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This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important role in Anglo-American law. Drawing on studies of the British Enlightenment such as Porter (2000), it traces the modern English concept of “reasonableness” back to the intellectual revolution brought about by the writings of John Locke, who (as Porter says) “replaced rationalism with reasonableness, in a manner which became programmatic for the Enlightenment in Britain”. The chapter also argues that the meaning of the word reasonable has changed over the last two centuries and that as a result, the meaning of phrases like reasonable man and beyond reasonable doubt has also changed. It further argues that since these phrases were continually in use for over two centuries and became entrenched in Anglo-American law as well as in ordinary language, and since the older meaning of reasonable is no longer known to most speakers, the change has, generally speaking, gone unnoticed. The chapter also shows how the meaning of the English word reasonable differs from that of the French word raisonable, and how semantic differences of this kind reflect differences in cultural ideals, traditions, and attitudes.

The standard of proof may be understood, first, as referring to the caution that must be exercised in making positive findings. A variant interpretation of the standard is proposed. The evidence must justify a strong enough belief in the truth of the disputed allegation where what is strong enough depends on the seriousness of the allegation and the consequences of accepting it as true. The need for caution is ethically motivated by concern and respect for the person to whom the finding is adverse. Secondly, the standard of proof is also about the distribution of caution. The civil standard instructs the fact-finder to be impartial whereas the criminal standard requires her to take a protective attitude towards the accused; the former is grounded in the principle of equality, and the latter in the demand for accountability by the state for the harm it seeks to inflict on citizens.

As the standard for the extremely high burden of proof on the state necessary for a guilty verdict, the phrase “beyond a reasonable doubt” is the quintessential legal convention that jurors may have heard about before entering the courtroom and are mandated to reckon with during deliberation. What is less familiar is a connection that could be made between the juror’s role in interpreting the standard and the tools that the process gives them for an assessment of their own decision making (such as through an interrogation of implicit bias, the demands of the presumption of innocence, and the seductions of narrative closure). Applying the ideals of reasonable doubt to the perceptions of jurors themselves in relation to both the factual and moral questions embedded in the charge is one way to highlight how critical the task of self-assessment is, equal to external engagement with the evidence.

This chapter begins with a description of the case of Reginald Woolmington, aged twenty-one, a dairy man who killed his newly wedded wife, Violet, aged seventeen and a half. This case is analysed against the backdrop of the Viscount Sankey's famous quote: ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. . . No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ The chapter argues that the golden thread is so deeply woven into the fabric of our society that it is difficult to understand the importance at the time of Woolmington, not only in England but in the numerous dominions and colonies which then formed part of the British Empire. The requirement of proof beyond a reasonable doubt in criminal cases was embedded in the laws of all those countries which then formed part of that Empire. However, it is shown that Parliament is less attached.

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.

Numerous constitutional and subconstitutional limitations on criminal liability embody one or more proportionality principles. Limiting retributive liability principles underlie constitutional rules prohibiting punishment without fair notice that the conduct is criminal. Such principles are also implicit in the prohibition of status crimes (such as “being an addict”), and retributive or other proportionality principles may underlie the requirement of proof beyond a reasonable doubt. Proportionality principles are also reflected in numerous subconstitutional rules governing criminal liability, including the rule of lenity; limits on the imposition of strict liability; voluntary-act requirements; limits on the availability of self defense and other affirmative defenses; and the grading of offenses according to offender culpability and harm. This chapter first examines constitutionalized proportionality limits, then subconstitutional ones, and it argues that much of the uncertainty and controversy surrounding some of these doctrines results from the failure to recognize and clearly articulate the underlying proportionality principles being applied.

This chapter explores the thesis that the use of the standard of proof beyond a reasonable doubt for trying those accused of violent crimes — especially if such defendants already have a history of serial offending — is an inappropriately exacting standard. The reason, in brief, is that such a standard fails to reckon with the very high costs and risks imposed on innocent citizens by the non‐conviction and release of falsely acquitted, serial felons. It argues further that those who hold that political morality demands that no defendant should ever be judged by a standard less rigorous than proof beyond reasonable doubt fail to grasp that the function of a standard of proof is to embody our best guesses about the respective costs of error. It goes on to show that familiar deontological theories utterly lack the conceptual resources for non‐arbitrarily defining any standard of proof, since such theories fail to comes to terms with the problems posed by factoring the risks of error into decisions about which actions are justified and which are not.

This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.

Chris Heffer sets out an argument, illustrated through judicial attitudes to jury instruction on the criminal standard of proof, about how authorized language can lead over time to a breakdown in legal-lay communication. He argues that a few individuals, invested with the highest institutional authority, can use their powerful agency, or authorized voice, in legal metadiscourse to establish a privileged reading of a text that resounds through time. This is internalized as authoritative discourse to the point where it becomes part of a judge’s accumulated, normalized and unquestioned experience of discursive practice in legal settings. Where this legal-linguistic habitus is, or becomes, incommensurable with lay discursive practice, it can result in the legal professional failing to hear the lay voice and tending to question the competence of the lay person rather than the authoritative discourse. This communication breakdown can be highly consequential and may result in miscarriages of justice.

