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The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial

James Q. Whitman ’88
The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial
Yale University Press, 2008

“Beyond a reasonable doubt” is a key phrase in the American criminal justice system, heard from the highest courts in the nation to prime-time television dramas. Yet, as Ford Foundation Professor of Comparative and Foreign Law James Q. Whitman ’88 observes in The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, the term has become fraught with uncertainty of meaning as judges, lawyers, and jurors struggle with vague definitions of what makes a defendant guilty “beyond a reasonable doubt.”

Whitman writes in the book’s introduction:

‘Beyond a reasonable doubt’ is among the most majestic phrases in our law; but in practice it is vexingly difficult to interpret and apply. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal ‘doubt’? Exactly when are legal ‘doubts’ about the guilt of the accused ‘reasonable’ ones?

In this 288-page historical examination, Whitman argues that the modern legal system has lost sight of the original purpose of the reasonable doubt rule. According to Whitman, the idea of “reasonable doubt” was originally not a rule of law at all, but a rule of theology. And its original function was not to protect the accused, but to protect the souls of jurors. The doctrine, he explains, was created to make conviction easier—jurors who feared losing their own salvation in convicting an innocent defendant were assured that they would be safe from damnation as long as their doubts were not “reasonable.”

In making his case, Whitman delves into a history that reaches deep into Antiquity, when the Christian theology of judging first formed, and continues into the Middle Ages, when the Common Law and Civil Law traditions emerged out of the decline of the judicial ordeal. His book then carries the story into the seventeenth and eighteenth centuries, when the “reasonable doubt” rule emerged during an era of constitutional and legal crisis in the Anglo-American world. Throughout all these centuries, he argues, Christian judges and jurors both sought “moral comfort”—means of assuring themselves that they could convict defendants without fear of risking their own salvation.

Today, these theological concerns have vanished. Yet even in the absence of the psychological context of moral peril in which our ancestors lived, the reasonable doubt rule has survived, but has come to be viewed as a protection for defendants—a means of making conviction harder, rather than easier for jurors. No longer seen as a means of moral comfort for jurors, the rule is now a type of exhortation against easy conviction, a warning to jurors that they must have moral certainty in their decision. Whitman writes:

The problems of our world are not the problems of the eighteenth century, or the thirteenth century, or the fourth century. Jurors today bring relatively few Christian qualms to the process of judgment, and we have little need for a rule intended to coax them into convicting. Moreover, they rarely face cases in which there is no real factual uncertainty. We can no longer instruct jurors that their job is to ‘confirm’ an obvious truth. The very task of the trial has changed in a modern urban world.

Asking twenty-first century jurors to abide by an eighteenth-century instruction, Whitman says, “is neither wise nor kind.”

Ultimately Whitman argues for a return to the original spirit of reasonable doubt—that is, a focus on the fact that a juror’s decision is, at its core, a moral one on which another person’s fate rests.