For a long period of time, the golden standard in judicial fact-finding of criminal cases in the United States and many other countries has been the “Beyond a Reasonable Doubt” (BARD) standard – every person accused of a crime is presumed to be innocent unless, and until, his or her guilt is established beyond a reasonable doubt. The BARD standard’s undergirding principle is one of error distribution, where wrongful conviction of the innocent is a much greater wrong than failed conviction of the guilty. This concept was famously expressed by the English jurist William Blackstone in 1760s: “It is better that ten guilty persons escape than that one innocent suffer.” This principle is widely regarded as “the Mount Everest of legal mantras;” however, a closer look at the BARD standard reveals many potential doubts: What is meant by eliminating reasonable doubt? Where does this standard come from? There is no clear answer so far. Given the passage of time, does the Blackstone Principle still accurately reflect the policy or value choice of today’s society? How can empirical studies be done on the effectiveness of the BARD standard in practice?
This article seeks to give the BARD standard the careful attention it deserves by querying it from historical, epistemological, and empirical perspectives. Even though each of these three areas of inquiry involves its own unique controversy or difficulty, we can come even closer to an understanding of BARD by studying its origins, its ideological underpinnings, and its workings in practice. In particular, this article proposes a novel empirical formula to approximate the effect of BARD in restraining wrongful convictions through the lens of indirect but available statistical data on acquittals, reversals, and non-prosecutions. The best way to study this venerable common-law notion is to examine its recent implementation in a civil law system, namely, China’s legal system. We identify operations of the criminal justice system in China between 2007 and 2018 as the most suitable for focusing this empirical study because China began implementing the BARD standard in 2013 as a complement to its existing standard of proof in criminal cases – the “reliable and sufficient evidence” standard. Our study shows that although implementation of the BARD standard in the Chinese criminal justice system has been generally helpful in restraining wrongful convictions, its effect is limited. The two standards are effectively treated the same in practice. China’s move to the BARD standard was only a formal change, rather than a substantive modification to its criminal justice system. Our empirical study is a demonstration that the formal standard of proof may not matter all that much. Courts have an intuitive understanding of the high standard of proof required in the criminal context and are going to apply it accordingly, no matter whether we call it “reliable and sufficient” or “beyond a reasonable doubt”.
Zhuhao Wang and Eric Zhi,
Lifting the Veil of Mona Lisa: A Multifaceted Investigation of the "Beyond a Reasonable Doubt" Standard,
Ga. J. Int’l & Comp. L.
Available at: https://digitalcommons.law.uga.edu/gjicl/vol50/iss1/4