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55 B.U. L. Rev. 507 (1975)
A Reexamination of the Development of the Reasonable Doubt Rule

handle is hein.journals/bulr55 and id is 515 raw text is: A REEXAMINATION OF THE DEVELOPMENT
OF THE REASONABLE DOUBT RULE
ANTHONY A. MORANO*
I. INTRODUCTION
Several recent United States Supreme Court decisions have concerned
the constitutional implications and proper scope of the reasonable doubt
rule-the requirement that the accused's guilt be proven beyond a
reasonable doubt. In In re Winship,' the Court held that the due process
clause of the fourteenth amendment requires that every element of the
crime charged be proven beyond a reasonable doubt.2 The Court noted
the vital role that the rule has played in the American criminal justice
system and concluded that it would be fundamentally unfair to convict, a
person on the basis of a lower burden of persuasion3 In Apodaca v. Ore-
gon4 and Johnson v. Louisiana,5 the Court was called upon to determine
whether conviction upon less than a unanimous verdict violated the
reasonable doubt rule. The Court in both cases held that conviction by a
substantial majority verdict did not violate the requirement that guilt be
proven beyond a reasonable doubt.
The decisions in these cases relied in part upon the Court's conception
of the origin and significance of the reasonable doubt standard. In Win-
ship, the Court declared that the reasonable doubt rule dated at least
from our early years as a nation.'7 Furthermore, the Court in Winship and
in Apodaca recognized that the standard of persuasion applicable to crimi-
nal trials had not crystalized into the reasonable doubt formulation until
after the adoption of the Constitution. The Court assumed in Winship
that, when the rule became firmly established in the American criminal
* Professor of Law, University of Toledo College of Law. B.A., Amherst College, 1955;
LL.B., Fordham University School of Law, 1961.
397 U.S. 358 (1970).
Id. at 364.
3 Id. at 363.
4 406 U.S. 404 (1972). The case involved a challenge to Oregon's practice of permitting
ten to two jury verdicts in felony cases. A plurality concluded that the sixth amendment's
right to a jury trial does not require unanimity nor proof beyond a reasonable doubt. Id. at
411-12. Justice Powell concurred in the judgment but objected to the plurality's incorpora-
tion theory that made the fourteenth amendment due process requirements coextensive
with those of the sixth amendment. Johnson v. Louisiana, 406 U.S. 356, 369-77 (1972)
(Powell, J., concurring opinion to Apodaca and Johnson).
5 406 U.S. 356 (1972).Johnson involved a fourteenth amendment due process challenge to
Louisiana's nine to three standard for jury verdicts. Appellant Johnson argued specifically
that, in order to give substance to the constitutionally mandated reasonable doubt standard,
the due process clause should be construed to require unanimous jury verdicts. Id. at 359.
The Court held that the jury's failure to return a unanimous verdict did not mean that the
state had failed to prove its case beyond a reasonable doubt. Id. at 362-63. For a discussion of
the connection between the reasonable doubt rule and unanimous jury verdicts see generally
Morano, Retreat from Unanimity and Reasonable Doubt in Criminal Cases, 1969 U. Toledo L.
Rev. 337.
Apodaca v. Oregon, 406 U.S. at 411-12; Johnson v. Louisiana, 406 U.S. at 362.
397 U.S. at 361. The Court made no effort to support this statement.
Apodaca v. Oregon, 406 U.S. at 412 n.6; In re Winship, 397 U.S. at 361.

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