Reasonable Doubt

Reasonable Doubt

Postby Jstanz » Wed Mar 07, 2012 8:27 am

I wasn't sure of the best place to post this. Maybe it should have gone in the Injustice Anywhere Public Thread. Feel free to move if you think it belongs somewhere else.

I think there is a large miscommunication and misperception among ordinary people about just what "Reasonable Doubt" means. I think trying to educate mainstream people about this is important for the jury system to work properly.

Misunderstanding about reasonable doubt has come into play in Amanda's and Raffaelle's trial. It's also my strong belief that misunderstanding about reasonable doubt played a large part in Casey Anthony's acquittal.

This thread is for discussion of reasonable doubt for anyone who desires to do so. It will be here and hopefully educate at least anyone who chooses to read here.
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Re: Reasonable Doubt

Postby Clive Wismayer » Wed Mar 07, 2012 9:57 am

It's certainly not a self-explanatory concept.

In English trials juries are told it means they must be sure of the defendant's guilt and the jury will usually hear at least three speeches (one each from prosecuting and defence counsel and one from the judge) emphasising and explaining it, often with illustrations. Reasonable doubt is often distinguished from whimsical or fanciful doubt, with examples. Frequently, the jury will be focused on particular points and told if they are not sure that so and so happened then they must acquit. An appeal system is in place to take care of the cases where the jury is not properly guided by the judge and very many appeals revolve around the adequacy of the judge's summing up.

If this isn't enough I'm afraid it means human beings are not fit to try cases.

In England and Wales (Scotland too, perhaps, I am not sure) the deliberations of the jury are forever secret, before and after their verdict. There must be plenty of published research in the States though about the degree to which the jury is able to grasp the issues and apply itself properly to the task of assessment.
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Re: Reasonable Doubt

Postby erasmus44 » Wed Mar 07, 2012 7:09 pm

Here's how I would try to explain it to a jury. "Lets assume your 5 year old daughter is playing in a park and you are distracted and she is bitten by a dog. The dog gets away and you have a devil of a time figuring out which dog bit her. The police follow through and present you with evidence that they think they had identified the dog but they are not absolutely sure and they have good information that the dog they identified has had its rabies shots but again they are not absolutely sure. Beyond a reasonable doubt is the test that would apply. You know that if your daughter gets rabies she will die a horrible death. You know that once the symptons appear it will be too late to treat her. Of course, nothing is absolutely certain in this world. How sure do you want to be that you have identified the right dog and you are sure it has had its shots ? Reasonable doubt is the level of doubt that would lead you to have your daughter get shots rather than rely on the evidence that the right dog was picked out by the police and the right dog has had its shots.
Are you THAT sure that my client is guilty? Is the chance that he is innocent the kind of chance you would take with your daughter's life if you were weighing the evidence about that dog and its rabies shots?"
I don't think most juries apply the reasonable doubt test at all. I think they focus on one or two factors and decide that "she looks guilty" or "an innocent person could not possibly act that way" and convince themselves that they have reached absolute certainty. Uncertainty is too painful because it always means that the choice is between taking some chance of convicting an innocent defendant and taking some chance of letting a guilty party free. That choice is simply too painful for most people so they convince themselves that they really don't have to make it.
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Re: Reasonable Doubt

Postby pmop57 » Thu Mar 08, 2012 3:58 am

I think this part of the Hellmann report is very clear in explaining the BARD principle :

"The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger; but it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required."

An other problem that appears in discussions : A lot of people don't understand that in criminal law it is up to the prosecution (State) to prove guilt, that it is not up to the defendants to prove innocence.
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Re: Reasonable Doubt

Postby Clive Wismayer » Thu Mar 08, 2012 5:23 am

pmop57 wrote:I think this part of the Hellmann report is very clear in explaining the BARD principle :

"The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger; but it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required."

