Good intentions are not enough: the argument against a higher standard of proof in capital cases.

AuthorZuanich, Brian
PositionCapital punishment

"[I]n a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge about what happened." (1)

"[The] no doubt standard would ... permit a single juror, harboring even an unreasonable doubt, to veto the death penalty for terrorists, serial killers, and other despicable murderers." (2)


"Until I can be sure that everyone sentenced to death in Illinois is truly guilty ... no one will meet that fate." (3) With those words, Governor George Ryan suspended the death penalty in Illinois on January 31, 2000. (4) The former capital punishment supporter became the first governor in U.S. history to declare a moratorium on the death penalty. (5) Three years later, Ryan made history again. Just two days before he left office, the governor commuted the sentence of every inmate on Illinois' death row. (6) "I am not prepared to take the risk that we may execute an innocent person," he declared. (7)

There is no convincing proof that an innocent person has ever been executed in the United States in the modern capital punishment era. (8) Theoretically, however, innocent people could be executed. (9) The standard of proof in every criminal case is "proof beyond a reasonable doubt," not absolute certainty. (10) Juries, therefore, may impose the death penalty even when they have some lingering doubts about the defendant's guilt. (11)

Over the past several years, many have argued that there should be a higher "no doubt" standard of proof in capital cases, to ensure that no innocent person is ever executed. Two sitting federal judges and a justice on the New Jersey Supreme Court have made such a proposal. (12) Several legal commentators have also argued that imposing the death penalty should require a higher standard. (13) In addition, state legislators in both Illinois and Michigan have considered proposals to restore the death penalty with a heightened standard of proof. (14) Calls for a higher standard in capital cases have been fueled by growing concerns nationwide that innocent people are being convicted and sentenced to death. (15) In the words of one New Jersey Supreme Court justice, James Coleman, the same standard "used to determine whether an individual should be found guilty or innocent of possession of a marijuana cigarette should not be used in determining whether an accused can be executed." (16)

Even some strong death penalty supporters favor a tougher burden of proof in capital cases. Former Oklahoma governor Frank Keating, a high profile supporter, believes the reasonable doubt standard is "too low" for capital cases. (17) And Governor Mitt Romney, who campaigned to reinstate the death penalty in Massachusetts, touted the "no doubt" burden of proof provision of his capital punishment bill. (18)

This note takes the opposite position. Imposing the death penalty cannot and should not require a higher standard of proof. (19) A "no doubt" standard would create the comforting, but false impression that juries will always reach the correct verdict in death penalty cases. But juries without first-hand knowledge of the facts can never determine, with absolute certainty, whether a defendant is guilty or innocent. (20) This note also argues that there is no justification for raising the standard of proof in capital cases (assuming jurors could actually apply a "no doubt" standard). Because the death penalty has important social benefits, and because most death row inmates are in fact guilty, the costs of imposing a higher standard (decreased use of the death penalty) outweigh the benefits (preventing wrongful executions). (21)

This note is divided into four sections. Section I briefly describes how a capital trial works and explains the impact of the reasonable doubt standard on the death penalty. (22) Section II compares and contrasts five recent no-doubt proposals. (23) Section III argues why capital punishment cannot and should not be subject to a higher burden of proof. Lastly, Section IV suggests that improving the jury's understanding of the prevailing reasonable doubt standard would be a much better way of lowering the risk of erroneous death sentences.


