Absolute Certainty and the Death Penalty

Erik Lillquist*
The revelation of erroneous convictions in death penalty cases over the past few
years has set off a renewed interest in reducing the possibility of such errors. Among the
proposals most frequently made is to increase the certainty of the defendants guilt the
jury must have before sentencing him to death. Most recently, the New York Court of
Appeals heard an argument that in capital cases the jury should be instructed that the
defendant must be guilty beyond any doubt.1 A few months before, a gubernatorial
council in Massachusetts recommended the adoption of a no doubt about the guilt of the
defendant standard, if that state readopts the death penalty.2 These suggestions have
been echoed by a number of academic commentators and jurists.3
The jurors level of certainty in the defendants guilt when voting to convict is
regulated through the standard of proof.4 In criminal cases, this standard is the familiar
beyond a reasonable doubt standard. Thus, commentators who are interested in raising
the amount of certainty jurors have in the defendants guilt in capital cases have
unanimously called for alterations in the standard of proof.
Two premises underlie these arguments. The first is that the amount of certainty
that the jury has in the defendants guilt in a capital case ought to be more than what the

Visiting Associate Professor of Law, University of Minnesota; Associate Professor of Law, Seton Hall
University. This essay grew out of a presentation I gave at the Instituto de Investigaciones Filsoficas,
Universidad Nacional Autnoma de Mxico. I would like to thank Ronald Allen, Larry Laudan, Steve
Sheppard, Charles Sullivan and especially Heather Taylor for their comments on prior drafts, and Matthew
Batastini, Arthur Owens and Justin Siegel for research assistance.
1
Brief of Appellant at 338, People v. Mateo, 2 N.Y.3d 383 (2004) (No. 21). For a newspaper account of
the arguments, see William Glaberson, Killers Lawyers Seek to Raise Standard of Proof for Death
Penalty, N.Y. Times, Jan. 11, 2004, at 27. The New York Court of Appeals vacated Mateos death
sentence without reaching this argument. See Mateo. However, because Mateo was represented by the
New York Capital Defenders Office, it seems certain that the issue will be raised again in the New York
courts.
2
Scott S. Greenberger, Panel Offers Death Penalty Plan; State Would Use Standard of No Doubt,
BOSTON HERALD (September 24, 2003).
3
See, e.g., JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM PART II: WHY THERE IS SO MUCH ERROR IN
CAPITAL CASES, AND WHAT CAN BE DONE ABOUT IT 397-99 (2002); Leonard B. Sand & Danielle L. Rose,
Proof Beyond All Possible Doubt: Is There a Need for a Higher Burden of Proof When the Sentence May
Be Death?, 78 CHICAGO-KENT L. REV. 1359 (2003); Margery Malkin Koosed, Averting Mistaken
Executions by Adopting the Model Penal Codes Exclusion of Death in the Presence of Lingering Doubt,
21 N. ILL. U. L. REV. 41 (2001); Craig M. Bradley, A (Genuinely) Modest Proposal Concerning the Death
Penalty, 72 Ind. L.J. 25 (1996); Elizabeth R. Jungman, Note, Beyond All Doubt, 91 GEO. L.J. 1065 (2003);
State v. Josephs, 803 A.2d 1074 (N.J. 2002) (Coleman, J., concurring in part and dissenting in part); Jon O.
Newman, Make Judges Certify Guilt in Capital Cases, NEWSDAY, July 5, 2000, at A25; Urban League
Leader Advocates New Standard in Capital Cases, N.Y. TIMES, July 31, 2000, at B6 (quoting Hugh B.
Price, President of Urban League).
4
The term burden of persuasion refers to the rule that says that one of the party (in criminal cases, usually
the government) can win only if the evidence persuades the trier of the existence of fats that she needs in
order to prevail. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 103 (3d ed. 2003).
The standard of proof represents the amount of certainty the trier must have in the facts that the burdenbearing party has to prove. Id. at 108 & 130.

2
jury is required to have in other criminal cases.5 The second premise is that, assuming
that the amount of certainty in capital cases ought to be higher, the best way to
accomplish this is through the use of a different jury instruction on the standard of proof.
In this Essay, I question the validity of both premises.
Attempts to show that the amount of certainty ought to be higher in capital cases
than in other criminal cases turns out to depend upon some potentially questionable
assumptions about both the ultimate purposes of the standard of proof itself and upon the
make-up of criminal cases that go to trial. While these assumptions may be correct, and
therefore there may be good reason to strive for more juror certainty in capital cases than
other criminal cases, that conclusion is not ineluctable and proponents of such a change
must be clear about the foundations of their argument.
As for the practicality of achieving more juror certainty in capital cases, I part
company with other commentators and conclude that additional or altered jury
instructions as to the proper standard of proof in capital cases are unlikely alone to have
any significant effect. To the extent that commentators wish jurors to require more
certainty either prior to convicting a capital defendant or prior to sentencing that
defendant, other changes are more likely to have a substantial impact. One improvement
that might lead to more certainty is changes in the way that jurors in capital cases are
selected. Such a change, however, appears unlikely. More realistically, I suggest
changes in the method of instructing jurors, as opposed to changes in the standards in
which those jurors are instructed.
This Essay proceeds in three parts. In this first part, I briefly discuss the history
of the reasonable doubt standard of proof and its relationship with the death penalty. In
particular, I focus on the justifications given for the creation of the beyond a reasonable
doubt standard in the 18th and 19th centuries, and how the shadow of capital punishment
appears to have influenced thinking about the need for certainty in criminal cases. In the
second part, I discuss current theories that justify the use of the beyond a reasonable
doubt standard in criminal cases and whether these theories can support the use of a
higher standard of proof in capital cases, either at the guilt or the sentencing stage. I note
that justifying a higher standard of proof under any of the existing theories is far more
difficult than commentators have suggested. Furthermore, it appears that arguments for a
higher standard of proof commit advocates of this change to a consequentialist theory of
the standard of proof.
If consequences are the best justification for a higher standard of proof in capital
cases, then it matters what the results of a higher standard of proof in capital cases are. In
the last part of this Essay, I turn to how to implement a higher standard of proof in capital
cases, and I argue that the proposals set forth thus far are likely to have little or no effect
in real world cases. The existing literature strongly suggests that jury instructions in
general have little effect on jurors and, more specifically, that the existing reasonable
doubt jury instructions have almost no impact on jurors decision-making. Therefore,
5

There is an additional implicit premise as well: that we ought to improve the functioning of the capital
sentencing system. One possible view is that it is morally impermissible to take any steps to facilitate the
implementation of the death penalty, because to do so is to partake in a fundamentally unjust system of
punishment. Alternatively, one might argue that improvements in the functioning of the death penalty are
morally suspect because they only forestall its abolition, and so while implementation might be improved,
improvements should be resisted so as to speed abolition. For purposes of this Essay, I take no position on
either of these arguments and instead simply assume, without agreeing, that both arguments are incorrect.

3
new jury instructions, or changes to existing jury instructions, are unlikely to raise the
applied standard of proof in capital cases.
As an alternative, I propose two sets of reforms that would be far more likely to
increase the standard of proof in capital cases. The first is to eliminate or minimize the
use of death-qualification of jurors in capital cases, at least at the guilt phase. While such
a change would almost certainly increase the standard of proof in capital cases as actually
applied by real world juries, it is unlikely to be implemented in the near future. The
second proposal is to improve the method of communicating the standard of proof to
jurors by (1) instructing them in the standard of proof at both the beginning and the end
of the case, (2) by giving them written instructions, and (3) by quantifying the standard.
These changes would likely have less impact than changing juror selection methods, but
would be far easier to implement.
I.

The Historical Basis of Beyond a Reasonable Doubt and the Death

Penalty

The proof beyond a reasonable doubt standard has a relatively recent origin. For
much of English history, there was no formal standard of proof, at least not in the sense
that we presently use the term. Instead, it was generally assumed that juries were
required to return true verdicts.6 Scholars of the 17th and 18th century English criminal
justice system assume that, in reality, juries at that time acted without any true legal
standards as to the proper level of certainty in criminal cases.7
Concern about the requisite level of juror certainty for a criminal conviction arose
around the same time as Enlightenment thinkers became concerned with the ability of
6

See Larry Laudan, Is Reasonable Doubt Reasonable?, 9 LEGAL THEORY 295, 297 (2003).
See JOHN LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 57, 262 (2003). Instead, as Professor
John Beattie has noted, the core assumption seems to have been that the defendant had to demonstrate his
innocence. J.M BEATTIE, CRIME AND THE COURTS IN ENGLAND 1660-1800, 341 (1986). Some, including
both Professors Larry Laudan and Steve Sheppard, nonetheless take the view that jurors at the time were
far more serious about their oaths than modern jurors, and that we should therefore be more receptive to the
possibility that 17th and 18th century jurors really did require something close to absolute certainty prior to
conviction. See Laudan, supra note 6, at 297; Steve Sheppard, The Metamorphoses of Reasonable Doubt:
How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 NOTRE DAME L.
REV. 1165, 1170-73 (2003). Professor Langein has responded to this argument, which was originally made
by Anthony Morano in A Reexamination of the Development of the Reasonable Doubt Rule, 55 B.U. L.
REV. 507, 512 n.42 (1975). See LANGBEIN, supra, at 264 n.52.
While I do not doubt that jurors in the 17th and 18th centuries took oaths more seriously than their
st
21 century counterparts, the limited evidence we have suggests that they did not take the oath to return a
true verdict so seriously that they could not return a verdict that was not in accord with the known facts.
Most prominently, it was well-known both then and now that 17th and 18th century jurors routinely
committed pious perjury, whereby they convicted individuals of petty larceny under facts which could
only have resulted in either a grand larceny conviction or an acquittal. They did this by downgrading the
value of what had been stolen to less than a shilling. See LANGBEIN, supra, at 234-35; John H. Langbein,
The Privilege and Common Law Criminal Procedure; The Sixteenth to the Eighteenth Centuries, in THE
PRIVILEGE AGAINST SELF-INCRIMINATION: ITS ORIGINS AND DEVELOPMENT 82, 93-94 (R.H. Helmholz et
al., eds. 1997); Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C.
L. REV. 621, 635-36 (2004). More generally, Langbein and Beattie cite to specific examples that strongly
suggest that jurors, in applying the standard of proof, did not in fact require the sort of certainty that
Professors Laudan and Sheppard suggest. See BEATTIE, supra, at 341; LANGBEIN, supra, at 262-63 & 26465
7

4
humans to obtain certainty in any endeavor, but in particular in scientific matters.8
Indeed, it was this inability to obtain complete certainty that led 17th century English
thinkers to adopt the concept of moral certainty, which was understood to be the form
of certainty that any person is capable of achieving from an understanding of the nature
of things, applying reason and thought to the testimony of others, along with personal
observation and experience.9
By the end of the 17th century, jurists and lawyers in England were beginning to
draw a connection between the amount of certainty that jurors ought to have prior to
convicting a defendant and the ideas of moral certainty and moral persuasion.10 The use
of reasonable doubt as the actual standard of proof, though, seems to date from the
Boston Massacre trials in 1770.11 While scholars disagree on whether the reasonable
doubt standard was meant to be a strengthening or a loosening of the standard of proof in
criminal cases, it does seem clear that the standard accorded with contemporary views
about the nature of judgment.12
These ideas, however, were not introduced to the criminal justice system merely
by dint of their intellectual force. A related and vital development was the introduction
of attorneys into the criminal justice system around this time. Prior to the 18th century,
lawyers had played little roleeither on behalf of the government or the defendantin
routine criminal prosecutions (including capital cases) in the English criminal justice
system.13 Starting in the 1730s, judges in England began to allow defense counsel in
ordinary felony cases, a development that Professor John Langbein has attributed to the
slightly earlier rise in the use of solicitors by both the government and by individual
prosecutors.14 In the United States, the record is less clear, but it seems certain that
lawyers were playing a role in criminal trials at least as early, if not earlier.15

See Laudan, supra note 6, at 297; Sheppard, supra note 7, at 1176-80.

Sheppard, supra note 7, at 1177.
10
See Laudan, supra note 6, at 297-98; Sheppard, supra note 7, at 1182.
11
Morano, supra note 7, at XXX; Sheppard, supra note 7, at 1190 n.80 (attributing discovery of use of
reasonable doubt in Boston Massacre trial to Judge Morano and indicating inability to find any earlier use).
The first use in the United Kingdom has traditionally been said to have been in connection with the Irish
Treason Trials of the 1790s, see Sheppard, supra note 7, at 1190 n.80, although Professor Langbein seems
to have located at several uses in the 1780s, LANGBEIN, supra note 7, at 265-66.
12
Sheppard, supra note 7, at 1192.
13
See LANGBEIN, supra note 7, at 10-11.
14
LANGBEIN, supra note 7, at 106-77. Defense counsel had been allowed in misdemeanor cases since the
early decades of the 17th century. Id. at 36.
15
The time and manner of change differed greatly from colony to colony. Part of the difficulty is that there
were few lawyers in some colonies, and without the presence of lawyers, there was no point in a right to
counsel. See, e.g., Felix Rackow, The Right to Counsel: English and American Precedents, 11 WILLIAM
AND MARY QUARTERLY 3, 13 (3d Ser. 1954 ) (noting that a lawyer was not appointed Chief Justice of New
Hampshire until 1754). Nonetheless, it seems clear that in at least a few colonies, counsel was representing
criminal defendants by at least the beginnings of the 18th century. In Pennsylvania, for instance, defendants
were granted the same right to counsel as prosecutors in 1701. DAVID BODENHAMER, FAIR TRIAL: RIGHTS
OF THE ACCUSED IN AMERICAN HISTORY 16 (1992); Rackow, supra, at 17-18. South Carolina had a statute
guaranteeing the right to counsel in 1731. LAWRENCE FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN
HISTORY 57 (1993); Rackow, supra, at 20. Similarly, by the middle of the 18th century, lawyers were
allowed to represent defendants in all criminal cases in Virginia. FRIEDMAN, supra, at 53. But see
Rackow, supra, at 19 (suggesting no evidence of lawyers in the mid-18th century).
9

5
The inclusion of defense attorneys in criminal trials led to an increase in the
proceduralization of criminal law. In the 17th century, criminal courts had largely
operated free of niceties such as rules of evidence, in large part because defendants were
in no position to insist upon such legal requirements. Experienced counsel were in such a
position, and one of the reforms that resulted was the use of proof beyond a reasonable
doubt as the standard of proof in criminal cases.16
Over the intervening hundred or more years, proof beyond a reasonable doubt
emerged as the dominant standard of proof in criminal cases and finally in 1970 the
Supreme Court decided the proof beyond a reasonable doubt was constitutionally
required in all criminal cases, both state and federal.17 The actual implementation of this
standard of proof, however, has been far from uniform. States, and even the various
federal circuit courts of appeals, vary significantly in how they define proof beyond a
reasonable doubt for jurors, and, indeed, some do not define it for jurors at all.18 The
Supreme Court itself has provided little guidance in this area. The Court has only once
in Cage v. Louisiana19 in 1990 found a reasonable doubt instruction to be
constitutionally insufficient.20 While the Cage decision might have set off a wholesale
reevaluation of the content of reasonable doubt instructions,21 the Supreme Court
effectively forestalled any such development in 1994 with Victor v. Nebraska.22
16

LANGBEIN, supra note 7, at 5-6, 265-66; see also Morano, supra note 11, at 514 (noting effect of changes
in rules of evidence on evolution of reasonable doubt standard); Sheppard, supra note 7, at 1191-92 (noting
same changes as Morano, as well as independence of juries, and rising distrust of jurors).
17
In re Winship, 397 U.S. 358 (1970).
18
See Laudan, supra note 6, at 296, 301-10, 313-17 (detailing differences in definitions and failure to
define). The Supreme Court appears to have acquiesced in the practice of not defining reasonable doubt as
early as Hopt v. Utah, 120 U.S. 430, 440 (1887) (citing Commonwelath v. Costley, 118 Mass. 1 (1875)).
See also Miles v. United States, 103 U.S. 304, 312 (1880) (stating in dicta that [a]ttempts to explain the
term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury).
19
498 U.S. 39 (1990) (per curiam).
20
Victor v. Nebraska, 511 U.S. 1, 5 (1994).
21
In the wake of Cage, there were several state cases striking down commonly used reasonable doubt
instructions. E.g.,Wills v. State, 620 A.2d 295 (Md. 1993); State v. Bryant, 432 S.E.2d 291 (N.C. 1993),
cert. granted, judgment vacated, 511 U.S. 1001 (1994); People v. Frank, 588 N.Y.S.2d 670 (N.Y. App.
Div. 1992); State v. Manning, 409 S.E.2d 372 (S.C. 1991).
22
511 U.S. 1 (1994). The most direct result of Victor was the Courts subsequent vacatur of the Supreme
Court of North Carolinas decision in State v. Bryant. See also Todd v. State, 585 S.E.2d 305 (S.C. 2003)
(acknowledging that Victor implicitly overruled aspects of State v. Manning). Of course, judicial review of
reasonable doubt instructions has not ended after Victor. Courts have since struck down jury instructions
on several occasions. See, e.g., Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 2000) (holding that
instruction that told jurors only in an advisory capacity that the burden of proof was beyond a reasonable
doubt was unconstitutional); Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998) (en banc) (concluding
instruction impermissibly lowered the states burden of proof); Morris v. Cain, 186 F.3d 581 (5th Cir. 1999)
(same); Wansnig v. Hargett, 341 F.3d 1207, 1209-10 & 1212-15 (10th Cir. 2003) (vacating conviction
based on judge giving and criticizing definition of reasonable doubt as the kind of serious doubt that
causes you to act or not act in matters that are serious, like calling off a wedding at the last minute because
judge implied some might not walk out on wedding even if they were going to absolutely live a life of
misery). But see State v. Penns, 758 So.2d 776 (La. 1999) (rejecting Fifth Circuit line of cases striking
down Louisiana jury instructions after Victor). However, in the wake of the Court not striking down the
instructions used in either Nebraska or California in Victor, the rigor of such scrutiny is much less than
what would have occurred had the Court ruled for the defendants in that case. For instance, other than the
Fifth Circuit cases arising out of Louisiana instructions, none of the cases concerns a jury instruction that is
presently used.

