Reasonable doubt and moral elements.

• Author: Lee, Youngjae

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts that is, questions about what happened. By contrast, proving moral elements--such as "reckless," "unjustifiable," "without consent," or "cruel"--involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly under-inclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements.

Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard.

Table of Contents INTRODUCTION I. LEGAL BACKGROUND A. Does the Beyond a Reasonable Doubt Requirement Apply to Moral or Normative Elements? B. What Is "Reasonable Doubt"? 1. No Definition Approach 2. Typical Formulations II. REASONABLE DOUBTS FOR MORAL ELEMENTS A. Sources of Doubt: Indeterminacy 1. Vagueness 2. Contestability 3. Fit B. Indeterminacy of Moral Elements and Reasonable Doubt III. WHAT'S THE PROBLEM?: BEYOND A REASONABLE DOUBT RULE AS RULE OF LENITY IV. AGAINST THE BEYOND A REASONABLE DOUBT STANDARD FOR MORAL ELEMENTS A. Functions of Indeterminacy 1. Error Avoidance 2. Guidance 3. Delegation B. How the Proof Beyond a Reasonable Doubt Standard Interferes with Functions of Indeterminacy 1. Error Avoidance 2. Guidance 3. Delegation V. SUMMARY AND CONCLUSION INTRODUCTION

The law is axiomatic. In order to convict a defendant, the Constitution requires a jury to determine that he is "guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (1) This Article argues that this fundamental proposition of American criminal law is wrong.

Imagine someone brings you a steak and asks you to judge its level of doneness. You decide that it is somewhere in between medium and rare, so you answer that it is medium rare. Now, imagine a follow up question, "Is it medium rare beyond a reasonable doubt?" How would you answer this question?

Here is one possibility. Perhaps you did not give yourself enough time to examine the meat carefully, the room you were in was dark, you did not have your glasses on, and so on. These factors might make you unsure of your answer. These are the sources of doubt that have to do with whatever interferes with one's ability to make the necessary observations.

But what if none of these factors were in play? You had plenty of time to examine the steak carefully, and there were no problems with your eyesight or general visibility conditions. Could you still have a reasonable doubt as to how well the steak had been cooked?

Most people would instinctively respond yes. Even if you were working under perfect observational conditions, you may have a doubt about your answer because you are not certain whether you are applying terms like "rare" and "medium rare" correctly. This may especially be the case if you feel that the steak presented is a borderline case between medium rare and rare (or medium rare and medium).

The two kinds of doubts are different. We may call the first kind of doubt "doubts about facts" and the second kind of doubt "doubts about norms." When the strange question, "Is the steak medium rare beyond a reasonable doubt?" is asked, there is an ambiguity in how the question is to be understood. Is there a doubt about facts, norms, or both?

Of course, we do not use the term "reasonable doubt" when judging levels of doneness when cooking. The home of this phrase is criminal adjudication. And the same ambiguity as to the meaning of "reasonable doubt" exists in this context.

Take one of the definitions of "murder in the second degree" in New York law for instance: "A person is guilty of murder in the second degree when ... [ujnder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (2) Under this definition, the prosecution has to prove that (1) "under circumstances evincing a depraved indifference to human life," (2) an individual "recklessly engage[d] in conduct," (3) which "create[d] a grave risk of death to another person," and (4) thereby "cause[d] the death of another person."

Much of what goes into proving these elements involves reconstructing historical facts, such as what the defendant exactly did and how it led to a person's death. Far more than that, however, is often involved in determining whether the person's conduct met the definition of the crime. The decisionmaker's determinations of "recklessly," "grave risk," "depraved indifference to human life," and "cause" all involve a combination of factual and moral considerations. Therefore, when we apply the beyond a reasonable doubt requirement to these questions, we can see that the requirement may involve both doubts about historical facts--or questions about what happened--and doubts about norms--or questions about the evaluative significance of what happened.

This distinction between doubts about facts and doubts about norms has been around for as long as the reasonable doubt requirement has been around, but its significance has gone largely unnoticed. (3) This lack of attention is surprising because moral or normative terms like "reckless" are prevalent in criminal law as elements in crime definitions. (4) Terms like "unjustifiable," "without consent," "depraved," "grave," "cruel," "wanton," "heinous," "debased," "perversion," and "impair or debauch the morals" are routine in criminal law, and there can be reasonable doubts about the elements containing these terms either because of doubts about facts or doubts about norms. (5)

The lack of attention to doubts about norms is also surprising given the common complaint that the phrase "beyond a reasonable doubt" is confusing. James Whitman, for example, reports in his recent book on the origins of reasonable doubt that the phrase is "vexingly difficult to interpret and apply," that the jurors are "baffled," that "judges flounder unhappily over the definition," and that judges are sometimes "forbidden to explain the meaning of the phrase" even when "jurors ... beg for guidance." (6) Is it possible that the persistent jury and judicial confusion about the phrase has something to do with the fact that the phrase "reasonable doubt" is brought to apply to different types of questions, factual and moral?

Before we get to the question of how to clarify the meaning of reasonable doubt, however, we first need to be clear on how the two types of doubts differ and consider whether "beyond a reasonable doubt" is the correct standard to use for normative questions. This Article argues that the beyond a reasonable doubt requirement should not apply to moral or normative elements, which in turn jeopardizes the idea that every element of a crime must be proven beyond a reasonable doubt in order to convict.

This Article proceeds as follows. Part I provides some legal background by discussing United States v. Gaudin, (7) which held that the beyond a reasonable doubt standard applies to mixed questions of fact and law. It then introduces various definitions of "beyond a reasonable doubt" in order to establish some common understandings of the concept.

Part II then discusses how reasonable doubts about moral or normative elements can arise. More specifically, it introduces different types of indeterminacy in law and the ways in which those indeterminacies can give rise to reasonable disagreements and, in turn, to "reasonable doubt," as the phrase is commonly defined.

Parts III and IV address the question of whether the beyond a reasonable doubt rule should apply to moral or normative elements, given the ways in which reasonable doubts can arise about such terms as discussed in Part II. Part III describes the argument that the beyond a reasonable doubt standard should apply to moral and normative terms in the same way the rule of lenity counsels narrow constructions of criminal laws.

Part IV then argues that the beyond a reasonable doubt standard should not apply to normative questions, despite the considerable initial appeal of the rule of lenity analogy. First, the beyond a reasonable doubt requirement applied to moral elements compels underinclusive interpretations of crime definitions because the standard requires factfinders (8) to acquit where there are reasonable moral disagreements. Second, by limiting the scope of crime definitions, the reasonable doubt requirement undermines the value of using moral terms in crime definitions as a method of guiding individuals to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important moral decisions are delegated to ultimate factfinders, especially juries, with excessively restrictive instructions as to...