On "Reasonable Doubt"

[H2O Man]

What is "reasonable doubt"? And how will Judge Reggie Walton help the jury in the Scooter Libby trial understand the difference between "reasonable" and "unreasonable" doubt? These are the questions that the news media and bloggers will be considering today. I thought it would be fun to take a brief look at these issues, by examining some information from one of the best attorneys of our time, Vincent Bugliosi.

In 1981, Bugliosi authored an article for a legal journal on the distinction between the terms "not guilty" and "innocent," as they are frequently – and incorrectly – considered synonymous. In his book "Outrage," Bugliosi notes that this article was, according to the Index to Legal Periodicals and the Criminal Justice Periodical Index, the first such article on this important topic. This article ("Not Guilty and Innocent – The Problem Children of Reasonable Doubt") shows the connection between the common errors in perception in our legal system.

Bugliosi notes that sources ranging from legal text books to the US Supreme Court frequently err by stating that, "You are here to determine the guilt or innocence of the accused." (No. 11.06 of Federal Criminal Jury Instructions, by DeWitt & Blackmar). In fact, a trial is not about guilt vs innocence. Rather, it is about if the prosecution has proven the defendant is guilty, beyond a reasonable doubt.

If a juror believes the defendant is probably guilty, but that the prosecution did not prove that beyond a reasonable doubt, it is his or her duty to conclude the accused is "not guilty." It doesn’t mean they believe the defendant is innocent. Just that the prosecution did not prove it to the level of "beyond reasonable doubt." Hence, it is extremely important that the jurors understand what reasonable doubt is.

In the book "Outrage," Vince Bugliosi points out that in the OJ Simpson trial, members of both the prosecution and defense teams incorrectly told the jury that "reasonable doubt" was defined as "doubt based upon reason." (Only Chris Darden pointed out that this was not accurate.) This incorrect definition favors the defense in criminal cases, because by nature, people assume that they are "reasonable," and that this implies that any "possible" doubt is therefore "reasonable."

Bugliosi writes that, "In fact, the jury instruction obliquely alludes to this when it says that reasonable doubt ‘is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt’." Some attorneys, including Marcia Clark in the Simpson case, use extreme examples such as "I have a possible doubt that the sun will come up tomorrow. Do I have a reasonable doubt about it? No." By saying this, Clark helped the jurors incorrectly think any doubt that wasn’t comically far-fetched was reasonable.

Bugliosi states that the most confusing word in the phrase "beyond a reasonable doubt" is "beyond." This is because it implies "further" or "more than." He began to substitute the secondary definition of "to the exclusion of," rather than using "beyond."

On page 261-2, he writes, "In my cases thereafter, after explaining to the jury the true sense in which the word ‘beyond’ is used, I would say to the jury, ‘The prosecution, then, has the burden of proving the guilt of this defendant to the exclusion of all reasonable doubt. …. A sound, sensible, logical doubt based on the evidence in the case. …We have eliminated the word ‘beyond’ and we still have a very accurate definition and statement of the doctrine of reasonable doubt’."

In the epilogue, Bugliosi also addresses the concept of "unreasonable doubt," which is those things that defense attorneys are forced to rely upon to try to confuse a jury when they are defending an obviously guilty client. (pages 364-366) In such cases, defense attorneys who have previously earned reputations as highly talented – even to the point of being called members of a "Dream Team" – can come off as looking ordinary at best. I can think of no better example that Team Libby.

[Beetwasher]

1. Would A Reasonable Person Believer Libby Is Telling The Truth?

If the answer is "No", then the Gov't has done it's job. That's my pithy explanation.

Great post!

[cgrindley]

5. Would a reasonable person know which lie was the first lie?

Or would a reasonable person be so confused as to be unable to decide who was lying most to which other liars?

[Beetwasher]

12. Doesn't Matter

If you think he lied, he's guilty. Doesn't matter what came first.