An other problem that appears in discussions : A lot of people don't understand that in criminal law it is up to the prosecution (State) to prove guilt, that it is not up to the defendants to prove innocence.

That last point should be driven into the guilters' skulls like nails. I still read over there that they expect innocence to be proved.

What has to be remembered with reasonable doubt, along with much else besides in the criminal law, is that its a rule designed to protect the innocent. If we didn't mind about sending the innocent to jail along with the guilty, then we could lower the threshold to 'balance of probabilities' (the civil burden): 'he probably did it' would then be good enough.

It is a corollary of the higher burden of proof that there will inevitably be cases in which a strong whiff of guilt remains, despite acquittal. As often as not, such cases should be welcomed as indicating that the system is working.

Another point is that watchful juries will keep the police up to the mark. They should have to go the extra mile to get over the line because otherwise they will get sloppy. In the overwhelming majority of cases this will be really very easy, as criminals who fall into the arms of the law are generally very bad at not getting caught and come pre-packaged with all the necessary evidence. That it's often so easy can lull the cops into taking short cuts where suddenly, it isn't. At that point, we're all in trouble.
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Re: Reasonable Doubt

Postby pmop57 » Thu Mar 08, 2012 6:35 am

anglolawyer wrote:
pmop57 wrote:I think this part of the Hellmann report is very clear in explaining the BARD principle :

"The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger; but it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required."

An other problem that appears in discussions : A lot of people don't understand that in criminal law it is up to the prosecution (State) to prove guilt, that it is not up to the defendants to prove innocence.

That last point should be driven into the guilters' skulls like nails. I still read over there that they expect innocence to be proved.

What has to be remembered with reasonable doubt, along with much else besides in the criminal law, is that its a rule designed to protect the innocent. If we didn't mind about sending the innocent to jail along with the guilty, then we could lower the threshold to 'balance of probabilities' (the civil burden): 'he probably did it' would then be good enough.

It is a corollary of the higher burden of proof that there will inevitably be cases in which a strong whiff of guilt remains, despite acquittal. As often as not, such cases should be welcomed as indicating that the system is working.

Another point is that watchful juries will keep the police up to the mark. They should have to go the extra mile to get over the line because otherwise they will get sloppy. In the overwhelming majority of cases this will be really very easy, as criminals who fall into the arms of the law are generally very bad at not getting caught and come pre-packaged with all the necessary evidence. That it's often so easy can lull the cops into taking short cuts where suddenly, it isn't. At that point, we're all in trouble.


Anglo: It is just like you say. One of the main issues of the BARD principle is to protect the innocent and to assure that the police does their job correctly. Of cause there might be some cases where this principle can be in favour of a guilty person. But I prefer one guilty person in freedom to one innocent person in prison!
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Re: Reasonable Doubt

Postby Teddy » Thu Mar 08, 2012 6:56 am

I've always been intrigued by the term beyond reasonable doubt. For some reason I always elaborated the word reasonable to mean some percentage of certainty, like, if we're 99% certain he's guilty, then that is beyond reasonable doubt, and so that also means there will be cases where the 1% uncertainty is in fact underestimated.

If reasonable doubt means we are sure they did it, then by my reckoning, there are very few cases that pass this test. For example, let's use reasonable doubt on Rudy Guede. Is it possible that Rudy Guede did have a date with Meredith? The answer is, yes, it's possible, although most of us believe it to be unlikely, but we can't be sure, can we? Is it possible that Rudy was on the toilet when somebody entered and murdered Meredith? Again, I have to say yes. Is it possible that he panicked and fled? Again, we have to say yes. Is it possible that the window was also broken by somebody, as an attempt to put the blame on Rudy? Again yes, although very unlikely. So how does Rudy Guede's guilt pass the reasonable doubt test? Let's use erasmus' test about the dog and the bitten daughter? Would I not bother having my daughter tested for rabies based on my certainty that Rudy Guede is guilty? Hmmm.... given that it's my daughter, well, I'm not so sure. Certainly, I'm 99.9% certain Rudy Guede is guilty, but I don't think I'd take a 0.01% chance on my daughter's life.
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Re: Reasonable Doubt

