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Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence
By Barbara J. ShapiroUniversity of California Press
Copyright 1991 Barbara J. ShapiroAll right reserved.
ISBN: 0520072863
The Trial Jury and the Evolution of the Doctrine of "Beyond Reasonable Doubt"
This chapter traces the development of the "beyond reasonable doubt" standard that has characterized the Anglo-American criminal justice system for more than two hundred years. That system has always depended heavily upon the jury so that any study of reasonable doubt necessarily must be linked to an examination of the jury. From the surviving records, it does not appear that judges initially concerned themselves much with the question of the jury's evidentiary duties. Early jurors reached decisions on the basis of a mixture of their own personal knowledge of events and the testimony of others. By the sixteenth century most of the personal knowledge had dropped away. Once jurors were clearly perceived to be reaching decisions on the basis of evidence presented in court, judicial charges to juries came to emphasize the duty of jurors to reach some sort of firm assurance of guilt based on the evidence. The formulations in these charges are of central concern to us here.
Sixteenth-, seventeenth-, and eighteenth-century judges faced a difficult task in telling juries what standards they should employ in reaching their decisions. The earlier common law offered no particular guidance. For reasons that we shall examine later, civil and ecclesiastical sources did not initially prove very useful. As a
result, the judges had little choice but to borrow from the epistemology that could be drawn from religious doctrine and philosophy. If judges felt they now had to instruct jurors on how to know about matters of fact and on how much to know, it was natural for them to turn to the ideas of their contemporaries who were principally concerned about knowing and who were attempting to convey their ideas about knowing to the lay population from which juries were drawn. This tendency was reenforced by the relative isolation of the judges from their normal source of professional sustenance, the bar, when dealing with jury matters. In normal circumstances, lawyers appeared for neither side in ordinary criminal cases.
In the course of the seventeenth century, English religious intellectuals engaged in many controversies that required them to develop intellectually and religiously satisfying grounds for decision making. Their efforts were both shaped and complemented by the enormous upsurge in epistemological thinking that was a part of what is commonly called the "scientific revolution." Thus the judges confronted twin sources of epistemological guidance. One was the English religious tradition, particularly the casuistical tradition, which sought a rational method of decision making in everyday life. The other was the scientific movement of Bacon, Boyle, and especially Locke and the empirical philosophers, who sought to establish scientific truth from the evidence they gathered. This chapter is about how judges created the beyond reasonable doubt standard for the jury, and so it is also about the religious and philosophical thinking from which that standard was derived.
There are two kinds of rules of evidence in common-law jurisdictions. The first, which deals with what kinds of evidence may get to the jury when and in what form, can be understood without much reference to nonjury developments. The second deals with the evaluation by the jury of the evidence, and how it is to decide whether there is sufficient probative evidence to justify a verdict. Such rules are drawn from the culture's general understanding of how we "know" things to be true. This chapter deals with this second variety and its relation to epistemological developments in seventeenth-century England.
The seventeenth-century intellectual crisis, however, was not the first to influence this body of rules. A much deeper crisis occurred during the twelfth century, when "irrational proofs," such as trial by ordeal, could no longer be seen as consistent with justice or with how truth determinations ought to be made. "Irrational proofs" were replaced on the Continent by the Romano-canon inquisition process, and in England by the jury trial.
The "rational" system of proof of the Romano-canon inquisition process provided a system of inquiry operated by professional judges. It was designed to obtain "full proof," defined by clearly established evidentiary standards which rigidly specified the quality and quantity of proof. A specified number of witnesses were required to prove facts, and once "full proof" had been achieved conviction was automatic. The judge in most criminal cases was essentially an accountant who totaled the proof fractions. Criminal cases, for example, required two good witnesses or confession. Because confession was of a particularly high evidentiary value, torture was used to assist in producing it. Complex rules determined whether there was sufficient evidence to justify judicial torture. Because the philosophical components in the Romano-canon system had been provided by late medieval scholastic philosophers, and because the system had become well entrenched on the Continent during that period, it seems to have been relatively uninfluenced by the epistemological issues that became acute in the early modern periodissues that would focus on the sources, nature, and limitations of human knowledge.
In England irrational proofs were replaced by the jury trial, which for several centuries required little in the way of rules of evidence or doctrinal standards for conviction. Despite a good deal of research, we still do not know a great deal about early trial juries. The abolition of the ordeal resulted in a dual system of presentment and trial juries. The accusing, or presentment, jury had developed before the abolition of ordeals in 1215. Originally it had sent those it considered appropriately accused to be tried by ordeal.1 The verdicts of these early presenting, or "medial," juries were more statements about a defendant's character than about his factual guilt
or innocence. The verdicts of the new convicting juries, which Roger Groot dates from c. 1219 to 1221, were "assertive" rather than evidentiary.2 Although originally there was some overlap in the membership of the two juries, the separation of the presentment and the trial jury was well advanced by c. 1328.3 Jurors, men of the neighborhood, were assumed to know the facts and to incorporate their own knowledge in their verdict. Juries thus arrived at findings of fact guided by common sense and common knowledge.
Recent research is modifying the traditional view that the medieval jury was entirely self-informing. It now appears that some jurors lived too far from the scene of the crime to have had firsthand knowledge of events. At least in private actions witnesses were examined occasionally. Verdicts were probably made on the basis of what was deemed to be personal knowledge of the facts, but that knowledge might be based on firsthand knowledge or derived from persons the jury believed. In the thirteenth and fourteenth centuries, trial jurors probably were both gatherers and weighers of evidence. Witnesses do not seem to have appeared as a regular part of criminal prosecutions.4
Sir John Fortescue's mid-fifteenth-century De Laudibus Legum Anglie clearly indicated that witnesses were already commonly employed in civil, if not criminal, cases.5 J. B. Post has concluded that witnesses had probably become an acceptable feature of criminal trials by the end of the fourteenth century, but were not, as Fortescue makes clear, either a formal or essential part of the trial. We do not know, however, whether witnesses were speaking to the good repute of the accused or were providing evidence of events.6
Clearly by the early fifteenth century juries were no longer truly self-informing but were listening to and assessing evidence introduced by private accusers and government officials. If in many cases at least some members of the jury were drawn from the hundred, even many of these were no longer from the village where the offense occurred. Their selection was based as much on status and administrative experience as on geography. Nevertheless, it is still not clear whether the jury heard witnesses testify about the facts or only the reputation of defendants.7
Jurors did not have enough knowledge to arrive at verdicts with-
out evidence. They gained information from a number of sources, including the defendant's replies to the charges and the judge's questioning. They evidently considered the plausibility of the denial and the demeanor of the accused. They also might consider statements of the victim, the victim's kin, and witnesses for the Crown, as well as the testimony of officials, such as the justice of the peace, the coroner, or the constable. Edward Powell has argued that Sir Thomas Smith's mid-sixteenth-century description of the criminal trial applies to the previous century as well and concludes that by 1400, jurors had already become passive viewers of fact.8 John Langbein would place this movement toward passivity later, believing that it was a result of the 15541555 Marian bail and committal statutes, which he argues led to a substantial role for the justices of the peace in presenting trial evidence.9
By the sixteenth century, jurors were certainly hearing witnesses, although in the early part of the century they were still talking to them outside court. As early as 1523, however, Sir Thomas More was arguing that no one should give evidence to jurors except at bar.10 Assize records for the second half of the sixteenth century clearly show witnesses at trial. Much of the evidence was produced by the justice of the peace or by witnesses who had been bound over by the justice to appear at trial. Although residential requirements were still important, trial jurors did not usually live in the immediate area where the offense occurred.11
Civil juries appear to have undergone similar changes. Indeed, it is likely that the introduction of witnesses occurred first in civil cases. Even in the thirteenth century, civil jurors were not expected to be eyewitnesses and seem to have informally consulted witnesses and other types of evidence. In the next century both jurors and witnesses were appearing in court. Gradually litigants in civil cases were permitted to call witnesses, and the distinction between witnesses and jurors became clear. Fortescue distinguishes witnesses from jurors in the late fifteenth century. Elizabethan legislation provided for the compulsory attendance of witnesses, and cross-examination by counsel is evidenced by Sir Thomas Smith's De Republica Anglorum . The early seventeenth-century civil juries were dependent on testimony heard and ex-
amined in court, and juries no longer investigated the facts of a case out of court, though until the eighteenth century they were permitted to consider personal knowledge.12
As society became more complex and mobility increased, both civil and criminal juries became less familiar with the facts and increasingly came to rely on the testimony of witnesses and documents that now had to be evaluated for truthfulness and accuracy. Jurors became third parties who now had to evaluate and analyze facts and events they had not personally witnessed or previously known in order to reach conclusions and make decisions. A turning point occurred in 1563, when legislation compelled the attendance of witnesses and made perjury a crime. As witnesses became more important, juries increasingly required standards for the evaluation of testimony. Notions of credibility, borrowed in part from the civil and the canon law, began to appear, although for a time there was confusion between the concepts of legal and credible witnessesthe former being legally competent to testify, the latter those whose testimony is believable. Discussion of witness credibility and the evaluation process thus enters the legal literature and the cases as the character of the jury trial was modified. An early seventeenth-century essay attributed to Sir Francis Bacon made it clear that English law left "both supply of testimony and the discerning and credit of testimony wholly to the juries' conscience and understanding, yea to their private knowledge."13 The work of Sir Matthew Hale indicates that by the late seventeenth century the distinction between legal and credible witnesses was very clear.14
The response to this new legal environment was slow, but when the law of evidence emerged in the eighteenth century, it was shaped not only by legal tradition but also by the intellectual environment. We must therefore turn to the intellectual currents that would bear on how juries might reach rational conclusions based on evaluations of fact.
