Done Jury Duty? Get Souvenirs

I had the privilege of visiting the Supreme Court a couple of years ago. Wow! Those stairs up to the entrance! Honestly, it was a fantastic experience that every citizen should have. The building is beautiful and history-filled. If you’re lucky, you can sit in the visitors section and stare up at the judges’ bench for a few minutes. And then you can visit the gift shop and buy really cool/hot/sweet knickknacks. I got a spiral flip notebook with images of freedom’s documents stamped on the front, a bookmark replica of the spiral staircase in the building, and a gavel-shaped pen. (I’ll take a picture and post it—they’re hard to describe in words. Yes, I’m a writer and I buy writing memorabilia.)


Here’s a “turtle” key keeper (which I didn’t buy but should have). I don’t know the significance of turtles to the Supremes (have to do some research). Do you?


Here’s a fascinating quiz about the Supreme Court. What strikes me about this is that my stereotypes of Justices are entirely false.


But even more interesting, I believe, for those of you who love courtrooms, is the Supreme Court Historical Society online.

“Reasonable Doubt” in 1970

Note to subscribers: Please skip this post. I apologize for being rather inept as a blogger. I have edited and enhanced the previous entry on the Supreme Court and “reasonable doubt” and added a second entry expanding on the 1970 decision (rather than unpublishing the first entry and then publishing a second entry). I don’t want you to have to read two, new posts on the same concept. I imagine there’s a slick, professional way to do this, but I haven’t learned it yet.


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The re Winship (1970) decision explains why the reasonable-doubt standard is so important. It cites Justice Frankfurter:



  • “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence–that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’.”

The Winship (1970) decision concludes with Coffin v. United States:



  • “a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”

In other words, the Supreme Court sought in 1970 to prevent juries from convicting defendants based on factual error, such as the introduction of evidence that is tainted or the subjective opinion of investigators and experts.


The decision also makes it clear that the standard of proof applies to all the elements of the crime of the which the defendant is accused.



  • “Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is “charged. “

Since I’m not a lawyer, I’m not sure whether this means the elements of motive, means, and opportunity, or the specific acts of the given crime (although I tend to think the latter). And this is a critical difference. I can recall several highly sensational trials in which people were convicted even though several facts were never proved—beyond any kind of doubt (Melanie McGuire, for instance, who was accused of chopping up her husband’s body and draining the blood in a bathroom from which investigators found not a trace of blood and Scott Peterson who was accused of killing his pregnant wife by smothering her with a pillow when no trace of violence was present at the scene and despite the failure of the coroner to find the cause of death).


These days, though, because of the poor wording of most pattern jury instructions, I believe that juries assume the standard of proof applies only to the strength of their feelings about the case.


However, the Supreme Court’s intent and the history and meaning of the phrase are two different matters. In another blog, I’ll pursue the history and meaning further. I’ll trace the phrase to the War of 1812 and then the Boston Massacre and even further back, and across the Pond, to the Old Bailey.


(Caveat: I’m not a lawyer, I’m a rhetorician, linguist, and textual critic. I’m interested in the phrase as a matter of the history of ideas and philology, not the legal interpretation.)

The U.S. Supreme Court on “Reasonable Doubt”

My research into the phrase “beyond a reasonable doubt” began with the U.S. Supreme Court’s decision in a case involving juvenile justice (an apt name for a strange area of criminal law). In Re Winship (1970) the court established the phrase as a specific, legal requirement, which most states have enshrined in their “pattern jury instructions” for judges to read to juries.

Here’s part of what the court said:

  • “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula beyond a reasonable doubt seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.”

The decision also traces the phrase back through a number of prior federal trials:

Now, what struck me in the above was the phrase, “crystallization into the formula ‘beyond a reasonable doubt’ . . . .” Why? Because what the author of the decision did was to mandate the exact phrase, as opposed to some other phrases that were often used prior to 1970: beyond the shadow of a doubt, beyond reasonable doubt, and no doubt, among others. Furthermore, the author claimed an ancient provenance for the phrase—to lend it more authority. He admitted, though, that the precise formulation of the phrase may not have occurred until the 19th century. (It’s worth noting that the earliest cited case was 1881; the significance of this only becomes apparent when you do a historical search for the origin of the phrase, as I have done.)

And why does the exact phrase bother me? Because it is what’s known in rhetoric as an oxymoron—a self-contradiction. Doubt and reasonableness are two different classes of mental state. Doubt is emotional. Reasonableness is logical.

