C O M P A R AT I V E S T U D Y Some scholars, such as Morano and Shapiro, refer to the standard of proof at that time as the satisfied conscience standard.129 Scholars (Morano, Langbein, Shapiro, and Sheppard) advance different viewpoints as to whether the early standard of proof was higher or lower compared to the later reasonable doubt standard. Morano argues that, when the degree of proof was determined by the juror’s own conscience, the result was that the jury “controlled the kind, quality and quantity of evidence needed to satisfy themselves in performing their duty….”130 He explains that jury deliberations were influenced by Christian religious beliefs.131 For instance, in the oath taken by jurors in criminal cases, they swore to God that they would determine the truth of the matter. Morano refers to Britton, the thirteenth century French summary of the law of England (purportedly written by command of King Edward I), which stated that jurors had to acquit if they were in doubt because they had taken an oath.132 Morano argues that Britton reflects a high burden of proof, close to absolute certainty: jurors had to acquit if they had “any doubt.”133 He further surmises that since Britton did not explicitly qualify the standard of persuasion, a jury could have acquitted based on irrational or frivolous doubts.134 By the XVII century, according to Morano, English criminal procedure and the means of proof had gradually evolved to the point where jurors were required to reach their verdicts based on the evidence presented in court.135 Courts required jurors who had personal knowledge of the facts related to the alleged crimes to declare their knowledge as sworn witnesses and to limit their deliberations to evidence produced in court.136 Morano argues that these limitations facilitated the development of a more “uniform standard of persuasion” – the satisfied conscience standard.137 The satisfied conscience standard, according to Morano, appears most frequently in the documented charges given to jurors in the XVII century.138 129 Shapiro, Doubt, p. 14; Morano, p. 511; Whitman, p. 166. Whitman argues that Shapiro read the cases in a limited way, focusing on the epistemology and proof as the law of satisfied conscience, while the correct approach would be to focus on the moral responsibility of judge and the law of safe conscience. See also Langbein, Adversary Criminal Trial, p. 264, n. 52, referring to Shapiro to argue that early jury instructions required jurors to achieve a satisfied conscience, as opposed to absolute certainty. 130 Morano, p. 510, citing William S. Holdsworth, A History of English Law 317-18, 341 (Methuen & Co. Ltd. 1956) (hereinafter “Holdsworth); Theodore F. T. Plucknett, A Concise History of the Common Law 125 (Little, Brown and Co. 1956); Pollock, p. 657. 131 Morano, p. 510. 132 Morano, p. 510, citing Francis M. Nichols, Britton – an English translation and Notes 26-27 (John Byrne & Co. 1901). 133 Morano, p. 511. 134 Morano, p. 511. 135 Morano, p. 511, citing Holdsworth, p. 334-36; James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 166-70 (Little, Brown and Co. 1898) (hereinafter “Thayer”). 136 Morano, p. 511, citing Thayer, p. 173-74. 137 Morano, p. 511, relying on Brommich’s Case, 7 How. St. Tr. 715, 726 (1679); Wakeman’s Case, 7 How. St. Tr. 591, 682 (1679); Green’s Case, 7 How. St. Tr. 159, 220 (1679); Ireland’s Case, 7 How. St. Tr. 79, 135(1678); Dover’s Case, 6 How. St. Tr. 539, 559 (1663); Moder’s Case, 6 How. St. Tr. 274, 282 (1663); James’ Case, 6 How. St. Tr. 67, 82-84 (1661). 138 Morano, p. 511. 35