Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt May’s observation, raising reasonable doubt during the presentation of the evidence is an essential obligation for the defence: Now, we all know, that, when a criminal lawyer has to defend a case where the facts are all against him, his uniform and too often unfailing resource is the law. Upon this he falls back. The doctrine of “reasonable doubt” is kept always in the front. The reports are ransacked for loose definitions by careless judges in insignificant cases. The extravagant and unsupported dicta of text-writers made perhaps in support of a theory of what the law ought to be, rather than as proof of what it has been authoritatively declared to be, are hunted up with untiring zeal. These are reinforced by a series of cases – fabulous and authentic – scattered through the musty annals of crime, in which, it is said that innocent persons have been convicted. The whole mass of bewildering definitions, extravagant dicta, astounding facts, or fictions, as the case may be, is then arrayed with greater or less skill, according to the ability of counsel, and paraded before the jury with pathetic solemnity. Of course, the object of all this is to confound and befog; to bring the jury into that state of amazement, apprehension, and uncertainty, which will disqualify them to deal calmly and rationally with the facts of the case before them...266 While judges control the flow of the proceedings and in some instances may question witnesses (primarily for clarification purposes), they are not engaged in a truth-seeking mission. “The court is not required actively to seek the truth but simply to decide whether the evidence produced in court is sufficient to substantiate the charges and prove beyond a reasonable doubt that the defendant is guilty.”267 It is not their task to search for evidence or witnesses believed to be essential for establishing the truth, еven though in some common law jurisdictions, judges are permitted to call witnesses,268 including expert witnesses,269 raise defences on behalf of the accused and to instruct the jury to consider the defence as an alternative to any other defences raised by the accused,270 and sum up or May, Some Rules of Evidence. Antonio Cassese, International Criminal Law 362, Oxford University Press 2008. 268 In the US, FRE Rule 614(a): “The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.” In the UK, a judge may call a witness who has not been called by either party, but as Lord Chief Justice Parker noted in Regina v. Cleghorn, (1967) 2 Q.B. 584, this discretion should be used sparingly and with the sole purpose of ensuring that justice be served, so as not to interfere with the discretion of counsel to mount its case. For an excellent discussion on these and other allowances made to judges during the course of a trial, such as summing up and commenting on the evidence, which many scholars, judges and practitioners have disparate views on whether such allowances are in keeping with the fundamental tenants of the common law / adversarial system, see Stephen A. Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64(1) Virginia L. Rev., 1-81 (1978). 269 In the US, FRE Rule 706: “The court may appoint any expert that the parties agree on and any of its own choosing.” 270 In Regina v. Johnson, [1989] 1 W.L.R. 740, the Court of Appeal found that the judge had a duty to instruct the jury on provocation, even though the accused had maintained a claim of self-defence throughout the trial, while the evidence was not “powerfully suggestive” it was “more than tenuous” and so should have been left to the jury. The operation of this duty was discussed again in Regina v. Newell, [1989] Crim. L.R. 906, holding that the judge must even instruct the jury on alternative defences which conflict with the accused’s theory of the case. See also Sean Doran, Alternative defences: the “invisible burden” on the trial judge, Crim. L.R. 878 (1991), describing the duty on the judge as an “invisible burden” to put before the jury a possible defence which has not been raised by either party. 266 267 60