Postby Jstanz » Thu Mar 08, 2012 7:42 am

I agree with Teddy and his interpretation is mine. There is no way anyone can ever say they are 100% sure either way unless they were there. No matter how convinced you are there has to be a tiny, tiny percentage of doubt and I think this is what REASONABLE doubt means. I've always been a proponent of the death penalty for the most heinous cases but because of my recent exposure and the heightened thinking about things I've done lately, this tiny, tiny percentage is enough for me to rethink my position on the death penalty but I think it's reasonable to convict someone based on this interpretation. Of course, that's IF all the jurors understand and take it seriously.

ETA: I think the above interpretation of reasonable doubt means that there is a huge difference in the wording of the judge's instructions to the jury between:

"beyond A reasonable doubt" and
"beyond ALL reasonable doubt".

I don't know if judges are trained in this type of thing or not, but IMO they should be.
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Re: Reasonable Doubt

Postby Clive Wismayer » Thu Mar 08, 2012 6:00 pm

Jstanz wrote:I agree with Teddy and his interpretation is mine. There is no way anyone can ever say they are 100% sure either way unless they were there. No matter how convinced you are there has to be a tiny, tiny percentage of doubt and I think this is what REASONABLE doubt means. I've always been a proponent of the death penalty for the most heinous cases but because of my recent exposure and the heightened thinking about things I've done lately, this tiny, tiny percentage is enough for me to rethink my position on the death penalty but I think it's reasonable to convict someone based on this interpretation. Of course, that's IF all the jurors understand and take it seriously.

ETA: I think the above interpretation of reasonable doubt means that there is a huge difference in the wording of the judge's instructions to the jury between:

"beyond A reasonable doubt" and
"beyond ALL reasonable doubt".

I don't know if judges are trained in this type of thing or not, but IMO they should be.

They sure are trained Jstanz, certainly in England and Wales and I'm sure in the US too. You can bet your bottom dollar on that one.

I don't think lawyers over here would be comfortable with Teddy's percentage approach. The word is 'sure' not 'certain'. Are you sure the defendant is guilty?

Applying this to Rudy, which is a great case for discussion, there is so much that undermines his story and so much that implicates him in the murder that I think we can be sure of his guilt. The MO of the burglary is his, the use or possession of knives fits, his handprint in the blood on the pillow stuffed under her body, his DNA where it shouldn't be, the remote chance she had arranged to meet him, the absence of evidence of the presence of anyone else at the crime scene, his running away, his falsifiable lies. The list is endless and such that you are only left with fanciful doubt when you pile it all up.

'Certainty' sets the bar too high though.
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Re: Reasonable Doubt

Postby geebee2 » Thu Mar 08, 2012 6:15 pm

It's strange (for me) this business about courts not being happy with a percentage approach.

If I were on a jury, I would want guidance on this ( obviously I wouldn't get it though! )

I think I would describe "beyond reasonable doubt" as something like 99% certain.

Although apparently, most jurors take it to be much less than that - more like 70%!

I think it's something to do with not being happy to own up to uncomfortable facts - that we will always fail to convict some guilty people, and we will always fail to acquit some innocent people.

Am I ok with 99 guilty people going free to avoid one innocent person being convicted : yes.

999 guilty people : no. It's hard on that one innocent person, yes, but that's roughly where I would draw the line.
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Re: Reasonable Doubt

Postby Clive Wismayer » Fri Mar 09, 2012 2:17 am

geebee2 wrote:It's strange (for me) this business about courts not being happy with a percentage approach.

If I were on a jury, I would want guidance on this ( obviously I wouldn't get it though! )

I think I would describe "beyond reasonable doubt" as something like 99% certain.

