Beyond a Reasonable Doubt: The Cornerstone of Criminal Law

Peter B. GiblettStarred Page By Peter B. Giblett, 4th Dec 2014 | Follow this author | RSS Feed | Short URL http://nut.bz/215clfcv/
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"He is guilty", "He is SCUM", "He has lost all rights to call himself human", these are all comments that we have all see used to condemn a person accused of a crime, particularly a heinous one. It is all too easy to condemn and to do so without due process of law, but to do so we could be committing the gravest errors of society.

Cornerstone of Criminal Law

The ideal of "reasonable doubt" is a vital legal concept that really needs to be understood in relation to how criminal law functions in most states that are founded on the English Legal System (dating back to medieval times), which includes most of the Commonwealth countries and more famously the United States of America, where even Grand Juries have to consider the question of whether a prosecution is possible beyond reasonable doubt, even before charges are laid.

In our system of criminal law the prosecutor bears the burden of proof and is required to prove that their version of the facts is what happened beyond a reasonable doubt, this is the standard of evidence that is required for a criminal conviction in most jurisdictions. How that applies may differ slightly from nation to nation and from location to location but it is the legal foundation of our criminal system and has even been adopted beyond the English speaking world.

Guilt, Innocence and Freedom

Our law is based on the principle that it is better that a guilty person is freed than an innocent person is sent to jail. In making such a statement there will be a furore of complaints that guilty people play the system and win - I will not deny for one second that this is true, we all know it happens, but the flip side to this argument is that there are plenty of innocents that have spent significant time in prison, and some that have suffered the death penalty. Truth is we have seen some spectacular miscarriages of justice on both sides of this fence.

Associated with these facts are some of the many assumptions that are rightly (or wrongly) made when criminal cased are heard, such as "the police would not arrest a person unless they were sure they had something to do with the crime", well I will counter-pose this with recognition that the police may use a tactic of arrest in order to garner information from a person they know had nothing to do with the commission of the crime, but has information they are otherwise unwilling to share.

One of the first things taught in "Criminal Law 101" and that is 90% of all crimes have no witnesses, other than those involved in the instigation of the crime itself.

Certainty?

How certain can you be of anything in this world? With most things it is true that there is little certainty, that job you have held for 25 years can be gone tomorrow, but with law (particularly criminal law) there needs to be certainty, hence the reason why this has been a part of our legal system for more than 800 years and there is much evidence that it is older than that.

One tactic for the defendant's lawyer is to try to mount such a significant amount of doubt or to muddy the prosecution case so much that a juror has no choice but to find the defendant not guilty. This is a valid tactic for any defendant to undermine any prosecution case, but a good prosecutor will be prepared for such an attack on their case. According to James Q. Whitman of Yale Law School "Convicting an innocent defendant was regarded, in... Christian tradition, as a... mortal sin" (in his thesis on the Origins of Reasonable Doubt) and covers a lot of moral/Christian reasoning which certainly had a part to play.

The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat—"Proof lies on the person who asserts a fact, not on the person who denies it", attributed to the second and third century jurist Julius Paulus Prudentissimus an accepted part of Roman law, but the principle is likely to be a part of ancient Athenian law. This same principle also holds true for Islamic law which states that the onus of proof is on the claimant, based on Hadith number 33. These ancient origins have been brought both into English Common Law (which started for be formulated as long ago as 1079 under the Norman King William, and as a part of the Civil Law system used in France, Italy, Spain and other jurisdictions across the globe.

The phrase innocent until proven guilty, by English lawyer Sir William Garrow (1760–1840) has always stood as one of the pillars of law, French cardinal and jurist Jean Lemoine also favoured the accused based on the legal inference that most people are not criminals, but the concept was probably originally laid down by Moses in both the books of Genesis and Deuteronomy more that 3500 years ago and even-though the majority of the more modern foundations of law, such as the Magna Carta, Bill of Rights, US Constitution etc. do not explicitly mention reasonable-doubt it is the ancient origins that makes it a basic part of our legal system, that provides certainly for any person who stands accused.

"He is Scum..."

It matters not your or my opinion about the worth any individual, because each and every person has a right to a defence and as a part of that has the right to the presumption of innocence and the accusation made against them must be proven beyond a reasonable doubt. Deny them that right then you may as well mark yourself a criminal.

People raise questions about why a lawyer will defend a person who is considered "scum" by most reasonable thinking people. The crimes that person is alleged to have committed may be the most heinous in the history of villainy, but they have a right to a defence, they have the right to be presumed innocent until the allegations against them are proven beyond any reasonable doubt, but we must also remember that the only place they can be tried is in a duly appointed courtroom and not in the pages of a newspaper.

