76, "Reasonable doubt"

A man can't be executed in the United States unless a jury finds him guilty of a capital crime "beyond a reasonable doubt." That tells us that his living or dying is going to depend on what his jurors take the word "reasonable" to mean.

What's to guide them? The word "beyond" suggests that there's a line. Up to it, reasonable; past it, no. How unrealistic. We're in the human world, not geometry class.

Law dictionaries pretend to help. A few tell us that "beyond a reasonable doubt" means "moral certainty." Oh yes, that's where you find clear lines, in morality. All us jurors are going to know when answers to moral questions are certain.

There's no escape. We're stuck with individual differences. Everybody's stuck. If you do away with juries and go with a judge (or a lord, or an apparatchik) you're stuck with his individual difference.

And aren't we, in philosophy class, stuck with relativism? There's no absolute, no objective judgment, no line-drawing machine. You use words that make it sound as if there is such a thing but my, look where they leave you. "Preponderance of the evidence." "Preponderance": superiority in weight. You look to see which side the balance falls on. Yes, and who's doing the weighing? And how heavy is each thing that goes into the pan? Weights are assigned, not discovered.

Even the expression that supports all this, there in the Constitution, "due process," is infected by subjectivity. "Due": owed. What does a man having coming to him? You can specify the procedures in legal statute and establish them in court practice but still, might he deserve more? or less? We differ, friend.

The more we are convinced of our differences, though, the closer we come to that most dangerous of convictions: that everything in the moral sphere is subjective, or relative. Though possibly true, that belief is dangerous because it invites a slide into two really destructive convictions, that one moral belief is as good as an another, and that there is no good guidance.

You have to leave it to experience to counter the first belief, which it usually does soon enough, but to counter the second all you have to do is look at a Supreme Court opinion on the very expression we're most worried about, "beyond a reasonable doubt." In 1970 the Court said (in re Winship) that this standard of proof is grounded on "a fundamental value determination of our society." There you are, juror. Find out what values your society has determined to be fundamental and apply them to the case before you.

The values are many and about some there may be respectable differences but about the one that brought forth the Court's opinion there is, I think, likely to be difference only among those who haven't learned it. It's that "it is far worse to convict an innocent man than to let a guilty man go free."

That's easy guidance. Hard guidance is guidance in society's values that are not so clear or are still at issue. Here's where teachers come in. Let them get young citizens' values straightened out in school, say in civics class, before they get to a jury room. Get them started, at least, on the meaning of words like "reasonable" and "due."