Although apparently, most jurors take it to be much less than that - more like 70%!

I think it's something to do with not being happy to own up to uncomfortable facts - that we will always fail to convict some guilty people, and we will always fail to acquit some innocent people.

Am I ok with 99 guilty people going free to avoid one innocent person being convicted : yes.

999 guilty people : no. It's hard on that one innocent person, yes, but that's roughly where I would draw the line.

Geebee, you are obsessed with assigning numerical values to everything! I am sure today is Friday. I do not think it would be meaningful to assign a percentage to that because I cannot readily imagine intermediate degrees of sureness applying to that question. I cannot imagine being 45% sure it's Friday, or 27% sure.

If I have time today I shall try to dig up some of the leading case law on the subject and post it here. I am 92.8% sure ( :::lol::: ) it will not discuss the concept in percentage terms.
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Re: Reasonable Doubt

Postby pmop57 » Fri Mar 09, 2012 2:29 am

anglolawyer wrote:
geebee2 wrote:It's strange (for me) this business about courts not being happy with a percentage approach.

If I were on a jury, I would want guidance on this ( obviously I wouldn't get it though! )

I think I would describe "beyond reasonable doubt" as something like 99% certain.

Although apparently, most jurors take it to be much less than that - more like 70%!

I think it's something to do with not being happy to own up to uncomfortable facts - that we will always fail to convict some guilty people, and we will always fail to acquit some innocent people.

Am I ok with 99 guilty people going free to avoid one innocent person being convicted : yes.

999 guilty people : no. It's hard on that one innocent person, yes, but that's roughly where I would draw the line.

Geebee, you are obsessed with assigning numerical values to everything! I am sure today is Friday. I do not think it would be meaningful to assign a percentage to that because I cannot readily imagine intermediate degrees of sureness applying to that question. I cannot imagine being 45% sure it's Friday, or 27% sure.

If I have time today I shall try to dig up some of the leading case law on the subject and post it here. I am 92.8% sure ( :::lol::: ) it will not discuss the concept in percentage terms.


I would disagree with that approach. I think the verdict can only be GUILTY or INNOCENET. You cannot weight guilt or innocence by pourcentages, at least not in criminal law and for sure not in high profile cases. Or you did commit the crime or you didn't, up to the prosecution to prove it BARD.
But to calm : In civil law, distribution of responsabiliy exists.
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Re: Reasonable Doubt

Postby geebee2 » Fri Mar 09, 2012 3:34 am

Geebee, you are obsessed with assigning numerical values to everything!


Yes, when talking probabilities, I want to put numbers on things.

It takes the emotion out of things and allows us to face up to (perhaps unpleasant) realities.

I raised this subject here

http://lesswrong.com/lw/9a3/rational_justice/

and received some interesting responses and links, including this one :

http://www.thebigquestions.com/2010/11/ ... d-justice/

What I found interesting ( I don't have a reference to hand for this ) is that research shows that juries are generally happy to settle for something like only 70 - 90% as being sufficient - i.e. only slightly more likely to be guilty than innocent, which seems a bit worrying to me.

That's not to say that these juries are wrong - but for me, the number has to be higher than that.
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Re: Reasonable Doubt

Postby RoseMontague » Fri Mar 09, 2012 6:31 am

geebee2 wrote:
Geebee, you are obsessed with assigning numerical values to everything!


Yes, when talking probabilities, I want to put numbers on things.

It takes the emotion out of things and allows us to face up to (perhaps unpleasant) realities.

I raised this subject here

http://lesswrong.com/lw/9a3/rational_justice/

and received some interesting responses and links, including this one :

http://www.thebigquestions.com/2010/11/ ... d-justice/

What I found interesting ( I don't have a reference to hand for this ) is that research shows that juries are generally happy to settle for something like only 70 - 90% as being sufficient - i.e. only slightly more likely to be guilty than innocent, which seems a bit worrying to me.

