The threshold lies in the method

Abstract

The last few decades have seen several scholars and courts striving to understand the meaning of the reasonable doubt standard and, in particular, to produce instructions that would enlighten jurors in this regard. The focus has been on defining the standard as a threshold indicating the quality and quantity of evidence sufficient for a finding of fact, or the degree of confidence that the fact finder should have before convicting. The results of these endeavours have not been satisfactory and nowadays it is still frequent that juries ask the court for clarification on the meaning of the standard. This paper argues that the reasonable doubt standard is better conceived and explained to the jury as requiring a particular method of reasoning, rather than merely a threshold. A direct explanation of the threshold is elusive and potentially encroaches on the fact finder’s role. Reference to a method of reasoning instead promises to provide useful directions to the jury which promote compliance with the threshold itself. The paper advances methodological directives inspired by works in philosophy of the mind and virtue epistemology. The paper then concludes with practical recommendations for devising a new instruction on the standard of proof.