No juror can possibly understand the legal intent in the phrase “reasonable doubt,” let alone “beyond a reasonable doubt.” “Beyond” is a preposition denoting distance and place. “A reasonable doubt” is an intellectual construct, not a physical one. So, the only way a person can construe the phrase “beyond a reasonable doubt” is to construe it to be metaphoric: “reasonable doubt” is metaphorically a barrier or a bar which the juror must cross before convicting someone of a crime.

So why does this matter to jurors? Because, if you’re a juror in a capital murder case, the judge will instruct you that the state has the burden of proof beyond a reasonable doubt. In most trials, the judge will also read you a “definition” of the phrase, which (frankly) isn’t accurate from a linguistic perspective (no matter what pattern-jury-instruction guru and linguist Peter Tiersma claims). If the case is purely circumstantial, when you begin deliberations one of the earliest issues you will debate with your fellow jurors is what constitutes reasonable doubt.

In my opinion—and I am not a lawyer—juries have come to understand that strong suspicion of guilt based on logic and a lack of any alternative murderer are sufficient to convict. In other words, these days doubt about a murder is rarely reasonable.

My next post will discuss the 1970 Winship decision further. Again, I’m not a lawyer, and I probably don’t read legalese the way they do, but it seems to me that the Winship decision defines “beyond a reasonable doubt” far better than recent formulations of the pattern jury instructions (such as California’s).

However, it’s because I’m not a lawyer but a former and potential juror that I care about this issue.

Typical Instructions for Jurors on Reasonable Doubt

I found an audio-only “video” on YouTube with a clear, typical jury instruction that defines “reasonable doubt”. This is a recording of the 1994 trial of Jessie Lloyd Misskelley, Jr. (a case I had not heard of but which sounds quite interesting). The relevant portion of the instructions occur between approximately 2 minutes 35 seconds and 3 minutes 40 seconds.

Here are two additional links I found with news reports and transcripts of the Misskelley trial:

Research: Reasonable Doubt—a preview of coming attractions

The phrase “beyond a reasonable doubt” has an interesting etymology and legal history—interesting and mysterious. Even the U.S. Supreme Court doesn’t seem to know where it originally came from or how it evolved into the so-called “standard of proof” (although in Re Winship [1970] Justice Brennan [or his law clerk, whose identity I have yet to discover] mistakenly attributed the phrase to the early days of U.S. Constitutional law [yes, I know I speak heresy]).

I’ve investigated the origins of this life-or-death phrase and uncovered some interesting “artifacts,” but have yet to prove “beyond a reasonable doubt” where it really came from and what it really means. (By “really means” I mean how a proficient, native-English speaker would parse it today.) Now, I realize that if you’re a reasonable, sane, educated person you probably think this is all “mere semantics.” But I can assure you that semantics is not a “mere” thing and that the law is frequently a quibble over semantics.

I plan to write a number of blogs on this topic, starting with this one, in which I survey the sources I’ve examined and the authorities I found (the experts on the meaning of “beyond a reasonable doubt”).

I began my search with the U.S. Supreme Court’s written decision in Re Winship (1970). Take a look at Justia for a copy of the decision. It lists the sources on which the court relied.

Then I moved on to two textbooks, which the court’s decision cited: 1) McCormick’s Evidence and 2) Wigmore’s Evidence.

I next followed the trail from the citations in these textbooks back to what appears to be the first American legal dictionary, Bouvier, and then further back to Bouvier’s sources.

Unfortunately, what I found was that McCormick’s Evidence merely speculated that the reasonable-doubt standard was well entrenched by 1798. He—McCormick—made no effort to verify this as historical fact.

Recently legal historians have tackled the problem. See especially John Langbein, Barbara Shapiro, and James Q. Whitman. All of these scholars searched the records of the Old Bailey for case law uses of the phrase. (Their references to the Old Bailey led me to a long detour among old English criminal trials—a fertile source of inspiration for a historical mystery writer) However, as far as I could determine, the phrase “reasonable doubt” was rarely used at all before 1790, and the phrase “beyond a reasonable doubt” not at all. Langbein and Whitman, though, propose intriguing origins for the standard of proof. (NB: As a linguist, my interest is in the exact phrase, not its numerous variations, as I will explain in another blog post.)

What, you may ask, qualifies me—a mystery writer—to research the origins of “reasonable doubt”? Well, I have a Ph.D. in 17th-century textual criticism (which is the study of old texts to determine their origins and development).

So, if you are interested, please return here soon for more on my quest for “reasonable doubt.”

