C O M P A R AT I V E S T U D Y Old Bailey seem “impossible to square with a high standard of proof.”149 He argues that “a case that would in later times have been dismissed at the end of the prosecution evidence resulted in a conviction, apparently on account of character evidence that would have later been excluded … and because the defendant mishandled her defence.”150 Langbein argues that “the jury standard of proof made it unnecessary to provide for extensive and refined evidence-gathering. An English jury could convict on whatever evidence persuaded it, it could still convict on less evidence than was required as a precondition for investigation He concludes that jurors in the under torture on the Continent.”151 seventeenth century would convict when persuaded by the prosecution that the accused was guilty, and the question for the jurors to decide was “whether the accused had adequately explained away the evidence.”152 Shapiro also disagrees with Morano that the early standard of proof was the any doubt standard and that this standard approximated absolute certainty.153 She observes that by the 1660s jury verdicts were based on belief and satisfied conscience, and were determined upon the evaluation of the evidence.154 In her view, the satisfied conscience standard was influenced by new methods of evaluating facts which “gradually became synonymous with rational belief, that is, belief beyond reasonable doubt.”155 She explains that these new standards were borrowed from religious and philosophical foundations which encompassed notions of moral certainty and the four degrees of probability. And as such, the evolution of the formulation of the standard of proof depended on and reflected contemporaneous epistemological formulations.156 Shapiro analyzed the language of the early XVIII century jury instructions. She observes that the language in the jury instructions remains consistent, although there were fewer references to “conscience.” Rather, references were made to “mind” and “judgment.”157 The terms “satisfaction” and “belief” formed by evaluating evidence were common in this period.158 According to Shapiro, during the second half of the XVIII century the “if you think the evidence” phrase gradually replaced the “if you believe the evidence” phrase in the jury instructions.159 Shapiro concludes that by the late XVIII century when the concepts of probability, degrees of certainty, and moral certainty were widely Langbein, Adversary Criminal Trial, p. 262. Langbein, Adversary Criminal Trial, p. 263. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime 138 (University of Chicago Press 1976). 152 Langbein, Adversary Criminal Trial, p. 14. 153 Shapiro, Doubt, p. 23. 154 Shapiro, Doubt, p. 14, citing State Trials past 1668. 155 Shapiro, Doubt, p. 13. 156 Shapiro, Doubt, p. 13. 157 Shapiro, Doubt, p. 20. 158 Shapiro, Doubt, p. 20. 159 Shapiro, Doubt, p. 19-20 (emphasis added). 149 150 151 37