That's not to say that these juries are wrong - but for me, the number has to be higher than that.


I agree. If I would put a number to it, 70%-90% would be below the bottom range. It implies that we would be satisfied if our system of judgment would put an innocent person in jail as much as 10% or more of the time. To me, that is unacceptable.
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Re: Reasonable Doubt

Postby geebee2 » Fri Mar 09, 2012 7:08 am

Ah, I found it, in this link :

http://books.google.co.uk/books?id=EofJ ... &q&f=false

When asked to express proof beyond a reasonable doubt as a probability, judges generally pick a number between 0.75 to 0.95 (depending on the judge); jury quantifications are similar.[59] These may seem shockingly low figures...
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Re: Reasonable Doubt

Postby Clive Wismayer » Fri Mar 09, 2012 8:34 am

I have consulted the 'Bible' (so far as English law is concerned) Archbold 2011 [Sweet & Maxwell]. This is what it says [4-384]:

'while the prosecution do not have to make the jury feel certain of the accused's guilt they must satisfy the jury upon the whole of the evidence called by the parties of the accused's guilt beyond all reasonable doubt (sometimes expressed as 'a' or 'any' reasonable doubt).'

Being case law, it is contradictory and a mess, because later on we read that in ordinary English 'sure' and 'certain' are virtually indistinguishable, which tells you that 'sure' is pretty close to, but not quite at 'certain'. Expressions such as 'pretty sure' 'reasonably sure' and 'pretty certain' have all been disapproved by the Court of Appeal.

We also read that it is OK to distinguish between being sure and 'scientific certainty' or 'absolute certainty'.

The editor of this very learned work (which is tucked under every barrister's arm every time they enter a criminal court) submits that the judge should not offer the jury an explanation of reasonable doubt but should only proffer one if asked. Then the jury can be told that it is a doubt for which they could offer a reason if asked or a doubt which might affect the mind of a person dealing with matters of importance in his own affairs (not sure I find that one very helpful).

The trouble with percentages, it seems to me, is that they are not well adapted to the sort of circumstances a criminal jury faces. If you are deciding a shoplifting case, you have to decide whether you believe the defendant's evidence when he says he left the shop forgetting to pay (the usual excuse). You have to assess that defendant by his demeanour in the witness box and by reference to all the other evidence (which will sometimes include his numerous previous convictions for the same offence :smile: ). You can't say: well, out of 100 shoplifting arrests 85 are likely to be justified so there is an 85% chance this defendant is guilty, so I will convict.

By contrast, you could do this in a civil case, where the decision turns on a 'balance of probabilities' and requires that a decision be made whether the claimant's or the defendant's case is the more probable. In that case 51% is as good as 99%.

If you insist on expressing degrees of certainty as percentages you don't get far anyway. If you say you are 75% sure of guilt and someone asks you to explain what you mean, you will relapse into the language the (English) courts use: basically a bunch of adjectives as discussed above. You will say, 'well I think he probably did it but because of this or that aspect I see a distinct possibility that it was X, even if that's not the most likely'. Well then, you're not sure so you acquit.
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Re: Reasonable Doubt

Postby geebee2 » Fri Mar 09, 2012 9:58 am

anglolawyer wrote:The trouble with percentages, it seems to me, is that they are not well adapted to the sort of circumstances a criminal jury faces. If you are deciding a shoplifting case, you have to decide whether you believe the defendant's evidence when he says he left the shop forgetting to pay (the usual excuse). You have to assess that defendant by his demeanour in the witness box and by reference to all the other evidence (which will sometimes include his numerous previous convictions for the same offence :smile: ). You can't say: well, out of 100 shoplifting arrests 85 are likely to be justified so there is an 85% chance this defendant is guilty, so I will convict.


anglo

That's not the way it works (or should work) at all. That is pure prejudice ( the last suggestion ).

