Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. __ (forthcoming, 2019)

The empirical evidence demonstrates that, when left undefined and unexplained, the proof beyond a reasonable doubt (BRD) standard offers no more protection than the two civil burdens of proof.  I therefore hypothesized, in a California article in 2017, that BRD jury instructions should define the phrase in the context of the lower burdens of proof, i.e., on a relative basis.  That way, the jury can appreciate just how high the BRD standard actually is.  In this new study turned article, Reasonable Doubt and Relativity, I empirically tested my hypothesis.  This article could be helpful to the Wisconsin Criminal Jury Instruction Committee which, at the request of two SCOW justices, is revisiting our state's jury instruction which completely fails to define or explain the concept of proof beyond a reasonable doubt (and instead focuses only on reasonable doubt, in a very pro-prosecution manner).  You can find a draft of my new study-turned-article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Washington & Lee L. Rev., and read other W&L articles here.  The abstract of Reasonable Doubt and Relativity is posted after the jump.

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. But in reality, this lofty standard is only as strong as the words used to explain it to the jury.

Unfortunately, attempts to explain reasonable doubt often create confusion or even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof.

To solve this dilemma, courts should explain reasonable doubt on a relative basis, within the context of the civil burdens of proof. A relative, context-based instruction will allow jurors to compare and contrast the different standards, thus giving them the necessary reference points to appreciate how high the state’s burden actually is.

This approach is rooted in a psychological principle called “contrast effects,” and is now supported by empirical evidence as well. In this Article I present the results of my controlled experiment where mock jurors read the identical case summary of a criminal trial and were then randomly assigned to two groups, each of which received a different reasonable doubt instruction. The group that received the relative, context-based instruction acquitted at a rate 30 percent higher than the group that received a simple, undefined instruction. This result was significant at p < .05. Further, participants that received this relative, context-based instruction required a higher subjective confidence level in the defendant’s guilt before they were willing to convict.

Drawing on this and other behavioral research, this Article presents a comprehensive jury instruction on the presumption of innocence and burden of proof that is designed to fulfill the Constitution’s promise: to ensure that defendants remain free of conviction “except upon proof beyond a reasonable doubt.”