6
It was not the emergence of criminal defense lawyers alone that gave rise to proof
beyond a reasonable doubt. At the same time that this standard was emerging, other
changes were occurring in Anglo-American criminal justice. The most important of
these was a shift from the use of the death penalty to the use of imprisonment as the
signature method of punishment in American criminal law.23 The almost certain result of
this change in penal policy was to limit the numbers of individuals actually sentenced to
death in American courts. At the same time, though, the numbers of individuals
convicted of crimes increased.24
It seems likely that the rise of the reasonable doubt standard was related to the
increasing resistance of the public both American and British to the application of the
capital sanction.25 As Judge John Wilder May noted in 1876, at the time [t]he
consequences of conviction to the unfortunate prisoner were not only fearful, but they
were irremediable.26 Using the reasonable doubt standard was seen as a way of ensuring
that only the worst among the truly guilty were subject to that penalty.27
Of course, despite the apparent initial linkage between the reasonable doubt
standard and the death penalty, the standard came to be used not just in capital cases, but
in all criminal cases.28 Furthermore, since the time that the standard was first developed,
the capital sanction has come to play an increasingly minor role in the criminal justice
system.29 Indeed, in In re Winship,30 the Supreme Court went so far as to apply the
standard to a juvenile delinquency proceeding.
Perhaps unsurprisingly, as the reasonable doubt standard has been untethered
from the death penalty, it appears to have become less strict. As Professor Steve
Sheppard has noted, changes in the wording of the instruction over the 19th and 20th
centuries, the burden upon the juror who would acquit has grown, and so the evidence
23

See Lillquist, supra note 7, at 641-43. I am not claiming that the majority of convicts were either subject
to the death penalty or were imprisoned. Instead, I am suggesting that there was a shift in the maximum
possible punishment for most serious crimes, from use of the death penalty to use of imprisonment. This
was particularly true in cases of property theft and related offenses, but was also true in cases of some
forms of homicide and related offenses. The degree of the change did, of course, differ from location to
location.
24
See Lillquist, supra note 7, at 696 n.320. England also saw similar changes as transportation emerged as
an alternative form of punishment in the beginning and middle of the 18th century: jurors were increasingly
willing to convict defendants of lesser charges than they had been in prior years. See J.M. BEATTIE,
POLICING AND PUNISHMENT IN LONDON, 1660-1750: URBAN CRIME AND THE LIMITS OF TERROR 435
(2001).
25
See Laudan, supra note 6, at 325 (noting that initial arguments for reasonable doubt were premised on
capital sanction and unavailability of appellate review); see also Erik Lillquist, Recasting Reasonable
Doubt: Decision Theory and the Virtues of Variability, 36 U.C. DAVIS L. REV. 85, 148-49 & nn. 206 & 207
(2002) (detailing views of 19th century commentators); Sheppard, supra note 7, at 1195 (the early life of
the reasonable-doubt instruction appears to [have been] limited solely to capital trials. (citations omitted));
see generally LANGBEIN, supra note 7, at 334-36.
26
Hon. John Wilder May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 AM.
L. REV. 642, 652 (1876).
27
Id.; see also Langbein, supra note 7, at 334-36 (noting that English trial procedure as a whole was
designed not to punish all guilty persons, but just the worst of these).
28
See Sheppard, supra note 7, at 1227.
29
See Laudan, supra note 6, at 324-35 (noting that fewer than 300 people a year in the United States
receive the death penalty).
30
397 U.S. 358 (1970).

7
necessary for the state to convict has lessened.31 Empirical work over the last few
decades suggests that, in practice, jurors frequently require as little as .70 (or perhaps
even less) certainty in the defendants guilt prior to conviction.32 Whether this decline is
the result of the change in jury instructions, or is independent of that change is not
important for the core observation: both the standard of proof stated by judges and the
standard of proof applied by jurors appear to be weaker than what was understood to be
required by proof beyond a reasonable doubt at the beginning of the 19th century.
As applied to capital cases, the resulting lack of certainty has troubled
commentators. In particular, the publicity surrounding the exonerations of defendants
sentenced to death has led to the consideration of a host of procedural reforms to ensure
that individuals are not wrongly convicted and sentenced to death. Not surprisingly, one
of the common suggestions has been that the standard of proof in capital cases be
increased above the present reasonable doubt standard.
Such proposals have taken a number of forms. First, commentators differ in their
articulations of what the new standard would be: beyond any doubt,33 no doubt,34
beyond all doubt35 and even a return to moral certainty.36 For purposes of
simplicity, though, I will generally refer to all of these proposals as no doubt standards
in this Essay. Second, they also differ in when they would apply this new standard. One
possibility is simply substituting the new standard for the reasonable doubt standard at
the guilt phase. In general, though, advocates have suggested using the new standard
only after the defendant has been convicted. For instance, several commentators have
suggested that the jury decide at trial both whether the defendant is guilty beyond a
reasonable doubt and then beyond all doubt.37 Others suggest that the determination
should be made only as part of the sentencing process.38 Accordingly, I will focus on
such two-stage proposals.
Regardless of the precise contours of such a proposal, creating a new standard of
proof for death penalty cases represents a significant shift in American criminal
procedure and evidence law. Up until now, proof beyond a reasonable doubt has been
understood as the most exacting standard of proof. Recognizing a new, purportedly
higher standard of proof would not just further complicate the trial process in capital
cases, it would also call into question one of the primary assumptions of our present
criminal justice system: that we are only convicting defendants in ordinary criminal cases
upon the most exacting of proof standards. Before moving forward with such a
potentially radical project, it is worthwhile to consider if such a change is justifiable and,
if so, whether it would be effective.
31

Sheppard, supra note 7, at 1169.

Lillquist, supra note 25, at 112.
33
See Glaberson, supra note 1, at 27.
34
See Bradley, supra note 3, at 30 (no lingering or residual doubts); Massachusetts Governors Council
on Capital Punishment, Final Report 22 (2004), available at http://www.mass.gov/Agov2/docs/5-304%20MassDPReportFinal.pdf (last visited August 5, 2004).
35
See Jungman, supra note 3; see also Sand & Rose, supra note 3, at 1368 & 1373 (beyond all possible
doubt).
36
See Glaberson, supra note 1, at 27 (citing argument of former governor of Oklahoma, Frank Keating).
37
See Koosed, supra note 3, at 129; Jungman, supra note 3, at 1084.
38
See Sand & Rose, supra note 3, at 1370-72; see also Bradley, supra note 3, at 29 (apparently suggesting
a determination by the jury after finding the defendant guilty but before sentencing).
32

II.

How Much Certainty Ought There Be In Capital Cases?

The first question is, assuming that it is practically possible to have a standard of
proof in capital cases that is higher than the existing reasonable doubt standard, ought we
use such a standard? This is a normative inquiry that requires some agreement on what
the purposes of the standard are in the first place. In this section, I survey a number of
the proposed justifications for the standard of proof in criminal cases to see which, if any,
would justify having a higher standard of proof in capital cases.
A.

Balance of the Harms

The most common articulated justification is that the criminal standard of proof
strikes a balance between erroneous convictions and erroneous acquittals.39 There are at
least two separate ways to undertake this balancing: either as a balancing between the
number of erroneous convictions and acquittals, or as a balancing of the harms arising
from erroneous convictions and acquittals.40 The common assumption is that it
represents a balancing of numbers of errors; thus commentators frequently justify the
beyond a reasonable doubt standard with statements like it is better that 10 guilty men go
free than one innocent man is convicted. Alternatively, it can be argued that the proper
balance in criminal cases is between the harm resulting from such errors; that is the
standard of proof ought to be set by balancing the harm that will result from erroneous
acquittals should be, say, ten times that which arises from erroneous convictions under
the standard of proof.
Under either balancing approach, there is a good argument that the standard of
proof ought to be higher in a capital case than in an ordinary criminal case. The simplest
case is under the balancing of harms approach. Imagine, for a moment that the harm
associated with an erroneous acquittal in a typical criminal case is 1 and that the harm
associated with an erroneous conviction in such a case is 10, and let us ignore the
benefits of accurate acquittals for expository purposes.41 Straight-forward modeling
suggests that the standard of proof in such a case should be .91 (i.e., 91%) certainty,
assuming no benefits for accurate verdicts.42 In a capital case, though, we should
39

For an extensive list of commentators and jurists accepting this approach, see Lillquist, supra note 25, at
89 nn.11-13.
40
A similar debate exists as to whether the civil standard of proof the preponderance of the evidence
standard represents a balancing of errors or of harm. Compare Ronald J. Allen, The Error of Expected
Loss Minimization, 2 LAW, PROBABILITY & RISK 1 (2003) (advocating errors) with David H. Kaye, The
Error of Equal Error Rates, 1 LAW, PROBABILITY & RISK 3 (2002) and David H. Kaye, Two Theories of
the Civil Burden of Persuasion, 2 LAW, PROBABILITY & RISK 9 (2003) (both advocating harm).
41
As Laurence Tribe long ago noted, such a model requires a balancing not just of the harms from errors,
but the benefits from correct verdicts. Laurence H. Tribe, Trial By Mathematics: Precision & Ritual in the
Legal Process, 84 HARV. L. REV. 1329, 1378-81 (1971). I agree with Professor Tribe on this point, but
factoring in the benefits of accurate verdicts, both accurate convictions and accurate acquittals, only
strengthens the insight that the standard of proof ought to rise in capital cases. See Lillquist, supra note 25,
at 150.
42
See Patricia G. Milanich, Decision Theory and Standards of Proof, 5 LAW & HUM. BEHAV. 87, 88-89
(1981). Professor Milanich was using a model first created by Professors John Kaplan and Allan Cullison.

9
imagine that the harm flowing from an erroneous convictionthe possible erroneous
application of the death penaltyis much higher, say ten times as high (-100). After all,
it seems plausible to imagine that the harm that flows from an individual being wrongly
deprived of life is much greater than the harm of being wrongly imprisoned for a number
of years. After making this assumption, the standard of proof increases to .99.43
The discussion thus far has rather simplistically assumed that there is no increased
harm from an erroneous acquittal in a capital case. That is probably false: after all, the
offenses to which the death penalty is applied in the United States these days are
generally the worst cases of murder.44 Wrongly acquitting the defendant in such a case
may be much worse than in the typical criminal case, implying that the value of an
erroneous acquittal in such a case is less than -1.45 Nonetheless, the additional harm that
results from an erroneous conviction in such a case is almost assuredly much greater than
the additional harm from an erroneous acquittal.46 Indeed, it turns out that, unless we
assume that the harm from an erroneous acquittal in a capital case is at least ten times
higher than in a noncapital case (i.e., unless it is 10 or lower), the standard of proof
ought to rise in capital cases.47
However, the discussion has assumed that all erroneous convictions in capital
cases lead to the erroneous application of the death penalty. Many defendants who are
convicted of capital crimes are never executed because they are not sentenced to death at
the sentencing phase,48 because the death penalty is set aside on post-conviction review,
John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1072 (1968); Alan D.
Cullison, Probability Analysis of Judicial Fact-Finding: A Preliminary Outline of the Subjective Approach,
1969 U. TOL. L. REV. 538, 564-68. The resulting equation calculates the standard of proof (SP) as a
function of the disutility of erroneous acquittals (Uag) and the disutility of erroneous convictions (Uci): SP =
1/(1 + (Uag/Uci)). Kaplan, supra, at 1072; Cullison, supra, at 564-68.
43
For a more extended treatment of this topic, including a discussion of the benefits from correct verdicts,
see Lillquist, supra note 25, at 148-51.
44
Only one state, Louisiana, has sentenced anyone to death for a crime not involving a homicide in over
twenty-five years. Kris Axtman, Judicial Rarity: Death Penalty in Rape Case, CHRISTIAN SCIENCE
MONITOR, Sept. 8, 2003, at 2; Joe Darby, Penalty for Rape May Not Stand, TIMES-PICAYUNE, Aug. 28,
2003, at 1.
45
This, I believe, is true regardless of what ones justification is for imposing punishment in the first place.
Deterrence theorists (both of the general and specific varieties) presumably seek to deter further murders,
something that would be undermined by an erroneous acquittal, while retributivists would, I assume, agree
that the benefit of obtaining just deserts from murderers is more important than from other criminals.
Of course, many defendants in capital cases are accused of lesser-included offenses, and acquittal
on the capital crime does not imply acquittal on the lesser crime: in some cases defendants will be acquitted
on all charges, but in others they will only be acquitted of the capital crime. In cases in which the
defendant is convicted of the lesser-included offense, the costs of an erroneous acquittal will be lower.
46
This observations leads to a suggestion that perhaps the benefits from accurate verdictsparticularly
convictionsdo matter here. See note 41, supra. Perhaps there are greater benefits that flow from
convictions in death penalty cases, but even if this is so and we account for them, the standard of proof in
death penalty cases ought to rise. See Lillquist, supra note 25, at 150.
47
This is because the standard of proof on the model is a function of the relative values of the disutility of
erroneous convictions and erroneous acquittals. For the resulting standard of proof to remain constant after
an adjustment to one variable, the change to the other variable must be proportionally constant, or the
standard of proof will change under the function.
48
For purposes of this paper, I am going to assume that capital defendants successfully argue for a nondeath sentence about half the time. Definitive data on precisely how many defendants win at sentencing
are difficult to come by. Data collected by Federal Death Penalty Resource Counsel reports that between
1989 and 2000, 48 persons received non-death sentences after trial in federal capital cases, and that 26

