"Beyond Reasonable Doubt" and "Probable Cause"

by Barbara J. Shapiro
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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 1749

In this book, Barbara J. Shapiro, a professor of rhetoric and author of two previous works on seventeenth century intellectual history, explores the roots of two key doctrines in contemporary Anglo-American criminal procedures: the standard mandating that criminal charges must be proved “beyond a reasonable doubt” and that prohibiting the arrest and prosecution of defendants without some minimum evidence to serve as “probable cause.” Shapiro’s interest is not with formal legal constructs regarding admissibility of evidence, right to bail, and the like. She seeks a fuller understanding of the guidelines informing juries in their decision making once trial evidence has been submitted and, similarly, those informing public officials and juries in their decisions whether to prosecute suspected criminals. These focal points are not easily researched. Jury behavior, for the most part, has been shielded from open observation. Likewise, the details of prosecutorial discretion are not easily recovered by means of even the most fastidious historical research. Still, through the examination of numerous practical handbooks of the times, formal treatises by dozens of theorists and commentators, and public records, Shapiro is able to construct a reasonably coherent account of and explanation for the emergence of “beyond a reasonable doubt,” “probable cause,” and related doctrines as fundamental principles of Anglo-American criminal justice.

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Shapiro’s research revolves around three basic themes. First, she seeks out the interaction between legal and other intellectual conceptualizations of evidence, probability, and truth. In this sense, Shapiro’s study might be said to be “contextual,” that is, one that strives to set legal ideas into a broader social and intellectual setting. Second, Shapiro examines the “migration” of evidentiary guidelines among various institutions and procedures in the criminal justice process. She wishes, therefore, to study the circulation of ideas within the criminal process as well as between the criminal process and broader society. Third, Shapiro is interested in any connections that might exist between English law and the Romano-canon tradition of evidentiary procedure.

Shapiro manages to make scholarly headway regarding all three of these themes. As is usually the case in histories of ideas, Shapiro examines a dizzyingly broad variety of tracts and authors. The latter include empiricists Francis Bacon and John Locke, social reformer Jeremy Bentham, and common law authorities Sir William Blackstone and Sir Edward Coke, as well as many less well-known figures. This research indicates a parallel, but often cross-pollinating, relationship between the secularization of thought (and ultimate emergence of empirical science) and rationalization of criminal procedures. Just as philosophers and enlightened theologians were sometimes anxiously, sometimes reluctantly separating the spheres of reason and faith, legal theorists and criminal justice officials were moving toward more objective, logical, and empirical procedures. The doctrines of “beyond a reasonable doubt” and “probable cause” emerged in the context of these interrelated intellectual quests. Like scientific method, they are based on an ideal of intersubjectivity. Whereas scientific conclusions are based on the empirically testable findings of a community of scholars, the modern doctrines of criminal procedure examined by Shapiro are based on evidence (preferably empirical, but also circumstantial) which, in the eyes of any reasonable person, would justify the trial and/or conviction of a defendant. It should be noted that neither standard claims infallibility or certainty. In science, all conclusions are open to future tests and revision. In criminal justice, conclusions are based on as high a level of probability as possible rather than on certainty. Following the epistemological findings of the times, legal theorists had to accept uncertainty in order to maintain public order. The doctrines of “beyond a reasonable doubt” and “probable cause” are designed to legitimate criminal justice decision making in the absence of either divine authority or secular certainty.

Shapiro’s research also indicates a clear pattern of migration of doctrines among different criminal justice institutions and procedures. Most specifically, she follows the progression of “probable cause” from the stage of arrest to the processes of search and seizure, the preliminary hearing, and ultimately the American grand jury. In describing this migration, Shapiro does a good job of laying out the central problem addressed by the concept of “probable cause,” that of devising a standard of evidence that would prevent capricious prosecution while avoiding duplication of the trial itself. Indeed, Shapiro believes that this problem is one that has never quite been solved. An exact point at which the evidence warrants a full-blown trial without clearly indicating guilt has proved most elusive.

Finally, Shapiro’s findings indicate a fair amount of borrowing from the Romano-canon law and procedures of the European continent. English writers were loath to admit such borrowing, partly for chauvinistic reasons and partly to avoid association with such continental practices as the inquisition and selective torture (though in its most elevated form, even torture had to be based on some early version of “probable cause”). Nevertheless, Shapiro finds numerous examples of such borrowing, usually accompanied by creative fudging in the citation of sources. As a result, she suggests that the emergence of “beyond a reasonable doubt” and “probable cause” can be understood as a joint product of English common law and Romano-canon (or “civil”) sources.

