[ptr]. 275, the trial judge instructed the jury on proof beyond a reasonable doubt according to P[enal] C[ode] 1096, but then amplified the instruction by adding: “In other words, reasonable doubt means just what the term implies, a doubt based upon reason, a doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales,one side against the other, in the logical manner in an effort to determine wherein lies the truth.”[7]

As the Garcia court noted,

[T]he instruction called on the jury to weigh the evidence and thus the accused’s guilt or innocence. “This ‘weighing’ process, where a tipping of the scales determines the ‘truth,’ is wholly foreign to the concept of proof beyond a reasonable doubt.”[8]

Witkin’s California Evidence quotes another California case which, frankly, appears to have language much more likely to be understood by an ordinary juror. Perhaps that’s why it isn’t used in the jury instructions. (Seriously.)

To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty.[9]

Seeing the phrase “to a near certainty,” you can probably imagine why thatlanguage never makes it into the jury instructions. Yet, as the Witkin reference notes, this is the “one authoritative departure in California from the strict language of P[enal] C[ode] [section] 1096,” wherein the legislature incorrectly defined “reasonable doubt.”[10]

It is an authoritative departure which is well-justified, if not yet fully embraced.

In 1979, Justice Stanley Mosk of the California Supreme Court — a conservative who in more recent times turned out to be a flaming liberal compared with his colleagues (and only compared with his colleagues) — suggested that because he was too stupid to be able to define “reasonable doubt,” the concept should be left undefined. Juries who asked for clarification should be told, “Fuck off.”

Or maybe he just meant “figure it out yourself.”

In which case, accused persons are the ones who should “fuck off.”

Justice Mosk…issued a challenge: “I’d like to hear someone attempt to tell…[us] what ‘moral certainty’ is.”[11]

In 1987, Barbara J. Shapiro took him up on that challenge in her Hastings Law Journal article titled “To A Moral Certainty”: Theories of Knowledge and Anglo-American Juries 1600-1850. I would encourage every criminal defense attorney, but particularly those in California, to read the article. Shapiro herself provides the best summary of it:

To briefly anticipate my conclusion here, an examination of the intellectual history of “moral certainty” supports the conclusion that the phrase does not convey to contemporary jurors what it was intended to convey when it was introduced. On the other hand, the key ideas that the phrase was designed to convey can be understood by modern jurors and continue to be as important to the jury’s process of reaching conclusions as they were when the phrase was introduced. Thus, the history of moral certainty that follows does suggest that the phrase ought to be dropped, but it also suggests that a substitute ought to be introduced and what the substance of that substitute should be.[12]

The article covers — in great depth — the evolution of the concept embodied in “beyond a reasonable doubt.” It not only explains the connection between as-the-concept-evolved-contemporary understandings of epistemology and what counts as “evidence,” but — although not intending to focus upon this — provides a basis for understanding the evolution of jurors themselves.

Some of the best explanations from history include that “moral certainties might be so clear that everyone ‘whose judgment is free from prejudice will consent unto them.'”[13] At another point, Shapiro reaches back before the Dark Ages (I’m not referring to modern American jurisprudence) to explain that,

Initially, there had been little need to construct a rationale for the truth-finding capacities of juries who reached verdicts based on their own common sense and knowledge of the facts. As the role of witnesses increased in the late medieval and early Roman period, the problem of the credibility of second-hand reports of facts that had become central to theologians, naturalists, and historians became central to legal theorists who borrowed conceptual elements from the new empirical philosophy.[14]

In addition to the evolution from the language of “satisfied conscience” to “beyond a reasonable doubt,” Shapiro discusses the evolution of what I’ll call the “evidence code” (lowercase to denote that I’m not referring to specific statutes of a specific jurisdiction). Those who built the foundation — please don’t miss the pun — for modern evidence codes,

attempted to demonstrate that the rules of evidence, some of them centuries old, could and did rest on sound notions of what constituted appropriate evidence and good proofs, that is, on an intellectually satisfying theory of human knowledge.[15]

Our problem today, contra Greenfield, is not, as he declares, that the concept “defies definition.” While it’s true that “we” (I assume he means, at least, “most lawyers”) don’t know what it means; juries don’t know what it means; and judges are too fucking stupid and ignorant of history to explain it, the concept itself no more defies definition than does any other concept from the past that ordinary students make sense of every day.

