Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt Under this test, “jurors were to convict the accused only if they were satisfied in their consciences that he was guilty.”139 Morano suggests that this test implied that “unless [jurors] were morally certain of the correctness of a guilty verdict, they would violate their oath if they failed to acquit.”140 He concludes that the satisfied conscience standard of the XVII century reaffirmed the any doubt standard that appeared in Britton in the thirteenth century.141 Morano explains that Sir Edward Coke’s142 writings support the argument that the any doubt standard applied. Specifically, he refers to Coke’s statement “that the defendant was adequately protected because the prosecution’s evidence had to be so persuasive that there could be no defence against it.”143 Morano interprets this statement as a demonstration of the standard of persuasion approximating absolute certainty.144 He observes that, although the jury charges of the eighteenth century lacked uniformity, the most frequently used standard required the jury to acquit upon the existence of any doubt. For instance, in Maha Rajah Nundocomar’s Case, jurors were instructed to acquit “unless your consciences are fully satisfied beyond all doubt of his guilt.”145 Interestingly, this standard of proof remarkably approximates the essence of the civil law concept of intimate conviction.146 However, Langbein is uncertain that the standard of proof before the eighteenth century can be gleaned from the Old Bailey cases of the 1680s and 1720s.147 He disagrees with Morano’s interpretation that the early degree of proof was determined by the any doubt standard and approximated absolute certainty.148 Namely, Langbein observes that some of the convictions in the Morano, p. 511-12. Morano, p. 512. 141 Morano, p. 512. 142 Sir Edward Coke (1552-1624) was an English barrister, judge and politician, considered to be one of the greatest of the seventeenth century. See also William L. Snyder, Great Opinions by Great Judges. A Collection of Important Judicial Opinions by Eminent Judges with an Introduction, Notes, Analyses, etc. (New York: Baker, Voorhis 1883). 143 Morano, p. 512, referring to Edward Coke, The Third Part of the Institutes of the Laws of England, 29, 137 (E. & R. Brooke 1797), justifying the rule prohibiting criminal defendants from presenting witnesses in their own defence. 144 Morano, p. 512. 145 See Morano, p. 512, quoting Maha Rajah Nundocomar’s Case, 20 How. St. Tr. 923 (India 1775). 146 French Code of Criminal Procedure, (as amended of 2005), Art. 427: “Except where the law otherwise provides, offences may be proved by any mode of evidence and the judge decides according to his innermost conviction.” unofficial English translation is available at https://www.legifrance. gouv.fr/Traductions/en-English/Legifrance-translations (last accessed 14 April 2016); German Code of Criminal Procedure, (as amended of 2014) Section 261: “[t]he court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole.” official English translation is available at https://www.gesetze-im-internet.de/englisch_stpo/englisch_ stpo.html#p1737 (last accessed 14 April 2016); Dutch Code of Criminal Procedure, (as amended of 2012), Section 338: “[the court may convict] only when the court through the hearing has become convinced…from legal means of evidence.” Unofficial English translation; http://www.ejtn.eu/ PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStrafvordering_ENG_PV.pdf (last accessed 14 April 2016). 147 Langbein, Adversary Criminal Trial, p. 262-63. 148 Langbein, Adversary Criminal Trial, p. 264, n. 52. 139 140 36