The Intentionally Elusive Quality of Proof Beyond a Reasonable Doubt

I did not follow the Casey Anthony trial closely as it proceeded but I have (sort of) followed the reaction to her acquittal of the murder of her two-year old daughter.  In truth, and like most people who have not been involved with the case, I have no idea what the state of the evidence was like, though my untutored general impression is that the prosecution relied on powerful-seeming (again, to an external viewer) circumstantial evidence of guilt, but that it had little direct evidence.  The jury did not believe that the evidence met the standard of guilt beyond a reasonable doubt; the general public (which was not privy to the evidence) seems to believe that it did; and the result is that Ms. Anthony was acquitted, to much consternation.

One piece of the reaction that hasn't gotten a lot of commentary is the legal experts' view of the broader disapproval of the acquittal.  The assessment in some quarters seems to be that the disconnect between the jury's finding and the public's reaction may be explained by the fact that the general public simply doesn't understand the nature of proof beyond a reasonable doubt, and that it is for this reason that its reaction has been so intemperate.  If the general public only really understood what guilt beyond a reasonable doubt demands, it would be more likely to accept the jury's finding.

I am dubious about that.  It may well be that the general public does not understand BARD very well, but I doubt that these or other jurors understand it either.  Indeed, I wonder whether law professors understand it well -- really understand what it demands in terms of proof, and are able to explain it in a way that would achieve broad consensus about the nature of the proof required to satisfy it.

In this interesting piece, Professor Larry Laudan notes that "[w]hile jurors are instructed that they must acquit the defendant unless his guilt has been proved beyond a reasonable doubt, no effort is spared to discourage judges from telling jurors how to distinguish between reasonable doubts and unreasonable ones."  Appellate courts have demanded intentionally, willfully vague language from judges who are faced with confused jurors, at times going so far as to say that a reasonable doubt may be a doubt for which the juror need not be able to give any reason.  That means not only, says Laudan, that we might well have disparity in the standard of proof as between trials, but also that we will likely have different BARD standards used by individual jurors within the same criminal proceeding.

There is another problem with BARD identified by Laudan which I think bears directly on the findings in the Anthony case as well as the reaction to it.  Even if there were a way to distinguish reasonable from unreasonable doubts, we would still have the problem of identifying which inferences can legitimately sustain a finding of guilt.  This is a special problem when the proof in a case consists primarily of circumstantial evidence, as was (I believe) the situation in this prosecution.  A juror may be psychologically convinced to the point of certainty that a particular circumstantial fact points to guilt or innocence, but there is at present no way to judge the reliability of the inference without getting the juror to explain his or her reasoning -- something which is almost never done.  And there are generally no jury instructions that might help a juror to determine which kinds of inferences might make guilt highly probable -- people are just left willy-nilly to their own, in some cases highly idiosyncratic, sense of inferential reasoning.

I see little reason to think that the problems which inhere in the BARD standard are ones which are cured by anything that a judge now is able to tell jurors about the standard (indeed, they may be exacerbated).  The public outcry about this case and the result reached doesn't have anything to do with the general public's failure to understand the legal nuances of BARD; it has to do with the inherently elusive and deeply subjective quality of the standard itself.  This does not necessarily mean that I support doing away with the standard (I don't); but it might mean that as folks try to understand the verdict and the broader reaction to it, the focus should be on the weaknesses and costs of the legal rule itself.

UPDATE: My friend Greg Sisk writes in a post above this one that I may have suggested in this post that the Anthony verdict was unjustifiable under the applicable standard of proof.  I didn't mean to suggest that.  I don't know whether it was justifiable under the BARD standard.  Because of the deep subjectivity and idiosyncratic quality of the standard, no one does.  In fact, part of the reason that the public outcry has been so potent is, I believe, that people can read into BARD whatever they want, and there is no way to explain to outside observers what the standard demands (since BARD can even include a doubt that one can't explain by any reasons); one cost of this obscurity is a perceived loss of legitimacy in the criminal process.