By the sixteenth century humanist critiques had made the defects of scholasticism commonplace, though they did little to develop a substitute philosophy or theory of knowledge. The revival of skepticism was philosophically more serious because it might entail a repudiation not only of scholasticism but also of religious doctrine, the validity of sense data, reports of events, and, indeed,
any claims to knowledge.15 Philosophers, notably Descartes and Bacon, attempted to overcome the skeptical critique and the defects of scholasticism by refounding knowledge on a certain, but nonscholastic, basis. Cartesianism denied that certain knowledge might be provided by the senses and devalued disciplines dependent on experiment or testimony. It therefore had little impact on law. Bacon's new philosophy emphasized appropriately filtered and manipulated sense data and also sought absolutely certain axioms and universally valid generalizations.16
The dominant seventeenth-century English philosophic and scientific community, however, was neither Baconian nor Cartesian, for it did not claim that empirically derived facts would yield absolutely certain knowledge. It attempted to verify natural phenomena by experiment, direct observation, and testimony, and believed that these techniques, depending on the quality and the quantity of the evidence derived, might yield conclusions which were sufficiently true to serve as the basis for conduct of human affairs.
The attempt to build an intermediate level of knowledge, short of absolute certainty but above the level of mere opinion, was made by an overlapping group of theologians and naturalists. For the Protestant theologians, who rejected Roman Catholic assertions of infallibility, the central question was whether religious truths, such as the existence of God, miracles, the biblical narratives, and various doctrines and practices of the church, could survive skeptical attack, once they were stripped of claims to absolute truth and reduced to claims based on evidence. For the naturalists, the central problem was that of making truthful statements about natural phenomena which could be observed but could not be reduced to the kinds of logical, mathematical demonstrations that traditionally had been thought to yield unquestionable truths. Both groups concluded that reasonable men, employing their senses and rational faculties, could derive truths that they would have no reason to doubt.17
Although terminology varied, theologians and naturalists distinguished between "knowledge," or "science," on the one hand and "probability" on the other. There were three subcategories of knowledge, each possessing a different kind of certainty: physical, derived from immediate sense data; mathematical, established by
logical demonstration such as the proofs in geometry; and moral, based on testimony and secondhand reports of sense data. This moral certainty was most relevant to law, history, and many kinds of natural science. Although moral certainties did not depend on evidence that compelled assent, they might be so clear that everyone "whose judgment is free from prejudice will consent to them. And though there be no natural necessity, that things be so, and they cannot possibly be otherwise . . . yet may they be so certain as not to admit of any reasonable doubt concerning them."18 Moral certainty could thus "be styled" indubitable.19 The "reasonable man" will not require demonstration or proofs that "exclude all Dubiosity, and compel assent," but will accept moral and physical proofs that are the best that may be gained. One could thus gain a "competent certitude where demonstration is impossible."20
"Probability" from the ancient world to the late seventeenth century traditionally had lumped together the noncertain, the seemingly true, and the merely likely. When evidence was unclear or unreasonable doubt existed, the result was probability or mere opinion, not knowledge. A late seventeenth-century development, however, suggested that probability consisted of a graduated scale that extended from the unlikely through the probable to a still higher category called "rational belief" or "moral certainty." This category, sometimes treated as "knowledge" and sometimes as the highest category of probability, would have a great impact on English law.21
We must take particular note of John Locke, both because his systematization of this approach in An Essay Concerning Human Understanding (1690) became so influential and because the first treatise writers on legal evidence attempted to build on Lockean foundations. What others called "moral certainty" was for Locke a species of probability, the very highest level of which commanded universal assent. It rose "so near to a certainty" that it governs "our thinking as absolutely as the most evident demonstration." Lower levels of probability produced "confidence," "confident belief," or "mere opinion." The level of assent was determined by the weight of the evidence.22 For Locke, the
highest degree of probability , is, when the general consent of all men, in all ages, . . . concurs with a man's constant and never-failing experience
in like cases, to confirm the truth of any particular matter of fact attested by fair witnesses: . . . These probabilities rise so near to certainty , that they govern our thoughts as absolutely . . . as the most evident demonstration. . . . We make little or no difference between them and certain knowledge. . . . The next degree of probability is, when I find by my own experience, and the agreement of all others that mention it, a thing to be for the most part so, and that the particular instance of it is attested by many and undoubted witnesses v.g. history giving us such an account of men in all ages, and my own experience, as far as I had an opportunity to observe confirming it. . . . And in this case our assent has a sufficient foundation to raise itself to a degree which we may call confidence .23
A still lower category existed "when any particular matter of fact is vouched by the concurrent testimony of unsuspected witnesses, there our assent is also unavoidable . . . . This though in the nature of things there be nothing for or against it, yet being related by historians of credit, and contradicted by no one writer, a man cannot avoid believing it, and can as little doubt of it as he does of the being and actions of his own acquaintance, where he himself is a witness."24
In all three of these categories
the matter goes easy enough. Probability upon such grounds carries so much evidence with it that it naturally determines the judgment, and leaves us as little liberty to believe or disbelieve, as a demonstration does. . . . The difficulty is, when testimonies contradict common experience, and the reports of history and witnesses clash with the ordinary course of nature, or with one another; there it is, where diligence, attention, and exactness are required, to form a right judgment, and to proportion the assent to the different evidence and probability of the thing; which rises and falls, according as those two foundations of credibility, viz. common observation in like cases , and particular testimonies in that particular instance , favour or contradict it. These, [however, were] liable to so great variety of contrary observations, circumstances, reports, different qualifications, tempers . . . of the reporters, that it is impossible to reduce to precise rules the various degrees wherein men give their assent. This only may be said in general, that as the arguments and proofs pro and con , upon due examination, nicely weighing every particular circumstance, shall to any one appear, upon the whole matter, in a greater or lesser degree to preponderate on either side; so they are fitted to produce in the mind such different entertainments, as we call belief, conjecture, guess, doubt, wavering, distrust, disbelief, etc .25
For the new scientists and philosophers, natural phenomena and processes were to be verified by experiment, observation, and the testimony of observers. Depending on the quality and quantity of the evidence produced by these methods, one might reach findings of fact and sometimes even conclusions that no reasonable person could doubt.26 Historians, too, were attracted to this approach. Discussions of both historical events and Scripture frequently centered on the extent to which one might believe the testimony of witnesses reporting on past occurrences. References to eye- and earwitnesses, hearsay, and credible witnesses were common. This language, of course, suggests the courtroom. Indeed, naturalists, theologians, and historians often employed courtroom imagery. Historians were thus frequently admonished to act as unbiased and impartial judges rather than as partisan advocates.27
Seth Ward, a seventeenth-century scientist and theologian who became Bishop of Salisbury, in comparing sacred and secular history, for example, emphasized that where improbable events were related, it was particularly important to evaluate critically the relators and the manner of their relations. It was necessary to determine whether the event in question was knowable, whether the parties had sufficient means to obtain such knowledge, whether the relators were eye- or earwitnesses, and whether the occurrences "were publically acted and known." Historians might be believed if the relators had the opportunity to observe the events in question and no one had contradicted their accounts. Although fabrications were possible, there was little reason, given the lack of conflicting accounts, to doubt the events reported in secular history or the "History of Holy Scripture." Ward, in what became commonplace among historians and Anglican ecclesiastics in the late seventeenth century, thus argued that no impartial person could reasonably doubt the truthfulness of biblically reported events and matters of fact.28 Virtually the same line of argument based on the absence of "reasonable doubt," rather than absolute certainty, was used by Edward Stillingfleet, another Anglican divine who wrote widely on theological and epistemological issues, to establish the moral certainty of scriptural history.29
By the early eighteenth century these views were commonplace among historians and required little defense or comment. Thus, Joseph Addison noted that secular historians were guided by
the common rules of historical faith, that is, they examined the nature of the evidence which was to be met within common fame, tradition, and the writings of persons who related them, together with the number, concurrence, veracity and private characters of those persons; and being convinced, upon all accounts that they had the same reason to believe the history of our Savior as that of any other person to which they were not actually eyewitnesses, they were bound by all the rules of historical faith, and right reason, to give credit to this history.30
By 1690, when Locke's Essay Concerning Human Understanding appeared, ideas of witness credibility had become familiar to lawyers, naturalists, theologians, and historians. Locke's criteria for evaluating testimonythe number of witnesses, their integrity, their skill at presenting evidence and its agreement with the circumstances, and last, the presence or absence of contrary testimonyhad obvious relevance to the law.31 A considerable portion of the English intellectual community adopted this empirical approach to knowledgewhich neither denied the possibility of gathering reliable and persuasive evidence nor made claims to absolute certitude. This approach also came to serve the needs of the English legal system.
As we have seen, initially there had been no need to construct a rationale for the truth-finding capacities of juries. As the role of witnesses increased, the problem of the credibility of secondhand reports of facts which had become central to theologians, naturalists, and historians became central to legal theorists who borrowed conceptual elements from the new empirical philosophy.