10
because the sentence is commuted, or because the defendant dies prior to implementation
of the death penalty.49 In the absence of an actual execution, the harm that flows is not
much greater than what would occur in the ordinary criminal case.50 This suggests that
the harm that flows from an erroneous conviction in a capital case may actually be lower
than I have suggested. When combined with the observation that the harms from an
erroneous acquittal may be greater than expected, this observation does suggest that it is
at least arguable that the standard of proof should be no higher in capital cases.
The foregoing discussion has focused on setting the standard of proof for guilt
decisions in capital cases. Most of the proposals to date, however, have not advocated a
different standard of proof for guilt decisions in capital cases, but instead have sought to
impose the higher standard of proof only after the defendant has been found guilty of the
capital crime beyond a reasonable doubt.51 When viewed this way, the disutilities of an
erroneous conviction remain the same as before (say 100) because there is still the
substantial risk that the defendant will be put to death.52 The harm of an erroneous
acquittal, though, is much lower, presumably because an acquittal will still lead to a
lengthy prison sentence. Some of the purported benefits of executions will be lost, but at
least there is no risk that the defendant will be freed as a result of the imposition of this
higher standard of proof.
One complication with this analysis is that a two-step system may have the
perverse effect of justifying a lower standard of proof on the guilt decision, lower even
than proof beyond a reasonable doubt. This would happen because the higher standard of
persons were either executed or remain on death row, that another two are awaiting resentencing or retrial
and that one person received clemency. See Federal Death Penalty Resource Counsel, Number and
Disposition of Defendants by Year of Indictment, available at http://www.capdefnet.org/fdprc/contents/
useful_info_about_death_penalty/11_useful_info_about_death.htm (last visited June 23, 2004). It is not
clear, but if we assume that all the persons who received non-death sentences after trial actual faced a
capital sentencing hearing, and that the other categories capture everyone who did receive a capital
sentence, then it would appear that 62% of federal defendants who went to capital sentencing were
successful in avoiding the death penalty. Data out of Georgia from the Baldus study suggested that
between 1973 and 1978 only 44% of defendants were successful at sentencing there. David C. Baldus et
al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM L.
& CRIMINOLOGY 661, 680 (1983); see also David C. Baldus et al., Law and Statistics in Conflict:
Reflections on McKlesky v. Kemp, in HANDBOOK OF PSYCHOLOGY AND LAW (1992) (asserting that
prosecutors prevailed in only about 50% of capital sentencing trials). More recent data for New Jersey
suggests that, out of 150 defendants who advanced to the phase, only 47 (or 31%) were sentenced to death.
See DAIVD S. BAIME, REPORT TO THE NEW JERSEY SUPREME COURT: SYSTEMIC PROPORTIONALITY REVIEW
PROJECT 2001-2002 TERM, at 38 (2002).
49
For instance, of the 7,254 persons sentenced to death in the United States between 1973 and 2002, 820
were executed, 268 died of other causes in prison, 176 had their sentences commuted, 30 were removed
from death row for unspecified reasons, and 2,403 had their convictions or sentences overturned on appeal.
Bureau of Justice Statistics, Capital Punishment, 2002 at 14, appx. tbl. 2 (2003), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp02.pdf (last visited June 14, 2004).
50
This may not be strictly true, for the emotional harm to the defendant from the impact of being wrongly
sentenced to death is probably greater than the emotional harm from being wrongly sent to prison.
51
Rose & Sand, supra note 3, at 1369.
52
One can imagine an argument that the disutility at this point should be somewhat smaller in magnitude.
When the jury is applying the no doubt standard, the defendant has already been convicted, so all the
ordinary harms associated with an erroneous conviction have already been incurred. All that is added by
yet another erroneous decision at this stage is the additional harm of sentencing the defendant to death. If
one accepts this argument, then perhaps the actual disutility here is only 90.

11
proof should lower the risk of an erroneous execution; indeed, it should have the effect of
lowering the number of both accurate and inaccurate death sentences. However, at the
guilt stage, the harms of erroneous acquittals will be just as high as they are presently:
again, we are dealing here with the worst of the worse, and an acquittal here will run
the risk of freeing the defendant.
As an illustration, assume that without a two-step process for applying the
standard of proof, the relative disutilities are 100 and 2. If so, the standard of proof in
a capital cases is .98. In a two-step process, the standard of proof for death decision is
probably .99 or higher, because the relative disutilities are 100 and 1 (or lower).
However, at the guilt decision, the disutility of our acquittal returns to 2, because there
is the risk that the defendant will go free. Furthermore, the disutility of erroneous
convictions may be lower than we have up until now assumed, say 50. If so, the
standard of proof is .96. Although the differences are small, they do suggest that at the
guilt phase, the jury would be justified in using a lower standard of proof than they are
presently justified in a death case under a balance of the harms approach.
My point here is not that any jurisdiction is likely to lower its standard of proof
below proof beyond a reasonable doubt at the guilt phase; indeed, such a change would
be constitutionally impermissible under Winship. Instead, simply as a matter of theory, if
we are using a balancing of the harms approach to justify the standard of proof, then that
same theory of justification will argue for a lower standard of proof at the guilt phase in
capital cases. More importantly, we will see in Part III that there is some reason to
believe that jurors actual decisions about the standard of proof are guided by a decisiontheory heuristic. If so, jurors might end up (most likely unconsciously) applying similar
logic themselves. The net effect could be that undertaking this sort of two-step process
may make the initial conviction easier to achieve than it is now. While defendants who
are found guilty of a capital offense will then be protected by the second step, this will be
of no solace to defendants who are convicted of lesser-included offenses, but would
otherwise have been acquitted.
Despite these qualifications, there does seem to be a good argument for a higher
standard of proof under the balance of the harms approach. Nonetheless, this normative
approach may make many people uncomfortable. The biggest problem with accepting
such a theory more generally is that it tends to suggest that the standard of proof in less
serious criminal cases ought to be lower than our traditional understanding of reasonable
doubt.53 Given the discomfort with the basic theory, it is perhaps wise to see if the more
popular balance of the errors approach can also justify a heightened standard of proof in
capital cases.
B.

Balance of the Errors

The balance of the errors approach sets the standard of proof by trying to allocate
the number of errors. For instance, scholars have repeatedly suggested that the
preponderance of the evidence standard of proof is used in most civil litigation because it

53

For an argument that a balance of the harms approach leads to this result, see Lillquist, supra note 25, at
147-62. For criticisms of such a conclusion, see Laudan, supra note 6, at 328; Sheppard, supra note 7, at
1231.

12
allocates errors equally between plaintiffs and defendants.54 In criminal cases,
proponents of the balance of errors approach generally argue that, in criminal cases (1) a
ratio of errors more favorable to defendants should be used, say 5:1, 10:1, 20:1, 99:1,
even 1000:1,55 and (2) that the reasonable doubt standard of proof is the proper
mechanism to achieve this ratio of errors.56 As applied to capital cases, such an argument
presumably suggests (1) an even higher ratio of errors in capital cases than in other
criminal cases and that (2) this higher ratio of errors is created through the use of a
higher standard of proof in capital cases.
Both steps in this argument have significant problems.57 What I want of focus on
first, though, is the second step in the argument: whether increasing the standard of proof
is likely to increase the ratio of errors in favor of defendants. In other words, by going to
a no doubt standard, will we decrease the relative number of erroneous convictions?
To analyze this question, let us assume that the new standard of proof will be
applied in the two-step process discussed at the end of the last section and also assume
that there are no distributional consequences to the composition of the pool of defendants
who go to trial on capital charges. Say that for every 1000 cases, ten defendants are
erroneously convicted and 100 are erroneously acquitted under the now existing one-step
process (all the other 890 cases result in accurate verdicts). If the imposition of the no
doubt standard eliminates half of the erroneous convictions, we will change the ratio of
errors from 1:10 to 1:20.58 So viewed, adopting a higher standard of proof seems to be a
perfect way to increase the ratio of errors in capital cases.
54

See, e.g., RONALD J. ALLEN, RICHARD B. KUHNS & ELEANOR SWIFT, EVIDENCE: TEXT, PROBLEMS, AND
CASES 822-23 (3d ed. 2002)
55
See, e.g., Lillquist, supra note 25, at 104, 105 (noting advocates of 5:1. 10:1, 20:1 and 1000:1); D.
Michael Risinger, John Henry Wigmore, Johnny Lynn Old Chief, and Legitimate Moral Force Keeping
the Courtroom Safe for Hearstrings and Gore, 49 HASTINGS L.J. 403, 442-43 & n.98 (1998) (noting
advocates of 5:1, 10:1, 20:1 and 99:1).
56
The discussion here assumed that the relevant relationship is among errors at trial, rather than errors from
litigation generally. Under the latter interpretation, one would have to balance not just the errors that result
at trial, but also the errors that occur pre-trial. Most importantly, we would have to include all of the guilty
defendants who have their charges dismissed prior to trial, as well as all of the innocent defendants who
plead guilty. Perhaps because information about the errors that occur pre-trial is even more speculative
than the error rates at trial, commentators generally focus on the former interpretation.
57
One challenge for any ratio of errors argument lies in assuming that achieving a particular ratio of errors
correlates with a particular standard of proof. This may or may not be true. As an example, consider again
the preponderance of the evidence standard. Here, the argument is that setting the standard of proof just
above .50 allocates errors nearly equally between plaintiffs and defendants. Even if we accept the first
propositionthat errors should be equally distributedwhether the preponderance of the evidence
standard accomplishes this task is open to question. To believe this is true, we must accept a critical
assumption: that there are an equal number of cases that go to trial in which (a) the plaintiff should win but
will not because the jury is only 50% or less convinced that the plaintiffs claim is meritorious and (b) the
defendant should win but will not because the jury is more than 50% convinced that the plaintiff should
win. Put slightly more concretely, one has to assume that for every Z set of cases that go to trial, there are
X cases in which the plaintiff should win but will not under the preponderance standard and that there are
precisely X cases in which the plaintiff should lose but will win under the preponderance standard. It is
possible that this assumption is correct, but there are of course good reasons to question it. For my limited
purposes in this Essay, however, resolution of this particular question is unnecessary, because I am focused
only on the changes wrought by a heightened standard of proof.
58
Note that we can assume no changes to the number of erroneous acquittals because the two-step process
applied the no doubt standard only to those who have already been convicted.

13
There are several problems with this argument. First, I have ignored the effect of
raising the standard of proof on erroneous acquittals. Raising the standard of proof in a
second step will spare some defendants from the death penalty, but how do we know if
these people are actually innocent or guilty? The best we can do, I submit, is to simply
assume that the number of convictions that are lost are proportionately distributed among
the accurately and erroneously convicted defendants. Now, building upon the prior
example, assume that of the 1000 cases, 790 resulted in accurate convictions, for at total
of 800 convictions.59 If the new standard of proof does eliminate half of the erroneous
convictions, it will also knock out half of the accurate ones. The result would be that five
defendants are spared an erroneous execution (although they still face an erroneous term
of life imprisonment), but overall 400 defendants who would otherwise have been subject
to a penalty phase are spared: in other words, we have increased the number of erroneous
acquittals from 100 to 495.60 This further raises the ratio of errors up to almost 1:100,
which may seem acceptable, until one recalls the price: almost 400 defendants who ought
to have faced a penalty phase are spared.
The description in the prior paragraph may seem unlikely to some readers,
because they are skeptical that a heightened standard of proof will have such an impact
on the number of cases that move to a full sentencing phase. So perhaps a more likely
scenario is that 20% of defendants will be successful at the no doubt stage. But if this is
correct, then note that the benefits from the new process are much more limited. We still
have eight of ten defendants erroneously convicted and the overall ratio of errors only
improves from 10:1 to about 32:1. Surely this is an improvement, but not a big one: it
does, after all, little to lower the overall risk of erroneous convictions.
We also might question whether either of the defendants who are successful at the
no doubt stage, or even the five who were successful under the previous example,
actually would have been erroneously convicted. As I have noted, it appears that roughly
half of defendants are spared from the death penalty at sentencing. One question is how
many erroneously convicted defendants would be spared by the use of a no doubt
standard but would not be spared at the sentencing phase. As Professor Margery Malkin
Koosed has noted, lingering doubts about the defendants guilt are the most important

59

This gives us an overall conviction rate of 80%, which is roughly consistent with the rate of conviction at
trial in federal felony cases. It also suggests that only 1.25% of convictions are erroneous (10 of a total of
800). This may be either an underestimation or an overstimation, at least for capital cases. For instance, at
least 100 people who were sentenced to death were later exonerated. See LIEBMAN ET AL., supra note 3, at
5. Of course, we do not know how many of the exonerated were actually innocent, as opposed to not
provably guilty. See generally John McAdams, Its Good, and Were Going to Keep It: A Response to
Ronald Tabak, 33 CONN. L. REV. 819 (2001) (arguing that many of those deemed exonerated may not have
been innocent). But we also do not know how many people were in fact innocent but could not be
exonerated. Thus, for simplicity sake, I will assume that 100 people were wrongly convicted and sentenced
to death, out of about 7000 total death sentences. See infra text accompanying note 64. This amounts to
1.42 %.
60
I am assuming here that there were, under a reasonable doubt standard, 10 people erroneously convicted,
790 people accurately convicted, 100 people accurate acquitted and 100 people erroneously acquitted. On
my hypothetical, raising the standard of proof knocks out half of the accurate convictions (395) and turns
them into erroneous acquittals. What matters is not the precise numbers, but rather the relationships
between the numbers: without making any further assumptions, attempts to eliminate erroneous convictions
seem certain to increase, perhaps greatly, the number of erroneous acquittals.

14
factor in decisions to spare defendants from the death penalty.61 If jurors are already
considering the possibility that the defendant is not guilty (despite having already found
the defendant guilty beyond a reasonable doubt) at the penalty phase, we might wonder
how the imposition of the no doubt standard will further lower the number of erroneous
convictions. Professor Koosed suggests that the problem is that some juries consider
[lingering doubts] while others do not.62 In particular, she suggests that the problem lies
in the failure of courts to recognize lingering doubt as a mitigating factor at sentencing. I
agree with her that, under our present legal structure, there are juries that would have
spared a defendant under a no doubt standard but that nonetheless sentence the defendant
to death at the penalty phase. But we do not know how many such defendants are
affected by the present legal structure nor how many of those affected were, in fact,
erroneously convicted. The point is not that there are no erroneously convicted
defendants who might be aided; instead, I am only pointing out that the number may be
incredibly small.
Furthermore, we have ignored up until now the consequences of a heightened
standard of proof on accurate implementation of the death penalty. This brings us to the
second problem with the ratio of errors argument: raising the standard of proof will not
just (perhaps) lower the number of erroneous convictions, but it will also cause a
proportionate decrease in the number of people properly executed. Recall again my first
example, where the no doubt standard halves the number of people who face a sentencing
phase. As a result, 197 people who deserve to be sentenced to death will be spared.63 If
one opposes the death penalty, or perhaps if one is only a lukewarm supporter, such a
result may seem acceptable. But it is by no means clear that saving five innocents is
worth essentially eviscerating the punishment for those who strongly support the death
penalty.
To make the point slightly more concrete and (perhaps) more realistic, consider
that between 1973 and the end of 2002, 7254 persons were sentenced to death in the
United States. Let us assume that 2% of these people were in fact innocent. If so, then
we have to assume that 145 innocent persons were sentenced to death. Of course, as I
noted in the previous section, not all of these persons will be actually executed. Almost
half of the 7254 remain on death row today, either because their cases are still under
review or for some other reason. For the other 51% who are not on death row, only a
total of 11.3% were executed; 3.7% died of other causes, 33.1% had their convictions or
sentences overturned, and 2.4% had their sentences commuted.64 Assume that the no
doubt standard had been put into place in 1973 and that it would have halved the number
of defendants who were made eligible for the death penalty. Now only 3267 persons are
sentenced to death and only 410 would have been executed to date. Along the way,
assuming no other selection effects, four innocent defendants would have been spared the
death penalty, although another four innocent defendants were still executed. In
61

Koosed, supra note 3, at 54-60.