Reports of Problems Finding Free iPhone Stories

smallerevil A friend told me she tried to find my short story, “The Odds of Death,” on LULU.com so she could download it. After a bit of snooping I discovered why: Lulu.com’s Search function clearly favors for-fee downloads over free downloads (I’m shocked, shocked to hear there’s commerce going on at LuLu.com). In addition, even if you’re searching for something you’re willing to pay for, the mechanism for downloading PDFs from Lulu.com isn’t exactly obvious.

So, here’s a roadmap to my iPhone short-story collection (The Evil That Men Do, $1.99) as well as to the free, individual PDFs of most of the stories:

Step 1: Go to www.lulu.com and click on BUY (even though you don’t want to buy anything).

Step 2: Search the Books category for my last name (Mambretti).

Step 3: Click on my name in one of the listings (as opposed to clicking on the title or cover image). This should take you to the Light Pages’ Storefront.

Step 4: Click on the small icon labeled “Free Download.” If you have Acrobat installed on your PC (or Smartphone, for that matter), the story should pop up on your screen.

Step 5: Save the file.

To view the story on a handheld or mobile device, you can sign up with Lulu.com and then surf to your account online using the device; or, if you don’t want to sign up with Lulu.com, you can download the pdf to your PC and then synchronize your mobile device with your PC.

An edition of The Evil That Men Do is available for the Kindle at Amazon. ($0.99).

The Evil That Men Do is a collection of short stories I’ve written over the past decade. Three were published in Alfred Hitchcock’s Mystery Magazine; one in the defunct ezine, HandHeld Crime; one was scheduled for publication in two, separate periodicals that went out of business before it appeared; one was developed and previewed at www.zoetrope.com. Three are new.

(BTW: If you don’t like the stories, please don’t tell me. If you’re a lawyer and you find technical errors in “The Odds of Death,” though, I’d love to correct them.)

Where Do They Get Those “Expert Witnesses”?

Watching the football playoffs yesterday I saw a TV commercial for the Uniball 207 pen that was astonishingly stupid. The ad claimed that the Uniball 207 uses ink that prevents “identity theft” by embedding itself in the paper fibers of a handwritten check. Some further investigation via Google uncovered a Uniball promotional page touting an endorsement by “Frank W. Abagnale, world-renowned identity theft expert.” (The video commercial on the page is not the same as I saw.)


So, I wondered—being a trained document analyst myself (albeit trained to analyze old European manuscripts and books)—who is this world-renowned expert and why should I be impressed by his endorsement? Near the top of my Google search for Abagnale info was a U.S. News and World Report interview, “How Frank Abagnale Would Swindle You” (hardly the sort of title I expected to find associated with a renowned forensic scientist). In the article, Abagnale asserts his expertise on check fraud based on his years of experience as a forger and thief. His renown comes from Steven Spielberg’s Catch Me If You Can (2002).


The particular sort of expertise Uniball is advertising is expertise in “check washing,” a very crude sort of forgery. Apparently petty criminals find ways of persuading gullible people to write them checks for small amounts and then bleach some of the handwriting off the check and cash it for greater amounts. Or they pose as legitimate entities—such as charities—and have these suckers write large checks out to them, which they bleach and change to their names. The first situation seems very foolish since the check becomes proof of guilt, and the second seems unlikely to fool anyone who has enough money to donate significant amounts to charity.


What I can’t understand at all is the third option, having someone write a check and then bleaching out the signature: why would a criminal want to bleach a signature off a check? And it’s the signature and bank account number that count when it comes to identity theft.


Another mind-boggler is the issue of bleach-proof ink. What makes Uniball think its ink is any more indelible than any other indelible ink? All ink “embeds” itself in paper fibers. That’s what makes it stick. And, besides,  check-washers use all sorts of chemicals and erasing devices that remove the ink so that no residue is visible.


Uniball is probably paying Mr. Abagnale a whopping sum for his “endorsement.” However, Uniball isn’t the only organization that Mr. Abagnale seems to have persuaded to pay him for his expertise. It turns out Abagnale  lectures at the F.B.I. Academy.


Yikes! Does that mean he can testify in criminal trials?

P.S. A Comment on My Own Blog

I’m sure that Uniball is sincere in its claim to have produced a particularly durable ink, one that is more difficult to bleach off paper than others. And Mr. Abagnale does indeed seem to be acknowledged as an expert by law enforcement officials. What particularly troubles me, though, is the way that expertise is misused in criminal trials where people’s lives are at stake. It seems to me that recently forensic science has overreached itself. Experts tend to make some extraordinary claims for their investigative techniques. Judges are unequipped to evaluate such arcane testimony. Jurors rely on judges to present only valid evidence in court. As a result, juries too often have to accept as fact evidence that is not really fact at all but merely subjective interpretation.