Lifting the Veil of Mona Lisa: a Multifaceted Investigation of the "beyond a Reasonable Doubt" Standard

• Publication year: 2021

Lifting the Veil of Mona Lisa: A Multifaceted Investigation of the "Beyond a Reasonable Doubt" Standard

Zhuhao Wang^* and Eric Zhi^**

[Page 119]

TABLE OF CONTENTS

INTRODUCTION........................................................................................122

I. THE MYTH OF "PROOF BEYOND A REASONABLE DOUBT"......................127

A. The Unsettled Origin Of The Reasonable Doubt Standard.....128
B. The Unclear Definition Of The Reasonable Doubt Standard.. 133

II. GLORIES OF THE REASONABLE DOUBT STANDARD...............................139

A. The Reasonable Doubt Standard As Constitutionally Required In Criminal Cases.....................................................................140
B. The Reasonable Doubt Standard As An Essential Tool To Restrain Wrongful Convictions.............................................143

III. DARKNESS OF THE BEYOND A REASONABLE DOUBT STANDARD.........152

A. The Confusion Surrounding The Reasonable Doubt Standard 152
B. Negative Byproducts Of The Reasonable Doubt Standard.....154

[Page 120]

IV. THE EFFECT OF THE BEYOND A REASONABLE DOUBT STANDARD IN PRACTICE: EMPIRICAL MEASUREMENT AND ITS LIMITS................156

A. Thinking Empirically: The Problem Of Empirical Study On The Reasonable Doubt Standard..................................................157

i. Data on wrongful convictions..........................................159
ii. Data on wrongful acquittals............................................160

B. An Alternative Empirical Model For Testing The Effect Of The Reasonable Doubt Standard On Restraining Wrongful Convictions...........................................................................161

V. A CASE STUDY ON CHINA....................................................................163

A. The Unique Opportunity Of China As A Test Case................164
B. The Chinese Judicial Data Under Study................................167
C. The Roadmap: Recap Of The Three Indicators In The Context Of China....................................................................................169

i. Indicator 1: Acquittal rate...............................................170
ii. Indicator 2.1: Number of criminal cases that were reversed and remanded.................................................................171
iii. Indicator 2.2: Number of cases that were reversed and acquitted in China's "second instance trial"...................171
iv. Indicator 3: Non-prosecution rate...................................172

D. Analysis: Application And Implications Of The Chinese Judicial Data.....................................................................................174

i. Reflection on Indicator 1: Impact of the reasonable doubt standard on acquittal rate...............................................174
ii. Reflection on Indicator 2.1: Impact of the reasonable doubt standard on criminal cases of reversal and remand.........180
iii. Reflection on Indicator 2.2: Impact of the reasonable doubt standard on cases of reversal and direct acquittal...........182
iv. Reflection on Indicator 3: Impact of the reasonable doubt standard on non-prosecutions.........................................185

E. limitations Of The Chinese Case Study.................................187

VI.REFLECTION AND CONCLUSION..........................................................189

[Page 121]

Abstract

For a long period of time, the golden standard in judicial fact-finding of criminal cases in the United States and many other countries has been the "Beyond a Reasonable Doubt" (BARD) standard - every person accused of a crime is presumed to be innocent unless, and until, his or her guilt is established beyond a reasonable doubt.¹ The BARD standard's undergirding principle is one of error distribution, where wrongful conviction of the innocent is a much greater wrong than failed conviction of the guilty. This concept was famously expressed by the English jurist William Blackstone in 1760s: "It is better that ten guilty persons escape than that one innocent suffer."² This principle is widely regarded as "the Mount Everest of legal mantras;"³ however, a closer look at the BARD standard reveals many potential doubts: What is meant by eliminating reasonable doubt? Where does this standard come from? There is no clear answer so far. Given the passage of time, does the Blackstone Principle still accurately reflect the policy or value choice of today's society? How can empirical studies be done on the effectiveness of the BARD standard in practice?