[Jack Rabbit]

38. Reading H2Oman's piece (and having served on juries myslef)

. . . it's more correct to say that if you think the prosecution proved its case, then Libby is guilty.

If the Vice President of the United States told me that Wilson's wife works at the CIA and that is to be used to suggest nepopotism or something improper about his work in Niger, then I would remember it. Any reasonable person would.

Libby fries.

[spanone]

2. Thanks for the clarification...K & R

[cgrindley]

3. There's also Jury Nulification

The jury could decide that a guilty verdict for Libby is not in the country's best interests as it will significantly damage the VP, and they could feel that a country which is at "war" (however fake and phoney the war seems to us notwithstanding) that they'll acquit Libby rather than plunge the nation into political chaos.

Even if their logic came out and resulted in an appeal or a mis-trial, no one would bother re-trying it. Sure it would suck, but I could totally see it happening.

[Beetwasher]

Not Gonna Happen

The jury will be hung before that happens. Not in a million years will there be jury nullification.

[cgrindley]

14. Call it what you like

If it hangs, it'll hang for that reason. Someone not wanting to cause political chaos.

[Beetwasher]

16. Umm, A Hung Jury Is NOT Jury Nullification

There's a difference. How do YOU know why it will hang? You have no clue what's going to happen and why it's going to happen. If it hangs it's more likely it will hang because one or two jurors didn't think the Gov't proved Libby lied beyond a reasonable doubt.

How the hell would convicting Libby cause political chaos? The defense didn't even make that argument so how would the jury conclude that? Did you pay attention to the case? Seriously, it seems like you're just making shit up out of thin air. Jury nullification would happen if the WHOLE jury decides that because OTHER people weren't indicted and/or convicted of crimes relating to this case, it's not "fair" that Libby be tried and convicted. It has NOTHING whatsoever to do w/ "political chaos".

[cgrindley]

19. Call it what you want, means "call it what you want"

D'uh jury nulification isn't a hung jury. D'uh. Jesus.

So you're saying that a Libby conviction won't impact day to day Washington politics or Cheney or Bush at all? Is that what you're saying?

Jury nulification means that the jury disregards the law and acquits. They can decide to do that for whatever collective reason they feel like doing it for.

[Mandate My Ass]

21. That's completely opposite of what you said in the post before it

And if a conviction impacts the day-to-day Washington politics of outing covert WMD agents and their networks for purely political gain, any reasonable person would conclude that impeding that would be a good thing.

[cgrindley]

28. Again, d'uh

I agree with you. But I'm not convinced that the jury won't see it in exactly the opposite sense.

[Beetwasher]

23. Do You Have Comprehension Issues?

If a "hung jury" is different than "Jury nullification", then you can't just "call it what you want"

Duh. Terms have specific meanings. Duh. That has to be the lamest backpeddle I've ever seen. Are you talking about a "hung jury" or "jury nullification"? It's still not clear, that's YOUR problem, not mine.

"So you're saying that a Libby conviction won't impact day to day Washington politics or Cheney or Bush at all? Is that what you're saying?"

No Einstein, I'm saying that it's highly unlikely, practically impossible that "If it hangs, it'll hang for that reason. Someone not wanting to cause political chaos." Or be nullified for that reason.

"Jury nulification means that the jury disregards the law and acquits. They can decide to do that for whatever collective reason they feel like doing it for."

Uh, yeah jeenyus, so what makes you so sure that the reason will be "Someone not wanting to cause political chaos." That would probably be the absolute LAST and most ridiculous reason they would nullify. Only someone who hasn't paid attention to this case would come up w/ that. There has been absolutely not a single shread of evidence whatsoever that would lead the jury to even come near reaching that conclusion.

[cgrindley]

29. Jesus

If the trial is going to end in disorder, it's going to end in disorder whether it's through jury nullification or a hung jury or a mistrial. It doesn't matter. If it ends in disorder, it ends in disorder. There's no backpeddle involved.

