Beyond 'reasonable doubt': The criminal standard of proof instruction as communicative act

Abstract

If juries are to bring in just verdicts in criminal trials, they need to understand the criminal standard of proof – beyond reasonable doubt – and apply it to the evidence they have heard in court. Yet courts have been notoriously ineffective in communicating that standard to lay jurors. This paper locates the problem not so much in specific wordings as in the entire paradigm of ‘instruction as legal text’ under which courts have tended to operate. After illustrating the effects of this paradigm on Judge Ito’s instruction in the O. J. Simpson criminal trial, the paper calls for a paradigm shift. It thus reinterprets the criminal standard as a communicative act, beginning with the message to be conveyed, some necessary conditions for conveying that message to the jury, and the role of the judge in delivering the message. The paper concludes with some recommendations for communicating the standard of proof instruction effectively.