Dawood, Hamza S.

English

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 47, Number 3 (Fall 2009) Article 9Book Notes: The Origins of Reasonable Doubt:Theological Roots of the Criminal Trial, by JamesQ. WhitmanHamza S. DawoodFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook NoteThis Book Note is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in OsgoodeHall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationDawood, Hamza S.. "Book Notes: The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, by James Q. Whitman."Osgoode Hall Law Journal 47.3 (2009) : 611-612.http://digitalcommons.osgoode.yorku.ca/ohlj/vol47/iss3/9611Book NoteTHE ORIGINS OF REASONABLE DOUBT:THEOLOGICAL ROOTS OF THE CRIMINAL TRIAL,by James Q. Whitman 1HAMZAS. DAWOODTO BE CONVICTED OF A CRIME in the common law world, an accused personmust be proven guilty beyond a reasonable doubt. Because proving facts beyond areasonable doubt under strict rules of evidence can be very difficult, the reason-able doubt standard is widely celebrated today as providing protection to theaccused from false conviction. Fascinatingly, in spite of the reasonable doubtstandard's centrality to the common law, significant uncertainty remains amonglawyers, judges, scholars, and jurors as to what reasonable doubt actually means.In The Origins of Reasonable Doubt, James Q. Whitman strives to account forthe ambiguity which surrounds the reasonable doubt rule. Drawing heavily onpersuasive theological and historical evidence, Whitman ultimately demonstratesthat much of the confusion regarding what constitutes reasonable doubt is attrib-utable to the fact that the rule originated in Medieval Christian Theology andhas, over many hundreds of years, been clumsily converted into secular, criminallaw. For Whitman, this process of conversion has resulted in society losing sightof the original purpose of 'reasonable doubt" and has signally contributed tomodern confusion as to what the-concept means.According to Whitman, confusion over what constitutes reasonable doubthas given rise to a morally troubling reality in common law societies: criminallyaccused persons are often sent to prison, or even death, based on an evidentiaryrule that essentially nobody understands. Whitman contends that this disquiet-ing situation has arisen because the reasonable doubt rule is used to guide factualproof inquiries in modern criminal proceedings, even though it was never origi-nally intended to serve this purpose. Drawing on an impressive variety of primary1. (New Haven: Yale University Press, 2008) 288 pages.612 (2009147 OSGOODE HALL LAW JOURNALsources, from the tracts of Early Church Fathers to the writings of medievalEnglish jurists, Whitman convincingly argues that the reasonable doubt rulewas originally designed for the benefit of jurors, rather than criminally accusedpersons. Whitman details how the doctrine was initially developed to providemoral comfort to medieval jurors, who doubted their moral authority to judgeothers and hesitated toconvict accused persons because early Christian theologydictated that they would incur eternal damnation if they found an innocentperson guilty. As Whitman puts it, the reasonable doubt doctrine ultimatelyarose in England in the seventeenth and eighteenth centuries as a response to the"religiously motivated reluctance to convict" that prevailed in the premodernworld,2 and it sought to make conviction easier-not harder-by assuring ju-rors that they could convict without fear of perdition as long as any doubts theyhad about an accused person's guilt were not reasonable. In view of the reason-able doubt rule's medieval origins as a reliable source of moral comfort ratherthan factual proof, Whitman argues, it is not surprising that the doctrine causesso much vexation today, as judges and juries try to use the rule to guide theirfactual inquiries in criminal trials.In the end, Whitman contends that, although calls for radical reform ofcommon law criminal procedure have considerable merit because of the reason-able doubt doctrine's frailties in assisting the search for truth at trial, such sug-gestions for reform are unrealistic, given the common law's deep conservatismand attachment to tradition. For Whitman, the biggest reform lesson that we,as a society, can learn from the history of the reasonable doubt rule is that weshould be more like the medieval jurors for whom the rule was originally de-signed-we must approach the task of criminal judgment with a sober sense offear, humility, and public duty, always being cognizant of the doubts surround-ing our own moral authority to judge.2. Ibid. at 4 .

Book Notes: The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, by James Q. Whitman

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Book Notes: The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, by James Q. Whitman

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