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.

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