Beyond Reasonable Doubt: The Struggle for Jurors to Get It Right

During voir dire in a criminal case, the prosecution posed the following question: “On a scale of one to ten, where do you place ‘beyond reasonable doubt?’” I was shocked by what I observed - the majority of the jurors placed the burden around seven! Continuing with questioning, the prosecutor asked, “As a juror, do you feel that the defendant should put on evidence to show his innocence?” Taking the shock even higher, the majority of the jurors responded, “yes.” It was at that moment I realized the trial was already over and the defendant would be convicted. 

This real-life scenario emphasizes how risky jury trials can be, not just for a criminal defendant, but it emanates into civil trials too. Furthermore, it blatantly illustrates how the standards by which the parties must prove their case can be interpreted in different ways. How do we rectify the obvious problem of jurors not understanding the burden of proof? Can jurors be rehabilitated or is a juror’s understanding unchangeable in a way that prevents it from aligning with the proper interpretation? If the jury cannot even begin a trial with the correct understanding of the burden of proof, there really is no reason to continue the trial. 

One survey found that only half of the jurors polled knew what “beyond reasonable doubt” meant. Think about that – only HALF! It is understandable that jurors may not understand the technical definition, but it should be expected that a general idea of where on a scale of one to ten it fits. The survey also found that “22.9 per cent said it meant they were ‘almost sure’ a person was guilty, while 11.6 per cent said it meant ‘pretty likely.”  

One obvious solution is to give an instruction in terms that ordinary people can understand. The court can certainly inform the jurors, whether verbally or by written instruction, that beyond reasonable doubt is much higher than “probably” or “I think” and some courts do just that. Given that “beyond reasonable doubt” is language that goes way back in our jurisprudence, it would be very difficult to remove the word “reasonable.” However, I think it is an idea worth researching to evaluate whether jurors properly understand and apply the standard. At a minimum and as the study illustrates, we need to do something because jurors are struggling.