Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
For instance, in Germany the judge’s conviction of the defendant’s guilt
“must be subjective and must be based on persuasive factors, which leave no
room for reasonable doubt.”287
In Italy, when referring to convicting judgment the LCP states that: “The
judge shall convict the defendant only if the defendant is found guilty beyond
reasonable doubt of the crime he is charged with”.288
In the LCP of Serbia, accused individuals may not be convicted unless the
prosecution proves their guilt with certainty.289
The domestic LCP, when referring to acquitting decision, states that the
court shall acquit whenever the prosecution fails to prove beyond reasonable
doubt that the defendant is guilty.290
An interesting proposition about how the judges/jurors should use the
maxim beyond reasonable doubt in order to minimize the possibility of
mistakes has been made by the distinguished philosopher of science Larry
Laudan, the objective of which is to not only reduce the number of false
convictions, but also the number of false acquittals. He claims that there
should be just one simple rule that the jurors should use in the context of
the required standard of proof, and that rule being: “Figure out whether
the facts established by the prosecution rule out every reasonable hypothesis
you can think of that would leave the defendant innocent. If they do, convict;
otherwise, acquit”.291
Two meanings of the burden of proof in the common law systems
Going back to the burden of proof of guilt, in common law systems, the
term “burden of proof” can have two different meanings. Distinguishing
between these two meanings is important and necessary due to the
distribution of functions between the judge and the jury. Generally, the
trial judge decides questions of law, whereas the jury decides questions
of fact. This explains why juries are referred to as the fact-finder (also
known jury trial, known as a bench trial.292It is within this division of labor
between the judge (as the law-giver) and the jury (as the fact-finder) that
the judge throughout the trial proceedings will instruct the jury on its
obligations and the various rights afforded to the accused as stated above.
287
Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform:
Similar Problems, Better Solutions?, 18(2) B. C. Int’l & Comp. L. Rev. 317, 343-44 (1995) (hereinafter
“Frase & Weigend”), p. 344. See generally Section III, Reasonable Doubt Standard in Other Jurisdictions.
288
LCP of Italy, Article 533 (1).
289
LCP of Serbia, Article 18.
290
Domestic LCP, Article 403 (3).
291
Youngjae Lee, Journal of Criminal Law and Criminology, Volume 105, Reasonable Doubt and Moral
Elements, 2015, p. 14 footnote 49, referring to LARRY LAUDAN, TRUTH, ERROR, AND CRIMINAL
LAW 82 (2006).
292
Under US law, trial by jury in criminal cases is a constitutional right under the Sixth Amendment to
the US Constitution and is usually a matter of course for most criminal cases. However, under certain
circumstances, there is a possibility for a bench trial (trial by judge). Rule 23 of the Federal Rules of
Criminal Procedure provides: “If the defendant is entitled to a jury trial, the trial must be by jury
unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court
approves.” In a criminal case tried without a jury, the judge plays the role of the jury as trier of fact.
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