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Study General Has the "reasonable doubt" standard for juries become out-of-date?
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Has the "reasonable doubt" standard for juries become out-of-date?
A French friend of mine asked whether I thought DSK’s defense lawyer had something up his sleeve or if he was just bluffing. The following screed is a generalization of my response:

            The standard for an acquittal presented to jurors in a criminal trial is “reasonable doubt.” The defense attorney’s task is to make unreasonable doubts look  reasonable. The defense does not have to establish innocence, just reasonable doubt.

            200 years ago, “without reasonable doubt” may have been a good point at which to establish guilt, with an eye to preventing the conviction of innocent persons.  Today, moral and intellectual relativism, a skepticism learned in schools under the tutelage of people who grew up in the 1960’s, has raised the bar extremely high when it comes to what tale the average American will see as a reasonable hypothesis explaining an event.

            To this generous attitude toward reality, add the ubiquitous television police show. It has become a retelling of a classic dramatic myth, the most detailed and arcane elements of which everyone knows by heart. If a homeless person is arrested in the first 10 minutes of the program we know for a fact, without doubt, that he did not commit the crime. We know that there are always hidden motives. We know the ruling class is involved behind the scenes.  We know that there is no story of crime and punishment which does not contain at least one surprise.

            This is the kind of reasoning that 21st century jurors bring to court. 

            If I were accused of a crime, if guilty I would ask for a trial by jury, if innocent, a trial by judge. I do not trust my fellow citizens’ grasp of reality.

            We are complete idiots, the entire nation. Any exceptions simply go to prove the rule.


Hi Samuel,
It's indeed the hot topic in France at the moment!
Some say it's a trap but as there are other testimonies by other women subjected to a similar behavior, I believe that it is reasonable to think that he might have done what he is accused of.
It is interesting what you say about the reasonable doubt. I didn't know it and thought that it's a question of proportion- if there is 90% chances he did versus 10% that he didn't, that he would still be considered guilty, and that that the decision would be different where it a 50/50% chances.
Don't you think that it also changes in relation to the subject and public sensitivity?

In response to Julie Sabatier
The "reasonable doubt" standard actually mandates that even if there is a 1% chance that the accused did not commit the crime -- if the doubt makes sense, if the doubt is reasonable (that is, if it is based on coincidences which are not absolutely impossible) -- then the jury should acquit.

In ordinary US criminal cases, of course, your 90/10% versus 50/50% standard is more likely to apply. In the hands of a high-powered and expensive defense lawyer (like DSK's Brafman) though, reasonable doubt is a powerful tool.

Of course, each case is different, depending on the subject and public sensitivity. In DSK's case, Brafman will have to overcome a basic prejudice against wealthy arrogant foreigners and sympathy for a hard-working single-parent housekeeper, plus all the negative publicity. In a case where one drug dealer shoots another drug dealer (a more common kind of case), the jury will not have the same kind of emotional investment in the outcome, and the decision has a better chance of being just.

My point -- which may especially appeal to a French person (whom I tend to stereotype as an intellectual interested in abstract ideas) -- is that in today's world what is real and what is not real is not as clear-cut as it should be, for the average person. Many Americans today seem -- distressingly, as far as I am concerned -- to have the ability to judge as "true" what they wish to be true, to accept more than one "truth," depending on their political or emotional position about the subject at hand, actually to be able to prefer one truth over another because it is more interesting. The number of Americans who "believe" that Obama is not an American citizen is a case in point.

About the DSK case in particular: the victim is opening herself up to a most difficult experience, facing one of the country's best criminal lawyers. (Brafman lectures on the art of cross-examination.) If I were a relative or friend of her's, I would advise her to accept however many millions of dollars DSK offers, and drop the charges. It would keep DSK out of prison, but his career is ruined, and she will be able to maintain her anonymity.
I can't remember how long it's been going on, only that today, 'a reasonable doubt' is a concept that, if taken seriously, would mean the end of law enforcement. Once I believed eye witness acounts but have learned that they are unreliable and the memories they base their testimony on are subject to manipulation. I believed in matching hairs and fibers and learned that it's not science but subject to interpetation. I believed in fingerprints and then learned that 'forensic experts' identified partial, blurry fingerprints far beyond the science. I learned that coroners were sometimes incompetent, that detectives sometimes lacked objectivity, that prosecuters could be overzealous, that innocent men confessed to crimes they hadn't committed. I will only mention the jailhouse confession to a cellmate. Not a year goes by but some murderer is found innocent and the wreck of the convicted man is freed to try and enjoy the days remaining to him. I've read of estimates that 3-5% of people convicted for capital crimes are in fact innocent. So how does the 1% or even 10% doubt deal with all that? As for trial by judge, well do you expect him to challenge the evidence? In the US after seven years of imprisonment a man is offered $265,000 over 25 years in settlement. A 25 year man is offered $50,000 a year but will lose his healthcare. Not much of a deal for a wheelchair bound man with ALS. I could not serve on a jury.
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