Concern for the credibility of witnesses in criminal trials can be traced from at least the early sixteenth century, although the distinction between legal and credible witnesses does not appear to be clear at that time. The jury's "conscience" was to evaluate the evidence. By the early seventeenth century, Francis Bacon, who we should recall was England's lord chancellor and a noted legal reformer as well as its preeminent natural philosopher, made clear that "the supply of testimony and the discerning and credit of testimony" were left wholly to the "juries consciences and understandings." Bacon's words were incorporated into a Royal Proclamation issued in October 1607.32
Sir Matthew Hale, the most distinguished judge of the mid- to late seventeenth century, emphasized the superiority of the jury
trial as "the best method of searching and sifting out the truth," precisely because juries might "weigh the credibility of Witnesses, and the Force and Efficacy of their Testimonies."33 Hale, however, not only emphasizes credibility but also makes the distinction between legal and credible witnesses very clear. Hale indicates if the jury has
just cause to disbelieve what a witness swears, they are not bound to give their verdict according to the evidence, or testimony of that witness. And they may sometimes give credit to one witness, though opposed by more than one. And indeed it is one of the excellencies of . . . [the jury trial] above the trial by witnesses, although the jury ought to give a great regard to witnesses and their testimony, yet they are not always bound by it; but may either upon reasonable circumstances, inducing a blemish upon their credibility, though otherwise in themselves in strictness of law they are to be heard, pronounce a verdict contrary to such testimonies; the truth whereof they have just cause to suspect, and may, and do often, pronounce their verdict upon one single testimony which the Civil Law admits not of.34
Hale's Primitive Origination of Mankind (1677) discussed evidence for matters of fact contained in Scripture in much the same way as in legal trials. It was necessary to weigh
the veracity of him that reports and relates. And hence it is, that which is reported by many Eye witnesses hath greater motives of credibility than that which is reported by light and inconsiderable witnesses; that which is reported by a person disinterested, than that which is reported by persons whose interest is to have the thing true or believed to be true . . . and finally, that which they receive by hear-say from those that report upon their own view.35
Evidence might be of such "high credibility" that "no reasonable man can without any just reason deny it." Belief, for Hale, rested on the direct experience of the senses and "upon the relation of another that we have no reasonable cause to suspect." "Evidence of Fact and Things remote from our Sense," though not infallible, yet might be of such "high credibility, and such as no reasonable Man can without any just reason deny his assent unto them."36 While Hale did not use the words "moral certainty" or "beyond reasonable doubt," his terminology is consistent with those concepts.
Although it has been suggested that the medieval practice of granting equal weight to all evidence given under oath continued into the eighteenth century,37 the State Trials of the late seventeenth century and beyond are larded with judicial insistence that juries weigh the credibility of witnesses.38 Issues of credibility, which became increasingly central to criminal trials, also helped to shape the standard for the jury verdict. The "satisfied conscience" standard became the first vessel into which were poured the new criteria for evaluating facts and testimony. Satisfied conscience gradually became synonymous with rational belief, that is, belief beyond reasonable doubt. The newer standards borrowed heavily from religious and philosophical foundations, particularly from notions of moral certainty, or the highest degree of probability. This is not to say that juries, particularly in capital cases, had not always required convincing proof, but rather that legal formulations concerning that conviction were increasingly stated in terms that were consistent with reigning epistemological formulations.39
The recorded cases after c. 1668 exhibit sufficient repetition to suggest contemporary usage.40 A number of phrases appear repeatedly in judicial charges. The first is "if you believe," the second, "if you are satisfied or not satisfied with the evidence." A third was "satisfied conscience."41 Verdicts were to be based on "belief," or "satisfied conscience," and were to be arrived at after evaluation of the evidence. Edward Waterhouse's Fortescue Illustratus (1663) employs similar language. He indicated that the jury's verdict was, "as they think in their conscience the truth of the fact is," after hearing the evidence. They were thus to "determine what their conscience judge clearly proved concerning the Fact."42
In Bushel's case (1670), Judge Vaughan insisted testimony and verdict were "very different things." A witness swears what he has seen or heard, while a juror swears "to what he can infer and conclude from the testimony . . . by the act and force of his understanding."43 By 1670, juries were expected to be careful and thorough fact evaluators.
The Popish Plot trials, many of which gained wide circulation in pamphlet form, provide a substantial number of well-reported
cases. The most common judicial directives to the jury included phrases like "if you believe" or "if you believe on the evidence,"44 "if you believe what the witness swore,"45 and "if the evidence is sufficient to satisfy your conscience."46 In some instances belief was linked to the satisfied conscience test.47
Several well-known and much-reprinted Whig political-legal writers employed the satisfied conscience test in 16801681, years when legal issues, grand jury indictments, and petty jury verdicts were much in the public eye. According to Sir John Hawles, a well-known Whig lawyer, a juror could not become "fully satisfied in their conscience" until he had carefully considered the matter, as well as the course of life of the testifier and the "credit of the Evidence."48 A satisfied conscience was thus closely linked to the credibility of the testimony. Hawles also insisted that juries be "satisfied in their particular Understanding and Conscience" of the "Truth and Righteousness of . . . a verdict." Verdicts thus must be given "according to their Conscience and the best of their Judgement." Echoing Judge Vaughan, he noted that jurors must follow their own, not another's, "Understanding or Reasoning."49
Henry Care, another Whig writing in 1680 about the political trials of the day, also employed the fully satisfied conscience standard in much the same way.50 There is no question that for Care, as well as for Hawles and Vaughan, jurors were expected to bring their own reasoning faculties to bear on the evidence and testimony before them, and that the term "satisfied conscience" was the one most often used to denote a proper verdict.
Seventeenth- and early eighteenth-century trials abound in references to "conscience," and writers on conscience often used the trope of "an inner tribunal." Satisfied conscience is central to the development of the beyond reasonable doubt standard. So we must look to what the English meant by "conscience," and that means looking to casuistry. Casuistry had a long tradition extending back through the High Middle Ages. It all but vanished in England by the end of the seventeenth century, perhaps because of increasing expectations that the need to make moral judgments was to be transferred from clergymen to individuals. But many concepts of the casuistical tradition, as represented by the works of William Perkins, Jeremy Taylor, Samuel Pufendorf, and others, were trans-
posed to what became moral philosophy in the late seventeenth and eighteenth centuries.
English casuistry of the sixteenth and seventeenth centuries rejected the doctrine of "casuistical probabilism" associated with the Jesuits, a doctrine that required only a single authority to justify a course of conduct. It also rejected purely emotional or intuitive moral outcomes. Post-Reformation English discussions involved an analysis of rational moral choice or decision making based on a relatively comprehensive evaluation of the entire situation in which the decision maker found himself. What was being dealt with was "cases of conscience." It is easy to see how the terminology of conscience could be transferred from the realm of individual behavior to judgments of innocence and guilt in the legal arena.51
Perhaps the first thing to note is that English casuists insisted that the conscience involved an act of the intellect, not the will.52 In English Protestant casuistry each person was to be his own strictest judge. The judgment of conscience thus could not involve deferring to the authority or the wishes of another person. The language of judgment and judging pervades the writing of cases of conscience. William Perkins's Discourse of Conscience (1596) and his later Whole Treatise of the Cases of Conscience were designed as practical guides in resolving moral dilemmas. According to Perkins, the conscience that was given by God to man "to declare or put in execution his just judgement against sinners" was "part of the Understanding in all reasonable creatures," and its function was to judge the goodness or badness of things or actions done and to "accuse or excuse."53 Its duty was to give both testimony and judgment. The former was compared to a notary who recorded what was said and done, the latter to a judge who "holdeth the assize." Conscience functioned as "a little God sitting in the middle of men's hearts, arraigning them in this life as they shall be arraigned for the offenses" at the day of judgment. Perkins went beyond analogy: " . . . the courts of man and their authority are under conscience." For God had "erected a tribunal seat" in man, and "conscience itself" was therefore the "highest judge that is or can be under God."54 If Perkins's legalistic view of conscience was widely shared, and there is every reason to think that it was, it should not be surprising to find the language of conscience associated with that
of jury verdicts. Although the recorded cases are not available for the late sixteenth and early seventeenth centuries, it seems likely that the satisfied conscience standard was commonplace prior to the Restoration, when our evidence becomes better.
It is important for us to emphasize that the judgment of conscience was a rational decision. The conscience gave judgment, and it proceeded by a kind of argumentation by means of a reasoning process that Perkins called a "practical syllogism." If Perkins's conception of the rational process reflected the Ramist scholasticism of his generation, later casuistical writers adopted the epistemological and methodological assumptions of their own generation.55
The Anglican Jeremy Taylor, whose lengthy casuistical treatise Ductor Dubitantum went through numerous editions, explains the role of the "satisfied" or "sure" conscience in moral theology. Taylor, like Perkins and Ames, repeatedly insisted that conscience is a function of the understanding, not the passions. To go against conscience is to go against reason. "The conscience is the mind" and is made primarily by the "Understanding."56 The "Sure" or "Right" conscience was characterized by "moral certainty," a concept which, we have seen, was widely employed by natural theologians, natural philosophers, and historians and would play an important role in legal doctrine. Thus Taylor's discussion of conscience predictably asserts that if moral things were not capable of mathematical or demonstrative certainty, they might nevertheless be "very highly probable." The "practical judgement of a right conscience" was "always agreeable to the speculative determination of the understanding" and required "full persuasion." Thus, a "sure" or "satisfied" conscience, according to the most respected late seventeenth-century English casuist, required the full persuasion achieved by means of the rational faculties.57 Like many casuists, Taylor warns against the overscrupulous conscience. The overly doubtful conscience which substituted excessive suspicion for care would never find itself at rest. Conscience was to be concerned with reasonable doubts , but it was not to become excessively doubtful.
