86 MIZAN LAW REVIEW, Vol. 8, No.1 September 2014
the fact as firm and settled with the help of the presented evidence and
testimony. Among the different theories and formulations surrounding the
beyond a reasonable doubt standard, Larry Laudan has identified five
formulations, discussed them as the major variations and identified the problems
a) Analogy with important life decisions:
According to this formulation, beyond a reasonable doubt is compared with
important decisions one has to make in everyday life. Laudan criticizes this
formulation by pointing out that in almost all important life decisions, people act
despite the fact that there are reasonable doubts.3 The degree of doubt that is
considered acceptable under the beyond a reasonable doubt standard is much
lesser than what people entertain in their private decisions no matter how
important. Thus equating the beyond a reasonable doubt standard with making
important life decisions is erroneous because it would amount to allowing a
guilty verdict despite the existence of reasonable doubt.
b) Doubt that would make a prudent person hesitate to act:
Instead of describing what belief beyond reasonable doubt is, this test attempts
to explain what a ‘reasonable doubt’ is. Accordingly, a reasonable doubt is
described as a doubt that would cause a prudent person to hesitate to act on that
belief (as opposed to the kind of doubt despite which you would act without
hesitation). This analogy can be criticized for the same reason as the first since
one may hesitate to act in an important affair not only when there are reasonable
grounds. It has also been criticized for being too vague in its formulation.4
c) An abiding conviction of guilt:
This is very similar with the historical ‘moral certainty’ formulation. The literal
meaning of the word ‘abiding’ envisages that the fact-finder must believe in the
2 This section of the discussion is based on what is presented by Laudan who outlined
the various definitions in his book drawing from the experience of US courts in jury
instructions on the standard of proof and the decisions of appellate courts on the issue.
For a detailed discussion of each of the definitions see Id, pp. 34-51.
3 Id., p. 36.
4 After citing this standard, one judge has written “I was always bemused by its
ambiguity. If the jurors encounter a doubt that would cause them to "hesitate to act in
a matter of importance," what are they to do then? Should they decline to convict
because they have reached a point of hesitation, or should they simply hesitate, then
ask themselves whether, in their own private matters, they would resolve the doubt in
favor of action, and, if so, continue on to convict?”, See, Jon O. Newman (1993),
“Beyond “Reasonable Doubt””, New York University Law Review, Vol. 68, No. 5, p.