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