The similarity between the casuistical and the legal conception can also be seen in the formulations of Robert South, another Anglican cleric. South, like Taylor, insisted that the mathematical certainty of demonstration was not necessary in order to be assured of the rightness of one's conscience. It was sufficient "if he know it
upon the grounds of a convincing probability, as shall exclude all rational ground of doubting it."58 The language of rational or reasonable doubt was thus part of the language of the right and sure conscience in England before it entered the legal sphere.
The language of conscience and casuistry, however, also played a prominent role in the more epistemologically sophisticated thinking of John Locke and Samuel Pufendorf. And it is in the context of these turn-of-the-century philosophers that one can see how the language of conscience and casuistry came to pervade the discourse of eighteenth-century moral philosophy and natural law. Its original moorings in moral theology were gradually eroded and obscured as it reemerged in the discourse of philosophers and in the epistemologically oriented treatise writers of the law of evidence that developed from the mid-eighteenth century.
Locke, whose Essay Concerning Human Understanding would prove so important to that treatise tradition, wrote about conscience primarily in the context of natural law. Locke defined conscience as "nothing but an opinion of the truth of any practical position which may concern any actions as well moral as religious, civil as ecclesiastical." Indeed, the "law of conscience we call that fundamental judgement of the practical intellect concerning any possible truth of a moral proposition about things to be done in life. . . . Moral actions belong therefore to the jurisdiction of both the outward and the inward court, and are subjects to both dominations, of the civil as well as the domestic governor; I mean both of the magistrate and of conscience." Once convinced, conscience acted as "an legislature . . . constantly present in us whose edicts it should not be lawful for us to transgress even a nail's breadth."59 Locke, like his casuistical predecessors, links conscience with the understanding, not the passions. "Indeed all obligations bind conscience, and lay a bond on the mind itself, so that not fear of punishment, but a rational apprehension of what is right, puts us under an obligation, and passes judgement on morals, and, if we are guilty of a crime, declares that we deserve punishment."60
Given the language of Perkins, Taylor, South, and Locke, it is not difficult to see how easily the doctrine of conscience, the inner tribunal, might be applied in the English courtroom. We must recall, however, that although English Protestant casuists of the sixteenth and seventeenth centuries may be distinguished from their
Roman Catholic counterparts, their basic principles were drawn from a common European tradition of casuistry and moral theology. The connection between the emerging "satisfied conscience" standard of the English courtroom and that of the individual Christian conscience may be more complex than we have been able to trace here.
The terminology of casuistry and moral theology also pervaded Samuel Pufendorf's Of the Law of Nature and Nations , which came to have a substantial following in England. This work too helps us chart the transition from casuistry to moral and legal philosophy. Pufendorf begins with a discussion of "moral entities" and the "certainty of moral science." He was anxious to refute both the common opinion that moral knowledge lacked the certainty of philosophy and especially of mathematics and the Hobbesian notion that ethics and politics were capable of demonstration.61 What is interesting about Pufendorf for our purposes is the way in which "conscience," a concept so important in English legal terminology, is linked to the concepts of moral certainty and beyond reasonable doubt.
For Pufendorf the rightly informed conscience was of two sorts, persuasion built on certain principles or persuasion which is "true and certain; and sees no reason to doubt it." The latter he explicitly relates to the law. The concept of certainty beyond reasonable doubt is thus implicit in his argument from probabilities. Pufendorf argued for the "certainty of Moral sciences" and denied that they could "rise no higher than a probable Opinion." Moral knowledge (or at least portions of it) was not less certain than mathematics. Increasingly, discussions of conscience, casuistry, moral theology, and natural law were in terms of moral certainty. Moral discussions, like religious belief, scientific findings, and historical evaluation, required a reasoned assessment based on the most complete information and evidence available. The "satisfied conscience" of the juryman in the courtroom and of the individual in his closet required rational, unbiased, and unemotional acts of the understanding.62
Before looking at the cases themselves, I must say something about the case materials and the conditions under which most of them
were produced. Before the late seventeenth century very few criminal cases are well documented. Few trial records were preserved and even fewer printed. The decades of the Restoration mark a dramatic change at least insofar as criminal trials involving an important state interest are concerned. Beginning roughly with the spate of Popish Plot trials of 16781679, public interest arose in questions of the credibility of witnesses and of the standards for conviction. Many dramatic trials, mostly treason trials, were printedtypically in pamphlet form. And it was in this no doubt somewhat inaccurate form that they eventually found their way into the collection of state trials, which still forms a mainstay of our knowledge of late seventeenth- and early eighteenth-century criminal trials. The political controversies of the 16781690 era, with their intensely legal overtones, were particularly important in bringing evidentiary issues to a public forum. The believability of witnesses and the decision rule for jurors were not solely of interest to the legal profession and to those accused of crimes during these heady decades. These issues may have been of no more interest to the greater part of the legal profession than to the general public, given that lawyers during this era played little or no role in criminal trials.63 In the absence of professional interest in jury verdicts in criminal cases, it is not at all surprising that judges would look to formulations by those who had seriously considered the basis on which ethical and rational decisions might be made. The standards of the satisfied conscience, moral certainty, and beyond reasonable doubt, which became characteristic of the late seventeenth- and eighteenth-century English criminal courts, were thus derived from disciplines or areas of thought which had already developed or were attempting to develop rules and standards in matters of fact and everyday life. Judges, in an era of intense concern with issues of credibility, probability, and certainty in many other fields, not surprisingly turned to religious and intellectual traditions where these were well developed or developing. As we have seen, such traditions were employed by theologians engaged in polemics with Roman Catholics about scriptural authority, proofs for the Creation, and the relation of such authority to the proofs of natural religion and the casuistical tradition. Similar discussions of proof occurred among historians and those seeking to establish the reality of various natural "facts," the validity of experiments, and the re-
liability of hypotheses and theories well supported by empirical data.
The cases between 1683 and 1700 employ language similar to the language of those between 1668 and 1683, although the number of judicial instructions which link believing the witnesses and reaching a satisfied conscience now outnumber other formulations.64 In law, conscience was "satisfied" only when the reasoning faculties were exercised upon the evidence. The question of "doubt" in the mind of the jury was rarely raised explicitly by the late seventeenth-century judiciary.65
The language of the 17001750 cases does not differ substantially, although references to conscience become somewhat fewer. It was the "mind" or "judgment," rather than the "conscience," which was to reach conclusions on the evidence. The need to be "satisfied," however, did not decline.66 The most common directives employed "belief" based on evidence.67 Judges insisted that verdicts be based on evidence, and jurors were frequently admonished to take great care in weighing and examining it. In several cases the terms "belief" and "satisfaction" were used synonymously. A guilty verdict was appropriate if the jurors "believed," an acquittal if they were not "satisfied."68 Notions of satisfaction and belief formed by evaluating evidence were the most common features of jury charges in this period.69
The second half of the century presents a somewhat more complex, but not fundamentally different, picture. Judges and legal counsel now began to concern themselves with doubts that legitimately might appear in the minds of jurors.70 Most cases, however, still exhibited the familiar formulas emphasizing "belief."71 The requirement that the jury be "fully satisfied" or "satisfied" on the basis of the evidence continues as a common feature.72
There is, however, a more secular terminology. The "if you believe the evidence" phraseology is often replaced by "if you think the evidence" terminology.73 The term "judgment," or "understanding," also became more frequent. One judge advised a jury to "exercise your judgments" on the evidence.74 The "understandings" of the jury must be "absolutely coerced to believe."75 Another judge noted that they "were rational men and will determine according to your consciences, whether you believe those men guilty or not."76 The understanding and the conscience were concerned
with the same, not different, mental processes, and both involved rational deliberation. Although terms like "mind," "understanding," and "judgment" have an obviously more secular tone than "belief" and "conscience," and are sometimes substituted for them, it is important not to make sweeping statements about secularization, for the more secular terms often appear with the more traditional ones. Recall in this connection that Bacon, in the early part of the seventeenth century, already referred simultaneously to the jury's "understanding" as well as to its conscience, and that the High Court of Justice in 1649 indicated they were "fully satisfied in their judgement and conscience" of the king's guilt.
We can, however, trace a growing concern for situations in which juries might have doubts about evidence and thus about their verdicts. Their minds might be "suspended in such a degree of that doubt" that they could not be "satisfied."77 In a 1752 case the prosecution suggested that the evidence was "so strong, so convincing, . . . that that Presumption that will rise to a Conviction; there will not remain the least Doubt of it."78
This period witnesses the first use of the beyond reasonable doubt standard that sounds so familiar to modern ears. Anthony Morano has suggested that the beyond reasonable doubt test was introduced by the prosecution, and that it actually was designed to provide less protection to the accused than the "any doubt" test, which did not require that doubts be reasonable.79 My reading of the cases and the treatise literature is somewhat different. I do not think that the "any doubt" terminology ever meant that juries should acquit on the basis of frivolous doubt. The term "moral certainty" was taken to mean proof beyond reasonable doubt. If one had real doubts, moral certainty was not reached. The term "beyond reasonable doubt" was, I believe, not a replacement for the any doubt test but was added to clarify the notions of moral certainty and satisfied belief. Indeed, many of the cases that enunciate the beyond reasonable doubt test for acquittal employ the "if you believe," or "if your conscience is satisfied," or "if you are satisfied with the evidence" phraseology when stating what was required for conviction. Reasonable doubt was simply a better explanation of the satisfied conscience standard that resulted from increasing familiarity with the moral certainty concept.80 The emphasis on doubt almost certainly owes something to the growing participation
of defense counsel in criminal cases. It would obviously be in the interest of defendants to emphasize doubt.
