[Excerpt] “The prosecution must prove every element of the crime beyond a reasonable doubt for a valid conviction. The Constitution nowhere explicitly contains this requirement, but the Supreme Court in In re Winship1 stated that due process commands it. Justice Brennan, writing for the Court, noted that the Court had often assumed that the standard existed, that it played a central role in American criminal justice by lessening the chances of mistaken convictions, and that it was essential for instilling community respect in criminal enforcement. The reasonable doubt standard is fundamental because it makes guilty verdicts more difficult. As Winship said, the requirement “protects the accused against conviction . . . .”
Justice Harlan’s eloquent concurring opinion in Winship elaborated by noting that “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Incorrect factual conclusions can lead either to the acquittal of a guilty person or the conviction of an innocent one. “Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.” Society views the harm of convicting the innocent as much greater than that of acquitting the guilty. Thus, Harlan concluded, “I view the requirement of proof beyond a reasonable doubt in a criminal cased as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
The reasonable doubt standard was constitutionalized because of the societal function it now serves. Winship did not find it constitutionally required because the original meaning of a constitutional provision required it. Indeed, the Court indicated that the standard had not fully crystalized until after the Constitution was adopted. Even so, the reasonable doubt standard provides a fertile field for examining the methodology of finding the original meaning of constitutional criminal procedure rights. First, its status seems secure No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. Its original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee.
Furthermore, serious scholars have studied the reasonable doubt standard’s early development and its original meaning, purposes, and intent. An examination of those scholarly sources, methods, and conclusions provides a number of valuable insights that should affect the search for finding the original meaning of other American criminal procedure guarantees. These are first that the seeker of original meaning of evolved criminal procedure rights has to go beyond traditional legal sources and explore the broader epistemological developments in religion, philosophy, and science that affected the development of the right. Second, conclusions about original meaning drawn primarily from English and other European sources can be misleading without a consideration of American developments. What might seem like a sound conclusion when English sources are examined may look suspect when viewed in the light of American developments. Finally, the reasonable doubt scholarship reveals that definitive conclusions about the original meaning of American constitutional rights will often be impossible to find both because the necessary American record is absent and because evolved rights never really had a definitive original meaning.
The starting point here is with the scholars who have concluded that the original purpose of the reasonable doubt standard was not, as the Court now has it, to protect the accused, but instead emerged to make convictions easier.”
Randolph N. Jonakait, Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt’s Development, 10 U.N.H. L. REV. 97 (2012), available at http://scholars.unh.edu/unh_lr/vol10/iss1/5