How reasonable is doubt?

What’s reasonable when it comes to doubt? Beyond a reasonable doubt is often described as “to moral certainty.” Some legal analysts approximate the numerical value of reasonable doubt to be a 95 percent certainty, while others assess it as a 98 or 99 percent certainty.

The prosecution has the burden of proving—by means other than a defendant’s confession—that a crime has occurred and was committed by the defendant. The prosecution must also prove that defendant had the intent required for the act to be considered a crime. An act without criminal intent cannot be considered a crime. Additionally, a connection between the act and the intent must be established. A defendant cannot be convicted solely on the basis of his or her out-of-court confession.

“The rule evolved in principle part because of the law’s distrust of extrajudicial confessions and its consequent reluctance to allow a defendant to be convicted on his or her admission to a crime without further proof that a crime has been committed,” authors David Brody, James Acker and Wayne Logan explain in Criminal Law.

Jure Fiorillo

The burden of proof remains with the prosecution throughout the criminal trial. The only time the defendant bears a burden of proof is when he or she claims an affirmative defense such as self-defense or insanity. With an affirmative defense, the defendant admits to having committed the crime charged but offers up an excuse or justification for his or her actions; i.e. the defendant fatally stabbed her neighbor because he pulled a gun on her first.

For an affirmative defense to go forward, the defendant must first convince the trial judge that the defense is valid. The defendant accomplishes this by offering evidence to support his or her claim of self-defense, or mental defect, or insanity. If the judge decides the defense has merit, the defendant is allowed to present the affirmative defense to the jury. The prosecution has the burden of proving that the crime was not excusable or justifiable.

The burden of proof is a valuable safeguard against unjust prosecution; it protects defendants in both civil and criminal cases. Defendants are presumed innocent by law and cannot be punished for offenses they are said to have committed. It is not enough for a complainant to simply allege that the defendant is guilty; sufficient evidence must be presented to support the allegation.

Juré Fiorillo is a criminologist and co-author of True Stories of Law & Order and True Stories of Law & Order: SVU. Her forthcoming book Great Bastards of History is due out in January 2010. She can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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