C O M P A R AT I V E S T U D Y
forms of discourse in the religious treason trials” in the late seventeenth
century.187 Regarding the prosecution’s argument, Sheppard interprets
this argument as equating “moral persuasion” to “judicial certainty,” and
suggests that either could be sufficient for moral certainty.188 Sheppard
concludes that this equation reflects Wilkins’ requirements for “moral
certainty – an amount of testimony, in the light of personal knowledge
and experience, that could persuade a person who must judge that the
basis for the judgment was beyond doubt.”189
The language of the eighteenth century cases does not differ substantially
from the late seventeenth century cases. Shapiro observes that, in cases
from 1700 – 1750, the use of the terms “mind” and “judgment” increased
and references to “conscience” decreased.190 Judges’ use of the terms
“satisfaction” and “belief” became more common when discussing the
evaluation of evidence.191
Although in the early eighteenth century cases the terms “judgment” and
“understanding” appear more frequently than “belief” or “conscience,”
Shapiro warns that this increased frequency should not be interpreted
as reflecting the loss of religious authority and secularization of society,
since terms such as “judgment” and “belief” often appeared together.192
Instead, Shapiro suggests that these changes in terminology demonstrate
a greater concern for situations in which juries might have doubts about
the evidence and their verdicts.193
The Boston Massacre Trials of 1770 in the American Colonies
The reasonable doubt standard first appears in the American colonies in
Rex v. Preston (“Preston”) and Rex v. Wemms (“Wemms”). These two cases
also were known as the Boston Massacre Trials of 1770.194 The parties’
closing arguments and the judge’s instructions to the jury in Preston
were not reported so there is no confirmation whether the reasonable
doubt standard was actually applied in this case. Supposedly, Wemms
was the first case to specifically distinguish between the any doubt and
reasonable doubt standards of proof. Before further discussing the cases,
a short introduction to the events leading to the Boston Massacre trials
is necessary.
Sheppard, p. 1181.
Sheppard, p. 1181.
189
Sheppard, p. 1181.
190
Shapiro, Doubt, p. 20.
191
Shapiro, Doubt, p. 20.
192
Shapiro, Doubt, p. 20. See also, Shapiro, Moral Certainty, p. 171.
193
Shapiro, Doubt, p. 20-22.
194
A comprehensive account of the Boston Massacre Trials can be found in Legal Papers of John
Adams, L. Kinvin Wroth and Hiller B. Zobel, eds. (Cambridge, Mass.: The Belknap Press of Harvard
University Press 1965), Vol. 3, p. 46-98 (hereinafter “Legal papers of John Adams”). See also Morano,
p. 516; Whitman, pp. 193-194; Shapiro, Doubt, p. 22; Sheppard, p. 1190.
187
188
41
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