C O M P A R AT I V E S T U D Y Uviller correctly argues that the subjective understanding is the right one: doubt is an individual matter; jurors must not abandon their personal conclusions or vote against their judgment.284 Relying on observations by US Federal Circuit Court Judges, Patricia Wald, and Jerome Frank, Robert C. Power argues: Experience with the reasonable doubt standard, as well as common sense, support the realist criticism that judges and academics overstate the importance of legal doctrine. Our modern and somewhat jaded “realistic” view is that jurors generally disregard the judge’s instructions and just do what they want to do. Judge Wald writes that “the reasonable doubt standard is essentially irrelevant to the everyday workings of the criminal justice system.” This irrelevance results not only from the use of guilty pleas and prosecutorial discretion but also because juries do not apply the standard. For example, “few judges … believe that every jury slavishly and precisely follows the beyond-a-reasonable-doubt standard in deciding guilt or innocence.” Judge Wald’s connection to the realist view is cemented by her affirmation of Judge Frank’s comment that “were the full truth declared [sic] [as to what goes on in the jury room] it is doubtful whether more than one percent of verdicts could stand.”285 Today, the reasonable doubt standard of proof is widely spread on the Continent as well, in the so called hybrid systems286. As such, many criminal justice systems throughout Europe require from the prosecution to prove the guilt of the defendant beyond reasonable doubt or with high certainty, otherwise, the defendant shall be acquitted. Uviller, p. 32. Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 57 (1999-2000) (hereinafter “Power”), p. 48, relying on Patricia M. Wald Guilty Beyond a Reasonable Doubt: A Norm Gives Way to the Numbers, U. Chi. Legal F. 101, 101 (1993), stating “My opening gambit is that the reasonable doubt standard is essentially irrelevant to the everyday workings of the criminal justice system. The criminal justice system is a well-tempered clavichord encompassing many different standards of proof governing different responses by police, prosecutors, and courts to different kinds of levels of evidence. ‘Beyond a reasonable doubt’ is but one of these standards.” 286 An example of a hybrid system can be seen at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). The ECCC, which is primarily civil-law based as modelled after France, with some adversarial modalities, including applying the reasonable doubt standard of proof. For more on the criminal procedures characterized as hybrid see Kai Ambos, International Criminal Procedure: ‘Adversarial’, ‘Inquisitorial’ or ‘Mixed’, 3 Int. Crim. L. Rev. 1, (2003); Patrick L. Robinson, Ensuring Fair and Expeditious trials at the ICTY, 11 E.J.I.L. 569 (2000), Alphons Orie, Accusatorial v. Inquisitorial Approach in International Criminal Proceedings in The Rome Statute of the International Criminal Court: A Commentary, vol. 3, 1439-1459 (Judge A. Cassese et al. eds., Oxford University Press 2002). The Italian criminal procedure is another example of a hybrid system. In reforming the Italian criminal procedure, legislators introduced some adversarial modalities, tools for cross-examination, and investigation by the parties. The reformed Italian criminal procedure also adopts the common law standard of proof beyond a reasonable doubt. See Italian Code of Criminal Procedure, (as amended of 2011), Art. 533. See also David M. Siegel, Training the Hybrid Lawyer and Implementing the Hybrid System: Two Tasks for Italian Legal Education, 33(2) Syracuse J. Int’l L. & Com. 445, 466 (2006). 284 285 65