In recent years, we have discovered a spate of factually innocent people who have been convicted. In this article, Professor Loewy contends that the failure of juries to take reasonable doubt seriously contributes to this phenomenon. Professor Loewy via an illustrative fictitious case explains that juries might be reluctant to give the defendant the benefit of a reasonable doubt because of their concern about putting dangerous criminals back on the street. He then asks whether we really want juries to take reasonable doubt seriously. Concluding that we do, he examines how we can do that. Loewy concludes that the best way to that is with a jury instruction that sharply distinguishes proof beyond a reasonable doubt from clear and convincing evidence. Only if the jury really understands that dichotomy is it likely to understand that it cannot convict merely on clear and convincing evidence. The article suggests an instruction that would accomplish this purpose. The author concludes that while this instruction is not constitutionally mandated, it is constitutionally permissible and should be adopted.
Arnold H. Lowey,
Taking Reasonable Doubt Seriously,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol85/iss1/5