I hope the jury convicts the bastard.

I wouldn't bet on it.

[Beetwasher]

36. LOL!!! No Backpeddle??? Now It's "Disorder"

From Jury Nullification, to Hung Jury to "disorder". No, no backpeddle there :rofl:

[Mandate My Ass]

4. Bugliosi is a great writer. He admits "Outrage"

was Monday morning quarterbacking but he was right on about many of the things he said about the O.J. Simpson trial that could have... gone better. OTOH, Fitz's case was very strong and the defense left a lot to be desired. "Give me Scooter back." Phhffft.

Thanks for the post, H2O Man. My optimism is back after the disappointment of Friday.


K & R.

[Catherine Vincent]

6. K&R!

Thanks H2O Man! :hi:

[Beausoir]

7. Fitz is asking the judge to address the "humanly possible" phrase.

He really zeroed in on that.

[H2O Man]

10. I thought that

Mr. Fitzgerald might mention a California case from 1975 that Bugliosi mentions (People v Garci, 54 CA 3d 61), which has since been used elsewhere to clarify what "reasonable doubt" is, and isn't.

[Me.]

8. Walton Is Being Very Careful This Morning

Yet Fitzgerald's arguments are persuasive, so we will see what we will see.

[bryant69]

9. That's part of the adversarial system of justice I suppose

It is an interesting question - what is a reasonable doubt - or even a sensible, sound doubt. I mean don't most people who think of themselves as reasonable also think of themselves as sensible and sound? Or what should the juries default position be? Should they be assuming Liddy is guilty unless proven innocent or innocent unless proven guilty.

Tough questions - worth thinking about anyway - thanks for posting this.

Bryant
Check it out --> http://politicalcomment.blogspot.com

[EST]

11. As usual, your clarity goes directly to the heart of the matter.

As an interesting aside, some weeks ago, I posted an argument in the same vein and was roundly attacked for spreading misinformation about there being a load of difference between "not guilty" and "innocent."

Also interesting was the fact that most of those who made it their business to point out the flaws in my reasoning claimed to be lawyers and therefore possessed of a higher authority...or perhaps, revealed truth.

[H2O Man]

13. I've noted that

conservative republicans tend to confuse "not guilty" with "innocent" when it comes to one of their own species, but will note that when a non-republican is found "not guilty" that "it doesn't prove they were innocent."

Other curious features of their type is that while they savage non-republicans who have convictions overturned by higher courts, they are certainly hoping that Scooter will have grounds for an appeal. Likewise, while they are self-righteous about the need to deny others' their Constitutional rights, they squeal about poor Scooter being bullied by the brutal Patrick Fitzgerald.

At times, this type of confusion is found on the internet, even on progressive sites like DU.

[myrna minx]

15. It is a remarkable double standard in which they indulge themselves.

Thanks for the post.

[warrior1]

17. H2O man

What's your gut feeling with the verdict?

[Beausoir]

20. Yes. Inquiring minds (anxious ones at that) want to know.

[H2O Man]

22. Guilty.

I think that Mr. Fitzgerald provided enough evidence to convict Scooter on every count. I expect that the jury will return "guilty" verdicts. However, I will not be surprised by anything.

[warrior1]

25. That's what I am hoping.

I think once the judge clears up the RD issue, will have a quick verdict.

[mmonk]

53. Hope you're right.

It takes only one with a penchant for the rightwing to seek an out on the "reasonable doubt" exit.

[EST]

31. In the interest of fairness, although I'm not at all sure why it is

that I should be fair, this sort of thinking runs through most of us, ie-if Scooter gets off I know damn well I, personally, will have difficulty agreeing that he had a fair trial and an honest and fair judgment.

I agree that the folks who tend to congregate under the republican or conservative banner have a more massive dose of protectiveness at all costs than do those of a more progressive mien.

