Taking "Beyond a Reasonable Doubt" Seriously

According to Whitman, "The reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation." The standard was regularly included in jury charges in both federal court and state court trials, but it was not until 1970 that the Supreme Court ruled that the Due Process Clauses of the Fifth and Fourteenth Amendments guaranteed a defendant the right have the standard included in a jury charge.'™' In 1975, the Court made clear that not only the ultimate issue of guilt, but also each element of the offense charged, must be proved beyond a reasonable doubt.'xvii' II. Some federal courts have explicitly rejected the "moral certainty" standard, fearing that the word "certainty" would conflict with the concept of "reasonable doubt,"'xxvi' although some state courts endorse it.'xxvii' The Supreme Court has said that it does not "condone the use of the antiquated 'moral certainty' phrase" but has permitted it when amplified with supposedly clarifying language.'xxviii' Interestingly, the "moral certainty" standard was originally introduced at the urging of prosecutors to lessen their burden, because "moral certainty" was thought of as "reasonable certainty" - as opposed to the "absolute certainty" they feared jurors were thinking was required .'xxix' Still another explanation of proof beyond a reasonable doubt is the "hesitate to act" formulation. In Victor v. Nebraska}™* the Supreme Court approved the following version of this formulation: "'[reasonable doubt' is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon."'xxxi' In Holland v. United Sfafes,'xxxii' the Supreme Court noted that the trial judge had defined reasonable doubt "as 'the kind of doubt. . . which you folks in the more serious and important affairs of your own lives might be willing to act upon'" and stated, "We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, rather than the kind on which he would be willing to act."'xxxiii' The defect of "hesitate to act" language is that it is subject to different interpretations.