Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
It was the judges’ duty:
[I]n charging the jury, to remind them, that as they are intrusted
with the administration of public justice on the one hand, and
with the life, the honour and the property of the prisoner on the
other, their duty calls on them, before they pronounce a verdict of
condemnation, to ask themselves whether they are satisfied, beyond
the probability of doubt, that he is guilty....237
Another influential treatise, Practical Treatise on the Law of Evidence by
Thomas Starkie noted:
Evidence which satisfies the minds of the jury of the truth of
the fact in dispute, to the entire exclusion of every reasonable
doubt, constitutes full proof of the fact; absolute mathematical or
metaphysical certainty is not essential...238
Starkie further explained that:
To acquit upon light, trivial and fanciful suppositions and remote
conjectures is a virtual violation of the juror’s oath... On the other
hand, a juror ought not to condemn unless the evidence exclude
from his mind all reasonable doubt as to the guilt of the accused,
and … unless he be so convinced by the evidence that he would
venture to act upon that conviction in matters of the highest
concern and importance to his own interest.239
In Simon Greenleaf’s Treatise on the Law of Evidence, the amount of proof
required in a criminal case is described as “that amount of proof, which
ordinarily satisfies an unprejudiced mind beyond reasonable doubt.”240
Finally, there is American preeminent and highly influential expert on
the law of evidence, Dean John Wigmore’s famous Treatise on Evidence,
stating that:
In criminal cases, a rule has grown up that the persuasion must
be beyond a reasonable doubt. This precise distinction seems to
have had its origin no earlier than the end of the 1700s and to have
been applied at first only in capital cases, and by no means is a
fixed phrase but in various tentative forms. “A clear impression,”
“upon clear grounds,” “satisfied,” are the earlier phrases; and then
“rational doubt,” “rational and well-grounded doubt,” “beyond the
probability of doubt,” and “reasonable doubt” come into use.241
Macnally, p. 3 (emphasis added).
Thomas Starkie, Practical Treatise on the Law of Evidence 724 (T & J. W. Johnson & Co. 1860)
(hereinafter “Starkie”) available at https://archive.org/details/cu31924020112888 (last accessed 14
April 2016) (emphasis added).
239
Starkie, p. 761.
240
Simon Greenleaf, a Treatise on the Law of Evidence, Vol. 1, § 2, at 4 (Little, Brown & Co., 13th ed.,
1876) available at https://archive.org/details/cu31924020130112 (last accessed 14 April 2016) (emphasis
added).
241
John Wigmore, A Treatise on the System of Evidence in trials at Common Law, § 2497 (Toronto:
Canada Law Book 1905) (hereinafter “Wigmore’) (italics in original) available at https://archive.org/
details/cihm_73414 (last accessed 14 April 2016).
237
238
48
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