Koosed, supra note 3, at 72.
63
We assume 790 accurate convictions, of which one-half are not knocked out at the no doubt phase, for
395 defendants spared. Assuming that roughly half of these would have received a death sentence, see
supra note 48, 197 defendants who deserve the death penalty are spared.
64
Another 0.4% were not on death row for some other reason. See Bureau of Justice Statistics, supra note
49.
62

15
exchange for this gain, 406 convicts who deserved to die are spared. I simply raise the
question, without providing any answer, whether this would be an acceptable trade-off.
If the preceeding analysis seems too abstract, then consider a particular case, that
of Timothy McVeigh.65 At his trial, McVeigh contested guilt, although he subsequently
admitted it, and the governments case was largely circumstantial. It is not inconceivable
that, given a no doubt instruction, McVeighs jury would have concluded that they did
not have no doubt about his guilt. For those who are skeptical of this claim, consider
Judge Jon O. Newmans proposal that judges certify guilt in capital cases. Judge
Newman suggests that the certification be granted in cases where untainted DNA,
fingerprint or other forensic evidence indisputably proved guilt or where the suspect was
caught in the commission of the crime.66 It is not plausible to claim that McVeigh was
so caught, unless being pulled over for not having a license plate 77.9 miles from the
scene counts as being caught in the commission of the crime, and there was little
forensic evidence that might qualify under Judge Newmans standard.67 The most
damaging piece of evidence was that the vehicle identification number from the rear axle
of the truck used in the bombing matched that of a truck McVeigh had rented four days
earlier.68 The only other piece of forensic evidence consisted of an FBI test performed on
his clothes, which revealed the residue of chemical associated with the materials used in
the construction of the bomb.69 If the jury had found it did have a doubt in McVeighs
guilt, he would have been spared the death penalty. Would such a result be just, given
that we now know McVeigh killed 168 people and wounded hundreds of others?
Perhaps yes, but I believe much turns here on ones comfort with the justice and necessity
of the death penalty.
One possible objection to this line of inquiry is that the cost in effectiveness of the
death penalty is simply irrelevant when considering the proper ratio of erroneous verdicts
in capital cases: the only permitted trade-off is between erroneous executions and
erroneous acquittals. Why this should be so, though, is a bit of a puzzle. The objection is
not one that forbids trade-offs categorically: after all, any ratio of errors approach has to
be acknowledging some form of trade-off.70 So the objection has to be framed as
follows: although we are permitted to trade-off erroneous death sentences and erroneous
acquittals, we cannot trade-off erroneous death sentences and erroneous life sentences.
The reason for this would be, I suppose, that erroneous acquittals represent a large
enough harm that they cross a threshold such that they can be counted against the
goodness of avoiding erroneous executions, such that we do not avoid absolutely such a
trade-off.71 The harm flowing from the failure to sentence someone to deatheven
though they should be so sentencedis simply not high enough to cross the relevant
threshold and therefore we cannot weigh this harm against the intrinsic goodness of
avoiding erroneous executions.
65

See United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998).
Newman, supra note 3, at A25.
67
McVeigh, 153 F.3d at 1178.
68
Id.
69
Id. at 1179.
70
Of course, one could take the position that no trade-off is permitted and attempt to justify various
standards of proof. But that is a different argument, and one that I will address in Part II.C, infra.
71
For a description of such a threshold deontological theory more generally, see MICHAEL MOORE,
PLACING BLAME 721-22.
66

16
Such a theory, though, fails upon closer consideration. The question left
unanswered in the preceding paragraph is why take any risk of erroneous executions on
such an account? Why not bar the death penalty altogether? In the two-step process we
have been considering, applying an increased standard of proof will not increase the
number of acquittals, at least directly. So the only harm that would flow from a standard
of proof so high that the government could never reach it would be the harm from
persons erroneously avoiding the death penalty. Thus, the argument suggests that,
because the death penalty always creates some risk of an erroneous execution, it should
never be imposed where we can limit the costs to the lack of executions.72 While many
readers are surely sympathetic to such an account, note that those who wish to have a
death penalty cannot adopt it. Instead, they must acknowledge that there is some
threshold at which the harm from failures to execute becomes so high that it does
overcome the intrinsic goodness of avoiding erroneous executions. The only question
left is how much harm is required to cross that threshold, and I leave it to the reader to
decide where that threshold lies.
To recap, so far we have seen two main problems with the balance of errors
argument. First, it is not clear that raising the standard of proof will, in fact, lead to a
lesser number of erroneous executions. Even assuming that the number of executions
falls, there is no assurance that any of the persons spared were erroneously convicted.
Second, the decrease in erroneous executions comes at a cost of decreased imposition of
the death penalty. Whether the trade-off is a wise one is debatable.
Things become even more complicated if we drop our simplifying assumption
that there are no collateral consequences from adopting the no doubt standard. For
instance, changes in the standard of proof might alter the decisions of defendants and
prosecutors to plea bargain, and may also alter prosecutors initial charging decisions. If
such changes occur, how they would effect the ratio of errors is, I posit, essentially
unknowable (at least at present): scholars presently cannot even agree whether innocent
defendants or guilty defendants are more likely to plea guilty.73 How can they then reach
anything close to a consensus over how changes in the standard of proof will affect the
two groups decisions to plea?
So far the discussion has focused only on the difficulties of using a no doubt
standard of proof to create a higher ratio of errors in capital cases. What I have left
unchallenged is the first step in the balance of errors argument: that there should be a
higher ratio of errors in capital cases. At a very general level, it is no doubt true that the
ratio of errors in capital cases ought to be higher than in other criminal cases. The
sticking point is over how much higher. In supporting a high ratio of errors in criminal
cases generally, one commonly asserted rationale is that the standard of proof is set out of
a concern for the defendants liberty interest or other consequences to the defendant in
criminal cases, such as harm to his reputation.74
72

Richard A. Rosen, Innocence and Death, 82 N.C. L. REV. 61 (2003) (making such an argument).
Compare Robert E. Scott & William J. Stuntz, Plea Bargaining As Contract, 101 YALE L.J. 1909 (1992)
(innocent defendants) with Corinna Barrett Lain, Accuracy Where it Matters: Brady v. Maryland in the
Plea Bargaining Context, 80 WASH. U. L.Q. 1 (2002) (guilty defendants).
74
See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 3.11 (3d ed. 2003); JOHN W.
STRONG, MCCORMICK ON EVIDENCE 341 (5th ed. 1999); Sand & Rose, supra note 3, at 1367; Jungman,
supra note 3, at 1085-86 (citing In re Winship, 397 U.S. 358, 370-71 (1970) (Harlan, J., concurring)).
73

17
Under this rationale, it appears at first blush that a higher ratio in capital cases can
perhaps be easily justified. For instance, if we momentarily imagine that the proper ratio
of errors in most criminal cases is 10:1, because this properly values the defendants
liberty interest, then we might rather easily justify a higher ratio, say 20:1 or even 100:1,
in cases involving the death penalty, for in those cases the defendant is in danger not just
of losing his liberty, but his life.75 Given the defendants higher interest in his life than in
his liberty, the defendants interests seem to mandate a higher ratio of errors
Such a judgment seems implicit in the criminal justice systems approach to death
penalty cases in general. Despite the Supreme Courts occasional assertion that there is
no difference between capital and other cases, there is little doubt that capital defendants
are accorded more procedural protections. For instance, in the federal system, such
defendants are entitled to a witness list from the prosecution,76 may not waive their right
to a grand jury indictment,77 are entitled to a special sentencing hearing before a jury, not
a judge, as to the imposition of the death penalty,78 and are entitled to two, not one,
appointed counsel.79 Such additional protections seem to presuppose that the defendant
in a capital case needs more protection than in other cases, suggesting that the ratio of
errors in such cases ought to be weighted more toward acquittals than in the run-of-themill criminal case.
Nonetheless, this discussion may not be a strong argument for a vastly higher ratio
of errors. The argument presumes that the interest at stake for noncapital defendants
libertyis relatively trivial in comparison to the interest in life for capital defendants.
But the functional reality of the sentences that some noncapital defendants may receive
will be a permanent loss of liberty and a hastening of the ends of their lives. First, some
defendants in homicide cases (and perhaps a few others) may face a term of life without
the possibility of parole. Where the convict is told by the state that he will never be a free
person again and will spend the rest of his days behind bars, it seems a bit disingenuous
to understand the defendants interest as merely his liberty. Second, categorizing the
harm felt by all defendants as merely the loss of liberty seems to be a quite unrealistic
view. At least in the cases of individuals convicted of any sort of serious crime, they are
not sent to home arrest; instead they are sent to penitentiaries, where they run increased
There is at least one alternative paradigm for deciding the proper ratio of error, and that is to look
at the costs arising from particular errors. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW
618-20 (6th ed. 2003). The difficulty with such a conception is that, unless it is reduced to a strict balancing
of the harms approach, it becomes incoherent without information about the relevant distribution of
evidence against defendants and relative numbers of actually innocent and guilty defendants who go to
trial. See Lillquist supra note 25, at 105. If we ignore this problem, the result under such a conception is
no different than under the balance of the harms approach: the costs of erroneous convictions in capital
cases should be higher than in noncapital cases, for the reasons I set forth before. See text accompanying
notes 41- 50, supra.
75
See Sand & Rose, supra note 3, at 1367.
76
18 U.S.C. 3432.
77
FED. R. CRIM. P. 7(a) & (b). While Rule 7(b) might on its face be ambiguous as to the ability of capital
defendants to waive indictmentare they included within the category of [a]n offense punishable by
imprisonment for more than one year?the commentators are in agreement that it is only noncaptial
defendants who can waive the indictment. See 24 MOORES FEDERAL PRACTICE 607.03[1] (3d ed. 2004);
1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE 122 (3d ed. 1999).
78
18 U.S.C. 3593(b). Most states provide a similar right to defendants in death penalty cases.
79
18 U.S.C. 3005 & 3006A.

18
risks of disease and death. As Professor Stephen Morse has noted, imprisonment of our
fellow citizens is a dreadful thing to do. Every day a prisoner is locked up, caged like an
animal, is an immense harm.80
I do not mean to suggest that liberty is as, or even nearly so, important as life,
although it is possible that some might make such an argument.81 Nor do I ignore that the
death penalty carries with it both a unique brutalitythe State endorsing the killing of
one of its citizensand a unique finalityafter execution, there is no more chance for a
reversal.82 What I am suggesting, though, is that even with these unique aspects to the
death penalty, there may be at least some noncapital defendants whose interests seem
nearly as important on the whole as those of capital defendants.83 If so, it may be
difficult to justify a much higher ratio of errors in capital versus (at least some) noncapital
cases.
One response to the forgoing discussion would be to argue that the increased
standard of proof should not be limited to capital cases, but expanded to at least some and
perhaps all criminal cases. And it is certainly true that other commentators have
suggested such a general outcome.84 But my point here is simply that balancing of the
errors approaches do not automatically lead to the conclusion that the standard of proof
should be higher in capital cases. Advocates who wish to justify a higher standard of
proof on such grounds need to be more clear about why the harms are so much higher in
capital cases that they justify a much higher standard of proof.

80

See Stephen J. Morse, Equality and Individuation: The Case for Juries and Determinate Sentencing, __
LAW & PHIL. (forthcoming 2004) (on file with author). Or consider this description from Professor
Douglas Husak:
Prisoners lose their liberty and most of their rights. They are deprived of their families, friends,
jobs and communities. Their days are passed in unproductive idleness. Prison life is degrading,
demoralizing, and dangerous. Once released, offenders are less employable, and often forfeit their
rights to vote and to receive public benefits and services. Punishment also has a negative effect on
the lives of their spouses and children.

Douglas Husak, Guns and Drugs: Case Studies on the Principled Limits of the Criminal Sanction, 23 LAW
& PHIL. 437, 443 (2004).
81
For example, Patrick Henrys famous saying: Give me liberty or give me death. Patrick Henry, Speech
at the Virginia House of Delegates (Mar. 23, 1755), reprinted in 2 THE ANNALS OF AMERICA 1755-83:
RESISTANCE AND REVOLUTION 323 (William Benton ed., 1968).
82
Lillquist, supra note 7, at 718.
83
Furthermore, the finality of a life sentence may, in some functional sense, be greater than death
sentences. The practical reality is that most capital defendants receive extensive post-conviction assistance,
both in resources for direct appeals and for collateral review. The resources given for noncapital
defendants are far less, and states are under no obligation to provide a meaningful access to collateral
review, even for those serving life sentences. The result is that noncapital defendants may find it much,
much, harder to have their convictions and/or sentences reversed or vacated than capital defendants.
84
See, e.g, Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About
Reasonable Doubt, 78 TEX. L. REV. 105, 144 (1999); Jon O. Newman, Beyond Reasonable Doubt, 68
N.Y.U. L. REV. 979, 991 (1993).

19
C.

Other Approaches

Other, primarily nonconsequentialist, theories of the reasonable doubt standard

exist, and it is imaginable that they might suggest a different outcome. Such theories can,
I think, be taxonomized into two groups: society-centered theories and defendantcentered theories. Society-centered theories argue that the reasonable doubt standard
exists to implement or support some interest of society. Defendant-centered theories
alternatively suggest that the standard of proof in criminal cases is set to validate some
concern about the interests or rights of defendants. None of these theories can provide an
easy justification for a higher standard of proof in death penalty cases and, indeed, they
may actually serve to undermine the arguments made above in favor of such a standard.
1.

Society-Centered Theories

Perhaps the most prominent of theories that focus on the interests of society is
what I term legitimacy theory: under this approach, the point of the reasonable doubt
standard is not to optimize the tradeoff of erroneous convictions and erroneous acquittals,
but instead to create legitimacy for the legal system.85 Most importantly, reasonable
doubt, by appearing to require a great deal of certainty, may ensure that society as a
whole accepts guilty verdicts, regardless of whether jurors require such certainty in
actuality. In other words, what is valuable about a standard of proof in criminal law is
not the amount of certainty it does (or does not) require, but rather the appearance of
certainty it creates, which thereby legitimizes the process in the minds of society.86
At first glance, legitimacy theory appears to support a higher standard of proof in
capital cases. As many commentators have noted, what has done the most to undermine
the death penalty in the United States in recent years has been the discovery of numerous
individuals who have been wrongly convicted of capital crimes.87 Such cases are
particularly troublesome to the legitimacy of the criminal justice system because
subsequent determinations that individuals have been wrongly convicted and sentenced to
death have far greater salience with the general public than exonerations in routine
criminal cases. To avoid such legitimacy concerns, commentators have suggested that
the standard of proof in capital cases be increased to avoid such mistakes in the future.88
85

The most forceful advocate of this position has been Professor Charles Nesson. See, e.g., Charles R.
Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 HARV. L. REV. 1187,
1195 (1979).
86
An alternative society-centered theory would suggest that the reasonable doubt standard serves to help
reinforce the expressive message of the criminal law. Lillquist, supra note 25, at 177-78. This appears to
be a consequentialist argument, asserting that the criminal law has an expressive purposeperhaps
influencing behaviorthat is facilitated by the reasonable doubt standardperhaps by confusing society
into believing that we are always certain of guilt before we impose punishment. See Lillquist, supra note
25, at 177-78. If this is the theory of justification for the criminal standard of proof, it suffers from the
same defect as the legitimacy theory in the text: there is little reason to believe that inserting a new, higher
standard of proof for use in capital cases is going to lead to net gains in behavioral norm formation.
87
See Andrew Taslitz, Wrongful Rights, CRIMINAL JUSTICE, Spring 2003, at 4, 4; Ronald J. Tabak, Finality
Without Fairness: Why We Are Moving Towards Moratoria on Executions, and the Potential Abolition of
Capital Punishment, 33 CONN. L. REV. 733, 734 (2001).
88
See, e.g., Bradley, supra note 3, at 25 (noting that even one wrongful execution might turn public opinion
against death penalty).