Anthony Morano's research, however, has established that the beyond reasonable doubt standard was employed in the Boston Massacre trials of 1770, rather than first appearing in the turn-of-the-century Irish treason trials.81 Interestingly, the Boston cases do not suggest that the standard was considered innovative, for both the prosecution and the bench emphasized that the accused were being tried according to traditional English usage. The prosecution, appealing to the jury's "Cool and Candid Reason," indicated that if the "Evidence is not sufficient to Convince beyond reasonable Doubt," then the jury must acquit. The prosecution, of course, asserted that the evidence was "sufficient to convince you of their guilt beyond reasonable doubt." The judges, however, employed the traditional "fully satisfied" and "satisfied belief" formulations, as well as "If upon the whole, ye are in any reasonable doubt of their guilt, we must then, agreeable to the rule of the law, declare them innocent."82
We should not be surprised, however, that its introduction appeared to be neither novel nor controversial in this case. Sir Geoffrey Gilbert's authoritative Law of Evidence , which employs similar language, had appeared in several editions before 1770.83 The introduction of the beyond reasonable doubt language in the Boston cases caused no comment, precisely because it was consistent with the notions of "belief," "satisfied conscience," and "moral certainty" employed in and outside the courtroom.
Thus in 1777, in one of the rare cases fully recorded in shorthand tried at Old Bailey, Counsel Mansfield told the jury, "If the evidence be such as 'irresistibly proves' [the crime], . . . if you see any room upon the evidence to doubt of his being guilty, if you are not perfectly convinced you must find the accused not guilty."84 The beyond reasonable doubt formulation appeared in a 1796 Canadian case as well. The jury was informed that if they had any reasonable doubt, then they must acquit, "for it is the invariable direction of our English Courts of Justice to lean on the side of mercy."85
We must look briefly at the language of the turn-of-the-century Irish trials, many of which employ the reasonable doubt standard in conjunction with the notions of satisfied conscience and belief.
In the Trial of Weedon (1795) one judge indicated a guilty verdict was appropriate if it "should appear" beyond all doubt "that the acts in question had been done by the Prisoner." Unless they were "perfectly satisfied," the jury must acquit. Another judge indicated that a guilty verdict should be forthcoming "if your understandings are absolutely coerced to believe" the testimony of the witness. Coerced assent was, as we have seen, equivalent to moral certainty and to Locke's highest degree of probability. If, however, the jury had "any rational doubt" in their "minds," they must acquit. A third judge combined the notions of conscience, belief, and rational doubt. The jury was "to determine upon the weight of . . . [their] observations, to consider the facts and circumstances" if they "believe it to be the truth." If, however, they felt "such a doubt as reasonable men entertain," they were bound to acquit.86 The fact that several judges employed the same language should indicate that the terminology had gained widespread acceptance.
The same mixture appears in the Trial of Leary (1795). If the evidence "carries conviction to your minds . . . such a conviction as leaves no doubt that the prisoner is guilty they must declare him so. But if . . . you should have any doubt, such as reasonable men may entertain . . . , " acquittal was appropriate.87 In the Trial of Kennedy (1796), the jury was told, "if you have no doubt such as rational men may entertain," a guilty verdict was called for. But if you should "entertain such a reasonable doubt," they must acquit.88 Only reasonable doubts were acceptable. Jurors were expected to conform to the model of the rational man.
In the Trial of Glennan (1796), the judge said, "If you have a reasonable doubt, not such as the idle or fanciful may take upon remote probabilities, but such as cannot satisfy your judgement upon your oath," then the jury should acquit. "You are rational men and will determine according to your consciences, whether you believe those men guilty or not."89 Here the languages of belief, the satisfied conscience, and beyond reasonable doubt are all linked together.
The beyond reasonable doubt standard was prominent in all the turn-of-the-century Irish treason trials. Yet there was no indication that a new standard was self-consciously enunciated. The new formula usually appeared with statements that conviction rests on a satisfied conscience or belief in the testimony of the witnesses. It
was introduced most typically when judges added instructions about acquittal. I am not suggesting that juries had become more concerned with high levels of proof, for they seemed to have expected them, but rather that the judiciary, in its charges to the jury, were now articulating those high standards in language consistent with and influenced by the terminology of the established religious and philosophical communities.
The beyond reasonable doubt standard also appears in a number of U.S. trials around the turn of the century. The 1798 trial of Matthew Lyon for seditious libel in the Circuit Court for the Vermont District indicates that the standard was being applied early in the history of the new nation. The judge informed the jury, "you must be satisfied beyond all reasonable substantial doubt that hypothesis of innocence is unsustainable."90
Defense counsel in the Trial of the Northampton Insurgents before the U.S. Circuit Court, 17991800, advised the jury to "remember that it is enough for us in defense of the prisoner to raise a doubt; for if you doubt it (it is the principle of law, as well as of humanity) you must acquit."91 A second defense counsel indicated that the presumption of innocence must be maintained "until the contrary is proved by the most incontrovertible evidence." The offense must be "proved in such a manner as to leave no possibility of doubt in the minds of the jury." Proof must "come from the purest sources, and be of that nature as to establish the crime beyond the possibility of a doubt." The jury was also reminded of the necessity of divesting itself of "opinion or bias, . . . otherwise there is not a fair scope for our reasonable faculties to act, nor can our consciences be acquitted of guilt." The prosecution in the case indicated the testimony offered had been "produced . . . to remove every doubt" from the jurors' "minds." The judge, like the prosecutor, invoked the beyond reasonable doubt standard.92
The beyond reasonable doubt standard, however, was not uniformly applied until well into the next century, when it was defined as follows:
It is not merely possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction of
moral certainty, of the truth of the charge . . . the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgement. . . . This we take to be proof beyond a reasonable doubt.93
By the late eighteenth century, the satisfied conscience and beyond reasonable doubt standards had become explicitly linked. The addition of the concept of moral certainty to legal language reflected the desire to make the language consistent with prevailing philosophical terminology. This terminology, however foreign sounding to modern ears, was part of the language and discourse of the educated classes in both England and America. Satisfied conscience, reasonable doubt, and moral certainty were widely used concepts, and these and related terms were found in moral, theological, historical, philosophical, and legal discourse.94
Even more than the cases, the new genre of the legal treatise on evidence that emerges in the early eighteenth century suggests that the evolution of the doctrine of proof beyond reasonable doubt was linked to the changing philosophical scene. One of the most interesting features of treatises on evidence and the more general discussions of law is that so many authors found it necessary to treat legal evidence in the context of current epistemological thought. It seemed to them essential to ground the rules of evidence, which were the bulk of the treatises, on what was considered to be a sound theory of knowledge. Legal rules, it was evidently felt, could not stand alone. Nor were they justified by tradition or a special sort of legal reasoning. The treatise writers attempted to demonstrate that the rules of evidence, some of them several centuries old, could and did rest on sound notions of what constituted appropriate evidence and good proofsthat is, on an intellectually satisfying theory of human knowledge. The rules, then, were not directly derived from philosophical principles, but were seen as conforming to sound epistemological and logical principles.
Several major Anglo-American writers attempted to integrate legal evidence with the reigning empirical English philosophies. The two earliest writers, Sir Geoffrey Gilbert and John Morgan, rely on Locke to provide the foundation for their treatises. James Wil-
son and David Hoffman, who prepared more general lectures, lean heavily on the eighteenth-century Scottish Common Sense philosophers, and Thomas Starkie leans on a philosophical miscellany. Thus, if the earliest treatises are liberally sprinkled with Locke, the later ones include generous dashes of Hartley, Reid, Bentham, Paley, Stewart, Kirwan, Whately, and others.95
The first real treatise on evidence, The Law of Evidence , was written by Sir Geoffrey Gilbert, a respected judge and legal scholar, knowledgeable about the mathematical and scientific work of the day. He was also the author of Abstract of Mr. Locke's Essay on Human Understanding . Not surprisingly, his posthumously published treatise on evidence begins with a summary of Lockean principles:
There are several degrees from perfect Certainty and Demonstration, quite down to Improbability and Unlikeness . . . and there are several Acts of the Mind proportioned to these Degrees of Evidence . . . from full Assurance and Confidence, quite down to Conjecture, Doubt, Distrust and Disbelief.
Now what is to be done in all Trials of Right, is to range all Matters in the Scale of Probability, so as to lay most Weight where the Cause ought to preponderate, and thereby to make the most exact Discernment that can be, in Relation to the Right.96
The law did not have access to certain knowledge because litigation depended on transient events "retrieved by Memory and Recollection." The "Rights of Men" were therefore of necessity "determined by Probability," not by demonstration. Assessment of probability, however, required careful consideration of the degrees of credibility of the witnesses. There was no more reason to doubt the statements of credible witnesses than if "we ourselves had heard and seen" what the witnesses reported. Verdicts, according to Gilbert, would necessarily be devoid of absolute certainty or demonstration, but trials, at least those with appropriately credible witnesses, might proceed to verdicts which the jury had no reason to doubt. Gilbert's Lockean formulation, as well as the evidence from the state trials cited earlier, suggests that the beyond reasonable doubt rule first applied only to direct testimony and was not initially applied to circumstantial evidence.
