About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

17 Cardozo J. Int'l & Comp. L. 261 (2009)
Changing Language, Unchanging Standard: From Satisfied Conscience to Moral Certainty and beyond Reasonable Doubt

handle is hein.journals/cjic17 and id is 265 raw text is: SYMPOSIUM CHANGING LANGUAGE, UNCHANGING STANDARD: FROM 'SATISFIED CONSCIENCE' TO 'MORAL CERTAINTY' AND 'BEYOND REASONABLE DOUBT' Barbara Shapiro* Beyond reasonable doubt has been an iconic phrase in An- glo-American law for over two hundred years. Until recently it has received little scholarly attention.' Our task today, as I understand it, is to examine the role of Christianity in its development. In or- der to accomplish that task we must look back beyond the late eighteenth century when the phrase beyond reasonable doubt first appears in Anglo-American judicial instructions. We must first take note of the split between Anglo-American and continen- tal models of adjudication, a split that begins with the 1215 church decree ending trial by ordeal. Continental jurisdictions replaced ordeals with a formal standard of proof requiring two witnesses or confession and a system of judicial torture designed to elicit confes- sion.2 Judges determined both law and fact. The English adapted a pre-existing institution into one which would declare verdicts in civil and criminal causes. Initially juries were thought to be knowers of the fact, though gradually they * Professor in the Graduate School, University of California at Berkeley. Ph.D., Harvard University. 1 See generally BARBARA J. SHAPIRO, BEYOND REASONABLE DOUBT AND PROBA- BLE CAUSE: HISTORICAL PERSPECTIVES ON THE ANGLO-AMERICAN LAW OF EVIDENCE (1991); JAMES Q. WHITMAN, THE ORIGINS OF REASONABLE DOUBT: THEOLOGICAL RooTS OF THE CRIMINAL TRIAL (2008); Theodore Waldman, Origins of the Legal Doctrine of Reasonable Doubt, 20 J. HIST. IDEAS 299, 300 (1959); Anthony Morano, A Reexamina- tion of the Development of the Reasonable Doubt Rule, 55 B.U. L. REV. 507, 508 (1975); Loretta B. DeLoggio, Beyond a Reasonable Doubt-A Historic Analysis, N.Y. ST. B.J., Apr. 1986, at 19-25. See also JAMES FRANKLIN, THE SCIENCE OF CONJECrURE: EVIDENCE AND PROBABILITY BEFORE PASCAL 1-101 (2002); Richard M. Fraher, Conviction Accord- ing to Conscience: The Medieval Jurists' Debate Concerning Judicial Discretion and the Law of Proof, 7 LAW & HIsT. REV. 23 (1989). 2 In principle there would be no death sentence without these. Over time there also developed a system of partial (non death) sentences for partial proof.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most