    Capital trials are divided into two stages: a guilt phase and a sentencing phase. (24) Unlike most regular criminal trials, the jury typically determines guilt or innocence and selects the sentence. (25) In the guilt phase, the jury decides whether the defendant is guilty of a capital crime. (26) The standard of proof, as in all criminal trials, is proof beyond a reasonable doubt. (27)

    In a separate sentencing proceeding (if applicable), the same jury decides whether the defendant's crime warrants the death penalty. (28) In this phase, the government must prove that additional aggravating factors were present before the jury may consider imposing the death penalty. (29) Aggravating factors "are intended to identify those circumstances that single out the crime and the criminal as the 'worst of the worst." (30) In most death penalty states, the government bears the burden of proving each aggravating factor beyond a reasonable doubt. (31) But juries must also consider, during their sentencing deliberations, any relevant mitigating evidence. (32) Mitigating evidence is "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (33) In most states, the jury cannot impose the death penalty unless it concludes that the aggravating factors outweigh the mitigating factors. (34)

    The reasonable doubt standard applies in both the guilt and sentencing phases. (35) To overcome the reasonable doubt standard, the government must convince the jury to a near certainty that the defendant is guilty, and that the death penalty is warranted because additional aggravating factors were present. (36) A standard of near certainty, by definition, does not require complete certainty, so mistakes are inevitable. (37) In death penalty cases, there are two general types of errors: false positives and false negatives. (38) False positives refer to cases where the defendant was wrongfully sentenced to death. (39) False negatives, on the other hand, represent cases where the jury should have imposed the death penalty, but instead imposed a life sentence. (40) The reasonable doubt standard is premised on the theory that, when errors do occur, false negatives are far better than false positives. (41) In other words, errors should overwhelmingly favor the innocent in capital trials. (42)


    A number of judges, lawyers, academics, and elected officials have called for a higher standard of proof in capital cases. They believe that the capital punishment system should never willingly accept any false negatives. (43) One wrongful execution, they believe, is one too many. (44) This Section concentrates on five different no-doubt proposals that have been put forward in recent years. (45) None of them would raise the standard of proof for conviction in the guilt phase. (46) Only the jury's decision to impose the death penalty would be subject to a higher "no doubt" standard of proof. (47)

    1. The Koosed Proposal (48)

      At the end of the guilt phase, after the presentation of all the evidence, the jury chooses one of three possible verdicts: not guilty, guilty beyond a reasonable doubt, or "guilty by proof beyond all doubt." (49) Not guilty, of course, means the defendant goes free. (50) A verdict of guilty beyond a reasonable doubt means the defendant automatically receives a life sentence. (51)

      To proceed to the sentencing phase (where the death penalty can be considered), two conditions must be met: First, every juror must individually choose the "proof beyond all possible doubt" verdict. (52) Second, the trial judge must also conclude--after a de novo review of the evidence--that he has no doubt about the defendant's guilt. (53) Moreover, if the defendant presents additional mitigating evidence during the sentencing phase, then each juror must re-consider the correctness of his or her original "no doubt" verdict. (54)

    2. The Sand Proposal (55)

      At the outset of the sentencing phase, after the jury has already convicted the defendant of capital murder in the guilt phase, the jury must decide whether the government has proved the defendant's guilt "beyond all possible doubt." (56) If the jury has no doubt about the defendant's guilt, the sentencing phase proceeds as usual. (57) But if the jury has any lingering doubts, the trial ends and the trial judge automatically imposes a life sentence. (58)

    3. The Bradley Proposal (59)

      The no-doubt standard applies only when the defendant maintains that he is completely innocent of the crime. (60) The reasonable doubt standard applies when the defendant's defense, if believed, would make him guilty of a lesser offense. (61) The jury makes the no-doubt determination after convicting the defendant of capital murder but before the sentencing phase begins. (62)

      To understand Professor Bradley's more complicated proposal, consider this hypothetical fact pattern: Three men rob a small convenience store. One of the robbers waits outside in the getaway vehicle, while the other two enter the store. Just before leaving, the two robbers open fire on the clerk. One shoots and misses, but the second fires the fatal blow. After the shooting, the three robbers flee the scene, but their car breaks down on the highway. A passing motorist--who knows nothing about the robbery--picks them up. Eventually, all four are arrested and charged with capital murder. During the guilt phase, the motorist maintains his innocence, the getaway driver argues that he never entered the store, and each shooter claims that the other actually killed the clerk. The jury convicts all four of capital murder.

      Under these facts, the jury cannot sentence the motorist...

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