Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt concrete substance for the presumption of innocence,”422 and “because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.”423 Second, the Court reasoned that the reasonable doubt standard is “indispensable to command the respect and confidence of the community in applications of the criminal law,” giving individuals the confidence that “[their] government cannot adjudge [them] guilty of a criminal offence without convincing a proper factfinder of [their] guilt with utmost certainty.”424 The Fourteenth Amendment to the US Constitution provides that no State “shall deprive any person of life, liberty, or property, without due process of law.” The Court explicitly held that “the Due Process Clause [of the Fourteenth Amendment to the US Constitution] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”425 This was a radical decision with broad implications.426 The Court read the reasonable doubt standard into the US Constitution, though it is not explicitly in it. Forlornly, the Court did not define reasonable doubt. Some have criticized the US Supreme Court for failing to address the central issue of how and to what extent should the reasonable doubt standard be defined in jury instructions? Jon O. Newman (Chief Judge of the US Court of Appeals for the Second Circuit) advances several compelling arguments. He argues that in Winship the Court failed to consider “the critically related issue of whether the Constitution set some standard for assessing the sufficiency of evidence that would permit a valid conviction under the ‘reasonable doubt’ Winship, at 363. Winship, at 363. 424 Winship, at 364. 425 Winship, at 364. See also Section 1 of the Fourteenth Amendment to the United States Constitution. 426 Shealy aptly notes that “the implications of the Court’s holding in Winship were nothing less than revolutionary to criminal law. Ultimately, Winship and its progeny substantially changed the rules applying to many affirmative defences and some lesser included offenses. In the case of affirmative defences, the defendant no longer has the burden of persuasion. Once such defences are raised, that is, once the defendant has met a ‘burden of production,’ the burden to disprove the existence of an affirmative defence shifts to the prosecution.” See Shealy, p.231, note 28. Shealy relies on several post-Winship cases, dealing with claims that the jury instruction regarding the standard of proof violated due process rights: Montana v. Egelhoff, 518 U.S. 37, 54 (1996), holding that “[t]he Due Process Clause, U.S. Const. amend. XIV, requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime, and a jury instruction which shifts to the defendant the burden of proof on a requisite element of mental state violates due process”; Martin v. Ohio, 480 U.S. 228, 23031 (1987), holding that “[u]nder Ohio law, every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution…. The burden of going forward with the evidence of an affirmative defence and the burden of proof by a preponderance of the evidence, for an affirmative defence, is upon the accused.” See also Francis v. Franklin, 471 U.S. 307, 313 (1985), holding that “[t]he Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. This constitutional principle prohibits the state from using evidentiary presumptions in a jury charge that have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” See also Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979); Patterson v. New York, 432 U.S. 197, 220-21 (1977); Mullaney v. Wilbur, 421 U.S. 684, 706 (1975). 422 423 100