Although it is possible to argue that the Lockean epistemology, which I have suggested provided the basis for Gilbert's treatise,
was more decoration than substance, it is noteworthy that the 1795 edition of Gilbert (edited by Capel Lofft) contains references not only to Locke but also to John Wilkins, mentioned earlier in connection with the development of the concept of moral certainty in the realms of natural religion and natural science. Richard Price, David Hartley, and Isaac Watts are also cited in later editions.97
John Morgan's Essays Upon the Law of Evidence (1789) similarly relies on a Lockean conception of knowledge.98 He, like Gilbert, indicates that there are degrees of knowledge, ranging from perfect certainty and demonstration on the one hand to improbability and unlikeliness on the other, and that there are acts of the mind proportioned to the evidence. These ranged from "full assurance and confidence, to conjecture, doubt and disbelief." Although legal proceedings "must judge on probability . . . , " nothing less than the "highest degree of probability must govern" the courts.99 When one had reached a judgment based on "the honesty and integrity of credible and disinterested witnesses," the mind had no choice but to "acquiesce therein as if [it had] a knowledge by demonstration." The mind "ought not any longer to doubt but, to be nearly if not as perfectly well-satisfied as if we of ourselves knew the fact."100
Morgan's "satisfaction" was also synonymous with judicial demands for jury "satisfaction" or "satisfied conscience." Jury verdicts must be based on the very highest knowledge available to humans in matters of fact. Morgan, like Gilbert, hoped to ground the law of evidence on a sound epistemological foundation.
James Wilson, professor of law at the College of Philadelphia and associate justice of the U.S. Supreme Court, in 1790 insisted that the law was and must be "comformable to the true theory of the human mind." Wilson's treatment centered on the concept of "belief," of which the most salient characteristic both within and without the legal context was that it admitted "of all possible degrees from absolute certitude down to doubt and suspicion."101 Wilson, however, was critical of Cartesian and Lockean conceptions of knowledge and relied instead on the formulations of Thomas Reid and the Scottish commonsense school, which would dominate Anglo-American epistemological discussion and moral philosophy in the late eighteenth and early nineteenth centuries.
If Thomas Reid and his Common Sense school successors de-
veloped an inductive philosophy of mind which somewhat modified Locke on the nature of sensation, perception, and the formation of ideas, the most important feature of the Common Sense philosophers for our purposes is their emphatic rejection of the centuries-old philosophical tradition which insisted that demonstration alone yielded certainty and that everything else, including the best-attested matters of fact, yielded only probable opinion. Such a position, they insisted, might be taken by a logician but had no meaning in ordinary speech or everyday life. Thus a good deal of the evidence derived from testimony, which for the traditional philosopher was "merely probable," was properly classified as "certainty" by the rest of mankind. Thomas Reid thus insisted that the execution of Charles I was a certain factnot a statement of probability. Human capacity for error, therefore, was irrelevant to consideration of whether one was correct or erroneous in particular cases. Common sense properly viewed well-attested facts as knowledge, not as mere opinion and probability.
The Common Sense school was especially anxious to counter the skepticism of Hume, which insisted that no amount of evidence could remove doubt. Thus Dugald Stewart, like Reid, insisted that while it was always logically possible that judgments in matters of fact might be mistaken, there were some instances in which they were as certain as any euclidean truth. It is, therefore, not surprising to find Hume absent from most writing on legal evidence.102
Like most of his predecessors of the late seventeenth and early eighteenth centuries, James Wilson, who had been educated in Scotland and was influenced by Reid and Scottish philosophy, identified two varieties of reasoning, the demonstrative and the moral. The former yielded abstract and necessary truths, or the unchangeable relations of ideas. The latter dealt with "real but contingent truths and connections which take place among things actually existing." Although Wilson rejected some of the Lockean terminology which he found in Gilbert and Blackstone, he noted that moral evidence arose by "insensible gradation, from possible to probable, and from probable to the highest degree of moral certainty."103
Testimony was, for Wilson, the most important of some fourteen sources of moral evidence. It provided both the "greatest part" of the jury's business and the most knowledge of "men and things."
Testimony provided the basis not only for "many parts of jurisprudence," but also for history, criticism, and "for all that acquaintance with nature and the works of nature, . . . founded on personal observation and experience." "The whole stupendous fabric of natural philosophy" thus had the same epistemological basis as the law.104
Wilson also enumerated and discussed the reasons for doubting or rejecting testimony: that the thing or event appeared improbable and that testimony might be given by someone incompetent to judge the matter, by someone who previously gave false testimony, or by someone with a temptation to deceive. The reputation of the witness and the manner in which testimony was delivered also entered into the jury's evaluation. All these elements considered jointly would render the force of the testimony believable or not. The concurrent testimony of many witnesses deprived of the opportunity for collusion thus would be "equal to that of strict demonstration." Testimony and concurrent circumstances might allow juries to gain a sense of moral certainty about facts and events. The jury's belief thus required a considered "act of the mind." In capital cases, Wilson thus insisted, the evidence must be so strong as to "force belief."105
Thus by the late eighteenth century the concepts of moral certainty and beyond reasonable doubt were tightly linked in philosophical literature, in legal treatises, and in legal discussions designed to reach the educated public. The language of moral certainty and beyond reasonable doubt and the provision of philosophically oriented statements concerning the nature of human knowledge were becoming commonplace in early nineteenth century evidence treatises, although not every text included both elements.
If Leonard McNally's much-used Rules of Evidence on Pleas of the Crown offers little in the way of philosophical underpinnings, McNally nevertheless played a crucial role in enunciating and publicizing the beyond reasonable doubt standardboth as defense counsel in several of the Irish treason trials and in his treatise on evidence. He insisted that it was a rule of law that if a jury "entertain[s] a reasonable doubt" as to the truth of the testimony of the witnesses, it must acquit. Reasonable doubt arose from testimony which the jury judged not to "deserve credit." Such doubt might arise from the "infamy" of the witness's character, his interest, or
his manner of giving evidence. Showing resentment or partiality, for example, might "impress suspicion" or prevarication. If the witness's credibility was questionable, "unless his testimony be supported by clear and collateral proof, . . . doubt must arise in the minds of the jurors." It was the "indispensable duty" of the judges in charging the jury to ask "whether they are satisfied, beyond the probability of doubt, that he is guilty."106
In The Philosophy of Evidence , Daniel McKinnon, like Gilbert, Morgan, and Wilson, begins with a brief discussion of certainty, probability, and assent and refers to the epistemological theorists of the dayLocke, Reid, and Stewart. He thus makes the now commonplace distinction between intuitive, or demonstrative, knowledge and probable knowledge, under which he includes both presumption, or indirect proofs, as well as direct proofs. If demonstrative knowledge "exclude[s] all possible doubt," probable and presumptive knowledge did not. Degrees of certitude thus varied. For this reason, rules were needed "to restrain the latitude of individual opinion and conduct in the investigations of truth by a strict and methodical course of argument." The law of evidence was "framed with this intention." Although McKinnon does not use the language of moral certainty, he indicated that juries were to acquit if the evidence "is at all doubtful" and further indicated that this "very humane rule" was "fortified by the presumption that every man is innocent till his guilt appears."107
While Phillipps's Theory of Presumptive Proof does not use the term "beyond reasonable doubt," it does indicate that the "impression in the mind of a jury in a criminal case" not be "that the prisoner is probably guilty, but that he really and absolutely is so." If the jury had doubts, they were to acquit.108
In the late eighteenth and nineteenth centuries it was not unusual for a discussion of legal evidence to include or refer to treatises on logic or for general discussions of logic and modes of proof to devote considerable attention to matters relevant to the law. Because most Anglo-American philosophy and epistemology were empirical in their orientation, a great deal of attention was quite naturally devoted to questions relating to the probability and certainty of arguments and evidence which related to matters of fact.
While it is obviously not possible to undertake a detailed discussion of the relationship between concepts of legal evidence and
the more philosophically oriented writings of moral philosophers, natural philosophers, and logicians, brief comments on a few such writers should indicate the overlap between the writing of members of the legal profession considering legal evidence and the writing on evidence in other areas. We have already noted the early dependence on Locke. The next generation of writers relied more heavily on David Hartley, Thomas Reid, and Isaac Watts, and still later ones on James MacIntosh, Richard Kirwan, Dugald Stewart, and John Stuart Mill.
David Hartley's Observations on Man (1749) was frequently cited by legal writers on issues of evidence and the nature of human knowledge. Topics of relevance to legal writers might include the nature of assent and dissent, the role of rational assent in mathematical and practical reasoning, and the differences among true, doubtful, and fictitious narrations of fact. Hartley noted that some facts were "practically certain," while others were "liable to doubts."109
Isaac Watts's Logick, or the Right Use of Reason in the Inquiry after Truth (1724), another frequently cited source, defined logic as the "art of using Reason in our Inquiries after Truth," and was a concept which he believed referred equally to the actions of life and to the natural sciences. Perhaps of most interest to lawyers was his discussion of the principles and rules of judgment in human testimony. He indicated that one must ask whether the event in question was possible, whether there were concurrent circumstances in addition to testimony, and whether the character and knowledge of the testifier made his testimony believable. If one theme dominated Watts's discussions of evidence, it was the need to exactly proportion assent to the degree of evidence. Where the evidence was insufficient, the mind was to suspend assent.110 Most of the rules and principles were easily applicable to the courtroom, and it is not surprising that so many writers on legal evidence found his discussions useful.