I am not even sure a jury "of his peers" could be assembled, given that there are few who could claim an equivalent experience to Scooter's accomplishments, intelligence and arrogance.

Having talked to quite a number of humans who claim neutrality or fence sitting, with no grinding axe, I am clear they would most definitely not be those I would choose to include. Putting away that axe must be enormously difficult, however.

I have never been chosen to actually sit on a jury since, in the interest of honesty, there was no case presented me wherein I could promise to put aside my fundamental disagreement with the conditions imposed. They finally got disgusted and sent me home. Even "simple" drug cases aroused all the reasons for jury nullification.

The fundamental battle were engaged in is the very epitome of asymmetry. I do not consider "independent" in the current environment to be other than ignorance, stealth, laziness, psychological inability to make important choices or just plain old bullshit.

[ewagner]

18. After a couple more posts from H2Oman...

I'll be ready to sit for the bar exam....

:hi:

thank you sir...great post...

[BlooInBloo]

24. What a judge says it is.

EDIT: Removed the "duh" due to a better understanding of the context in which the question was asked.

[Beetwasher]

26. "I Forgot Murder Was Illegal"

"Libby's attorneys said if something is humanly possible it is reasonable."

By that reasoning, it would be reasonable for a jury to believe me if I said "I forgot murder was illegal". After all, it IS humanly possible for that to happen. Of course, we all know that it is NOT reasonable for a jury to believe that statement, even though it is humanly possible for it to be true. There are all sorts of things that are within the realm of human possibility that are extremely unlikely and/or unreasonable to believe to be true.

This is the crux of "reasonable doubt" in this case, IMO. And I know that Libby's lawyers are just doing their job, but that assertion, that "if something is humanly possible it is reasonable." can be used to excuse just about anything, and it's frankly an outrageous, and intellectually insulting argument.

[H2O Man]

27. I expected more

from Team Libby. I thought that after having the memory "expert" exposed as a charlatan, they would either use Rove or Cheney as their major distraction. With Rove, it could have provided something like a Mark Fuhrman target for blame. Surely the opening statement of Teddy Wells hinted at this option.

I think that Team Libby's not calling Karl can be viewed as their hoping to keep the door open for a presidential pardon, by not making it as much of a conflict between the Office of the President versus the Office of the Vice President as it could have become. More importanly, however, is the fact that the more they pointed at Rove, the more they would open the door to Mr. Fitzgerald introducing evidence that has yet to be made public.

Calling Cheney would have allowed for more of the so-called "memory defense" to be entered, but as others have accurately noted, it would have allowed Mr. Fitzgerald to expose the extent that Cheney and Libby conspired to damage Joseph Wilson and Valerie Plame.

[robertpaulsen]

40. I did too.

You accurately point out how the opening statements of the defense were filled with promises they were unable to keep. No Rove. No Cheney. Either Libby had such a poor memory he was too incompetent to be a Chief of Staff to a janitor, let alone a VP of anything, or he is a liar. Is it "reasonable" to assume such forgetfulness, despite the nine witnesses the prosection produced? Hopefully, the jury has received enough clarification to proceed in a sensible direction.

[EST]

32. You bring up an interesting point.

Given that, as conscripted military has shown, it is possible to convince a majority that killing other humans is both reasonable and encouraged. Ten weeks basic and a live battle or two is usually enough.

I'm surprised more criminal lawyers haven't created a murder defense around this concept; or perhaps they have and it was shot down long ago, when I wasn't looking.

In a moment of sufficient passion, both the illegality and consequences of murder can be either forgotten or so reduced in importance as to be rendered void.

[merh]

30. I love this suggested explanation.

dancingme (816 posts)
Mon Mar-05-07 10:43 AM
Response to Original message

5. It is humanly possible for Sean Hannity to be elected president
of the United States. But NOT reasonable.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x341257

I wish I had written this post. :)

:thumbsup:

[H2O Man]

33. Wow.

I wish I had written it.

