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July 4, 2012

Extra class participation credit...

for whomever reports in the comments about any conversation with any UK native concerning whether he/she had ever heard of the Trayvon Martin case or the Troy Davis case

You can also earn credit for reporting on any conversations about the Amanda Knox case, though I suspect most folks in the UK have heard of this case because the victim, Meredith Kercher, was a British university exchange student.

UPDATE:  And, as mentioned in our second class, one person can get extra credit for providing a cite and/or link to the article about reasonable doubt as a burden of proof authored just under 20 years ago by one of my old bosses.

July 4, 2012 in Class reflections, Notable real cases | Permalink


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Lawrence Solan was Prof Berman's boss and wrote the paper, cited as Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L. Rev. 105 (1999).

Also, I spoke to two teenage lesbian Brits last night in a club in downtown Oxford (I use the word "downtown" loosely) but neither of them had heard of Trayvon Martin, Amanda Knox, or Troy Davis. I will keep you posted as I continue my investigations!

Posted by: Ruxton | Jul 6, 2012 6:40:49 AM

Unfortunately I can't find a suitable link, so I guess if you want to read it just check it out on Westlaw or Nexis or whatever...

Posted by: Ruxton | Jul 6, 2012 6:46:59 AM

Kudos, Ruxton, on finding some Brits to take to about (not-so) famous criminal cases. You have earned credit (and can get some more from reporting on additional conversations). But, you did not find the right article, as I never had Lawrence Solan as a boss. That said, this Solan article looks worth a read, and here is how it starts:

"This Article asks whether the proof beyond a reasonable doubt standard is the best way to promote the values our system of criminal justice claims to venerate. The results of the inquiry point to a single conclusion: standard reasonable doubt instructions focus the jury on the defendant's ability to produce alternatives to the government's case, and thereby shift the burden of proof to the defendant. In fact, empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden.

Proof beyond a reasonable doubt has been the government's burden in criminal cases for virtually this country's entire history. Although the Supreme Court did not hold this standard to be a constitutional imperative until 1970, its use has not been a matter of any serious controversy. The phrase developed in the late eighteenth and early nineteenth centuries not as a value in itself, but rather as a fair way to express the sentiment that only when the members of a jury are very certain of a defendant's guilt should they convict. Some two hundred years later, we still use the same expression, and we profess to use it for the same reason."

NOTE: The Solan article, in fact, does CITE to the article I have in mind authored by one of my former bosses.

Posted by: Doug B. | Jul 6, 2012 3:23:49 PM

Ok, my "half-baked" efforts (as Prof Whelan would have put it) have now (I believe) been rectified. Further detective work has revealed the true culprit... Judge Jon Newman of the US Court of Appeals (2nd Circuit). The citation is: Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U. L. Rev. 979 (1993). Prof Berman clerked for Judge Newman, who was (I believe) the Chief Judge of the 2nd Circuit at the time.

In defense of my mistake regarding the Solan article, I would argue that the two articles bear astounding similarities... indeed they both share practically identical conclusions. Their starting point is the shared sentiment exemplified by Newman's statement that "it [is] rather unsettling that we are using a formulation that we believe will become less clear the more we explain it." From there, both articles describe the significant ideological and (more importantly) practical failings of the standard, and suggest alternative approaches; according to Newman the key is stricter application of the standard of reasonable doubt through enforcement as a rule of law, while Solan goes so far as to suggest an outright shift to a different standard entirely ("Firmly Convinced" rather than "Beyond Reasonable Doubt").

Finally, I found it extremely interesting when Solan noted that "Empirical research suggests that it is easier to prove a case beyond a reasonable doubt than it is to prove a case by clear and convincing evidence." (Solan, 147). Additionally I would add that that the reforms Newman suggested are neither radical nor over-ambitious. Looked at in that light, one can do little but shake one's head at the folly of mankind in their blind but wilful pursuit of a broken ideal, a pursuit which inevitably leads to that most distasteful of outcomes: injustice.

Posted by: Ruxton | Jul 7, 2012 12:02:29 PM

Well done, Ruxton, second time was the charm here!

Posted by: Doug B. | Jul 7, 2012 4:22:48 PM

The three of us talked with our waitress at a local pub. She hasn't heard of Trayvon Martin or Casey Anthony. However, she has heard of Amanda Knox. This seems consistent with our earlier class predictions. It appears that there's more media attention on Amanda Knox, because of Meredith Kercher's nationality. When we brought up the reasoning for our questions, the waitress replied that the British media was only concerned with "high scandals." Apparently, the events involving Trayvon Martin and Casey Anthony do not apply.

Posted by: Grady, Katie, and Ren | Jul 8, 2012 4:59:51 PM

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