Beyond A Reasonable Doubt?

At times, I’ve seen comments on the Conrad Black trial that suggest the defense should have to prove its own case. There has usually followed a rejoinder comment reminding the first commenter that the onus is on the prosecution to prove its case beyond a reasonable doubt.

This august standard in criminal law sound imposing when first read, but in the typical criminal trial, it’s actually easy to meet. That’s because all prosecutors know it, and tend to refuse to proceed with charges if that onus cannot be met. As a result of this filtering, a large majority of criminal cases are ones where the onus is met.

At least, this is the way it used to be. There’s a controversy over whether or not plea bargains, with government pressure on the would-be plea bargainer, have distorted the old system. The most likely cause would be prosecutors trying to get their conviction rate up without picking their spots more carefully. If this criticism were true, then the offices of the prosecutors are being filled up with yes-men. That’s the type who would agree to push a dubious case, and exert pressure on a chargee out of the fear of losing the case.

The reasonable-doubt standard comes into play when there is a dubious case. Like all words, the words specifying what a crime is have a little ambiguity in them, and like all people, prosecutors can make conclusions that could change if relevant facts unknown to them were known. This is one of the reasons behind the adversary system: by affording the defense an opportunity to defend, the party that has the most incentive to find contrary facts is allowed to do so. A prosecutor, or a judge, can only be so much of a gentleperson, after all, and even the most sterling character can’t surmount the ignorance barrier. A lot of factors that the defense would consider vital are unlikely to occur to the prosecutor, even one with a heart of gold. The factors that aren't relevant are caught by the "reasonable doubt" standard. Some doubts aren't.

Given the latitude for the defense to mount a case of its own, though, it is tempting to draw from that independence the notion that the defense has a burden of proof all its own. Admittedly, this notion is roughly accurate in a civil trial, where the standard that has to be met is the “balance of probabilities,” and all that’s required from the plaintiff is to show that the defendant(s) caused him/her/them damage as the result of a wrong - a “tort.”

The underlying reason nowadays is a different one, though: it comes from a philosophical position known as “moral equivalencing.”

Put simply, moral equivalencing is based on the insight that there’s more than one standard of right and wrong. It builds on this insight by claiming that different moral standards are incomparable, and thus there’s no way to judge which ‘right’ is right and which ‘wrong’ is wrong. Talk about morals makes no sense unless it’s nestled in a specific context, labeled in advance.

Extending this theory to the criminal law yields the claim that the minds of the prosecutors and defendant cannot meet. They’re in two different worlds. So, the case has to be decided on the grounds of which side backs up their theory, or explanation, more thoroughly.

Moral equivalencing is controversial even in moral theory. Despite the ease of reasoning in the above paragraph, its introduction to criminal law is actually fraught with peril. It implies that the government and the defendant are on an equal footing, which they are not. The government always has the right, even if restricted, to initiate force. A citizen rarely does, and any exceptions are only allowed when a citizen does so as an ad hoc police officer. Plus, the government has the advantages of obedience and trust on its side, whereas the typical defendant doesn’t. We’re always taught to talk to strangers when they’re from the government.

In these times, it’s easy to substitute “equal” for “different.” (In fact, a technical case can be made for doing so in the state of total ignorance.) Some differences, though, are unequal. Ignoring them sometimes invites in the peril.