About the Author and this Article

Peter B. Giblett CITP, LLB(Hons) is a non-practising Barrister from England, who now lives in Canada. None of the information contained in this article should be construed as legal advice, which has been prepared in order to give a legal background to the general right to reasonable doubt that exists in most parts of the world today, for specific advise you should speak with a practising legal professional.

Image Credits

  • Levels of proof by voiceforthedefenseonline.com
  • Guilt, Innocence and Freedom by Peter Giblett
  • Prison Guard Tower (Royalty free by IMSI)
  • Guilty by Peter Giblett

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Tags

Ancient Origins, Burden Of Proof, Criminal Law, Doubt, Freed, Grand Jury, Guilty Person, Innocent Person, Jailed, Jury, Legal Concept, Person Accused, Reasonable Doubt

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author avatar Peter B. Giblett
Author of "Is your Business Ready? For the Social Media Revolution"

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Comments

author avatar Mark Gordon Brown
6th Dec 2014 (#)

I think everyone has a different idea as to what reasonable doubt is. Sadly.

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author avatar GV Rama Rao
6th Dec 2014 (#)

Yes there is a flaw in the system, but could you show me a better system?

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author avatar Peter B. Giblett
6th Dec 2014 (#)

I did not say there was a flaw in the system.

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author avatar M G Singh
7th Dec 2014 (#)

Peter, iIam a lawyer too. However the western system of justice does mean that a criminal gets away sometimes, though not all the times. In India its the same law and people are asking for a change in the law of evidence and criminal procedure code, again inherited from english law.

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author avatar M G Singh
7th Dec 2014 (#)

As a start the jury system has been done away with, I can't say if its good or bad.

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author avatar Peter B. Giblett
7th Dec 2014 (#)

There has been much controversy about the value of the Jury system, which is of course a different debate. I have seen some of the things done in the Indian system, and do feel that it is too easy for the system to be corrupted.

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author avatar Retired
7th Dec 2014 (#)

One assumption behind the notion of "reasonable doubt" is that everyone will have the same understanding of what constitutes "reason". Unfortunately, this has proved to be a very shaky assumption, as evidenced by the bizarre conclusions that many juries have come to. Many jury members reach their decisions based on "gut feelings" as opposed to the application of reason to the evidence presented to them.

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author avatar Peter B. Giblett
7th Dec 2014 (#)

That is a valid statement John (and Mark makes a similar point) but a Judge is supposed to define to a jury what may amount to reasonable doubt in the context of the specific case.

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author avatar Retired
7th Dec 2014 (#)

True, but what is said in the jury room may bear little resemblance to what the judge expects! Prejudice is deeply ingrained in some people, as is the inability to take instructions on board!

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author avatar Sivaramakrishnan A
7th Dec 2014 (#)

It is an irony that petty crimes are easily provable while the powerful manage to go Scot-free through connections and influence. I tend to believe behind every fortune there is at least a crime but that is taken for granted!

Many are caught with small quantities of drugs like heroin and have paid the ultimate price but the masterminds stay out of the net. I agree what you have in mind is the crime of murder, looting and the like. Thanks Peter - siva

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author avatar Peter B. Giblett
7th Dec 2014 (#)

Siva, I had no specific crimes in mind, merely several discussions that amounted to an understanding of reasonable doubt.

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author avatar tootsieharveystories
8th Dec 2014 (#)

I so agree Peter, having studied Paralegal Studies for two years. While American Legal System may seem to be "flawed," the defense attorney defends the defendant, not because he/she wants to, but because it's their job and the right of of the defendant accused of the crime. Well written and researched.

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author avatar viewgreen
8th Dec 2014 (#)

Very informative article and herein my country too we have a lot of cases of the criminal law. Thank you for sharing this information.

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author avatar Retired
8th Dec 2014 (#)

I forget who it was who said that the task of the jury is to decide which side has the better lawyers. He might have had a point!

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author avatar Peter B. Giblett
8th Dec 2014 (#)

There are certainly more than a few cases where that is true.

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author avatar snerfu
9th Dec 2014 (#)

We are more than apologetic in many situations. What happens to crime that has not been brought to court? When we let such crimes go unpunished, we are betraying more than the judicial system. We are betraying human values and settling for a standard that is very far below the normal.
But then who dictates terms for society? The very same "masterminds" who do not want their crimes out in the open.
I believe we lost the cornerstone of justice long long ago. We are merely beating around the bush of compromises and half-truths. But there is great fun in that!

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author avatar snerfu
9th Dec 2014 (#)

Thank you very much for that article sir, it let me release a lot of my feelings on this subject.

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author avatar puncakceria
10th Dec 2014 (#)

Informative article. Thank you for sharing this.

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