Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt Opposition to the practice of coercing jurors was growing. The English government’s policy shifted in the late XVII and XVIII centuries. In 1670, Bushel’s case established the principle of juror independence, holding that a juror could not be fined or imprisoned for a verdict given according to the juror’s conscience.120 Chief Justice John Vaughan reasoned: The Judge cannot know the fact but by the evidence which the jury ha[s], and all their evidence he cannot know, for they may have other evidence that is deposed in open Court; for they may have evidence from their own personal knowledge, which may be directly contrary to the evidence deposed; they may also know the witnesses to be infamous; also evidence may arise on their view; in all these cases the jury cannot be coercively directed by the Court.121 In holding that jurors could not be punished for a verdict given according to their conscience, the King’s Bench confirmed that jurors could use their personal knowledge of the case in reaching a verdict. Whitman interprets Bushel’s case as a major watershed for jury independence,122 protecting the jury from the influence of the judge and the sovereign.123 Conversely, John Langbein argues that Bushel’s case had no real significance until about a century later.124 Regardless of whether or not Bushel’s case had an immediate effect on criminal trial practice, it nonetheless paved the way for jury independence and in jury verdicts reflecting the sum total of the individual conscience of the jurors.125 Once it became clear that a verdict depended on a juror’s conscience, the question that begged an answer was: what should guide the jurors’ decisionmaking? It is not clear whether the jury charges in the cases that have survived articulate the standard of proof.126 Jury charges in cases from the 1660s contain phrases such as: “if you believe,” “if you are satisfied with the evidence,”127 “belief,” and “satisfied conscience.”128 Bushel’s case, on Habeas Corpus, (1670) 84 E.R. 1123 (hereinafter “Bushel’s case”). See also Whitman, p. 179. Bushel’s case, at 1125. Whitman, p. 178. 123 Whitman, p. 173. 124 John H. Langbein, The Origins of Adversary Criminal Trial 33 (Oxford University Press 2003) (hereinafter “Langbein, Adversary Criminal Trial”), p. 324, n. 429, quoting Old Bailey Session Paper (May 1680), 1-2. 125 It should be however noted that the criminal prosecution in England remained “private” for a long time in a sense that the parties were responsible for pre-trial investigations. In most criminal cases (excluding some cases of national importance, such as treason cases) the victim of a crime or their relatives would initiate prosecution, hire private counsel, bring witnesses etc. Public prosecution would only emerge in late 18th century; an official prosecutorial office was not established until in 19th century. 126 Langbein, Adversary Criminal Trial, p. 264. 127 6 State Trials, 67, 82; 6 State Trials, 530, 559. 128 6 State Trials, 566, 614, 615. 120 121 122 34