Lies, Damned Lies, and Reasonable Doubt
Sept. 18, 2015 (Mimesis Law) — It’s thrilling to see Richard Glossip getting so much media attention. He has been sentenced to die largely on the testimony of a single witness. The relative flimsiness of the case has been well-covered here and elsewhere: detectives told Justin Sneed their theory of the case, he repeated it, and thus saved his own life by claiming that Glossip hired him to kill his boss to avoid being fired for embezzlement.
Whenever an execution is pending for someone with a reasonable claim of actual innocence, you start to see the same questions pop up. How does a jury convict a guy beyond a reasonable doubt twice based almost solely on the word of a confessed murderer and drug addict? What about proof beyond a reasonable doubt?
Despite what the District Attorney may claim, this isn’t the result of “a bullshit PR campaign.” It’s the result of seeing how a cherished legal principle plays out in the real world.
In theory, guilt beyond a reasonable doubt means that no one gets convicted unless 12 people are damn near certain that he committed the crime. This “heavy burden” is the counterweight for the many special advantages vested in the prosecution, from the ability to bribe witnesses for favorable testimony to the right to specialized expert witnesses who work only for the state.
But there is no counterweight. Proof beyond a reasonable doubt is not meaningfully enforced in our system of justice.
In every court, in every jurisdiction, juries are told that they must convict beyond a reasonable doubt. The judge and the prosecutor then spend the next hour dumping all over the concept. The doubt can’t be “arbitrary.” Or it must be “the doubt of a fair-minded juror seeking the truth.” Or, most commonly, juries are told that proof beyond a reasonable doubt does not require “absolute certainty.”
Why do courts give these instructions?
Probably because they reduce the level of certainty that a juror must feel before he chooses to convict. In one study, using a small sample of university students, typical jury instructions on reasonable doubt decreased the confidence that a juror would have to feel to convict from 77% to 63% (in a purely hypothetical case that the students hopefully took less seriously than they would an actual trial).
In many jurisdictions, we further lower the burden. We tell jurors that the testimony of a single witness, if believed, is sufficient to prove a fact beyond a reasonable doubt. Or we give an instruction that the Supreme Court of the United States signed off on in 1973, that “[e]very witness is presumed to speak the truth,” even though that instruction requires the defendant to rebut the government’s witnesses or be convicted.
So when we say “proof beyond a reasonable doubt,” jurors aren’t told that their doubts are legitimate. Instead, they’re told that if someone trustworthy says something, that is enough. In other contexts, this would not fly.
It’s difficult to imagine, for instance, a respected scientific journal saying “Cancer Cured, According to Guy Who Seems Pretty Credible.” A scientist who said that a credible person’s word was “proof beyond a reasonable doubt” wouldn’t make it very long outside of the homeopathic medicine circuit. But a conviction on this basis is essentially bulletproof unless there is some other legal error.
Once a verdict has been reached, the federal rules of evidence make it impossible to attack the result by demonstrating that jurors misapplied the burden of proof, since jurors are forbidden to talk about anything that happened during their deliberations except for clerical errors, bribery attempts, and outside research.
If a bunch of jurors misunderstand the burden of proof, or snort cocaine in the jury room, that’s none of the court’s business under the rules.
A reasonable person might think that appellate courts closely scrutinize the evidence below before affirming a verdict, making sure that the defendant was truly convicted beyond a reasonable doubt. But, in practice, a conviction will be upheld if there is any evidence to support each of the elements of the offense.
So for instance, if you were convicted of murdering your spouse in a plane over the Atlantic based on the testimony of the shifty-eyed flight attendant, that conviction would be upheld even if the jury heard from a thousand witnesses who saw you winning a hot-dog eating contest. This isn’t because it’s likely that you committed the crime, but simply because there is some constellation of facts that would make it possible.
So when we say “proof beyond a reasonable doubt,” we don’t really mean it. We don’t set a meaningful floor for what evidence is going to be sufficient to convict. Even the Old Testament, with all its stoning and pillaging, required that at least two witnesses say that someone committed a crime before punishment. We carried that requirement over into the treason clause of the Constitution, because the last thing we wanted was a bunch of vague crimes premised on flimsy evidence.
For whatever reason, there is very little “exit polling” at criminal jury trials. There are few studies to figure out what level of certainty jurors require to reach their conclusions in actual trial situations. But every lawyer has a horror story about the facts that stick in the jury’s minds as absolute evidence of guilt, that push them beyond a reasonable doubt.
Yet we end up premising a lot of our policy decisions on the idea that convictions are somehow difficult to get, as though our system of justice weren’t designed to produce them efficiently. So a prosecutor can tell a jury about a prior conviction, but a defense attorney can’t tell a jury about a prior acquittal, because only convictions are meaningful.
Americans place a lot of stock in this standard. Lawyers cross their fingers and hope that it means something. But it has no concrete meaning. It creates no enforceable standard. There are tens of thousands of people locked away in cages who would not be if our system took its burden seriously. Tens of thousands more carry the collateral burdens of a conviction.
If the burden of proof can’t protect us, then we must find other ways to level the playing field between government and accused. If the public gets nothing else from Richard Glossip’s likely execution, it should be this: unless something drastic changes with our legal system, we will only ever be one witness away from a needle in our arm.