Hello, my good friend Merh! I hope all is well with you.

[merh]

34. Hello beloved friend.

Things are about the same at this end of the world, still plugging along and trying to get back to where I was before. Thanks for sharing the hope.

I hope you and yours are well and I thank you for all of your Plame/Libby threads. So glad you are here to help others understand. :hug:

The better use of that explanation would be "It's humanly possible that Arnald be elected president, it is not reasonable."

[Senator]

35. Jurors are Not Book Characters

Not even law book characters. They're just people. And people always have their own notions and motivations. Usually well-meaning, but flawed.

They are obviously currently "hung." Likely there is one or more "Fox viewers" sitting there being "taught" by the non-fascists. This process is almost certainly futile. The same is true for any "redefining" the judge does.

There are 4 possibilities.

The jury is being "professionally" hung -- with money or promises -- and will remain that way.

The jury is being "honestly" hung -- there is a decent chance the holdout(s) will decide at some point to just convict and go home.

There is a small chance that the non-fascists will decide at some point to just acquit and go home.

Finally, the holdout(s) may be accused of "failure to deliberate" and be replaced. (Mistrial for number of jurors could come into plsy.)

I don't know who can/must make such a charge. H20 Man?

--

[H2O Man]

37. I do not

agree that they are obviously currently hung. It appears to me that in determining one count, there are two questions. I think that the amount of discussion/debate between the prosecutor, defense, and judge indicates that both questions are serious ones. Until these two questions are answered in a manner that meets the needs of the jurors, I do not think it would be possible to be at a point where the jury could be considered hung.

[Senator]

41. It could be just the one count

But the nature of the question seems to indicate that some juror(s) is/are willing to accept Libby's story no matter how ridiculous it might seem to a reasonable person.

Remember there a lots of people, particularly inside the beltway, that believe that they found Saddam's WMD and that he personally drove the 9/11 hijackers to the airport.

Willful self-delusion knows virtually no bounds.

--

[JanusAscending]

56. Hi H20 Man !

Do you think it's possible that these jury members are just having a good time together and are dragging it out, or "milking it"??? There seems to be a lot of camaraderie here. One other question...If there is a hung jury, or a not guilty verdict, will the Plame's lawsuit be affected? I just hope we get a verdict this week! I'm with you tho' and praying for a guilty verdict. Then maybe we'll get "the rest of the story" out there!!!:yourock:

[Me.]

39. Reasonable Doubt As Per Walton

“The instruction on reasonable doubt is the most detailed language I can provide you on what constitutes reasonable doubt. I request you re-read the reasonable doubt instruction and consider all of it in your evaluation of what amounts to reasonable doubt and what the government's burden of proof is in proving guilty beyond a reasonable doubt.

As to the second part of your question which reads "Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilty beyond a reasonable doubt," I do not fully understand what you mean by "humanly possible." If you can rephrase the question considering the language I gave you in the reasonable doubt instruction, I will assess whether I can provide further guidance to you.”

This is what Walton had originally given the jury

“Reasonable doubt … is doubt based on reason. … Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based on reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty.”

http://www.firedoglake.com/

[Patsy Stone]

42. I think this is the crux of the issue -- as you've pointed out:

<snip>

This incorrect definition favors the defense in criminal cases, because by nature, people assume that they are "reasonable," and that this implies that any "possible" doubt is therefore "reasonable."

<snip>

This is a case of semantics, and the gravity of their decision weighing on their conscience. My .02.

Also, I don't think the jury is hung. If they were, they would have told the judge since they're apparently not shy about writing notes.

Thanks as always for posting!

[Annces]

43. Looks like jury is still haggling to come to an agreement

Hope tomorrow is the day.

[H2O Man]

44. Yes.

I hope so.

