You've gotta love books that not only regurgitate facts or that tell you what you already know, but that force you to look at things in a new way. Isn't that the magic of our collective madness (bibliomania)?
This is such a book. Prof. Whitman (Yale Law School) asks the question: "Why, in our system, must a criminal defendant be convicted 'beyond a reasonable doubt?'" Whitman points out that, although the phrase "reasonable doubt" is nowhere mentioned in the U.S. Constitution as a criminal defendant's right (in contrast, the rights to trial by jury and to confront one's accusers, among others, are specifically enumerated), courts (including the U.S. Supreme Court) have accorded the rule constitutional protection. Whitman also notes that many courts have specifically eschewed defining "reasonable doubt," resulting in confusion at the trial court level and among jurors struggling with complex questions of guilt and innocence.
One would think, nonetheless, that "reasonable doubt", as a criterion of guilt, exists to make convictions more difficult: The juror cannot convict unless convinced of defendant's "guilt beyond a reasonable doubt." Not so, asserts Whitman. "Reasonable doubt" came into existence historically to make convictions EASIER!!
That this was so reflects the vast sociological and religious chasms existing between our postmodern 21st century society, and that of the 13th through 18th centuries when the rule took shape. Back in the day (WAY back in the day), what concerned judges, says Whitman, was the state of their immortal souls before God. To wrongly convict the accused, especially when so many convicted criminals were horribly mutilated or put to death, meant running afoul of the Biblical prohibition, "Judge not, lest ye be judged." The judge who wrongly convicted risked damnation of his soul (and the judges and jurors were uniformly male). The criterion of "reasonable doubt" meant that a judge or juror didn't have to be 100% convinced of the defendant's guilt (and there is always some doubt, albeit farfetched or fanciful)--as long as there was no "reasonable doubt," the judge could convict and sentence to mutilation or death without risking his soul in eternity. In other words, the criterion of "reasonable doubt" was for the comfort and consolation of the judge and juror, not the protection of the accused. One consulted one's conscience; if the doubt that existed was not "reasonable," then the judge could freely convict without fear.
This rule took shape in both the common law jurisdictions, those that follow the law of England or whose law originally derives from that of England; and in civil law jurisdictions (principally continental Europe), whose law originally derives from Roman law, the Justinian Corpus Juris, and the jus commune (Roman Catholic canon law as applied as a gap-filler in the domestic law of each jurisdiction or state).
Whitman asserts that the rule of "reasonable doubt" has been twisted from its original purpose; now, jurors must consider "reasonableness" as an objective measure, rather than in consulting their individual consciences. This so-called objectivity has spawned confusion, particularly since American and English trial court judges usually refuse to instruct befuddled juries as to what "doubts" are "reasonable." (Even where such instructions exist, they usually are not helpful, merely piling one description upon another without giving anything concrete. That, unfortunately, is a function of the imprecision of our languages.)
Whitman's book is useful. It's doubtful a rule so ingrained in our criminal procedure, one raised to constitutional status (at least here in America), will be abandoned or even significantly curtailed. Nonetheless, Whitman tells us why the rule exists, and why we find it so confusing. That is worthwhile in itself.
Highly recommended, particularly for legal history buffs, fans of medieval history, and criminal defense attorneys struggling to put flesh on "reasonable doubt." I learned a lot, and I've studied legal history for 30 years. ( )