As Shapiro herself notes,

Throughout [the development of the standard of proof for criminal trials], two ideas to be conveyed to the jury have remained central. The first idea is that there are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible. The second idea is that, in this realm of events, just because absolute certainty is not possible, we ought not to treat everything as merely a guess or a matter of opinion. […] The highest level of certainty in this realm in which no absolute certainty is possible is what traditionally has been called moral certainty.[16]


There is little doubt that “moral certainty” no longer conveys these two ideas, but it may be worthwhile to continue to convey them.[17]

Shapiro offers a kind of rough draft to a revised reasonable doubt instruction:

We can be absolutely certain that two plus two equals four. In the real world of human actions we can never be absolutely certain of anything. When we say that the prosecution must prove the defendant’s guilt beyond a reasonable doubt, we do not mean that you, the jury, must be absolutely certain of the defendant’s guilt before finding the defendant guilty. Instead, we mean that you should not find the defendant guilty unless you have reached the highest level of certainty of the defendant’s guilt that it is possible to have about things that happen in the real world and that you must learn about by evidence presented in the courtroom.[18]

I’m sorry to quote so extensively from the work of others, but I think Shapiro said it best:

Surely experienced judges and legislators can improve on this language. I think the attempt ought to be made before we abandon a three-centuries-old tradition of seeking to explain to juries in simple language the theories that underlie Anglo-American culture and that ought to be identified in all processes of knowing, including knowing guilt or innocence.[19]

Why? Because, as even California’s judges once recognized,

[O]ur legal system is constructed on the premise that it is better to free the guilty than to convict the innocent. Therefore, it is preferable to encourage the use of recommendations of acquittal rather than discourage them.[20]

Special thanks to San Joaquin College of Law librarian Kerry Prindiville,
for help with the research for this blog article!

  1. Randolph N. Jonakait, Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt’s Development (October 12, 2010), available at 
  2. Courts, including the United States Supreme Court, have interpreted the need to find guilt “beyond a reasonable doubt” to be constitutionally-protected as part of procedural due process. Somewhat surprisingly, however, there is virtually no discussion of what “beyond a reasonable doubt” means in either Chester James Antieau and William J. Rich, Modern Constitutional Law (2d ed. 1997), nor in Ronald D. Rotunda and John E. Nowak, Treatise onConstitutional Law: Substance and Procedure (3d ed. 1999), or any of the supplements I have to either of these works. 
  3. Jonakait, supra, at 65. Alterations mine, except the alteration in Whitman’s quote. 
  4. Jonakait, supra, at 66. 
  5. Barbara J. Shapiro, “To A Moral Certainty”: Theories of Knowledge and Anglo-American Juries 1600-1850 (1987) 38 Hastings L.J. 153, 153. 
  6. Emphasis added. 
  7. Witkin, California Evidence (4th ed. 2000), § 23, p. 175, emphasis added. 
  8. Witkin, supra
  9. Witkin, supra, quoting People v. Hall (1964) 62 Cal.2d 104, 112, 41 Cal.Rptr. 284, P.2d 700. 
  10. I say “incorrectly” because it, too, suggests making a “comparison” of evidence. Since a defendant does not have to present any evidence, the suggestion that a comparison be made does improperly invite weighing evidence. One could argue that the “comparison” occurs concerning potentially conflicting evidence given at trial. That may well be. But what’s to stop a juror from making the same mistake the judge in Garcia made? See California Penal Code section 1096.
  11. Shapiro, supra, at 154, quoting the San Francisco Chronicle (May 6, 1986) at 9, col. 1, alteration and elision in the original. 
  12. Shapiro, supra, at 154. 
  13. Shapiro, supra, at 158. 
  14. Shapiro, supra, at 161. 
  15. Shapiro, supra, 175, emphasis added. 
  16. Shapiro, supra, at 193. 
  17. Shapiro, supra, at 193. 
  18. Shapiro,supra, 193. 
  19. Shapiro, supra, at 193. 
  20. People v. Alverson (1964) 60 Cal.2d 803, 814, 388 P.2d 711.