Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt witness’s testimony or retain the rest, or they may disregard it all as the suspect product of an incredible source. Although they are enjoined to use their own “judgment” on these matters, they are warned not to “speculate.” They should find the facts on the basis of the supporting evidence, they are instructed, but they are also told that they may consider the lack of evidence along with the evidence on a point.281 But the jury is not merely charged at the end of the trial with the reasonable doubt instruction (however defined). The trial judge cautions the jury throughout the trial on how to consider the evidence presented under the appropriate standard. At the end of the trial, the jury is reminded that it has the exclusive responsibility of assessing the evidence. It is for the jury to determine whether, and to what extent, all elements of all charged crimes have been proven to the standard of proof beyond a reasonable doubt – a standard that for all intents and purposes amounts to near certainty (since few things in life can be proved with absolute certainty).282 Yet when the jury is told to apply the reasonable doubt standard in evaluating the evidence, they are told nothing about whether they must apply some objective, majoritarian perspective in evaluating doubt or to apply their own individualistic, subjective evaluations. Uviller has insightfully described the tension between the “objective” and “subjective” interpretations of the reasonable doubt standard. He explains that the “objective” and “subjective” are two possible ways of understanding the reasonable doubt standard: Under the objective understanding, if juror A concedes that juror B has a persistent, good faith doubt based on the evidence, then juror A must vote “not guilty” even though she does not share juror B’s doubt. Even if jurors conclude only that some imaginary, conscientious juror might entertain some doubt concerning the defendant’s guilt, the objective view would acknowledge a reasonable doubt in the case and require the jury to acquit though none of them actually doubts the defendant’s guilt. Under the subjective interpretation, the question is first whether an individual juror, carefully weighing all the evidence and giving due consideration to the views of fellow jurors, personally doubts the guilt of the defendant. If this step produces a subjective sense of doubt in a juror’s mind, the juror must ask himself the next question: whether the doubt is reasonable. Under this subjective reading, if a juror personally has no reasonable doubt, then notwithstanding the imperfections in the proof that might give others reason for doubt, the juror should vote “guilty.”283 H. Richard Uviller, Acquitting the Guilty: Two Case Studies on Jury Misgivings and the Misunderstood Standard of Proof, 2 Crim. L. F. 1, 39-40 (1990) (hereinafter “Uviller”), p. 18-19. Fletcher, p. 933. 283 Uviller, p. 30. 281 282 64