George Campbell's Philosophy of Rhetoric also discussed evidence in ways relevant to legal writers. Discussion was largely limited to "moral evidence," because the sphere of demonstrable evidence was so small. He thus devoted a good deal of attention to experience and testimony. The latter, he insisted, was capable of providing certainty. One must give unlimited assent "when we have
no positive reason of mistrust or doubt." Many beliefs are based on moral evidence which does not create doubts. All decisions of fact involved moral evidence, and these in turn involved degrees of certainty which ranged from possible, to probable, "to the summit of moral certainty."111 Campbell, a common sense thinker, not only employs the language of reasonable doubt and moral certainty, but also allies this language and other issues relating to assent to philology and history, as well as to law. By the end of the eighteenth century the concepts of moral certainty and proof beyond reasonable doubt were widespread in the moral and philosophical literature. Their introduction into legal writing in the jury charges, which emerge late in the century, should thus not be surprising.
The same development continued in the nineteenth century. Kirwan's Logick, or An Essay on the Elements, Principles and Different Modes of Reasoning of 1807, a general treatment of the logic of proof, insists that the rules of evidence and the logic on which they were based must be "diligently attended to" in countries where "all men are liable to sit on juries."112 Kirwan, in the manner of seventeenth- and eighteenth-century natural theologians, discriminates among metaphysical, physical, and moral certainty, as well as between demonstrative and other proofs. He not only discusses the bases for confident belief, "suspicion, doubt, or hesitation,"113 but also devotes chapters to "indubitable proofs productive of certainty," "ambiguous or suspicious proofs," "fallacious proofs," and "probable proofs." Considerable attention is also given to direct and indirect proofs, the credibility of testimony, and presumptions. References to law, legal writers, and legal situations were thus not at all unusual in Kirwan's Logick .114 Indeed Kirwan appears to have considered lawyers and prospective jurors as his primary audience.
It is thus not at all surprising that David Hoffman should recommend Kirwan's Logick and Reid's Essays to students of law or that other writers on legal evidence should recommend logical and epistemological oriented treatises such as those of Locke, Hartley, Reid, Abercrombie, Kirwan, and others. The list of recommended philosophical works, as one might expect, was modified over time, and later writers favored Kirwan, Whately, and John Stuart Mill over earlier works.
An example of this mutual borrowing or mutual reinforcement is found in James Gambier's Guide to the Study of Moral Evidence ,
or of that Species of Reasoning which Relates to Matters of Fact and Practice . The editor of this work, which deals with evidence in a wide variety of types of human knowledge, emphasizes the importance of such a work for jurors. He insisted that it is they and not counsel alone who "ought to be familiar with the rules of evidence."115 He complained of the small portion of potential jurors who "have ever received one hour's direct instruction on the Science of Evidence," and recommended that "Every child who may hereafter stand in a jury-box to decide on a question of fact 'according to the evidence' ought to be instructed in the laws of evidence; so that he may know for himself when a fact is proven, and some of its details, to be imported even in the common school."116 It was with that thought in mind that he introduced Gambier's treatise to the public.
Moral evidence was defined as that "species of proof, which is employed on subjects, directly or indirectly, connected with moral conduct." It was not, however, limited to those subjects, but was "extended to all those facts, and events, concerning which we do not obtain the evidence of sense, intuition or demonstration, and to all the general truths, which are deduced from observation."117 Indeed, it dealt with all matters of fact.118 Moral evidence was to be distinguished from demonstration, which led to absolute certainty, for the proofs involved in moral evidence were fallible. They, therefore, could not produce absolute certainty but only "probable judgment, or at most moral certainty." Probability, however, might "rise so high, as to exclude all reasonable doubt." Moral evidence involved degrees of assent ranging "from suspicion to moral certainty." The degree of assent depended on the degree of evidence: "Thus when the evidence on one side preponderates a very little, there is ground for suspicion, or conjecture. Presumption, persuasion, belief, conclusion, conviction, moral certainty, doubt, wavering, distrust, disbelief, are words which imply an increase or decrease of this preponderancy."119 Lawyers and divinesand it is noteworthy that he pairs themthus have their proofs, and
though they do not amount to demonstration, yet, if they be sufficient to exclude all reasonable doubt, they ought to be admitted to be proofs. In truth, wherever there is produced, in favour of any proposition, the highest kind of evidence of which it admits, and in a sufficient degree to outweigh all that can be urged against it, it may properly be said to be proved.120
Because the judgment required training in "estimating the relative worth of different kinds of evidence," the book was designed to describe the proper sort of reasoning about moral evidence.121
Although Gambier's Guide is not a legal treatise, its assumptions about the nature of knowledge and the way one should reach judgments in matters of fact were relevant to the legal community. The overlap between the legal and nonlegal work is often so great that it is difficult to know which should be labeled "legal" and which should not. What is clear, however, is that the growing treatise literature on the law of evidence participated in broader intellectual currents and shared rather widely held views on the nature of evidence and proof. The language of probability, certainty, moral certainty, and beyond reasonable doubt was part of the discourse of the educated classes. The works just cited were designed for the literate reader, not for the professional philosopher.
Similar attention to legally relevant epistemological issues was provided by John Abercrombie, whose Inquiries Concerning the Intellectual Powers and the Investigation of Truth was frequently cited in the evidence treatises. Not only does Abercrombie discuss probability, certainty, and the sources of certainty, but he was also interested in the role of testimony and doubts regarding testimony. He employed the notion of high moral probability and spelled out the grounds on which one can receive testimony with confidence. If his readers accepted his view that the "exercise of reason is precisely the same, and is guided by the same laws, whether it be applied to the investigation of truth or to the regulation of conduct," they must have found the interaction between the evidence treatises and the more philosophically oriented treatments of the nature of human knowledge both reasonable and normal.122
James Glassford's Essay on the Principles of Evidence and Their Applications to the Subject of Judicial Inquiry again suggests the overlap between the philosophical and legal writing of the early nineteenth century. Glassford's rather lengthy book was initially designed as an article for the supplement to the Encyclopaedia Britannica and was only published as a freestanding work because it had become so long. It was thus "not intended altogether as a professional book."123 Glassford indicated that evidence might be treated generally as a part of logic or as part of particular sciences, and especially as part of law, a view that would probably have
seemed commonplace to early nineteenth-century readers. Glassford therefore divided his treatise into two parts. The first dealt with "The Nature and Sources of Evidence in General," the second with "the several kinds of Legal Evidence, or the Evidence receivable in the courts of law."124 As one might expect, Glassford, whose theory of evidence and proof was largely based on the then dominant Scottish Common Sense school of philosophy, deals with the whole range of evidentiary issues and concepts, including probability, certainty, gradations of certainty, moral certainty, testimony, and mental conviction beyond reasonable doubt. His work does not appear to have had any great impact on the legal profession, perhaps because it attempted to draw on both English and Scottish law; but like the works of Gambier and others, it does indicate the close relationship between legal and philosophical discussions of evidence and truth determination.
Thomas Starkie's immensely influential Practical Treatise on the Law of Evidence , which was designed for the legal practitioner, also reflects the epistemological traditions we have been examining. Indeed, the treatise is liberally sprinkled with references to epistemological issues. Juries, Starkie insists, must rely on the general principles of belief "on which any individual would act who was desirous of satisfying himself by inquiry as to the truth of any particular fact."125 Legal facts were no different from others, although the law sometimes added special requirements, such as excluding certain kinds of testimony, to insure that the search for truth would in no way be contaminated.
Starkie, too, distinguished between absolute certainty and the moral certainty available in matters of fact.
Evidence which satisfied the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt, constitute full proof of the fact. . . . Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest it may decline, by an infinite number of gradations, until it produces in the mind nothing more than a preponderance of assent in favour of the particular fact.126
The test for the jurors was the "sufficiency of the evidence to satisfy the understanding and conscience of the jury," and it was sufficient when the evidence and the proof "produce moral certainty to the
exclusion of every reasonable doubt." "To acquit upon light, trivial or fanciful suppositions, and remote conjecture, is a virtual violation of the juror's oath, . . . on the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused."127 Moral certainty was equivalent to the highest degree of probability, and both were indissolubly connected to the beyond reasonable doubt standard. "Satisfied belief and satisfied conscience and understanding" gradually emerged as the familiar "beyond reasonable doubt." With Starkie the modern standard was in place. The impact of his treatise was profound and influenced Anglo-American writers for many decades.
