The Truth of "Beyond a Reasonable Doubt"

by Andrew Vachss
Originally published on The Zero, July 04, 2011

Also available in Russian (http://bit.ly/2lDOX26)

Despite what the media have led us to believe, the hallowed phrase "beyond a reasonable doubt" is not self–explanatory. Jurors, charged with the responsibility of making life–and–death decisions, are told to apply this legalese–larded "standard." But not only is this "standard" purely adjectival, movies and television have morphed it into a Rashomon'style point'of'view. The interpretation of "reasonable doubt" is as unstable (and as potentially explosive) as nitroglycerin in a cocktail shaker.

History has taught that if we allow interpretations to control reality, truth is the first victim of the chaos to follow. A simple illustration will suffice: we all agree that "evil" is a bad thing. Therefore, whoever has the power to define which acts (or individuals) are "evil" also has the power to control our conduct. When we anoint such an interpreter, we walk a smoother path. But we walk it blindfolded.

If we refuse to grant such god–like power to others, we have to do the work ourselves. To ensure a uniform standard for "reasonable doubt," we must subject the term itself to dispassionate dissection.

Unless we separately analyze "reasonable" and "doubt" in the context of a criminal trial, the term will degenerate to cliché status: endlessly repeated, but devoid of any actual meaning. That is, "reasonable doubt" will mean whatever an individual chooses it to mean, as open to interpretation as the Bible or the Koran. The horrific consequences of allowing those with an agenda to exercise the power of "interpretation" are beyond dispute. See, e.g., Nuremberg.

There is always some doubt. "Beyond the shadow of a doubt" ignores the penumbra of that shadow. And "beyond any doubt" is as much a logical impossibility as the term "foolproof."

Confessions may be the product of a disordered mind, or of outright torture. Evidence can be planted. Lab analysis can be fatally flawed, which is why capital punishment is inherently wrong. Sociopaths can make the polygraph needles dance to their tune. Eyewitnesses can make mistakes. Jailhouse snitches can custom–tailor their testimony to serve their own interests. Jurors can be bribed. And all of this has happened.

The Perry Mason TV series resonated so deeply within us because it expressed our collective wish that "the truth always comes out." But anyone who wants to hold on to that dream should stick to Hollywood garbage and avoid reading trial transcripts.

Any jury analyst knows that facts are cut to fit the cloth of beliefs. Who could believe that the Scopes trial "proved" evolution to everyone's satisfaction? Or that Brown v. Board of Education motivated the Klan to burn its robes instead of crosses? Who among us is sufficiently naive enough to believe that all potential jurors answer the voir dire questions honestly?

And there is still another form of belief–based "doubt"—the kind I have had to constantly overcome throughout my career. How could such a wealthy, successful pillar of the community actually be a child molester? How could a nice, polite, soft–spoken individual have raped his own little daughter ... especially when "experts" testified that "he didn't fit the profile"? How could a PTA–officer, charity–volunteer mother shake her infant son into permanent brain damage?

Even when such "doubts" are eviscerated with overwhelming proof, still another belief system then emerges: if the perpetrator really did such horrible, sadistic, brutal things to innocent little children, doesn't that prove he's "sick"? Doesn't that mean he needs "treatment," not prison?

All these—and too many more to list in anything short of a textbook—are life–threatening clots in the arteries of justice.

Such clots can be dissolved ... and must be, if we want to save the patient.

A trial is a war. As in all wars, there are both combatants and collaborators. If fighting is what you do, and you train hard enough to be good at it, you'll learn some advanced techniques.

Focus is one of those techniques. In the type of cases I handle, what you focus on is the stakes. While death–penalty cases grab the headlines, how many know the closed–to–the–public arena of the Family Court? How many know that court actually holds trials in which, if the wrong result is reached, the perpetrator gets to take the victim home as a prize?

Doubt? I don't have room for that in my work. Despite what media morons may tell you, a trial isn't a "search for truth," it's a high–stakes game ... one with winners and losers. But when you're representing a child, only the truth will serve your client's interests. That's why I always conduct my own independent investigations. If a parent is falsely accused of child abuse, and I, representing the child, "win" by obtaining a verdict proving that parent's guilt, the child loses. To do my work effectively and ethically, I have to find the truth ... even if neither the State nor the accused agrees with what I find.

Exposing the heart of truth requires chips–fall–where–they–may dissection. We question potential jurors (in some systems, the lawyers do this; in others, the judge does) on everything, from what magazines they read to whether they could bring themselves to pronounce a sentence of death, even if personally opposed to capital punishment. But we have yet to develop, much less test, a scientifically validated, peer–reviewed questionnaire that would reveal each juror's personal definition of "reasonable."

Even if we could rule out individual prejudices, we will never have the uniformity that true justice demands, because individual definitions of "reasonable" are as varied as ... well, as individuals.

