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Shift In Reasonable Doubt Jeopardizes Presumption Of Innocence

Most Americans learned everything they know about courtroom law from Perry Mason and Jack McCoy, including the cornerstones of the American judicial system — “presumption of innocence” and “beyond a reasonable doubt.” But law professor Steve Sheppard knows that the concept of reasonable doubt is changing, and that change may do away with the presumption of innocence.

“In practice, reasonable doubt doesn’t work the way we think it does,” explained Sheppard. It has come to mean that the doubt must be expressed, rather than implied. He cites as an example of this Instruction One upheld by the Second Circuit Court of Appeals. This instruction defined reasonable doubt as “doubt for which you can give a reason if called upon to do so by a fellow juror in the jury room.”

Although recognized by lawyers and judges, there have been few attempts to address the problem in judicial opinions. To provoke study, Sheppard wrote the first article to address this issue, which appeared in the “Notre Dame Law Review.”

Central to the issue is the instruction that a judge gives to jurors.

“Throughout history, the fundamental purpose of the instruction was to constrain the juror, to prevent the juror from acting with excessive independence,” Sheppard explained. “But the legal consequences of the instruction have changed. Over time the burden upon the juror who would acquit has grown, and so the evidence necessary for the state to convict has lessened.”

“One of the difficulties of the requirement of articulability is that it hinders the juror who has a doubt based on the belief that the totality of the evidence is insufficient,” said Sheppard. “Yet, this is precisely the circumstance in which the rhetoric of the law, particularly the presumption of innocence and the state’s burden of proof, require acquittal.”

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