The assessment of a defendant's guilt must be based on the evidence presented.

It's undoubtedly true that assessing the probability of a defendants guilt is a difficult and subjective task, but I think that in order to have consistency (and hence fairness), there should be an accepted figure for the level of doubt.

Juries may of course make mistakes assessing the probability, that is inevitable, but having made their assessment, they should have guidance in what constitutes reasonable doubt. It's unfair for one defendant to be found guilty at the 75% level, but another to be found innocent at the 95% level.

What I think people don't want to accept is that mistakes are inevitable. Injustice is not avoidable. The best we can do is to minimise it and to have the same standard for everyone, as far as can be achieved.
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Re: Reasonable Doubt

Postby Clive Wismayer » Fri Mar 09, 2012 9:51 pm

geebee2 wrote:
anglolawyer wrote:The trouble with percentages, it seems to me, is that they are not well adapted to the sort of circumstances a criminal jury faces. If you are deciding a shoplifting case, you have to decide whether you believe the defendant's evidence when he says he left the shop forgetting to pay (the usual excuse). You have to assess that defendant by his demeanour in the witness box and by reference to all the other evidence (which will sometimes include his numerous previous convictions for the same offence :smile: ). You can't say: well, out of 100 shoplifting arrests 85 are likely to be justified so there is an 85% chance this defendant is guilty, so I will convict.



geebee2 wrote:That's not the way it works (or should work) at all. That is pure prejudice ( the last suggestion ).

The assessment of a defendant's guilt must be based on the evidence presented.


Clearly correct.

geebee2 wrote:It's undoubtedly true that assessing the probability of a defendants guilt is a difficult and subjective task, but I think that in order to have consistency (and hence fairness), there should be an accepted figure for the level of doubt.

Juries may of course make mistakes assessing the probability, that is inevitable, but having made their assessment, they should have guidance in what constitutes reasonable doubt. It's unfair for one defendant to be found guilty at the 75% level, but another to be found innocent at the 95% level.

What I think people don't want to accept is that mistakes are inevitable. Injustice is not avoidable. The best we can do is to minimise it and to have the same standard for everyone, as far as can be achieved.

Can you give an illustrative example of a case in which percentages like these might feature?
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Re: Reasonable Doubt

Postby erasmus44 » Sat Mar 10, 2012 2:08 am

I will probably get kicked out of the Bar for this but I agree that using percentages would advance the process by focusing the jury on the necessity to go beyond what we call a "reasonable preponderance of the evidence" (essentially more likely than not) standard. I think the percentage should be 90 or 95. Note 90 does not mean that 10% of all defendants convicted would be actually innocent. In many, many cases there would be convictions because the trier of fact had a confidence level much, much higher than 90% and in all of those cases the percentage of innocent convicts would be much lower. It is only in the cases where the trier of fact concluded that the probability of guilt is exactly 90% that 10% of the convicts would be innocent.
A good case to think about is the case in which two perps shoot at a victim and only one shot hits him. Perp one fires 5 shots and perp two fires only 1 shot - there is absolutely no way to determine which shot hit the victim or from which gun it was fired. The shots were fired in a random way so that each shot had an equal probability of hitting and killing the victim. Would you convict perp one of murder? Suppose it was 10 shots from perp one and 1 shot from perp two? What about 100 and 1?
No easy outs here. We are in a jurisdiction in which the sentence for the actual murder is much more severe than the sentence for aiding or abetting or conspiracy. Alternatively, perp two has a viable insanity defense or is a juvenile and so it makes a great deal of difference who the actual killer is.
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Re: Reasonable Doubt

Postby LarryK » Sat Mar 10, 2012 2:29 am

I think the optimal level of public safety with the best possible justice system would have about 1% of its prisoners innocent. So I would convict if I believed the probability of innocence were 1% or less. Perfection is impossible--but it would not benefit public safety to imprison no-one. I doubt that any actual justice system does that well. I know for sure that the U.S. needs a better way to appeal the cases of the wrongly imprisoned.

