Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
doubt, you will acquit him.”215 Moreover, when the verdict was read out,
it stated that the accused “ha[d] been convicted, upon evidence which
excludes all possibility of doubt….”216
These cases illustrate that it is difficult to discern any consistently applied
or defined standard of proof. Not all of The Old Bailey Sessions Papers
contain the full verbatim transcripts.217 Different judges seemed to
formulate the degree of proof differently. Although judges used reasonable
doubt language in the jury instructions, the various formulations are used
inconsistently. The reasonable doubt standard of proof does not appear
to have crystallized as a standard by the late eighteenth century.
Reasonable Doubt in Treatises
In the Anglo-Saxon world, the reasonable doubt language appeared not
only in jury instructions but also in treatises. In the eighteenth century,
legal treatises were so influential that they “had replaced justice of the
peace manuals as authoritative texts.”218 The eighteenth and nineteenth
centuries’ common law treatises on evidence built upon the foundations
of the Age of Reason philosophers.219
For instance, one of the first treatises on evidence, The Law of Evidence220
(first published in 1754) by Sir Geoffrey Gilbert (1674 – 1726) was influenced
by Locke’s ideas of degrees of probability.221 Sir Gilbert also refers to
Wilkins’ levels of certainty.222 According to Sir Gilbert, assessment of
probability required careful consideration of the witness’s credibility. If
the witness was credible, there was no reason to doubt his statements.223
He explains that verdicts do not possess absolute certainty, but trials
based upon credible witnesses proceed to verdicts that the jury has no
reason to doubt.224
Shapiro argues that Gilbert’s use of Locke’s formulation, as well as the
language used in the trials of the eighteenth century, suggests that the
“beyond reasonable doubt rule was first applied only to direct testimony
and was not initially applied to circumstantial evidence.”225
Trial of Joseph Rickards, The Proceedings of the Old Bailey, Ref: T17860222-1 (emphasis added).
Trial of Joseph Rickards, The Proceedings of the Old Bailey, Ref: T17860222-1 (emphasis added).
217
See Langbein, Adversary Criminal Trial, p. 264-65, discussing the inconsistencies in the jury
instructions of this period.
218
Shapiro, Doubt, p. 140.
219
Shapiro, Doubt, p. 26.
220
Geoffrey Gilbert, The Law of Evidence (Joseph Crukshank, 1805) (hereinafter “Gilbert”). His treatise
was composed before 1726, the year of his death. Editions appeared in 1756, 1760, 1761, 1764, 1769, 1777,
1788, 1790, 1791-1794, 1795-1797, 1801. Volume 2 of the 1791 edition is available at https://archive.org/
details/lawevidence00gilgoog (last accessed 14 April 2016).
221
Gilbert, p. 1-2.
222
Gilbert, p. 1-3.
223
Gilbert, p. 1-4.
224
Gilbert, p. 2-4.
225
Shapiro, Doubt, p. 26.
215
216
46
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