This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, proof by a preponderance of the evidence requires knowledge that the defendant is at least .5 likely to be liable, whereas proof of guilt beyond a reasonable doubt requires knowledge of a significantly stronger content. The fact that legal proof requires knowledge explains why merely statistical evidence is insufficient to license a legal verdict of liability or guilt. In addition to explaining the limited value of statistical evidence, probabilistic knowledge is useful in spelling out norms violated by acts of racial and other profiling. It can be epistemically wrong to infer from statistics that a woman is probably an administrative assistant, for instance, even when inferring facts about ordinary objects from similar statistics is perfectly okay.

The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic pointer theories of cognition and emotion explain individual decisions, including defective ones that lead to wrongful convictions. Explanatory coherence shows how people can make judgments of guilt in accord with legal principles, and reasonable doubt based on the value of the presumption of innocence is a legitimate motivated inference. However, illegitimate motivated inferences resulting from emotional coherence with inappropriate values can produce biased and inaccurate verdicts. Moreover, the social interactions that operate in trials and other legal proceedings can naturally be explained using the semantic pointer theory of communication that mingles verbal and nonverbal modes while accommodating the interactions of cognitions and emotions.

This chapter reviews the attempted understandings and problems involving the legal concept of reasonable doubt, which by definition is based on jurors’ efforts to deal with the legal concepts of intentionality, predisposition, and voluntariness. Jury decisions of the fifteen murder cases are individually reviewed, and the linguistic tools used in each case are reprised, including speech events, schemas, agendas (via topics and responses), conversational strategies used by the police, and critical lexical, phonetic, and syntax ambiguities. The effects of linguistic assistance can never be measured precisely, but an effort is made to show when it seems to have been successful and when it was less so.

This chapter focuses on arbitrator challenges in International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It considers the requirements of the relevant provisions of the ICSID Convention, arbitral pronouncements on the relationship between those provisions, and some further specific issues raised in ICSID arbitrations. In particular, it looks at whether the standard of ‘reasonable doubt’, which is applied to the disqualification of arbitrators in certain other regimes, is compatible with the provisions of the ICSID Convention. The relatively low proportion of challenges to ICSID arbitrators that have led to disqualification suggests that the threshold for a successful challenge in ICSID appears to be higher than alternative regimes.

This chapter explores the considerations that enter into the selection of standards of proof for legal claims. It lays out the considerations that have led the American legal system to embrace a standard of proof beyond a reasonable doubt for facts in criminal cases, a standard of proof by a preponderance of the evidence for (most) facts in (most) civil cases, and an implicit standard of proof of “better-than-available-alternatives” for (most) legal claims in both criminal and civil cases. It suggests that the reasons thus far given for distinguishing civil from criminal cases, and for distinguishing factual from legal claims, are not necessarily persuasive, and it offers a very tepid justification for applying a somewhat higher standard of proof for legal claims than is consistent with existing practice.

We have a present self with which we are dissatisfied and aim at a future self that would be better. The conflicts between them are permanent problems in our evaluative framework. Aiming at an undivided self is a dangerous ideal, as shown by the lives of Cortes, who caused immense harm to millions of innocent people, and Weil, who slowly and fanatically destroyed herself. Both had consequences that cannot be reasonably accepted. We have reason to improve our present self and to develop a better future self, but our evaluations of what would be better are dictated by our present self with which we are dissatisfied and by the evaluative framework and its modes of evaluation. In the light of these problems, it is reasonable to doubt our own evaluations and to cultivate a negative capability that understands our imperfections.

This chapter details events in Fritz Lang’s life from 1953 to 1956. Now under contract at Columbia, Lang would stumble across a property that was made to order for him—one of those happy accidents of time and place that for the most part eluded the filmmaker after Germany. This was The Big Heat based on a novel by William P. McGivern. The story follows Sergeant Bannion as he endeavors to investigate the suspicious suicide of a corrupt cop. As filming began on March 11, 1953, Lang was acutely aware that The Big Heat offered a chance at a new lease on his career. The film was previewed in August and released in October. The reviews were fair, the box office average. Yet almost overnight The Big Heat became one of Lang’s most highly esteemed works around the world. The chapter also describes the death of Lang’s ex-wife Thea von Harbou; the making of Beyond a Reasonable Doubt; and his retirement.

This chapter outlines the structure of the book, pointing out that the key legal terms intentionality, predisposition, and voluntariness will be addressed in the fifteen murder cases described in this book. The fifteen cases are of three types: those in which law enforcement has received written threats but doesid not know who wrote them, cases in which law enforcement suspectsed a planned murder and then surreptitiously tape-recordsed the suspect before it could happens, and cases in which a suspect wais in custody while being questioned by the police. After introducing the major linguistic tools applied to the case evidence, this chapter points out that juries must wrestle with still another legal term, reasonable doubt, as they try to understand intentionality, predisposition, and voluntariness.