With regard to shoplifting and motive, I'm reminded of the recent case at a Hawaii grocery store where a woman with a small child bought a $5 deli sandwich, ate it in the store and put the wrapper with its price tag in the grocery cart. At checkout she forgot to put it on the conveyor belt (distracted by her child) and the checker didn't notice it there. The shopper was actually arrested and her child taken from her for a day. Everyone agrees that was an overreaction.

In contrast, a California legislator was caught leaving an upscale department store with over $2000 of merchandise unpaid for, claimed she forgot to go through checkout! :roll:
The brain is not configured in a way that makes obedience through logical, language-based propositions possible during distress and suffering. -- James Wilder, "Neurotheology and the Life Model"
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Re: Reasonable Doubt

Postby geebee2 » Sat Mar 10, 2012 3:05 am

To be clear : the reason I want to put a number on this is that it helps to clarify differences, which are quite large.

Convicting a defendant when you think there is a 25% chance that he is innocent is very different from a 1% chance.

I found this wonderful history of the subject

http://www2.law.ucla.edu/volokh/guilty.htm

which includes this gem:

<<Feliks Dzerzhinsky, founder of the Soviet secret police, saw Bismarck's motto and raised him an execution: "Better to execute ten innocent men than to leave one guilty man alive.">>

and

<< In the seventeenth century, Matthew Hale used n = 5 for execution, "for it is better five guilty persons should escape unpunished, than one innocent person should die." Hale admitted that this doctrine had certain inconveniences; in particular, that it is hard to get good direct evidence of witchcraft, so that many undoubtedly guilty persons escape. >>
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Re: Reasonable Doubt

Postby Clive Wismayer » Mon Mar 12, 2012 7:04 am

geebee2 wrote:To be clear : the reason I want to put a number on this is that it helps to clarify differences, which are quite large.

Does it? I wonder.

If we were in the jury room and you said you were 99% sure of guilt and I asked you about the 1% we would soon identify the area of difficulty in ordinary words, without recourse to percentages. You would say, perhaps, the 1% allowed for the chance that the drug-taking, unreliable, low-life convict who provided an airtight alibi might be telling the truth. We would then discuss that witness, again without reference to percentages, and reach a conclusion about whether he could be believed and decide accordingly, according to all the evidence, whether a (or any) reasonable doubt remained.
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Re: Reasonable Doubt

Postby geebee2 » Mon Mar 12, 2012 7:20 am

anglo

I think you are perhaps missing the point. I don't dispute that in practice many and even most people will be quite hopeless at actually objectively estimating the probability of a defendant's guilt or innocence, given the known facts. That cannot be avoided ( although perhaps a course in formal Bayesian reasoning and even access to a suitable computer program to perform the calculations MIGHT help some people ).

What we are talking about here is agreeing the degree of certainty necessary to convict. People actually disagree by a large amount ( some say 70%, some say 99% ). Even judges don't agree.

It's unfair that juries are not given proper guidance on the degree of certainty that society has agreed.
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Re: Reasonable Doubt

Postby Clive Wismayer » Mon Mar 12, 2012 9:47 am

geebee2 wrote:anglo

I think you are perhaps missing the point. I don't dispute that in practice many and even most people will be quite hopeless at actually objectively estimating the probability of a defendant's guilt or innocence, given the known facts. That cannot be avoided ( although perhaps a course in formal Bayesian reasoning and even access to a suitable computer program to perform the calculations MIGHT help some people ).

What we are talking about here is agreeing the degree of certainty necessary to convict. People actually disagree by a large amount ( some say 70%, some say 99% ). Even judges don't agree.

It's unfair that juries are not given proper guidance on the degree of certainty that society has agreed.

