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

Abstract

This book is a good example of historical research with definite practical relevance. James Q. Whitman's starting point is the problem implied by the phrase “beyond a reasonable doubt.” American juries are expected not to convict a person unless they have reached this stage of certainty. The Supreme Court considers it a constitutional standard, even though these words are absent from the Constitution. The reasonable doubt standard is widely regarded as an important safeguard for defendants' rights. No one, however, seems able to explain exactly when one has passed the stage of reasonable doubt, nor which doubts are reasonable and which unreasonable. Whitman's search for the origins of this phrase takes him back to late antiquity. According to Whitman, two kinds of procedure operate within the criminal law. One is concerned with establishing factual proof. That is the type most common today, especially in the United States, where plea bargaining ensures that unclear cases are almost the only ones to go to court. In the Middle Ages, by contrast, fact-finding played a minor role. In the small communities concerned, everyone had a basic idea about what had happened and the fama of the actors involved. This was the case with revenge murders, for example, preferably carried out in front of many spectators. The problem was that witnesses were reluctant to make a statement under oath. This reluctance might stem from a fear of becoming vengeance victims themselves, but it had to do just as well with the salvation risks inherent to oath-taking. Historically even more important was the hesitation of judges. They often had moral qualms about sentencing a person to death, regardless of how clear the facts were. Theologians reinforced these qualms by arguing that a judge who passed an unjust judgment or merely rejoiced in sentencing someone to death made himself into a murderer. In all such cases the other set of trial procedures came into play: those aimed at securing moral comfort. The reasonable doubt standard originated not as a fact-finding device but as a test for moral comfort. As long as the doubt lingering on in the judge's bosom was unreasonable, he need not fear going to hell.