This article seeks to give the BARD standard the careful attention it deserves by querying it from historical, epistemological, and empirical perspectives. Even though each of these three areas of inquiry involves its own unique controversy or difficulty, we can come even closer to an understanding of BARD by studying its origins, its ideological underpinnings, and its workings in practice. In particular, this article proposes a novel empirical formula to approximate the effect of BARD in restraining wrongful convictions through the lens of indirect but available statistical data on acquittals, reversals, and non-prosecutions. The best way to study this venerable common-law notion is to examine its recent implementation in a civil law system, namely, China's legal system. We identify operations of the criminal justice system in China between 2007 and 2018 as the most suitable for focusing this empirical study because China began implementing the BARD standard in 2013 as a complement to its existing standard of proof in criminal cases - the "reliable and sufficient evidence" standard. Our study shows that although implementation of the BARD standard in the Chinese

[Page 122]

criminal justice system has been generally helpful in restraining wrongful convictions, its effect is limited. The two standards are effectively treated the same in practice. China's move to the BARD standard was only a formal change, rather than a substantive modification to its criminal justice system. Our empirical study is a demonstration that the formal standard of proof may not matter all that much. Courts have an intuitive understanding of the high standard of proof required in the criminal context and are going to apply it accordingly, no matter whether we call it "reliable and sufficient" or "beyond a reasonable doubt".

INTRODUCTION

It is difficult, if not impossible, to so define the term "reasonable doubt" as to satisfy a subtle and metaphysical mind, bent on the detection of some point, however attenuated, upon which to hang a criticism. --- Supreme Court of Virginia (1905)⁴

The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly . . . a sound method of self-analysis for one's belief. --- John Henry Wigmore (1940)⁵

The same points are true in criminal cases: The effect of burdens of persuasion cannot be determined analytically and neither can the effect of a change in the burden of persuasion be determined analytically. They are both empirical questions. --- Ronald J. Allen (2014)⁶

The long-standing standard of proof for criminal trials in Anglo-American legal systems—"beyond a reasonable doubt" (BARD)—is a magic phrase. It is like a charm that, when spoken, drives the legal system. Take the criminal justice system in the United States: it is magically important in theory that as the cornerstone to American criminal jurisprudence, an accused shall be presumed innocent until the government proves guilt beyond a reasonable doubt. A criminal defendant shall be found not guilty and thus acquitted if the BARD standard is not satisfied.⁷ The standard is also magically powerful in

[Page 123]

practice: in the federal court system, as well as in most state courts, the criminal trial judge instructs the jurors that in order to convict the defendant, they need to unanimously find that the prosecutor has proved beyond a reasonable doubt every fact necessary to constitute the crime charged. A judge's failure to so instruct a jury constitutes automatic grounds for reversing a conviction.⁸

While it is magically important and magically powerful, the BARD standard is also magically mysterious. The origins and early development of this standard are still the subject of controversy, even after centuries of usage. And, as is more commonly known, not only does no settled definition of BARD exist, but efforts to firmly define it have been met with resistance; as the chief judge of a U.S. Court of Appeals once said, "I find it rather unsettling that we are using a formulation that we believe will become less clear the more we explain it."⁹ This article seeks to meet this challenge, not by explaining the BARD standard but by querying it from multiple perspectives: historical, epistemological, and, finally, empirical. Even though no one, it seems, can fully explicate this concept—which slips away from us with any attempt to do so—we can come closer to an understanding of it by studying its origins, its ideological underpinnings, and its effect in practice.

Each of these areas of inquiry involve a unique controversy or difficulty. With regard to the origins and definition of BARD, the issue is a lack of agreement; how we define BARD, and how it even came to be, has been the topic of much discussion. BARD is accepted in many different criminal justice systems as the proper formula to set out the burden of persuasion, but no one can pin down its precise birth date¹⁰ or convincingly demarcate its early development.¹¹ Everyone knows that BARD is a high

[Page 124]

standard of proof, higher than the "preponderance of evidence" and the "clear and convincing evidence" standards in civil cases, but no one knows exactly how high in degree it reaches.¹² Nor is there common understanding on what "reasonable doubt" means.¹³

When we turn to the BARD standard's ideological and...