In addition to these significant findings on her chosen themes, Shapiro provides valuable insight into the processes of historical change writ large. Although “beyond a reasonable doubt” and “probable cause” are a familiar part of our social landscape, an observer of juries in the Middle Ages would have found far different standards of operation, ones that in all likelihood would offend a modern sense of justice. More specifically, while modern legal systems, at least in theory, try to exclude prejudice and subjectivity from criminal proceedings, medieval juries based their decisions in large part on previous knowledge, or opinions, of the crimes committed and persons allegedly involved. Modern standards of fact-gathering and evidence were relatively unknown. Shapiro does a good job of showing the untidy, seemingly glacial process of changing collective standards of behavior. This may seem utterly foreign to contemporary readers accustomed to highly visible, rapid-fire socioeconomic and political change. The constant, almost hourly, change of the sort covered on nightly television news broadcasts and in books on popular culture should not blind observers to that dimension of social evolution which lies below the surface. This latter variety of change is usually unplanned and may be difficult to identify, but it is often the most crucial for future generations.

One example of gradual change mentioned in Shapiro’s study and highly pertinent to everyday life involves the response to allegations of witchcraft. To modern minds, the arrest, prosecution, and punishment of witches seems intolerably superstitious and brutal. It also offends a modern sense of criminal justice, since witches, by their very nature, were supposed to be able to elude ordinary measures in terms of evidence and proof. In fact, witchcraft was held to be in a special class of crimes for which the standards of evidence had to be lowered. (Interestingly enough, rape also was often accorded such a status because of its inherent privacy and lack of witnesses.) The rise of modern standards of evidence and proof gradually rendered the crime of witchcraft irrelevant, since it could not be prosecuted according to those standards. By the eighteenth century, witchcraft laws were being taken off the books. This occurred not because of some investigative reporter’s undercover work or because of a mass demonstration, but because slowly changing standards of criminal procedure came to exclude the sort of tainted evidence needed to prosecute witches.

Shapiro’s study also has some rather important and disturbing implications. Although it is easy and entirely appropriate to see her tale as one of progress, important caveats must be noted. First, progress toward a rational and fair criminal process has not been uniform or complete. As Shapiro makes clear, practice has not necessarily been in accord with theory or doctrine. The American criminal process in particular has been subject to severe racial discrimination. Although this has been somewhat alleviated in recent years, the cost of high-quality legal representation leads systematically to socioeconomic distortions of justice, with poor defendants substantially disadvantaged in the system.

There is a more fundamental problem, however. Even if incidental inequalities such as those mentioned above could somehow be eliminated, the standards of criminal justice studied by Shapiro have inherent weaknesses, since in many cases they lead to findings based on high probability rather than on the certainty one would like to have when depriving defendants of their freedom or even their lives. Eyewitnesses remain remarkably unreliable, and juries are notoriously fickle and unpredictable. Moreover, the system is far from free of mistakes. Guilty defendants seem routinely to go free while, and perhaps less routinely, convicted defendants are shown to have been innocent. In short, the modern criminal process, even at its very best, remains problematic and, all too often, unsatisfactory. This is even more true when one considers difficulties with the concepts of free will, determinism, social causation, and culpability that also challenge the basic tenets of criminal justice.

This failure to transcend fully the subjectivity and caprice of previous standards of criminal prosecution and jury decision making is magnified in a society such as that of the United States, in which criminal justice is mass-produced in order to serve as a primary source of public order. Examined in this light, the existence of a massive criminal justice establishment may itself be seen as a major social problem, particularly when widespread practices such as plea bargaining are clearly based on the presumption of guilt.

As Shapiro is well aware, this study has shortcomings. For one thing, as mentioned above, it is based on an examination of various published doctrines rather than on a record of actual practices, the latter being historically unrecoverable. Although Shapiro believes it is reasonable to presume the probability of a somewhat positive relationship between doctrine and actual practice, she is admittedly unable to demonstrate such a relationship with any degree of thoroughness. In addition, she spends relatively little time distinguishing between American and English procedures. Finally, because of its considerable breadth of coverage and multiplicity of sources, the book is not nearly as readable as one might like. These weaknesses, however, do not neutralize the book’s assets. Shapiro has effectively explored a historical moment of note, one that helps in an understanding of the roots and reason of criminal justice procedures as well as their limitations.

Sources for Further Study

American Journal of Criminal Law. XIX, Spring, 1992, p. 519.

Choice. XXX, September, 1992, p. 218.

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