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Absolute Certainty and the Death Penalty

NCJ Number
American Criminal Law Review Volume: 42 Issue: 1 Dated: Winter 2005 Pages: 45-91
Erik Lillquist
Date Published
47 pages
In calls for a higher standard of proof in capital cases, due to the number of exonerations of individuals on death row, this article critiques two assumptions made by proponents of a higher standard.
The revelation of erroneous convictions in death penalty cases over the past few years has set off a renewed interest in reducing the possibility of such errors. This is being addressed through one specific reform which proposes to increase the jury’s certainty in the defendant’s guilt before sentencing him to death. A juror’s level of certainty in a defendant’s guilt, when voting to convict, is regulated through the standard of proof or the “beyond a reasonable doubt.” There has been a call or interest in changing the way jurors are selected in capital cases. However, the practicality of achieving more juror certainty in capital cases is questionable. This article proposes two sets of reforms that would be far more likely to increase the standard of proof in capital cases. The first is to eliminate or minimize the use of death-qualification of jurors in capital cases, at least at the guilty phase, and second, to improve the method of communicating the standard of proof to jurors. These changes are likely to have less impact than changing juror selection methods and are easier to implement. The article begins by discussing the history of reasonable doubt standard of proof and its relationship with the death penalty, focusing on the justifications given for the creation of the beyond a reasonable doubt standard. Then, current theories that justify the use of the beyond a reasonable doubt standard in criminal cases and whether these theories can support the use of a higher standard of proof are discussed. Lastly, the article examines the implementation of a higher standard of proof in capital cases and argues that the proposals set forth thus far are likely to have little or no effect in real world cases.


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