Some wear their beliefs openly. If you want to avoid jury duty in a gay–bashing case, show up wearing a "God Hates Fags!" T–shirt. But cultural pressures usually result in jurors who present themselves as being totally without bias and having formed no prior opinion of the case.

Who among us truly believes that if asked, "Do you think it's reasonable for a husband to slap his wife if she nags him constantly and makes his life miserable," every prospective juror would answer truthfully?

What about questions such as, "Do you believe some of these young girls today are '13 going on 30'?" Or, "Don't you think a woman who dresses like a slut, has too much to drink, and brings a stranger home with her is really asking for it?"

Not a chance. Instead, we'd get Oprah–certified answers across the board. Everybody knows the right thing to say, even if they don't believe (or mean) a word of it.

Years ago, I tried a case in which an infant had been so viciously beaten that I asked the ER pediatrician to list all the bones in the baby's body which had not been broken. The defense claimed that the child had been gently placed on a coffee table, and rolled off onto a (very expensively handcrafted) hardwood floor.

Their well–paid expert calmly told the court that such a scenario was "possible." On my cross–examination, the expert repeated the statement. I held a pencil in my hand, raised my hand above my head, and asked, "Doctor, if I open my hand, is it 'possible' that this pencil could fall up?"

I got the expected sarcasm. "That would be highly unlikely, counselor."

"But it is 'possible,' under your definition of 'possible,' isn't it, Doctor?"

When he reluctantly agreed that it was, I opened my hand, and the pencil fell to the floor. The trial went on for days, but the jury decided the verdict right at that moment.

What if I hadn't asked that question? If you think the same result would have been reached, you probably think Law and Order is reality TV.

What is "reasonable" when, in the bitterly contested, no–limit poker games we call custody trials, one party produces a long train of mental health experts—psychiatrists, psychologists, social workers—each testifying that "significant personality disorders" make the other party unfit to act as the custodial parent? What is "reasonable" when the experts for the other side virtually replicate that exact same testimony ... only now, amazingly enough, the diagnoses fit the first party?

Every judge knows the likelihood that expert testimony will favor the party who hired the "expert" exceeds all mathematical probability. So my position in such cases is to ask the court to disregard all the expert testimony.

That almost never works. Instead, I get the standard judicial bilge: "The evidence is deemed admissible; the weight of said evidence will be determined by the finder of fact."

I reasonably expect that some experts will, charitably speaking, not be blessed with a lot of expertise. I reasonably expect some experts to be outright whores. That doesn't mean all (or even most) experts fit such a description. I know experts whose findings are not only remarkably insightful, but also would not vary no matter who paid them ... or how much.

So my next application is for the appointment of an independent expert. An expert to be selected by me, in my capacity as the child's lawyer, the cost to be paid for by the parties, apportioned based on their ability to do so.

That application is routinely opposed by both parties ... and routinely granted.

So while I have a "reasonable doubt" about much expert testimony, it is a doubt that can be resolved in many observable ways. It isn't the doubt; it's the reasonableness of that doubt which makes all the difference. To mean anything at all, reasonableness must vary on a case–by–case basis, and must never be driven by any faith–based belief system.

Many could wax philosophical about the deeper meanings of "reasonable doubt." I suspect law professors might differ from trial lawyers on the subject. I'm sure there are even people who actually believe judges are apolitical, that District Attorneys treat all defendants equally, without regard to the name-recognition factor of either defendant or alleged victim. Perhaps some even believe that defense attorneys only take cases when they are personally convinced of their client's innocence.

I can be sure because I know that there are people who believe the earth is flat, that evolution never happened, and that most children abused in this country are victimized by strangers who jump out of vans wearing ski masks. I can be sure because I know people who believe "no child ever lies about being sexually abused." I can be sure because I know people who believe that incest is "consensual." And every one of them can easily find groups of like–minded individuals, solicit funds, and hire lobbyists.

And I am certain beyond any doubt that all those I just described would base their decision as jurors not on the proof presented at trial, but on their own personal belief systems. In such cases, the trial is over as soon as the jury is seated.

As a lawyer who represents children in cases where maltreatment by a parent is the issue, "reasonable doubt" is all about what is "reasonable" to whoever gets to make the final decision in a given case, be it a jury or a judge.

But we all have a stake in the outcome of trials. All trials. So the most reasonable of all doubts is the doubt that judges and juries will not allow their personal belief systems to cloud and even corrupt their decisions.

So long as "reasonable doubt" varies with the interpretation of each individual judge or juror, I have a reasonable doubt that our criminal justice system can deliver on its promise to find the truth.

Every such broken promise is another crack in the foundation of justice. About that, I have no doubt.

© 2011 Andrew Vachss. All rights reserved.

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