[cassiepriam]

45. What is the real reason the jury is dragging its heels? nt

[H2O Man]

46. I don't think

that they are. But I do think that it is possible -- even likely -- that the jurors are aware that "guilty" verdicts can result in a person spending significant time in prison. And if we add to that the awareness that they are deciding a politically significant case, I think that explains why they are moving slowly. (Of course, at my age the distinction between "moving slowly" and "dragging its heels" may seem greater than to others.)

[bobbolink]

49. m o v i n g s l o w l y

I see what you mean...

:rofl:

[cassiepriam]

51. Fitz did a slam dunk. Jury should have taken a couple of hours.

But your explanation makes sense. They want to be careful.

[Beausoir]

55. I don't think they are dragging their heels.

From everything I have been able to read, they are being very deliberate.

I believe, from the jury note they sent this afternoon, they have already concluded that Libby lied to the Grand Jury. Now, they are trying to tie those lies into the remaining counts.

I believe the writing is clearly on the wall. Libby lied. The jury KNOWS he lied. They are just cleaning up the bits and bobs and they will convict. At least on one count. Probably more than one.

[coeur_de_lion]

47. Thanks H2O Man

I read the article on MSM and I was bored and confused . . . I knew there was only one thing to do.

Return to DU and see what my good friend the Waterman had to say.

Here is my prayer for a reasonable jury to decide an unreasonable case.

O8)

[H2O Man]

48. Hello!

Nice to see you here.

The corporate media? Well, I suppose on a thread that quotes from Vincent Bugliosi, I'll quote Vince Bugliosi: "The real mystery is how people with IQs no higher than room temperature can write for major publications." (Outrage; page 2)

[kohodog]

50. Great to see some of the old Plamers here

Been pretty busy lately, but never to busy to keep up with H20's threads.
Thanks as always for your insight.

[H2O Man]

52. Hello!

Good to see you here, too. It should be fun here after the jury returns its verdict.

[bobbolink]

54. Just so long as there's no hari kari. ^_^

I think there are not a few of us who have been burned so many times we're afraid of having our hopes up too much.

:toast: To Fitz!

:toast: To H2O Man!

[coeur_de_lion]

58. Now I'm starting to wonder . . .

Koho just called us "Old Plamers." Gawd, we've been at it since what, 2003?

What happens to Plamers when the are too old to type? Will we have the technology by then to blog via telepathy?

We'll be cursing the Scooters and the KKKarls and the Cheneys, all without moving a muscle. I'll be able to say arbusto chupa in all languages without uttering or typing a word.

What would Vincent Bugliosi have to say about that?

Plamers' Utopia

:pals:

Arby

[speedoo]

57. Thanks H2OMan. Looking for "Guilty" tomorrow or Wednesday.

I believe the jury is mopping things up, having dealt with a holdout on the reasonable doubt question. Could be guilty on all counts.

I have some bubbly on ice. A few bottles, actually, in case Fitz has some more indictment news following the verdict. What are you planning to do?

[coeur_de_lion]

59. You'll have started a new thread by now, but

'Scooter' Libby Found Guilty In CIA Leak Case

http://wjz.com/local/local_story_065232001.html

(CBS News) WASHINGTON Former White House aide I. Lewis "Scooter" Libby was convicted Tuesday of obstruction, perjury and lying to the FBI in an investigation into the leak of a CIA operative's identity.

Libby, the former chief of staff to Vice President Dick Cheney, was accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity to reporters. He was acquitted of one count of lying to the FBI.

Libby had little reaction to the verdict. He stood expressionless as the jury left the room. His lawyer, Theodore Wells, said they were "very disappointed" with the verdict. Special prosecutor Patrick Fitzgerald said he was gratified by the verdict.

"The results are actually sad," he added. "It's sad that we had a situation where a high level official person who worked in the office of the vice president obstructed justice and lied under oath. We wish that it had not happened, but it did." CBS News legal analyst Andrew Cohen said Libby's conviction was "predictable."

H, maybe you'll point me to the celebration or news thread? I'm sure there must be one.