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Pillsbury on Whitman on Reasonable Doubt

By Lawrence Solum

Samuel H. Pillsbury (Loyola Law School Los Angeles) has posted Fear and Trembling in Criminal Judgment (Ohio State Journal of Criminal Law, Vol. 2, 2010) on SSRN. Here is the abstract:

This review describes James Whitman's argument that the beyond a reasonable doubt standard for conviction in Anglo-American criminal law was developed to solve a moral and theological dilemma arising from the medieval change from clergy-directed trials by ordeals to the secular jury trial. Whitman writes that the beyond a reasonable doubt standard, like the jury unanimity rule, was designed primarily to assuage what he calls moral doubt, the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting an accused of a capital offense. Whitman contends that this concern with decision-maker salvation was greater than any concern with an erroneous determination of the facts and that the greatest challenge for early modern decision-makers was not resolving contested facts but overcoming fear of the spiritual consequences of condemning another human being to death. Whitman contends that this makes the beyond a reasonable doubt standard ill-suited to the challenges of modern litigation, where the hard cases involve fact-finding and decision-makers generally do not fear for their souls in rendering a legal verdict. After considering this argument in both legal and theological terms, the reviewer develops a suggestion of the book?s author, that the early juror experience of "fear and trembling" in judging the most serious crimes might have a useful application to contemporary American criminal justice with its predilection for long terms of incarceration, especially by mandatory sentencing laws.

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Full post as published by Legal Theory Blog on May 20, 2010 (boomark / email).