Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
Therefrom, in his seminal text The Origins of Reasonable Doubt: Theological
Roots of the Criminal Trial, contemporary Professor James Q. Whitman
argues that, although the reasonable doubt standard emerged in the
course of the seventeenth and eighteenth centuries (as others conclude),
its origins can be traced to the Middle Ages, where it was originally
conceived not for the protection of the accused, but rather to protect the
“souls of the jurors”: “The reasonable doubt rule … is the last vestige of a
vanished premodern Christian world. At its origins, this familiar rule was
not intended to perform the function we ask it to promote today: It was not
primarily intended to protect the accused. Instead, it had a significantly
different purpose. Strange as it may sound, the reasonable doubt formula
was originally concerned with protecting the souls of the jurors against
damnation”.19
Other contemporary scholars, represented by Anthony A. Morano and
Barbara J. Shapiro, share Whitman’s observations that early Christian
theologians viewed any bloodshed as a pollution of the soul requiring
purification.20 However, they don’t share Whitman’s theological
interpretation that reasonable doubt emerged in Middle Ages but see
reasonable doubt as “a concept born of the secular Enlightenment and
humanist philosophy of the XVIII century.” This is because, according to
them, the ordal provided a transcendental truth which is indisputable by
definition, so the case could hardly be considered doubtful.21
To protect judges, it has been also thought that it is the law that sheds the
convicted criminal’s blood, not the judge. According to an early Christian
theologian Saint Jerome (347 – 420): “To punish murderers, and those who
commit sacrilege and poisoners, is not to shed blood. It is the ministry of
the laws.”22
Latin philosopher and theologian, Saint Augustine of Hippo (354 – 430),
similarly noted: “[W]hen a man is killed justly, it is the law that kills him,
not you.” By placing the onus of taking the life or mutilating the body of a
convicted criminal on the law, judges were mere conduits “[contributing]
their efforts to killing criminals, without themselves suffering the loss of
eternal life as ‘murderers.’”23
Centuries later Popes Clement III (1187 – 1191) and Innocent III (1198 – 1216)
exhorted clergy to avoid the stain of bloodshed by following the safer path:
James Q. Whitman, The Origins of “Reasonable Doubt” 2-3 (Yale University Press 2008) (hereinafter
“Whitman”) p. 3.
Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the
Anglo-American Law of Evidence 4 (University of California Press 1991) (hereinafter “Shapiro,
Doubt”); Anthony Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B. U.
L. Rev. 507 (1975) (hereinafter “Morano”), p. 51.
21
Miller W. Shealy Jr., A Reasonable Doubt About “Reasonable Doubt”, 65 Okla. L. Rev. 225, 229 (20122013) (hereinafter “Shealy”).
22
Whitman, p. 39, note 36, citing Commentaria In Hieremiam IV, 35. In S. Hieronymi Opera, pt.
I, 3, Corpus Christianorum Series Latina, vol. 74 (Turnholt: Brepols 1960), 201: “Homicidas enim et
sacrilegos en venenarios punier, non est effusion sanguinis, se legume ministerium.”.
23
Whitman, p. 40.
19
20
20
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