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Thursday, February 21, 2013

Abiding Belief & Reasonable Doubt



by Seattle Jon (bio)

Photo by Wally Gobetz

I recently spent four days in the local courthouse doing my first tour of jury duty. For two of the four days I served as presiding juror on a domestic assault case. A lot about the experience struck me as interesting, meaningful and memorable, but what I continue to reflect upon most was the jury's struggle with the following legal terms: abiding belief and reasonable doubt.

So I asked Max Power, emeritus MMM contributor and the smartest lawyer I know, to shed some light on these terms in both legal and religious contexts.

Max Power

The "beyond a reasonable doubt" standard is at the same time one of the most important principles of criminal law and one of the least clearly understood. There is no statute or clear case law defining the standard, and in fact courts disagree whether it is even appropriate to instruct a jury about its meaning, beyond merely stating the standard. In academia, the standard is typically described as requiring the prosecutor to prove each element of the alleged crime to the extent that there could be no doubt in the mind of a reasonable person that would affect that reasonable person's belief that the proved fact is true.

Clarity of the standard is not the biggest problem with the standard, though. For one, a typical juror is probably unable to access the mind of a "reasonable" person. The concept is not aimed merely at the "average" person, but rather at a legal fiction designed to approximate the collective judgment of society as a whole, incorporating all common normative and prudential judgments and acting perfectly consistent in accordance with those principles. Of course, no such person has ever existed, and no juror could ever effectively channel one. It would be even more difficult to do so than to adopt the "what would Jesus do?" credo. Jesus was perfectly principle-oriented and ultimately predictable; the reasonable person is the epitome of pragmatism, balancing virtue with expediency.

This leads to a second, more fundamental problem with the reasonable doubt standard: humans simply aren't equipped to evaluate varying levels of doubt. They either doubt or they don't doubt. It is very difficult or perhaps impossible for a human being, however rational and introspective, to inspect each factor giving rise to his ultimate doubt or belief and assign relative value to each one. For this reason, humans are very effective in civil trials, where the burden of proof is "preponderance of the evidence," that is, simply more likely than not. There, jurors simply carefully consider all of the evidence presented and report what they believe. But to ask a juror to inspect every incremental factor leading to that conclusion, and evaluate it against the mythical mind of a fictional (and probably unimaginable) person, which is what the reasonable doubt standard requires, is at best prone to misapplication and more likely entirely fruitless. And this in probably the most serious context imaginable: condemning another to a life of imprisonment or even death.

By contrast, making judgments based on faith is natural to most people. The religious decision-making standard is very different than the "reasonable doubt" standard. We begin with a phenomenal (and typically supernatural) experience, which informs our belief. As suggested by the popular "explain to me what salt tastes like" allegory, a person of faith struggles to identify the contours of his beliefs, or the various elements that inspired them, but ultimately is comfortable without a complete explanation. Faith inherently embraces the unknown. Once a person is able to comprehend the ingredients of his beliefs, faith evaporates, replaced by the cold certainty of knowledge. Doubt, both reasonable and otherwise, is thus a necessity of faith and religious living.

It is tempting to attach to matters of gravity (such as a criminal trial or questions of eternity) a standard of judgment that requires near certainty, eliminating all but unreasonable doubts before proceeding. It suggests that we take those matters seriously and are committed to the safer, more thoughtful route. But people aren't designed to function like that. Certainty, or even the elimination of all but unreasonable doubts, is unachievable in any meaningful life circumstances. And, just as in the context of a criminal trial, when applied to matters of faith, humans are ill-equipped to suss out the incremental data behind their beliefs. Belief is emergent, not reducible. We may assemble pros and cons lists or reflect on our decisions carefully, but at the end of the day those exercises don't account for the gap between the mass of available information and the eventual conclusion couched in our beliefs. Faith, the act of stepping forward into the darkness on imperfect information and mountains of doubt, is therefore an essential human exercise.

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