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Book Review
| James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, New Haven: Yale University Press, 2008. Pp. 288. $40.00 (ISBN 978-0-300-11600-7).
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| This book advances the surprising thesis that the law's requirement of proof "beyond a reasonable doubt" in criminal trials originally had nothing to do with the rights of defendants. It was not meant to protect the innocent. Its purpose was actually to protect the jurors from their own anxieties, even to persuade them to convict. The problem was that they might allow scruples of conscience to hinder the effective punishment of crime. The requirement's source lies not in an old rule placing the burden of proof on the person seeking to convict a defendant, but in the thought and literature of moral theology. Most of the important contributors were not lawyers at all. They were Thomas Aquinas, Leonardus Lessius, Jeremy Taylor, William Paley, and a host of learned casuists. |
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To make this argument, Professor Whitman begins with the sensible assumption that there is much to be learned about criminal trials by adopting the perspective of those who made the ultimate decision of guilt or innocence. This meant the judges in most Continental systems. In England, with which the bulk of this book is concerned, it meant the juries of the royal courts. Because almost no first-hand evidence exists about what judges and juries actually thought, the author is obliged to speculate, and here is where the contribution of the book lies. He plausibly assumes that ordinarily jurors and judges would have been more concerned about themselves than about doing justice. In the Middle Ages, caught between Scylla and Charybdis, they would have had ample reason for concern. On the one side lurked the possibility of vengeance by the family of anyone they convicted wrongly. On the other side loomed the likelihood of ultimate condemnation by God if they committed perjury. Today the former danger has disappeared, and the latter danger has been forgotten. Christianity has lost its hold on our intellects. But these would have been compelling and urgent matters to judges and jurors in earlier centuries. Indeed they hold the key to understanding the history of the criminal trial. No one would want to stand before God with the blood of an innocent man on his hands. The only safe thing would be either to acquit or somehow to avoid the dilemma altogether. This attitude presented an obstacle for society's governors, who sought effective ways of punishing criminals, and one way they remedied the situation was by convincing finders of fact that they must convict unless their doubts about guilt were substantial. Something akin to the "reasonable doubt" standard aimed at doing just that. Moral theology taught that the more probable path was the better path. The duty of jurors was to follow it. |
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This, in a nutshell, is the argument of this learned book. Is it convincing? There is some direct evidence in its favor, as in the Old Bailey Sessions Papers from the eighteenth century. Otherwise the argument is based mostly upon plausibility, and it will be difficult for many readers to believe that the literature of moral theology "would have been fresh in the mind of every believing Englishman called to serve on a jury," as Whitman himself does (172). Before rejecting it, however, readers ought to consider the argument's explanatory power. For instance, there is ample evidence to show that men called to serve on English juries attempted to escape their assignment and also that the judges sought to throw the burden of deciding onto the juries. Why? Whitman's argument provides an explanation. The actors were anxious to avoid responsibility for the consequences of determining guilt or innocence. The advantage of the early medieval ordeal had been that it relieved men of the terrible responsibility for decision. God made the decision. When the church made continued reliance on ordeals impossible after the Fourth Lateran Council (1215), the ultimate decision was left to men. They chafed under the yoke thereby laid upon them. |
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The dilemma existed on the other side of the English Channel, though its exact form was different. And here again, Whitman's argument provides explanations for otherwise puzzling phenomena. Widespread adoption of judicial torture is one example. Another, which involves this reviewer's interest in the canon law, is the insertion into the Gregorian Decretals (1234) of a separate title devoted to the compulsion of witnesses (X 2.21.1–11). No such title appeared in the Corpus iuris civilis, and it has never been obvious (to me) why the canonists should have found it necessary to devote so much attention to establishing that unwilling witnesses could be compelled under threat of excommunication to appear and give evidence. The book's argument answers the question. The canonists insisted that witnesses appear in order to put the onus of decision on them. The judges had to make the final decision, but they feared acting without the most thorough assessment of the evidence possible. In other words, they wished to still their own doubts. The procedure allowed them to think that it was the testimony of the witnesses that compelled them to act as they did. |
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Other explanations do exist for the compulsion of witnesses, and indeed for most features of the procedural law discussed. The commentators justified this part of the church's law by noting that it discovered the truth, not that it lifted a burden from the conscience of the judges. However, the book's argument should not be dismissed on that account. Historians who ignore religion may easily miss an essential part of the history of our law. One of the merits of this engaging book is that it does not run that risk. |
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| R. H. Helmholz
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| University of Chicago |
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