20
One difficulty with this argument is that it forestalls but does not eliminate the
problem for legitimacy in capital cases. This is because even under a no doubt standard
of proof there will still be a risk that an erroneously convicted person will be executed.
Thus, all that is accomplished is a delay for when we will discover such a case (because
they will be somewhat rarer), and once such a case does demonstrably occur, the criminal
justice system (or at least the portion of it dealing with capital punishment) will be delegitimized. A plausible response to this concern is that threats to legitimacy, contra
some claims, do not arise from individual instances of wrongful executions, but only by
exceeding some threshold of numbers in a certain amount of time. If this is the argument,
though, it suggests that wrongful executions are, on the whole, somewhat less of a threat
to legitimacy than commentators sometimes suggest.
This leads to a second difficulty with the legitimacy argument: that requiring a
higher standard of proof in capital cases would highlight that the standard of proof in
other criminal cases is lower, and thereby lead to less respect for guilty verdicts in
noncapital cases. Viewed as a straight-forward consequentialist claim, such a view
argues that the harm from lessened respect to typical guilty verdicts more than outweighs
any harms emanating from erroneous convictions in capital cases. A legitimacy theorist
would, I assume, admit that the harm to society from an erroneous conviction in any
particular capital case is vastly greater than the harm from the loss of legitimacy in any
particular noncapital case. However, because capital cases still remain relatively rare,89
the overall harm from erroneous capital convictions is likely to be lower than the loss in
legitimacy across the thousands of noncapital cases that are tried each year: while 159
people were sentenced to death in 2002, there were almost 925,000 adults convicted of
felonies in state courts in 2000 and over 45,000 of these were convicted at a trial (the rest,
of course, pled guilty).90 Thus, a new standard of proof would undermine the legitimacy
attached to nearly 283 noncapital cases for every capital case in which it increased
legitimacy. Even if we believe that reversals in capital cases are particularly salient, it is
by no means clear that any legitimacy is being gained in such a trade-off. And this will
be even more true if it turns out that wrongful executions only threaten legitimacy when
they exceed some threshold number.
An alternative approach to the idea of legitimacy would be to make it entirely
nonconsequentialist and view the standard of proof simply as an independent side
constraint on the imposition of punishment, one that it is not amenable to trade-offs based
on costs.91 On this view, the criminal justice system has legitimacy only if punishment
is imposed with the requisite degree of certainty. I call such a theory society-centered not
because it maximizes any particular conception of social welfare, but because it embodies
some notion of a just society.

89

One recent study found that, in states with the death penalty, only 2.2% of offenders arrested for murder
are sentenced to death. See John Blume et al., Explaining Death Rows Population and Racial
Composition, 1 J. EMP. L. STUD. 165, 171 (2004).
90
Bureau of Justice Statistics, supra note 49, at 1; Bureau of Justice Statistics, Felony Sentences in State
Courts, 2000, at 8 tbl. 9 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fssc00.pdf (last visited
June 14, 2004).
91
Or at least ordinary trade-offs. Such a theory could recognize that where the costs cross a particular
threshold, they should be acknowledged, but otherwise they ought to be ignored. See supra note 71 and
accompanying text.

21
If we view the criminal standard of proof this way, we still need to explain why
typical criminal cases use the reasonable doubt standard. One reason, I imagine, would
be an account that stresses that defendants should be punished only when we are as
certain as possible of their guilt. (I refer to this as a negative retributivism account.92)
Such an explanation must also contain within it another limiting principle: that absolute
certainty is not required. Presumably this is so because if absolute certainty was required,
then no one would be convicted, and that would cross a threshold of harm that trumps the
harms that come from inaccurate convictions. Thus, reasonable doubt is chosen as the
standard of proof because it is the highest standard short of absolute certainty.
The negative retributivism account fares no better than other society-centered
accounts because it provides no justification for a higher standard of proof in capital
cases than in other cases. On the one hand, if reasonable doubt is the highest standard of
proof possible, then the only standard to which we can go is absolute certainty, but that
standard leads to the de facto abolition of the death penalty, which is not the result that
the advocates of the higher standard purport to want. On the other hand, if reasonable
doubt turns out not to be the highest possible standard short of absolute certainty, then we
should move to that alternative standard for all criminal cases, not just capital ones. This
argument simply provides no way of distinguishing among types of criminal cases.
Of course, the failure of the criminal justice system to use the proper standard in
all criminal cases does not itself justify failing to use it in capital cases. Instead, we must
ask why has the criminal justice system as a positive matter failed to use the highest
possible standard for the past 150 years, when it should have been doing so? It is
conceivable that this simply represents a moral failure on the part of the American legal
system: that the proper standard for all criminal cases is no doubt and that the failure to
use it should be remedied immediately. But I am reluctant to conclude so quickly such a
long-term moral blindness.
There are two alternative explanations. The first suggests that the original notion
of reasonable doubt did capture the same conception as the current proposed no doubt
instructions, and that what has occurred over the past 150 years is a gradual weakening of
the standard.93 Here, the solution is to return to the old standard that is now captured by
the idea of no doubt. I will return to the practical difficulties of such an approach in the
next Part. At this point, I simply want to point out some theoretical difficulties with such
a view. While I think this claim is more plausible on its face than the idea of complete
moral blindness, it still suggests that, for a rather long time period, our system has been
operating under a morally deficient standard. Furthermore, the claim depends on the
debatable presumption that the standard as originally articulated really was higher than
the standard we use now.
The second explanation is that even though a higher, no doubt standard has
always been theoretically possible, it is simply too high a standard for a criminal justice
system. This returns us to the threshold idea: it may be that the reasonable doubt
standard is chosen not because it is the highest possible standard, but because a higher
standard creates the risk of too many erroneous acquittals, which in turn creates a harm
that crosses the threshold that now trumps the harms from erroneous convictions.

92
93

See Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1, 26 & n.52 (2003).
See generally Sheppard, supra note 7, at 1204-27.

22
If this is correct, then there can be no justification for the use of a higher standard
in a capital case. Recall that the basic value of this argument is nonconequentialist: the
idea is that punishment should only be placed on the guilty. This commitment is
overcome only when a threshold of harm is crossed by erroneous acquittals. There is no
reason to set this threshold any differently in capital and noncapital cases; indeed, if
anything, the harm from erroneous acquittals in capital cases will be higher, thereby
justifying a lower standard of proof in such cases. Thus, to justify a raised standard of
proof in capital cases under this approach, we would be forced to conclude that the
criminal justice system has been using a morally deficient standard in all criminal cases
over the past 150 years (or more). Again, while this could conceivably be true, I am
reluctant to conclude that only now at the beginning of the 21st century have we stumbled
upon the proper standard of proof.
This is not a complete catalog of all possible society-centered justifications of the
reasonable doubt standard, but I think it is sufficient for my purposes. It illustrates that
such theories cannot provide a strong justification for a higher standard of proof in capital
cases. Furthermore, to the extent such theories suggest that the purposes of the standard
of proof is to create legitimacy, they create the possibility that a no doubt standard in
capital cases would actually harm society.
2.

Defendant-Centered Theories

Defendant-centered theories focus on the concerns of defendants, rather than of

society, in justifying the standard of proof. They differ from the balancing approaches I
previously discussed in one important way: they do not argue that these defendantcentered values lead to any particular ratio of errors or harms, and indeed they may
categorically reject attempts to engage in such balancing. Instead, these arguments view
the standard of proof as supporting or representing such values directly. Professor
Laurence Tribe, for instance, has stated that no ratio of errors harms ought to be used
because such a conception is morally wrong: it puts an explicit price on an innocent
mans liberty and defeats the concept of a human person as an entity with claims that
cannot be extinguished however great the payoff to society.94 One way of viewing that
argument is that Professor Tribe values the dignity and/or liberty of the defendant, and
that these values are simply incommensurable with any dignity interest the government
may have, making the calculation of any proper ratio of errors impossible.95
To the extent such arguments turn solely on rights such as respect or dignity,
they have a hard time explaining why this interest supports a particular standard of proof,
let alone a higher standard of proof in some cases. For instance, Professor Daniel
Shaviro points out that Professor Tribes form of dignity consists of not overtly
convicting someone on less than certain evidence.96 So long as society is not clear that it
is allowing erroneous convictions, human dignity is maintained on Professor Tribes
94

Laurence H. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 VA. L.
REV. 371, 387 (1970).
95
It is not clear that Professor Tribe really means to make a non-consequentialist argument. See Lillquist,
supra note 25, at 177 n.275. My point is just that he could be read as making that claim.
96
Daniel Shaviro, Statistical-Probability Evidence and the Appearance of Justice, 103 HARV. L. REV. 530.
534 (1989).

23
account. If this is correct, then a lower standard of proof can always be justified, so long
as it is better than the reasonable doubt standard in masking the fact that there is
uncertainty over the defendants guilt.
Even if one does not accept the conclusion in the last sentence, Professor Tribes
theory would appear to argue strongly against the creation of a no doubt standard. The
reason is simple: imposing a no doubt standard in some cases, but not all, makes overt
that we are convicting defendants in the face of at least some doubts as to their guilt. As
a result, there would be a loss in defendants dignity: because we can no longer insist,
after the adoption of a no doubt standard, that we have the greatest certainty that seems
reasonably attainable,97 we are no longer affirm[ing] the dignity of the accused and
[displaying] respect for his rights as a person.98 The seeming inevitable conclusion is
that such a defendant-centered theory, like the society-centered theories I discussed in the
previous section, cannot justify a higher standard of proof in capital cases.
As an alternative, one might instead focus on the effects on a defendant of a
conviction, be it loss of life, liberty, money or even societal respect. This is not the
solution it seems, however. One of the premises of the defendant-centered theories is that
the interests of the defendantlife, liberty, etc.are simply incommensurable with other
interests, such that we cannot make trade-offs. This suggests that even where liberty
alone is at stake, we must use the highest possible available standard. So if such a higher
than reasonable doubt standard is available, we must use it for all cases, not just capital
ones. Once again, the argument devolves into one for a higher standard of proof across
the board, not for a higher standard in capital cases. And as I noted in the previous
section, such arguments suffer from a number of problems.
D.

Summary

A large number of theories for justifying the standard of proof exist. Perhaps
surprisingly, on none of these theories is there an ineluctable conclusion that death
penalty cases ought to involve a higher standard of proof than ordinary criminal cases.
The best case can be made under a balance of the harms approach, while a good case can
be made (depending upon the assumptions one is willing to accept) on a balance of the
errors approach.
Other theories, though, seems to have no criteria on which to justify the use of a
higher standard for capital cases. This is particularly true for the nonconsequentialist
theories I have discussed above. The core difficulty for such theories is that, by focusing
away from the consequences of the standard of proof, they have difficulty justifying
procedural distinctions between types of criminal cases. Of course, I do not mean to
suggest that such distinctions are impossible on nonconsequentialist theories; Professor
Michael Moores threshold deontology certainly provides one mechanism that might
justify distinctions between cases.99 But as I have argued, even this approach does not
easily justify the use of a higher standard of proof in capital cases.
97

Laurence H. Tribe, Trial By Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV.
1329, 1374 (1971).
98
Tribe, supra note 97, at 1374.
99
For one critique of Professor Moores approach from a deontological perspective, see Larry Alexander,
Deontology at the Threshold, 37 SAN DIEGO L. REV. 893 (2000). A consequentialist critique can be found

24
The lesson for the reformers is that their claim for a higher standard of proof in
capital cases is far more controversial than they have recognized to date. By advocating a
higher standard, they seem to be implicitly adopting a consequentialist vision of criminal
procedure. In particular, most advocates have (usually implicitly) adopted a balance of
the errors approach to justifying the standard of proof. In so doing, they have exposed
themselves to the criticism that their proposed changes will not have the beneficial
consequences they claim. In this Part, I have suggested that, as a matter of theory, it is
not clear that the use of a no doubt instruction, even if it did have the desired direct
consequence of raising the jurys level of certainty before deciding to impose a death
sentence, would actually reduce the number of erroneous executions. In the next Part, I
turn to whether such an instruction will, in fact, be able to raise the level of certainty. If
not, then such a new instruction cannot be justified, and we must search for other
mechanisms that can do the job of raising the jurors level of certainty before they
convict.
III.

How to Obtain More Certainty?

Assuming that more certainty of the defendants guilt is needed in capital cases,
the question is how to accomplish the task. All of the commentators up until now have
sounded one or another variation on a similar strategy: to instruct the jury (or other
decision maker) in the higher standard of proof and have the jury then return a verdict
under that higher standard. The fundamental assumption of all of these approaches is that
the new instruction will lead to fewer guilty verdicts than presently result under the
existing reasonable doubt instruction.100 There are, however, good reasons to doubt
whether this assumption is correct. Instead, it seems quite plausible that changes in the
instruction will have little or no effect on actual decisions made by jurors. Thus, if the
goal really is to increase the certainty we have in the defendants guilt before we put him
to death, other approaches need to be considered.
In this Part, I begin by considering the possible changes we might consider to the
criminal standard of proof. I then evaluate whether such changes are likely to have an
effect on the outcomes in criminal litigation. I conclude that their effect on overall levels
of certainty is likely to be low, for a number of reasons. I then suggest two other changes
that are more likely to have an immediate impact on the jurors certainty in the
defendants guilt. First, and somewhat unrealistically, I argue that changes could be
made in the selection of jurors for death penalty cases. My second suggestion is more
realistic: the method if instructing jurors in the standard of proof should be changed.

in Russell L. Christopher, Deterring Retributivism: The Injustice of Just Punishment, 96 NW. U. L. REV.
843, 877-80 & nn.185 & 188 (2002).
100
I readily concede for the purposes of this analysis that different instructions could lead to different
results, without a change in the overall number of guilty verdicts. But if this is all that results, then it is
hard to see why we would want such a result, unless we viewed the new instruction as more accurate, in
the sense that there are increases in both accurate convictions and accurate acquittals. See, e.g., Solan,
supra note 84, at 144-46 (arguing that the firmly convinced instruction would lead to more accuracy).
None of the commentators, though, seem concerned with avoiding inaccurate acquittals, just inaccurate
convictions, so it is hard to imagine that they are proposing these new instructions as means to achieve
more accuracy.

25

A.

Possible Changes to the Jury Instructions

Before addressing whether changes to jury instructions will work, we need to

know what the alternatives are. Requiring proof beyond a reasonable doubt seems to
necessitate a very high amount of certainty before the jury convicts. Indeed, as I noted in
the first Part, the standard was originally understood to capture the highest degree of
certainty possible in human affairs.101 Is it even possible to construct a standard of proof
that would require more certainty in the defendants guilt before exposing him to the
death penalty? Would such a standard ever permit the conviction of a defendant?
One possible approach is to require absolute certainty before the jury convicts the
defendant in a death penalty case. Such a proposal, though, cannot mean that the jury
really is absolutely certain. As I noted in Part I, the reasonable doubt standard and the
accompanying idea of moral certainty were developed against a philosophical
understanding that true absolute certainty is impossible. If true absolute certainty were
required in death penalty cases, then it would appear that no defendant would ever be
sentenced to death, for no juror would ever be able to truly say she had absolute
certainty. While such a result would no doubt please death-penalty opponents, it hardly
seems to be a workable solution for real-world cases.
Instead, what may be possible is some form of moral certainty, that is, the
highest state of certainty that any human being could achieve, such that no reasonable
and unbiased person could dissent from the proposition.102 This is how I understand the
alternatives that (most) commentators have suggested. As I noted in Part I, such

101

My discussion assumes that the standard of proof operates as a criterion that measures the jurys
certainty in the defendants guilt. This assumption is not without controversy. See Lillquist, supra note 25,
at 94-95 n.20 (cataloging some of the alternative conceptions of the standard of proof). Perhaps the most
prominent alternative today is Professors Ronald Allen and Brian Leiters relative plausibility model.
They have said that the standard of proof in criminal cases operates as a test of the plausibility of the
governments story. See Ronald Allen & Brian Leiter, Naturalized Epistemology and the Law of Evidence,
87 VA. L. REV. 1491, 1528 (2001). More recently, Professor Allen has suggested that in actual practice,
the jury must be convinced that (1) the governments story is plausible and (2) that the defendants story
(if any) is implausible. Both (1) and (2) are necessary conditions, but neither is, standing along, a sufficient
condition. See Ronald J. Allen, No Plausible Alternative to a Plausible Story of Guilt as the Rule of
Decision in Criminal Cases (unpublished manuscript, on file with author), at 5. This is important, because
it suggests that ties go to the defendant: the defendant wins when both the government and the defendant
have implausible stories, and the defendant wins when both the government and defendant have plausible
stories.
I take no position on whether Professors Allen and Leiter are ultimately right or wrong about the
functioning of the standard of proof. That, though, raises this question: under their account, can we have a
higher standard of proof in capital cases? If they are right that this is how the standard of proof works, it
suggests that attempts to raise the standard in capital cases are (probably) pointless: juries will, regardless
of how they are instructed, simply ask whether or not the governments story is or is not plausible, and then
ask the same question of the defendants story. The only way to increase our certainty in the defendants
guilt before a capital sentence is entered would be to alter the jurys understanding of plausibility in capital
cases. If this occurs, though, note that it might have the perverse effect of forcing the defendant to put forth
a more plausible story to defeat the governments story. In other words, some defendants will now lose
who won before, because, while the governments story can meet the increased plausibility criteria, their
story cannot.
102
See Sheppard, supra note 7, at 1179-80.