I don't think I am missing the point at all. I am questioning whether it is meaningful to talk in terms of percentages, that's all and I don't know why you won't address my questions. Once more: if we were in the jury room and someone said they were 70% sure of guilt, I would just ask them what they meant (what was it that left them not completely sure) and their answer would have to address the evidence, not numbers. That's what the jury is supposed to do and the percentages really don't come into it. I am not even sure I understand what it means to be 70% 'sure' of something. Sure is sure.

I am sure she's guilty. I am not sure she's guilty. Both of these are fine.

I am 70% sure she's guilty. Hmm. I personally don't think this is correct use of English.

I am 1% sure she's guilty. Completely meaningless.

And juries are given guidance (in England) if they require it and I have described the guidance they get upthread.
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Re: Reasonable Doubt

Postby wkurt » Thu Apr 05, 2012 12:05 am

I have to agree, it is something that has been used a lot of time but actually is something that isn't accurately defined in any form of sense.

The thing is, you lose some level of your right to ask for reconsideration when things are already adjudged beyond reasonable doubt which shouldn't happen to begin with, in my opinion at least.

It will be better to judge and have the possibility of reversal just to be sure.
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Re: Reasonable Doubt

Postby ljrobins » Wed Apr 24, 2013 11:32 pm

LarryK wrote:I think the optimal level of public safety with the best possible justice system would have about 1% of its prisoners innocent. So I would convict if I believed the probability of innocence were 1% or less. Perfection is impossible--but it would not benefit public safety to imprison no-one. I doubt that any actual justice system does that well. I know for sure that the U.S. needs a better way to appeal the cases of the wrongly imprisoned.

With regard to shoplifting and motive, I'm reminded of the recent case at a Hawaii grocery store where a woman with a small child bought a $5 deli sandwich, ate it in the store and put the wrapper with its price tag in the grocery cart. At checkout she forgot to put it on the conveyor belt (distracted by her child) and the checker didn't notice it there. The shopper was actually arrested and her child taken from her for a day. Everyone agrees that was an overreaction.

In contrast, a California legislator was caught leaving an upscale department store with over $2000 of merchandise unpaid for, claimed she forgot to go through checkout! :roll:


Hi Larry,

Your stories raise an interesting point. How much do our own or societal biases affect these "percentages" (for lack of a better word). For example, I think we only have to look at the ratio (oops I meant ratio not ration!) of inmates who are from minority groups to recognize that "reasonable doubt" is often applied unequally before the evidence even comes out in the court room -- starting with the witnesses, investigators and then moving onto how prosecutors and jurors try their case. In fact, these biases can also influence how a prosecutor sets up the evidence in order to appeal to the biases they are guessing might exist on the jury. I hope I don't sound too cynical here, but I do believe this is one reason of many why too many wrongful convictions happen.
"I am not the only one. There are many other wrongfully convicted people and they need your support. They need a voice." - Ryan Ferguson
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Re: Reasonable Doubt

Postby LarryK » Thu Apr 25, 2013 1:47 am

Hi LJ, welcome to the forum! I think you are right on here. For reasons like this, I think it's quite unlikely that any jurisdiction in the world has less than a 1% wrongful conviction rate.
The brain is not configured in a way that makes obedience through logical, language-based propositions possible during distress and suffering. -- James Wilder, "Neurotheology and the Life Model"
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Re: Reasonable Doubt

Postby Clive Wismayer » Sat Apr 27, 2013 11:15 pm

Shoplifting. I claim some experience as I used to represent quite a few defendants in shoplifting cases. After a while you can write the script. The case will have a caste of three:

The defendant
The store detective
The arresting officer

Each will tell more or less the same story and then the jury just decides whether they believe D. That was 20+ years ago. Now, unless you're a repeat offender you probably get a police caution and go on your way.

My mother once told me about walking out of a shop, getting to her car and realising she had not paid for the books she was carrying. She shrugged and decided to take them back the next day. She was lucky. It would have destroyed her to get prosecuted.
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