The influential early nineteenth-century American legal writer David Hoffman also insisted that the science of evidence be founded on the closest observation of man's moral and intellectual nature. Although Hoffman especially admired the recent treatises of Phillipps and Starkie, he still felt that the English law of evidence tended to have "too little" recourse to the general principles of human action and was impaired by "too strict adherence to the analogies of the common law." He also criticized English writers for their "almost total neglect" of Continental evidentiary jurists such as Farinaccius, Menochius, and Domat. Hoffman also recommended that the philosophical and logical works of Kirwan, De Moivre, Paley, Reid, Stewart, and, of course, Locke be considered more seriously.128 He further noted that "The effect to be allowed to intrinsic evidence or that deduced from a combination of circumstances" had been "but little explored by the legal philosophers of any country." This great work, if ever performed, could only be accomplished by "some preeminent genius."129
As one might expect, the legal writings of Jeremy Bentham have attracted more scholarly attention than those of most early treatise writers and commentators I have mentioned. While it is not possible to discuss his enormously long and complex Rationale of Judicial Evidence , it is important to note that Bentham's intention was to bring the law of evidence into conformity with the rules of logic. Bentham's powerful work on evidence appears to have exerted relatively little direct impact on the legal profession, in part because of its intense criticism of the profession and in part because of his radical desire to eliminate all formal rules of evidence. Nevertheless, it is important for our purposes because it, too, bears wit-
ness to the powerful eighteenth- and nineteenth-century effort to ground the law of evidence on principles of sound reasoning. As noted earlier, Locke, Hartley, Reid, Paley, Abercrombie, Stewart, and others provided the basis, or at least the epistemological starting point, for many writers who concerned themselves with the problems of legal evidence. Bentham is no exception, although his approach was closer to that of Locke rather than to that of the Common Sense school. Lengthy portions of his massive treatise explore notions of probability, improbability, and impossibility, as well as the nature of testimony and circumstantial evidence, the hindrances to truthful testimony, and degrees of persuasion.130
As the nineteenth century progressed, the number of legal treatises increased in all fields. These included not only general treatises on evidence but also specialized works dealing with circumstantial and presumptive evidence, the latter in particular expressing considerable interest in epistemology and a receptiveness to civilian writers such as Domat and Pothier.131 Many of these works, too, employed the language of probability, moral certainty, and degrees of assent, and attempted to ground their evidentiary standards on psychological and epistemological positions of the day. Chapter 3 examines the ways in which discussions of circumstantial evidence came to combine this English mode of analysis with that of the civil law tradition.
This pattern of philosophical discussion is to be found in Simon Greenleaf's famous Treatise on the Law of Evidence , which was indebted to both Starkie and Phillipps. This famous nineteenth-century American legal treatise followed the conventional pattern of beginning with a brief discussion of epistemology. In addition to incorporating the epistemological authorities cited by Starkie and Phillipps, Greenleaf uses Whately's Logic , Gambier's Guide to the Study of Moral Evidence , Abercrombie's Inquiries Concerning the Intellectual Powers , McKinnon's Philosophy of Evidence , and Reid's Inquiry into the Human Mind to support his distinction between mathematical and moral evidence in his discussion of the "grounds of Belief."
Matters of fact are proved by moral evidence alone; by which is meant, not only that kind of evidence, which is employed on subjects connected with moral conduct, but all the evidence, which is not obtained either from intuition, or from demonstration. In the ordinary affairs of life, we do not require demonstrative evidence, . . . and to insist upon it would
be unreasonable and absurd. The most, that can be affirmed of such things, is, that there is no reasonable doubt concerning them. The true question therefore, in trials of fact, is not, whether it is possible that the testimony may be false, but whether there is a sufficient probability of its truth, that is whether the facts are shown by competent and satisfactory evidence. . . . By satisfactory evidence . . . is intended that amount of proof, which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances, which will amount to this degree of proof, can never be previously defined; the only legal test of which they are susceptible, is their sufficiency to satisfy the mind and conscience of a common man, and so to convince them, that he would venture to act upon that conviction, in the matters of the highest concern and importance to his own interest.132
What is interesting historically about Greenleaf's formulation is that "satisfied mind" and "satisfied conscience," the formulas most common in seventeenth- and early eighteenth-century charges to the jury, are explicitly equated with the concept of "beyond reasonable doubt." Greenleaf, like most of his predecessors, also insisted that the courtroom shared its principles of evidence with the historian, the naturalist, the traveler, and the astronomer. Thus, one of the bases of evidence, the connection between "collateral facts or circumstances, satisfactorily proved, and the fact in controversy," was viewed simply as the legal application "of a process familiar in natural philosophy, showing the truth of an hypothesis by its coincidence with existing phenomena." The force of the connections and coincidences, which may be either physical or moral, thus "depends on their sufficiency to exclude every other hypothesis but the one under consideration." Greenleaf also indicated that the doctrines of presumptive evidence, which were so important to law, were "shared . . . in common with other departments of science."133
Although most early and mid-nineteenth-century treatises emphasize the similarity between legal reasoning and evidence and ordinary reasoning and evidence, it must be admitted that James Thayer's influential Preliminary Treatise on Evidence at the Common Law represents a departure from this position. Because Thayer distinguished the evidentiary method of the law from that of the natural sciences and history, it is not surprising that he does not attempt to ground his treatise on the epistemological treatises
of the day. Thayer appears to be of several minds whether, or to what degree, legal evidence and reasoning differ from evidence and reasoning in other fields of inquiry. At one point he differentiates between legal evidence and historical and religious evidence and insists that legal evidence is concerned with what is admissible, not what is logically probative. Yet he also admits that the rules of legal argument are "mainly an affair of logic and general experience, not legal precept," and they do not call "into play any different faculties or involve any new principles or methods." Legal reasoning does not differ "in any fundamental respect from any other reasoning," and lawyers possess no "peculiar organs or methods for tracking and apprehending the truth. What is called the 'legal mind' is still the human mind, and it must reason according to the laws of its constitution." But for Thayer, if legal reasoning was "at bottom, . . . like all other reasoning," there were nevertheless "a thousand practical considerations" which shaped it. It was thus both the same and different, and he tended to emphasize the differences more than the similarities. Thayer thus represents something of a departure from previous thinkers. On the one hand he differentiates legal from mathematical reasoning on the traditional ground that the law does not deal with demonstration; it "deals with probabilities [but] not with certainties." On the other hand, unlike most of his predecessors, he distinguishes legal reasoning from other types of evidence that deal with probabilities.134
If Thayer represents something of a departure from earlier tradition, John Wigmore's monumental Principles of Judicial Proof as Given by Legal, Psychological and General Experience is more typical of the earlier treatise writers with its emphasis on the close connections between legal evidence and ordinary reasoning. Wigmore insists that the principles of proofthe ratiocinative process of persuasionwere of far greater importance than the rules of admissibility. For Wigmore, the principles of proof were "the natural processes of the mind in dealing with evidential facts after they are admitted to the jury; while the rules of admissibility represent artificial legal rules."135 Wigmore believed that there had been very little interest in the principles of proof and thought himself to be the first scholar since Bentham to emphasize the principles of proof and to distinguish them from those of admissibility. It was the former that "bring into play those reasoning processes which are al-
ready the possession of intelligent and educated persons."136 As his most recent analyst has suggested, "Wigmore's epistemology . . . adopted without fuss or argument, a common sense empiricism in the tradition of Locke, Bentham, and John Stuart Mill."137 Wigmore was especially eager to introduce rationality into the field of evidence and to ground the principles of evidence and proof in the context of the best current knowledge about logic and psychology.
From the late seventeenth to the early twentieth century and beyond, most, if not all, legal scholars were devoted to showing that the standards of evidence and proof in the law conformed to those in other forms of inquiry. The beyond reasonable doubt and moral certainty standards that have been so central to Anglo-American courts for well over a century were the result of this effort.
The beyond reasonable doubt standard articulated in both the cases and the evidence treatises stemmed from the late seventeenth-century cluster of ideas associated with the concept of moral certainty and with, to use Lockean terminology, the highest degree of probability. Once it became evident that trial by jury required the critical evaluation of witnesses, legal thinkers began to adopt the then current religious and philosophical ideas about dealing with matters of fact. The writings of Wilkins, Tillotson, Boyle, and Locke, and later Paley, Hartley, Reid, Stewart, Whately, and Mill thus played a significant role in the evolution of Anglo-American concepts of evidence. Although one might wish to go behind these thinkers and investigate the contributions of scholastic philosophy and medieval and early modern canon and civil law, there can be little doubt that eighteenth- and early nineteenth-century legal practitioners and writers attempted to bring English law into conformity with the most advanced philosophical thought. Early in the seventeenth century the concern for evaluating evidence was encapsulated in "satisfied conscience," or "satisfied belief," formulas that resonated both to the cases of consciences of the casuistical traditions and to the moral and religious obligations of jurors serving under oath. During the seventeenth and eighteenth centuries, the concepts of probability, degrees of certainty, and moral certainty were poured into the old formulas so that they
emerged at the end of the eighteenth century as the secular moral standard of beyond reasonable doubt. Despite the many changes in terminology we have traced over the centuries, the goal has remained essentially the same. The earliest standards we have identified were "satisfied belief" and "satisfied conscience." They were succeeded by "satisfied mind," or "satisfied understanding," or something closely approximating them. Gradually this language, too, was dropped and replaced by the concept of moral certainty and beyond reasonable doubt.138
Throughout this development two ideas to be conveyed to the jury have been central. The first idea is that there are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse is equal to the sum of the squares of the other two sides of a right triangle. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible. The second idea is that, in this realm of events, just because absolute certainty is not possible, we ought not to treat everything as merely a guess or a matter of opinion. Instead, in this realm there are levels of certainty, and we reach higher levels of certainty as the quantity and quality of the evidence available to us increase. The highest level of certainty in this empirical realm in which no absolute certainty is possible is what traditionally was called "moral certainty," a certainty which there was no reason to doubt.
I am not suggesting that most technical rules of evidence flowed from philosophical principles, but rather that such rules, some of them old and venerable, could be modernized and defended through an alliance with contemporary philosophy. Thus allied, they might be viewed as both rational and in harmony with the best understanding of the human mind. In this way, selective use of religious and philosophical formulations helped to provide continued legitimacy for the jury trial and the Anglo-American legal system.
Continues...
Excerpted from Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence by Barbara J. Shapiro Copyright 1991 by Barbara J. Shapiro. Excerpted by permission.
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Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence
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University of California Press, 1991
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