26
proposals often are phrased in terms of no doubt or the absence of any doubt.103 At
first glance, there may not seem to be any significant difference between such a no doubt
standard and a complete certainty standard. After all, what is certainty but the absence of
doubt?104 If the proponents of such standards really mean that they want jurors to
sentence a defendant to death only when the jurors truly have no doubts about the
defendants guilt, then they seem to desire the death penalty only when the jurors are
truly certain of the defendants guilt and, since such certainty is impossible (at least in the
context of adjudication), they seem to be asking that no defendants ever be sentenced to
death.
I suspect, though, that the proponents of the no doubt formulations either do not
intend such a result or are being disingenuous in their claims that they are not attempting
to abolish the death penalty.105 If abolition is the actual goal, though, this particular
means is unlikely to be successful, as I spell out in the next two sections. So instead, I
think it is better to assume the proponents are being genuine in their proposals. Thus, I
imagine that by calling for no doubt, they are trying to articulate a formulation that
requires something less than true absolute certainty. One way they may be doing this is
by trying to recapture the moral certainty concept of the 18th and 19th centuries: an
assurance that the jurors are as certain as human beings can be given our limitations.106
In other words, these commentators may be assuming that the term absolute certainty
now means what moral certainty meant to 18th century thinkers.107
103

See supra text accompanying notes 33-36.

See, e.g., AMERICAN HERITAGE DICTIONARY 147 (4th ed. 2001) (defining certainty as [t]he fact,
quality, or state of being certain and defining certain as established beyond doubt)
105
See, e.g., Jungman, supra note 3, at 1085-86 & 1089-91 (advocating beyond all doubt standard and
assuming that some defendants would still be sentenced to death)
106
Cf. Sheppard, supra note 7, at 1183 (noting that a rough translation of moral certainty to modern
speech is I am as certain as I can be, based on what I have seen and heard.).
For instance, Professor Margery Malkin Koosed advocates proof beyond all or any doubt and
claims that this is the standard that former Illinois Governor George Ryan was searching for when he stated
until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one
will meet that fate. Koosed, supra note 3, at 114 & n.309 (quoting Ken Armstrong & Steve Mills, Until
I can be sure: Illinois is First State to Suspend Death Penalty, CHI. TRIB., Feb. 1, 2001 1, at
1)(emphasis added). Judge Leonard Sand and Danielle Rose also seem to equate proof beyond all doubt
and absolute certainty. Sand & Rose, supra note 3, at 1372 & 1373. Similarly, Elizabeth Jungman
suggests that what she refers to as residual doubt should be sufficient to bar eligibility for a death
sentence, and she equates the absence with residual doubt with absolute certainty. Jungman, supra note
3, at 1083 (citing Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (OConnor, J., concurring)). This might
be understood to suggest that she believes no criminal defendant should ever be sentenced to death.
Earlier, however, she equates absolute confidence and moral certainty, id., which suggests that she
understands absolute certainty to only be the highest degree of certainty that any human being can have
about uncertain past facts.
107
In what follows, I am going to assume that commentators who suggest the use of a subjective approach
to certainty are proposing essentially the same thing. See, e.g., Koosed, supra note 3, at 54; Sand & Rose,
supra note 3, at 1369. The underlying assumption appears to be that jurors will know that there cannot ever
be true objective certainty, but that they will assume that true subjective certainty is possible. In other
words, when jurors report that they are subjectively certain, the jurors are reporting that they understand
that they are not truly certain (because that is impossible) but they are as certain as they can be.
There are alternative ways of understanding subjective certainty. It might instead mean
something more: that the juror is personally convinced that true certainty exists in this case. But if this is
what commentators mean, then convictions would be possible only if the jurors were irrational. That is
because no truly rational juror could ever have this form of subjective certainty; no matter what the proof, a
104

27
Another way of understanding this point is to suggest that despite the formal
definitional equivalence between no doubt and complete certainty, there is a functional
distinction between how a no doubt standard should be understood as a philosophical
epistemic matter (i.e., impossible for humans to reach) and how actual human beings
implement it in practice.108 At its core, this claim has an important, but usually unstated,
pair of empirical assumptions: that jurors, when instructed to find that they must convict
and/or sentence the defendant to death only if they have no doubt, will in at least some set
of cases be able to say they have no doubt about the defendants guilt, but that this set of
cases will be smaller than the set of cases where jurors find the defendant guilty beyond a
reasonable doubt. If these empirical assumptions are wrong, then the no doubt standard
will not work. At present, there is no data on this issue of which I am aware, but, as I
suggest in the next Section, there are reasons to think these assumptions might be
incorrect. Thus, it is worthwhile to consider whether there might be other approaches to
creating a standard of proof between reasonable doubt and absolute certainty.109
One option might be to simply make a direct appeal to the notion of moral
certainty once again.110 In other words, we might try to recapture the 18th century
standard of proof by giving jurors a tutorial in what is meant by moral certainty. Here,
though, the game hardly seems worth the candle. As the Supreme Court itself has noted,
truly rational person should always think that there is some chance that the defendant is for some presently
unknown reason not culpable. An irrational juror, not understanding this limitation, might nonetheless
report that she has complete certainty. It is hard for me to imagine that this is what commentators mean,
although it does square better with their use of the words objective and subjective.
108
Professor Laudan has recently suggested that existing reasonable doubt instructions, to the extent that
they do not require the juror to have a reason to support the supposed reasonable doubt, amount to
nothing more than total absence of doubt standard. See Laudan, supra note 6, at 308. Professor
Laudans observation, when coupled with the empirical literature that suggests that jurors convict with
much less than 100% certainty when given such instructions, suggests that just such a place between no
doubt and complete certainty exists.
109
A related possibility would be to remove the requirement that the doubt be specific and/or articulable.
See, e.g, Sheppard, supra note 7, at 1206-14 (noting the shift in the 19th century to a standard that required
doubts to be articulable). I am not sure, though, that such a change would be any different than going to a
no doubt standard. Arguably, in the absence of the requirement of specificity or articulability, the doubt
must still be reasonable, and this requirement would necessarily not countenance acquittals based on any
doubts, just those that are reasonable. This requires, though, that there be a conceptual space where doubts
are reasonable, but not articulable or specific. Professor Sheppard suggests that, at least initially, a
reasonable doubt was no more than a doubtany doubtthat would be held by a reasonable person. Id.
at 1201. However, he goes on to note that the distinction between a reasonable doubt and other doubts was
that a reasonable person could form the doubt based not on general preoccupations relating to human
affairs but upon a consideration limited to the evidence presented in the case at hand. Id. Stated this way,
it would seem that requiring a reasonable doubt to be articulable might not actually be an alteration, for
how could a reasonable juror have a doubt arising from the case at hand but which could not be articulated?
Cf. id. at 1206 (acknowledging possibility that reasonable doubts might all be articulable).
Sheppard nonetheless believes that requiring doubts to be articulable is different than requiring
them to be reasonable: he suggests, for instance, than when the doubt is simply I doubt the prosecutions
case, this might be reasonable even if not the juror cannot articulate why she doubts the prosecutions
case. Id. at 1213. But if Professor Sheppard is suggesting that generic thoughts that the prosecutions case
are insufficient, without the giving of any reasons why this is so can be reasonable doubts, then he seems to
be equating the reasonable doubt and no doubt standards. At the very least, Professor Sheppard seems to
be equating reasonable but not articulable doubt with the meaning that proponents of the no doubt standard
implicitly seem to hold: a standard of proof that requires the juror to have absolute subjective certainty.
110
See Glaberson, supra note 1, at 27.

28
the phrase moral certainty may have lost its original meaning, and jurors may not
understand it as requiring the sort of certainty that it was understood to require in the 19th
century.111 Instructing jurors in the original meaning of moral certainty would require a
substantial education effort on the part of the judge. At present, courts that continue to
use the moral certainty language do make some effort to educate the jurors as to what the
term means, at least in a roundabout way. For instance, in Victor v. Nebraska,112 the
California trial court in one of the underlying cases had instructed the jurors that a
reasonable doubt was not a mere possible doubt, because everything relating to human
affairs, and depending upon moral evidence, is open to some possible or imaginary
doubt.113 But the instruction that is given, while sufficient to withstand a constitutional
challenge, appears, as an empirical matter, not to result in requiring the sort of certainty
that was required by the term in the 19th century. To achieve that result would require far
more education of jurors as to the nature of epistemological inquiry in general, and there
is little reason to believe that such educational efforts would be successful.114
A more promising alternative approach would be to search for modern language
that might return us to the old standard of proof. In recent years, for instance, academics,
jurists and litigants have argued for a less radical alteration of the reasonable doubt
standard that would incorporate the idea that the jurors must be firmly convinced
before voting to convict the defendant.115 Proponents believe that this alternative would
(in most cases) create additional certainty that the defendant is in fact guilty of the crime
charged. If so, then perhaps this formulation would serve to increase the certainty that
jurors have in the defendants guilt before passing a sentence of death.
Interestingly, the defendant in the Mateo case argued for both the use of the
firmly convinced instruction and for a variant of the no doubt instruction. Given that

111

See Victor v. Nebraska, 511 U.S. 1, 14 (1994).

511 U.S. 1 (1994).
113
Victor v. Nebraska, 511 U.S. 1, 7 (1994).
114
Consider, for instance, the following quotation that Justice OConnor included in her opinion in Victor
as part of her attempt to explainto a legal audience no lessthe distinction between moral and
demonstrative evidence:
112

Demonstrative evidence has for its subject abstract and necessary truths, or the unchangeable
relations of ideas. Moral evidence has for its subject the real but contingent truths and
connections, which take place among things actually existing....

In moral evidence, there not only may be, but there generally is, contrariety of proofs: in
demonstrative evidence, no such contrariety can take place.... [T]o suppose that two contrary
demonstrations can exist, is to suppose that the same proposition is both true and false: which is
manifestly absurd. With regard to moral evidence, there is, for the most part, real evidence on both
sides. On both sides, contrary presumptions, contrary testimonies, contrary experiences must be
balanced.
511 U.S. at 10-11 (quoting 1 WORKS OF JAMES WILSON 518-19 (J. Andrews ed. 1896)). Explaining such a
distinction to a jury would consume substantial sums of the trial courts time with little certainty that the
jurors would actually understand the concepts being explained. Given the high cost and the uncertain (at
best) benefit, turning each trial into a tutorial on the nature of moral certainty seems unwise.
115
See Solan, supra note 84, at 144-46, Newman, supra note 84, at 991; Brief of Appellant at 313, People
v. Mateo, 2 N.Y.3d 383 (2004) (No. 21).

29
courts and legislatures may face proposals for either of these, I will address the
effectiveness of both instructions.
B.

Will Changes in Jury Instructions Work?

Will these proposed changes actually work? On closer inspection, the idea that a
juror is constrained in her decision making by a jury instruction seems a bit shaky. There
are a number of reasons to be skeptical that new jury instructions, or changes in the
wording to existing jury instructions, will have much, if any, effect on the actual
decisions that jurors make.
In proposing new standards of proof, commentators are assuming that jurors are
aware of the distinctions that judges and lawyers are making among various standards. In
other words, we are assuming that jurors hear and understand what they are being told by
the instructions. Actual empirical data should give one a very long pause before
assuming that this is so. Numerous studies have demonstrated that jurors
comprehension of jury instructions is quite abysmal.116 There are a number of reasons
why there is such a disconnect between what jurors are told and what they do. First,
jurors may simply not hear what they are being told by the judge. Second, even if jurors
do hear the instruction, they may fail to comprehend what they are being told. Finally,
even if jurors do comprehend what they are being told, it is by no means clear that they
will actually do what they are being instructed to do.
Anyone who has sat through a trial and listened to jury instructions can
understand the (perhaps high) likelihood that the jurors may simply not hear what the
judge is saying. This is particularly true in a capital case, which is likely to have gone on
for several days, if not weeks, prior to the jury receiving its instruction. Lumped in
among a whole set of instructions, which make take an hour or more to read, the jury will
be instructed in the standard of proof.117 Against this background, there is a nontrivial
possibility that the jurors will simply never even hear what the judge says about the
standard of proof.
Furthermore, the instruction itself may prove to be incomprehensible to them.118
Actually, in some cases the problem may be that the jurors are given no definition of the
standard of proof. It remains the law in a substantial minority of federal and state
jurisdictions that definitions of the criminal standard of proof are discouraged and even
forbidden. Certainly, such jurisdictions seem likely to approach a new capital standard of
proof in the same manner. If so, will the standard prove workable?
116

See, e.g,, Bradley Saxton, How Well Do Jurors Understand Jury Instructions? A Field Test Using Real
Juries and Real Trials in Wyoming, 33 LAND & WATER L. REV. 59, 97 (1998); Laurence J. Severance &
Elizabeth F. Loftus, Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions,
17 LAW & SOCY REV. 153, 179-83 (1982); Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors
Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension
Project, 23 U. MICH. J. L. REF. 401, 414-16 (1990); David U. Strawn & Raymond W. Buchanan, Jury
Confusion: A Threat to Justice, 59 JUDICATURE 478, 480-82 (1976).
117
This does not mean that they will have the standard of proof defined, just that they will be told what it
is: preponderance of the evidence, proof beyond a reasonable doubt, etc.
118
For an overview of the research into jurors failure to comprehend, see Joel D. Lieberman & Bruce D.
Sales, What Social Science Teaches Us About the Jury Instruction Process, 3 PSYCHOLOGY, PUBLIC
POLICY & LAW 589, 598-99 (1997).

