The instruction on reasonable doubt: 200 years of sophistry is enough.

• Author: Johnston, Lawrence V., III

Judge Chamberlin started it all. Two hundred years ago, in 1798, in Dublin, Ireland, Judge Edward Chamberlin gave the first recorded definition of reasonable doubt to a jury. The words he used have changed little to this day and find their way into Florida's instruction on reasonable doubt. It is time to scrutinize his words and our definition and hope that before 1998 ends we can substitute a new and better definition.

Two hundred years of sophistry is enough.

Is This Any Way to Run a Legal System?

Let me begin by saying I have no quarrel with reasonable doubt as a standard for conviction in criminal cases. It would be in direct contradiction of the United States Supreme Court to do so. In re Winship, 397 U.S. 358 (1970).

It is the meaningless definition of reasonable doubt we use in Florida and pretend to understand that provokes me to write this article. It is the patronizing manner in which we learned ones in the legal class deceive jurors into believing that we are giving them help when we say, "Whenever the words 'reasonable doubt' are used you must consider ...." They should either resent the command or ridicule what follows it. Unfortunately when a judge dressed in a black robe speaks, juries are struck with such reverence that they fail to notice the lack of content of his or her words. Jurors assume the words spoken by an honorable person in black must make sense. This assumption is false.

Florida Standard Jury Instruction 2.03 states as follows:

A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. It is to the evidence introduced upon this trial, and to it alone, that you are to look for that proof. A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence or the lack of evidence.

The definition sounds familiar to lawyers. It feels comfortable. Perhaps that is why no one has bothered to examine these words with a critical ear. The human mind can adapt to patterns, even though they are incomprehensible. The attraction of children's nonsense limericks is a reflection of the same mental process.

History, familiarity, adaptation, and comfort are not justifications for keeping bad laws. The legal system cannot justify verbal eccentricities on grounds of childish delight. The legal system is a cultural necessity. It controls life and death. It attempts to punish the wicked, protect the innocent, and appease the victim. Familiar or not, the words used in the definition of reasonable doubt are incomprehensible. They make no sense, even when a person who dresses in black speaks them.

Let me make a few substitutions in the framework of the definition to see if I can make my point.

Suppose you go into a doctor's office and ask if you are having a heart attack. The good doctor goes to a medical dictionary and reads the following:

Heart attack: A heart attack is not a broken bone, a rash, hypochondria or chest pain. Such symptoms must not influence you to return a diagnosis of no heart attack if you have an abiding conviction that it is a heart attack. On the other hand, if, after carefully considering, comparing and weighing all the symptoms, there is not an abiding conviction of heart attack, or if having a conviction, it is one which is not stable but which wavers and vacillates, then the disease is not proved to a reasonable degree of medical certainty and you must tell the patient you find no heart attack because you are not convinced to a reasonable degree of medical certainty. It is to the evidence introduced upon this examination, and to it alone, that you are to look for that proof. A reasonable degree of medical certainty may arise from the symptoms, conflict in the symptoms or lack of symptoms.

If that were the definition physicians used to assist in the diagnosis and detection of heart attacks, people would be dying in the streets clutching their chests all the time. Doctors would not know when to admit the patient into a hospital or send the patient home with Rolaids.

Unfortunately, people are dying in the streets clutching their chests from gunshot and knife wounds. It is time we give our jurors meaningful help in diagnosing the degree of proof necessary to convict or acquit. We can then admit the guilty offender into prison and send the innocent home with our apologies.

Let's examine the definition one sentence at a time:

Sentence One:

"A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt."

The primary weakness of this opening sentence is you cannot define something by saying what it is not. To say a ship is not a doughnut...