The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence

78 Pages Posted: 5 Sep 2003 Last revised: 23 Mar 2013

Date Written: March 1, 2003


The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant.

This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in the evidence. Further, the history describes twentieth-century changes in the meaning of the legal standard, particularly the divorce of the jury instruction from a broader theory of knowledge and the failure of the legal language to reflect changing definitions of reason in public discourse. The most significant of these changes in the jury instruction is to define reasonableness as the assignment of reasons. The result of these changes has been both to lower standards of criminal proof and to diminish the autonomy of the juror as the finder of fact. This outcome is the opposite of that believed by the majority of the Supreme Court that made proof beyond a reasonable doubt a constitutional requirement in In re Winship. In particular, these changes in the standard may have altered the operation of the presumption of innocence, so that the defense now has the burden of proving the reasons for innocence. This result has all but escaped scholarly notice, although it is felt keenly by some judges, and it is worthy of both further study and reform.

Keywords: reasonable doubt, jury, juror, jury instruction, moral certainty, lawyer, attorney, judge, innocence, guilt, verdict, presumption of innocence, proof, certainty, criminal law, evidence, certainty, Locke, Wigmore, Paley, Greenleaf, Waite, Shaw, James Wilson, John Adams, Schlag, Winship, Brennan, Marshall, reason, reasonableness, thought, confidence, moral certainty, trial

JEL Classification: K10, K14, K39, K40, K41, K49

Suggested Citation

Sheppard, Stephen M., The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence (March 1, 2003). Notre Dame Law Review, Vol. 78, May 2003. Available at SSRN: or

Stephen M. Sheppard (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228-8602
United States

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