30
Consider for a moment Professor Craig Bradleys proposed no doubt jury
instruction:
Although you have convicted the defendant of capital murder beyond a
reasonable doubt, we recognize that some jurors may continue to entertain
lingering or residual doubts as to guilt. In order to ensure, as best we can,
that no innocent person is executed, the law requires that, before the
defendant is eligible for the death penalty, the original jury must
unanimously conclude that they have no lingering or residual doubts that
[defendant] was one of the participants in the robbery of [the store], and
that he was at least reckless as to the death of the victim.119
Although the instruction twice uses the phrase lingering or residual doubts, it is
nowhere defined for the jurors. So how are the jurors likely to interpret this phrase in the
absence of instruction? Some might take the view that true complete certainty has to be
reached, such that they never can be certain; such persons of course will never be able to
vote for the death penalty. Others might conclude that they have doubts, although those
doubts were not reasonable (otherwise, the defendant would not have been convicted in
the first place). But if the doubts lack reasons, shouldnt the jurors conclude that they are
morally certain, and therefore find the defendant eligible for the death penalty? What this
discussion means to highlight is that it is not clear that a no doubt instruction will have
any predictable effect in the absence of instruction. Thus, if no-definition jurisdictions
apply the same approach to the no doubt standard, it is quite possible that no change will
result.
Actually defining the new standard of proof for jurors, though, may not improve
comprehension. Studies have long suggested that jurors have difficulty understanding
many common instructions.120 For instance, one study showed that many jurors fail to
understand that under the presumption of innocence and the reasonable doubt standard,
the defendant does not have to present any evidence.121 Another study showed that most
jurors, after receiving a common pattern reasonable doubt instruction, wrongly believed
that the defendant should be acquitted if you can see any possibility, no matter how
slight, that the defendant is innocent.122 Yet another study showed less, but still

119

Bradley, supra note 3, at 30 (footnote omitted).

See Lieberman & Sales, supra note 118, at 597-99.
121
Strawn & Buchanan, supra note 116, at 481 (reporting that 50% of jurors understood that the defendant
did not have to present evidence).
122
Kramer & Koenig, supra note 116, at 414. The authors of this study note that the question asked
provides a (somewhat) quantified view of reasonable doubt, which may conflict with the jury instruction
itself. Id. at 415-16. I do not believe that the possible problem with the question is quantification. The
question actually asks a more qualitative question about whether there is any possibility of the defendant
being innocent. What is ambiguous is whether this inquiry is meant to be objective or subjective, at least in
the sense that commentators have used that distinction. See supra note 107. Put another way, the subjects
may have understood the question as asking whether they had to have a moral certainty in the defendants
guilt, rather than believing that there is some (impossible to achieve) true certainty in the defendants guilt.
If this is how they understood the question, then their answers were correct. Note, though, that if this is
correct, one might question how much difference any changes to the instruction will make: after all, almost
75% of jurors would already understand that they must have moral certainty before convicting.
120

31
significant comprehension errors in a pattern reasonable doubt instruction.123 Finally,
one study found that even after receiving a reasonable doubt instruction, 15.5% of
subjects either believed that the government merely had to show that the defendant was
more likely than not guilty or did not know if this was true.124 Furthermore, another 15%
were only pretty sure that this statement was false!125
The reason for this failure of comprehension will often be the result of jury
instructions that fail to convey any useful information to the juror. The problem of
confusing language seems particularly acute in connection with the reasonable doubt
standard. Courts have consistently refused to permit the articulation of the standard in
quantifiable terms, and have instead relied upon traditional, qualitative descriptions.
Thus, reasonable doubt (when explained at all) is described as a doubt which would
cause a reasonable person to hesitate to act in a matter of importance in his or her
personal life,126 or as that state of the case which, after the entire comparison and
consideration of all of the evidence, leave the minds of the jurors in that condition that
they cannot say they feel an abiding conviction of the truth of the charge,127 or as one
that a reasonable man or woman would have after a careful and honest review and
consideration of all of the evidence in the case. It must be found in reason.128 As
Professor Larry Laudan has recently and cogently noted, all of the definitions are either
tautologicaland therefore perhaps harmless though uninformative (e.g., defining
reasonable doubt as one for which a reason can be given)or seriously flawed because
they potentially trivialize the standard (hesitate to act) or they fail to emphasize the
need for rational, well-founded beliefs.129
We might then ask whether the proposed capital instructions would fare any
better. Consider the proposal for use of the firmly convinced standard. Proponents of
this instruction have asserted that it is easier for jurors to comprehend.130 But we might
wonder how true that really is. Consider the language of the model firmly convinced
standard set forth by the Federal Judicial Center:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
of the defendant's guilt. There are very few things in this world that we
know with absolute certainty, and in criminal cases the law does not
require proof that overcomes every possible doubt. If, based on your
consideration of the evidence, you are firmly convinced that the defendant
is guilty of the crime charged, you must find him guilty. If on the other
hand, you think there is a real possibility that he is not guilty, you must
give him the benefit of the doubt and find him not guilty.131
123

Severance & Loftus, supra note 116, at 180.

Saxton, supra note 116, at 98.
125
Id.
126
Lillquist, supra note 25, at 87 (quoting 1 LEONARD B. SAND ET AL., MODERN FEDERAL JURY
INSTRUCTIONS, Instr. 4-2, a p. 4-8 (2002)).
127
Id. at 126-27 n.133 (quoting 1 CALIFORNIA JURY INSTRUCTIONS: CRIMINAL instr. 2.90, at 117 (1996)).
128
Id. (quoting 1 HOWARD G. LEVENTHAL, CHARGES TO THE JURY & REQUESTS TO CHARGE IN A CRIMINAL
CASE: NEW YORK, 4:66, at 213 (1988 rev. ed.).
129
Laudan supra note 6, at 301-10.
130
See Solan, supra note 84, at 144-46.
131
FEDERAL JUDICIAL CTR., PATTERN CRIMINAL JURY INSTRUCTIONS No. 21, at 28 (1988).
124

32

The instruction is clear about what it does not require: it does not require absolute
certainty and it does not require that the juror have no doubts. But the instruction gives
no information about how many or what kind of doubts are permissible. Instead, it
simply says that the juror must be firmly convinced, an idea that is left undefined, and
that there must not be any real possibility that the defendant is not guilty. It is hard for
me, at least, to see how this clarifies things much in the minds of the jurors. After all, the
whole theme here is that there is always some possibility that the defendant is not guilty,
so when does that possibility become real? And the empirical evidence on the
effectiveness of this instruction turns out to be, at best, ambiguous.132
What about the no doubt instructions? Where those instructions attempt to
define certainty or the absence of doubt, they seem to suffer from the same problem. To
the extent that proponents define the idea at all, they seem to suggest that it means the
same as proof to an absolute certainty133 or that the jurors have no doubt whatsoever
as to the defendants guilt.134 So phrased, the instructions seem to suggest that the jurors
ought never find the defendant death-eligible, for the instruction asks for what the jurors
should know is impossible: complete certainty that the defendant is guilty.
Again, it is not likely that this is what the proponents intend, and I presume that
their reference to the jurors subjective state of certainty is meant to place a constraint on
doubts that ensure that some defendants will be death-eligible. In a very real sense, the
proponents are counting on jurors misunderstanding the instruction; otherwise jurors
should never convict. This hardly seems like a recipe for ensuring that jurors understand
what is meant by an instruction. Of course, it is always possible that jurors will
misunderstand the instruction in precisely the way we intend for them to do so, but it
seems much more likely that more jurors will either do exactly what the instruction tells
them to do (essentially, find no case meets the standard) or apply a misunderstanding that
we do not intend. Put simply, no doubt instructions seem to be even more likely to fail to
convey useful information to the jurors than other standard of proof jury instructions.
The final difficulty for making effective changes to jury instructions is that jurors
come to the courtroom with their own preconceptions about what the standard of proof in
a criminal case should be; they are by no means blank slates.135 At a bare minimum,
jurors have been exposed to the idea of reasonable doubt through accounts of criminal
trials in the news media, in books and in movies, among other places. Along the way,
jurors will have developed diverse ideas about how much certainty ought to be required
before convicting a defendant.
In addition, I have argued elsewhere that our own mental processes may lead us to
make certain assumptions about the standard of proof.136 Empirical evidence both about
human decision making in general and about mock jurors deciding upon a standard of
proof suggest that jurors tend to apply a framework that is roughly consistent with the
balance of harms approach I presented in Part II. That is to say, the evidence suggests
132

See Lillquist, supra note 25, at 191-93.

See Sand & Rose, supra note 3, at 1373.
134
See Sand & Rose, supra note 3, at 1373.
135
See Lieberman & Sales, supra note 118, at 618 (citing V.L. Smith, Prototypes in the courtroom: Lay
representations of legal concepts, 61 J. PERSONALITY & SOC. PSYCH. 857 (1991)).
136
See Lillquist, supra note 25, at 117-30.
133

33
that jurors tend to vary the standard of proof by looking at the harms that can result from
erroneous verdicts, as well as the benefits from accurate verdicts. If so, this means that
jurors, in the absence of some form of correction from the court and the lawyers, will
often tend to apply a standard that differs from reasonable doubt in many cases:
sometimes higher, but probably more often lower.
One need not accept this particular conclusion to recognize the possibility that
jurors have socially and, perhaps, internally imposed biases as to the proper standard of
proof. To the extent that the jury instructions on the standard of proof conflict with what
jurors believe ex ante, the instruction may simply be insufficient to displace those preexisting beliefs. Because jury instructions are typically given once, at the end of the trial,
often only in oral form, it seems almost inevitable that jury instructionseven if heard
and understoodwill do little to alter the pre-existing norms that jurors bring to their
task.
Given the difficulties I have discussed, it seems unlikely that the addition of a
new no doubt jury instruction in capital cases is likely to have much, if any, impact.
First, we have to assume that jurors both hear and understand the instruction and again,
these turn out to be pretty big assumptions. Second, jurors own preconceptions about no
doubt may also lead them away from applying a stricter standard in capital cases. At first
blush, this may seem counter-intuitive. After all, unlike reasonable doubt, jurors will not
have been exposed to a large amount of social learning about the meaning of no doubt;
the idea is relatively novel in American culture. Furthermore, to the extent that I have
suggested that jurors tend to follow a balance of the harms approach, such as that I
described above in Part II, it would seem natural to assume that jurors would be
predisposed to apply a higher standard of proof in capital cases.
The problem here is death penalty qualification of jurors. American criminal
procedure generally permits the prosecution to remove as a juror any person whose views
on the death penalty would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.137 This process of death
penalty qualification of jurors appears to have the effect of lowering the standard of proof
used by the jury to convict a defendant. This is because death-qualified jurors appear to
apply a lower standard of proof than do excludable jurors.138 As a result, the standard of
proof in capital cases is lower than it otherwise would be. In other words, to the extent
that it is true that jurors set their initial standard of proof through an internal heuristic that
resembles the balance of the harms approach, the applied standard of proof in such cases
will generally be below the socially optimal level because of death-qualification.
The net result is that jury instructions face an uphill battle to alter the
predispositions of jurors. Not only do the instructions have to be heard and understood
by jurors, but they have to overcome a bias in the selection of jurors for capital cases that
137

Lockhart v. McCree, 476 U.S. 162, 167 n.1 (1986).

William C. Thompson et al., Death Penalty Attitudes and Conviction Proneness: The Translation of
Attitudes into Verdicts, 8 LAW & HUM. BEHAV. 95, 106-09 (1984); see Claudia L. Cowan et al., The Effects
of Death Qualification on Jurors Predisposition to Convict and on the Quality of Deliberation, 8 LAW &
HUM. BEHAV. 53 67-69 & 75-76 (1984) (finding that death-qualified subjects were more likely to convict
in a mock trial than those subjects who were not death-qualified and that mixed juries were more likely to
be critical of all of the witnesses than death-qualified juries); see also Craig Haney et al., Modern Death
Qualification: New Data on Its Biasing Effects, 18 LAW & HUM. BEHAV. 619 (1994) (confirming that
death-qualified and excludable jurors remain distinct groups)).
138

34
skews the jury toward a lower standard of proof. The initiation of a no doubt instruction
does little to overcome the first problemhearing the instructionand there is not much
reason, based on the current proposals to believe that such an instruction will be any more
understandable.139 And while a no doubt instruction, to the extent that it is heard and
understood, might do something more than a reasonable doubt instruction to overcome
the preconceptions of the jurors, it seems unlikely to solve it.
C.

Other Possible Reforms to Increase Certainty in Death Penalty Cases

To this point in the Essay, I have made two core observations: there is a good case
to be made, at least upon some justifications of the standard of proof, for more certainty
in capital cases than in other criminal cases, but merely instructing jurors in a new
standard of proof is unlikely to create additional certainty. That then raises my final
question: are there alternatives? In this last section, I want to discuss two possibilities.
First, doing away with death penalty qualification in capital cases. Second, changing the
way in which jurors are instructed.
1.

Abolish Death Penalty Qualification of Jurors

The reform that would most directly raise the standard of proof in capital cases
would be to forbid death penalty qualification of jurors, at least at the guilt and no
doubt stages. Such a reform would result in a higher applied standard of proof in capital
cases and would not require trying to overcome jurors own predispositions. Instead, this
method of raising the level of certainty simply diversifies the jury pool to achieve much
the same effect that proponents of the higher standard of proof have been championing.
Of course, such a reform is unlikely to be initiated by the Supreme Court, which
has on a number of occasions held that defendants constitutional rights are not violated
by the death qualification of juries.140 But I think it is also quite unlikely that the Court
will find that there is a federal constitutional right to a no doubt instruction either, so this
difficulty is equally an indictment of calls for such a change.141 Instead, as the New York
and Massachusetts examples suggest, state legislatures or state courts are more likely
sources of changes to the death sentencing process.
There are nonetheless at least two reasons why legislatures or state courts might
be unwilling to remove the death qualification of jurors in capital cases. First, in the
absence of death penalty qualification, trial courts will be forced to select two juries in
139

One possibility is that the very novelty of the no doubt standard will make it more salient, and thus
perhaps more likely to be heard and/or understood by the jurors. I agree that some subset of jurors is likely
to pay more attention to a no doubt instruction simply because of its uniqueness. However, if these jurors
hear the instruction, they will then be faced with the problem of trying to apply it, which requires
comprehension. Because the idea turns out not to be what it appearsit is not a proposal to require true
absolute certaintythe jurors will be left with whatever explanation they receive from the court. The
proposals generated so far generate little confidence that such jurors will be able to either comprehend or
apply the standard.
140
See Wainwright v. Witt, 469 U.S. 412 (1985); Lockhart v. McCree, 476 U.S. 162 (1986); Morgan v.
Illinois, 504 U.S. 719 (1992).
141
This is particularly true given the Courts unwillingness to find a federal constitutional right to an
instruction that lingering or residual doubt is a mitigating factor at sentencing in capital cases. Franklin v.
Lynaugh, 487 U.S. 164 (1988)

35
capital cases: one for the guilt phase and one for the sentencing phase. After all, once the
case has moved forward to the death penalty phase, it does seem absurd to have on the
jury someone who will never vote to sentence the defendant to death, or at least is unable
to follow the trial judges instruction to consider the death penalty as an option.142 This
extra cost, in the face of so many other extra procedures in capital cases, may make such
a system unpalatable.
There are some reasons to be skeptical of the extra cost objection. In some capital
cases, the costs of jury selection will be lower. This is because in cases where the jury
does not ultimately convict on the capital charge, there will be no second jury impaneled,
and the court will never expend the cost of death qualifying jurors. Furthermore, if the
assumption is that jurors will convict less often in this regime, there will be another
savings: a lower conviction rate means that fewer cases will proceed to sentencing,
decreasing the costs of capital sentencing in general.
I do not deny, though, that there will be extra costs. Some juries will still convict
on capital charges, and these cases will necessitate the creation of the death penalty jury.
Creating this two-stage process will impose extra financial burdens on the state. There
will be the cost of selecting and death-qualifying the new jury. There will also be the
costs of retrying some parts of the cases, a set of costs that will be borne not just by the
litigants and the court, but also by witnesses. This is because presently, some evidence
that is relevant at both the guilt and sentencing phases can be entered at the guilt phase
and not the trial phase. On the whole, I am willing to concede that the increases in costs
will outweigh the cost savings from this new process. Still, the increase is not likely to
be as dire as we might predict, and the overall marginal increase in costs, given the
immense amount already spent on capital litigation, seems pretty minor.143
The second reason why legislatures and state courts might avoid eliminating death
qualification is more cynical: I suspect that many prosecutors and judges fear that in the
absence of such qualification, convictions on capital charges would be very, very
difficult, particularly if the same jurors did not control the sentence. The only way to

142

One simple solution that would solve the two jury problem would be to have the judge, not a jury,
decide whether or not to sentence the defendant to death. However, the Courts decision in Ring v.
Arizona, 536 U.S. 584 (2002), suggests that jury involvement in the capital sentencing decision is of
constitutional importance. Although the Court in Ring held only that a jury must find at least one of the
aggravating factors that make the defendant eligible for the death penalty, a state wishing to use a judge for
ultimate sentencing under my proposal here would face a three-step process: (1) guilt determination by
jury, (2) aggravating factor determination by jury, (3) sentencing determination by judge. In the wake of
Ring, states have generally preferred to collapse stages (2) and (3) into a single determination by the jury.
See Lillquist, supra note 7, at 704 n.365.
143
It has been estimated that the cost of a death penalty case is over $2 million. See Richard Dieter,
Millions Misspent: What Politicians Dont Say About the High Costs of the Death Penalty, available at:
http://www.deathoenaltyinfo.org/article.php?scid=45&did=385 (last visited July 6, 2004). Another study
found that the extra costs per case were lower, only $163,000 per case, but when considering cases in
which the death penalty is not imposed, costs rise to $216,000 per death sentence, and that the costs per
execution are in the millions of dollars. PHILIP F. COOK ET AL., THE COSTS OF PROCESSING MURDER CASES
IN NORTH CAROLINA at 77-78 (1993). Another study suggested extra costs on average in cases where the
death penalty is sought of $450,000 more. See STATE OF KANSAS LEGISLATIVE DIVISION OF POST AUDIT,
PERFORAMCNE AUDIT REPORT: COSTS INCURRED FOR DEATH PENALTY CASES: A K-GOAL AUDIT OF THE
DEPARTMENT OF CORRECTIONS 11 (2003). Even under such conservative estimates, it would still seem that
the extra costs from having a second jury would be relatively minimal.

