But what about states that don't attempt any definition of RD? States that decline to do so contend that RD is self-defining and therefore needs no further explanation. On the plus-side, jury instructions that leave the term undefined can't do anything blatantly unconstitutional, such as telling jurors "not to search for doubt." But is RD really self-defining? Published studies demonstrate that it is not, as jurors fail to distinguish between it and the two lower, civil burdens of proof. But these studies are old and used small, unrepresentative samples. Therefore, Larry White and I conducted a new study with more statistical power to see if RD, when left undefined, offers defendants any more protection than two lower standards of proof, preponderance of the evidence (POE) and clear and convincing evidence (CCE).
Our article is forthcoming in the Villanova L. Rev., and you can find a pre-publication draft on SSRN or on my website's articles page. Read the abstract, after the jump, which includes our findings. (And scroll to the bottom of the post for a bonus video.) Spoiler alert: the earlier studies were confirmed. RD is not self-defining, i.e., when left undefined, there is no statistically significant difference in conviction rates between test participants who received a RD jury instruction, a POE instruction, or a CCE instruction.