I have often wondered when this standard arose, and whether it was constitutionally required. Professor Jonakait posts an interesting article to SSRN titled Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt’s Development that addresses this an other questions. First, here is the abstract:
Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable doubt standard’s early development and its original meaning, purposes, and intent.
An examination of those scholarly sources, methods, and conclusions provides a number of valuable insights that should affect the search for finding the original meaning of other American criminal procedure guarantees. These are first that the seeker of original meaning of evolved criminal procedure rights has to go beyond traditional legal sources and explore the broader epistemological developments in religion, philosophy, and science that affected the development of the right. Second, conclusions about original meaning drawn primarily from English and other European sources can be misleading without a consideration of American developments. What might seem like a sound conclusion when English sources are examined may look suspect when viewed in the light of American developments. Finally, the reasonable doubt scholarship reveals that definitive conclusions about the original meaning of American constitutional rights will often be impossible to find both because the necessary American record is absent and because evolved rights never really had a definitive original meaning.
To the reasonable doubt standard, the article has an interesting footnote sketching its pedigree as recounted by several Supreme Court cases:
(“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.”) See also Apodaca v. Oregon, 406 U.S. 404, 411 (1972), where Justice White, writing for the plurality stated, “As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted.” White continued that scholars had concluded that “the requirement of proof beyond a reasonable doubt first crystallized in the case of Rex v. Finny, a high treason case tried in Dublin in 1798. . . . Confusion about the rule persisted in the United States in the early 19th century . . . ; it was only in the latter half of the century . . . that American courts American courts began applying it in its modern form in criminal cases.” Id. at 412 n. 6. See also Victor v. Nebraska, 511 U.S. 1, 8 (the 1850 formulation of the standard by Massachusetts Chief Justice Shaw in Commonwealth v. Webster, 59 Mass. 295, 320 (1850) “is representative of the time” when American courts began applying the standard in its modern form.)
Additionally, I did not realize this, but the article argues that the reasonable doubt standard actually made convictions easier, as the predecessor standard inquired whether a jury had any doubt (whether reasonable or not).
The eighteenth century produced no uniform instruction about the burden of persuasion, but most frequently, Morano maintained, judges stated that jurors should acquit “if they had any doubt of the accused’s guilt.”14 This was not a new standard but only “crystallized the standard of persuasion that had been applied in English criminal trials for centuries.”15 And this burden, he stressed, “did not require that a doubt be ‘reasonable’ or ‘rational’ to be a sufficient basis for an acquittal.”16
The first known legal use of the reasonable doubt standard was at the trial following the Boston Massacre! Because it was developed in the United States, the author argues, perhaps we should be looking to American, rather than British thought to help define this concept from an originalist perspective.
The available historical record, however, does find that the first use of the reasonable doubt standard was in the 1770 Boston trial. This has great importance in considering the origins of the rule. It means that we cannot presuppose that America simply inherited the standard from English law.27 We have to consider the possibility that it developed in America before it did in England; indeed, the available historical record indicates precisely that. Consequently, we cannot assume that if we understand the origins of the English standard, we truly understand the original meanings and purposes of the American one. It is, of course, possible that similar currents in both places produced the standard in each. If so, understanding the development of the English standard aids in understanding the American development, but certainly, assertions about the birth of the English reasonable doubt standard should also be examined under an American light to test their likely validity for understanding the American origins of the rule. And such an examination reveals that some claims about reasonable doubt’s development look dubious when American conditions and developments are considered.
This is not really an article about originalism, and doesn’t really offer a single view of what the reasonable doubt standard meant, or should mean. Rather, it traces an interesting history of how early Americans viewed this proof.