36
ensure that some significant number of convicts are eligible for the death penalty is by
having a standard of proof that is lower than what we would otherwise have.
This problem, of course, is universal to any call for more certainty in death
penalty cases: all requirements of more certainty necessarily limit the application of the
death penalty. The death penalty today is a relatively rare, though very salient, form of
punishment, and calls for more certainty seem destined to make it both rarer and perhaps
less salient. Eliminating the execution of those truly not guilty is, on almost any account,
a good thing; the difficulty is ensuring that not too many defendants who ought to be
sentenced to death are the beneficiaries of a procedural change. In other words, what we
need is more accuracy in the process, such that we do a better job of sorting between
guilty and innocent defendants.
Simply increasing the standard of proof does nothing to increase overall accuracy:
it simply shifts around the amount and types of errors. Will eliminating deathqualification be any different? There is an argument that it might. Death-prone jurors
differ from other jurors not just in their views about the amount of certainty needed to
convict, but in other ways as well. For instance, a study by William C. Thompson and
his colleagues documented that death qualified jurors were likely to evaluate evidence in
a different way than death-excluded jurors. For instance, death-qualified jurors in the
study were more likely to find the governments witness truthful, to find the facts
suggested by the government to be more plausible, and particularly to draw proprosecution inferences from the facts.144 Of course, just because death qualified jurors
are more pro-prosecution in their evaluation of the evidence does not necessarily entail
that they are less accurate. It is possible that jurors as a whole are too anti-prosecution,
and therefore a biasing of the jury toward the prosecution in fact increases accuracy.
While this is possible, I am skeptical that jurors as a whole are likely to be initially
skewed toward the defendant. After all, judges do seem to spend much more time
attempting to debias jurors from pro-prosecution, but not pro-defendant views, through
such devices as announcing the presumption of innocence. If the average juror was
initially too pro-defendant, it is hard to imagine that such an instruction would be seen as
necessary.
Thus, we might conclude that a jury that is not death-qualified is not just less
likely to convict, but more likely to sort defendants accurately. In other words, although
fewer defendants may be eligible for the death penalty, perhaps a higher proportion of
them will deserve it, something we cannot predict will happen with simply raising the
standard of proof. Therefore, eliminating death qualification of jurors at the guilt stage
might not just lower the number of erroneous executions, but lead to a relative increase in
the number of accurate executions.
An alternative to eliminating death qualification of jurors would be to screen
death-inclined jurors more rigorously. Jurors do not have to just be death-qualified, they
also have to be life-qualified: that is, a juror is constitutionally ineligible to serve in a
capital case if she would always vote for a death sentenceif she is a burden shifter, a
person who requires the defendant to demonstrate why she deserves to live, or because
she is mitigation impaired, a person who is unwilling to consider one or more

144

Thompson et al., supra note 138, at 103-04 & tbl. 1.

37
mitigating factors that the Supreme Court has said jurors must be willing to consider.145
The result is that jurors in capital cases must be both death- and life-qualified, such that
we can refer to three groups, in descending order of their positive attitudes toward the
death penalty: life-excludable jurors, death-qualified jurors and death-excludable jurors.
Empirical evidence has suggested that the jury selection process does a relatively poor
job at eliminating life-excludable jurors from the final panel, at least relative to how well
it screens out the death-excludable jurors.146
If we accept the assumption that death-qualified jurors are likely to have a lower
standard of proof than death-excludable jurors, then it seems reasonable to assume
(although by no means proven) that jurors who are life-excludable (again, those who are
not life-qualified) might have an even lower standard of proof.147 Furthermore, if it also
true that death-qualified jurors tend to view the evidence more favorably toward the
government than excludable jurors, it seems very possible that jurors who are lifeexcludable are even more pro-prosecution than other death-qualified jurors. Accepting
again my assumption that this pro-prosecution bias leads to more inaccurate assessments
of the evidence at least in cases involving innocent defendants, we can conclude that the
presence of such jurors leads to the execution of more innocent defendants.148
John Blume, Sheri Lynn Johnson and Brian Threlkeld have suggested a variety of
steps to make the voir dire in capital cases more effective to eliminate life-excludable
jurors. These include the elimination of the general practice of initially asking jurors into
which of the three categories mentioned above (although in plainer language) they fall;
Blume et al. suggest that potential jurors are too quick to pick the middle category.149 In
addition, they suggest that individualized, rather than group questioning should be used to
elucidate the actual attitudes of jurors, and that judges during voir dire should begin the
process of educating the jury as to the nature of mitigation and the burdens that fall to
each party.150
Given the robust scholarly consensus that death-qualification of jurors lowers the
effective standard of proof in capital cases, elimination of death-qualification might go a
long way to increasing the amount of certainty that jurors require before they are willing
to sentence a defendant to death. I have suggested that while such a proposal would
145

John H. Blume et al., Probing Life Qualification Through Expanded Voir Dire, 29 HOFSTRA L. REV.
1209, 1211-12 (2000-01) (footnotes omitted).
146
Id. at 1212 & n.8.
147
There is a hidden assumption here about jury dynamics: that jurors affect the standard of proof of one
another. If we assume instead that each juror acts independently in setting her standard of proof and
applying it to the facts, the presence of life-excludable jurors might have no measurable effect. That is
because, under the assumption I have stated and given the need for jury unanimity, the defendant will be
convicted only if the juror with the highest standard of proof has her standard met. This standard is likely
to belong to a death-qualified juror, not a life-excludable juror, so the elimination of life-excludable jurors
would have no impact on the ultimate decision. If we do assume, though, that jurors can move one
anothers standards of proof, then the presence of life-excludable jurors could restrain any downward
pressure that such jurors would place on the standard of proof of other jurors.
148
It should be noted, however, that this is probably a second-best solution, given that the empirical
evidence suggests that jurors that are both life-qualified and death-qualified are significantly different than
excludable jurors in terms of their general beliefs and knowledge of the death penalty. Haney et al.,
supra note 138, at 628.
149
Blume et al., supra note 145, at 1248.
150
Blume et al., supra note 145, at 1248-49 & 1251.

38
entail some additional costs, it should nonetheless be adopted. Alternatively, steps
should be taken to eliminate the use of life-excludable jurors.
2.

Change the Means of Instructing Jurors in the Standard of Proof

Another approach to increasing the amount of certainty that jurors require in death
penalty cases might be to alter the way in which jurors learn about the standard of proof.
As I noted above, there are three core problems with jury instructions: jurors may not
hear them, they may not understand them, and they may not apply them. Changes in the
mode of presentation of the instructions may well overcome all of these problems. Thus,
rather than waiting to instruct jurors at the end of the trial, they should be instructed in the
standard at the beginning. Furthermore, jurors should be given written instructions to
take with them to the jury room. Finally, explicit quantification of the standard,
something that most commentators abhor, would, I think, actually lead jurors to
comprehend the standard they are being asked to apply, and lead, in practice, to a higher
applied standard.
The existing empirical evidence strongly suggests that the timing of jury
instructions strongly correlates with their effectiveness. The classic study by Professors
Saul Kassin and Lawrence Wrightsman demonstrated that jurors who were given a
reasonable doubt instruction prior to the introduction of evidence viewed the defendant as
less likely to have committed the crime and returned not guilty verdicts more often than
those jurors who had either been instructed after closing arguments or received no
instruction at all.151 Changing the timing of the instruction may have little effect on jury
comprehension, but it should affect both the first and third problems. It is easy to see that
jurors might be more likely to hear instructions they receive early in the case rather than
later. The setting is still (somewhat) new, they have received only a limited amount of
information from the court already, and their faculties should be less taxed.
More importantly, though, it seems quite likely that instructions given early in the
case are more likely to displace juror preconceptions about the standard of proof than
instructions given later. In explaining their data, Professors Kassin and Wrightsman
suggested that early instruction as to reasonable doubt shifted the jurors starting
assumptions about the defendants guilt: such jurors were more likely to presume the
defendant innocent than jurors who were instructed later or received no instruction.152
This suggests that jurors begin forming judgments about the defendants guilt quite early
in the process of the trial, and that unless a jurors preconceptions about the relevant
decision point are reset early in the trial, they will be close to impossible to change.153
A similar change that could both assist in lessening the first and third problems
would be giving jurors written copies of the jury instructions.154 Indeed, once handed a
151

Saul M. Kassin & Lawrence S. Wrightsman, On the Requirements of Proof: The Timing of Judicial
Instruction and Mock Juror Verdicts, 37 J. PERSONALITY & SOC. PSYCH. 1877 (1979).
152
Kassin & Wrightsman, supra note 151, at 1885.
153
See Paula L. Hannaford et al., The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical
Examination, 67 TENN. L. REV. 627 (2000) (finding that juror opinion formation is consistent with story
model); see also Janice C. Goldberg, Comment, Memory, Magic, and Myth: The Timing of Jury
Instructions, 59 OREGON L. REV. 451, 455-56 (1981).
154
For one argument in favor of this approach, see B. Michael Dann, Learning Lessons and Speaking
Rights: Creating Educated and Democratic Juries, 68 IND. L.J. 1229, 1259 (1993).

39
copy of the instructions, jurors would have multiple opportunities to hear the
instructions. The uncertain question is whether having a copy of the instructions would
make jurors more likely to follow them.155 The empirical evidence here is apparently
mixed,156 but it suggests at least the possibility that this might work.
A final and more radical proposal would be to change the reasonable doubt
instruction to make the concept quantifiable: for instance, to tell the jurors that reasonable
doubt means that they must be, say, 95% certain, for instance. Judges and academics
have regularly rejected such an approach.157 But the empirical evidence has long
suggested that such instructions would have a meaningful effect on raising the standard
of proof that jurors apply.158
The precise roots of the resistance to quantification are hard to unearth. The most
cogent argument against quantification is that it would undermine the legitimacy of the
standard of proof. As Professor Laudan has noted [any] specification of a degree of
belief necessary for a finding of guilt (say 95 percent confidence) involves an explicit
admission that wrongful convictions will occur and the judiciary has an entrenched
resistance to any explicit admission that the system has this inbuilt tolerance for wrongful
convictions.159 Thus, failing to quantify the standard of proof allows for what Professor
Tribe calls a subtle compromise between the knowledge that we cannot realistically
insist on acquittal wherever guilt is less than absolutely certain, and the realization that
the costs of spelling that out explicitly would be too high.160
Such legitimacy-based justification, though, seem upon reflection to be
unsatisfactory. First, as I noted in Part II, though, these sorts of justifications for the
standard of proof themselves provide either weak or no rationales for raising the standard
of proof in capital cases. If we are committed to raising the amount of certainty that
jurors have in the defendants guilt before they sentence him to death, then allowing these
sorts of justifications to block an effective mechanism would seem inconsistent. Second,
they may be based on what is now a false premise, for they depend upon the idea that we
can hide from the public the danger of wrongful convictions. But the clear message that
has been delivered over the past few years is just the opposite: mistakes do happen.
Given the increasing public awareness that the system does make and tolerate mistakes,
claims that quantification will undermine legitimacy seem hollow.
None of these proposals I have laid out in this section would be my first choice
for fixing the system. Most importantly, none of them seem to do anything to improve
accuracy: they all simply make it hard to achieve death sentences, but they do not do
anything to limit this effect on the innocent defendant. Nonetheless, they seem preferable
to merely altering the wording of the instructions. If the idea is to actually raise the
155

I am assuming here that having a written copy of the instructions is not likely to make the instructions
more comprehensible. See Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Jury Instructions, and
Comprehension Issues, 67 TENN. L. REV. 701, 737-38 (2000). Of course, it is possible that being able to
puzzle over the meaning of the definition given of reasonable doubt or no doubt will lead to an A ha
moment where the meanings suddenly become clear. Suffice it to say that I believe that this will happen
infrequently enough that it can be ignored.
156
For a review, see Lieberman & Sales, supra note 118, at 626-27.
157
See Laudan, supra note 6, at 310-13, Solan, supra note 84, at 126 & n.101.
158
Lieberman & Sales, supra note 118, at 633.
159
Laudan, supra note 6, at 311.
160
Tribe, supra note 41, at 1379.

40
amount of proof needed to convict a defendant of a capital crime, then we should take
steps that really will result in a higher standard of proof.

Conclusion
Calls for a higher standard of proof in capital cases have been growing, fueled in
part by dissatisfaction with the number of exonerations of individuals on death row. In
this Essay, I have sought to critique two assumptions made by proponents of a higher
standard. On the normative side, I have sought to demonstrate that such proposals are
hard to justify except on consequentialist grounds. Even then, the case for a higher
standard is not ineluctable, particularly when one considers the effects of such a change
on noncapital cases. This is particularly true if one believes that one of the consequences
that matters is legitimacy: a higher standard of proof may well result in undermining the
legitimacy function of the standard of proof in criminal cases. Despite these reservations,
under either of the two cosequentialist theories I discussed herethe balance of the
harms and the balance of the errorsthe case for more certainty in capital cases appears
to be strong.
But if consequences are what matters, then we have to ask whether the proposals
to date are likely to have the consequences we seek. Here, I am quite dubious that the
institution of a new standard of proof will have the desired effect. The problems are not
specific to the new standard; rather they are the same problems that affect all (criminal)
standards of proof in our system. The solutions, therefore, are the same: we need jury
instructions that are given in a manner that increases the likelihood that jurors will
actually follow them. What is needed is not so much a new instruction, but a better
means of conveying the existing instruction.
More broadly, I wish to suggest through this Essay that changes in criminal
procedure are rarely self-evident or easy to accomplish. Calls for a higher standard of
proof in capital cases have a sort of easy appeal: who would not want them? The
problem is that the easy appeal here masks hard questions about the purpose of the
standard of proof in the first place. Only by thinking closely about what the standard of
proof is supposed to accomplish can we evaluate whether such a change might make
sense. Furthermore, such calls ignore hard questions about what effect, if any, our
present practices have on achieving accuracy (or other goals). If jury instructions do little
to effect the accuracy of determinations presently, why should we think a change will
make any difference? Only by carefully considering such normative questions can we
properly evaluate calls for change.