Virtual Ontario Police Memorial Service held yearly to honour police on May 2. Courtesy photo.
Here are some thoughts. Reasonable doubt was originally intended to increase conviction rates. Around the 15th century according to the historian Whitman, the English took over God’s job of ‘Judging’ crime. Before that it was ‘Trial by Ordeal’. If you survived drowning or burning you were innocent because God – the Judge — had saved you.
This new judging job had its headaches — the fate of those who sat in judgment was at stake.
Jurors had to fear vengeance from the convict’s relatives. There were also religious reasons. The Bible, in 19 Deuteronomy, the part we think of as ‘an eye for an eye‘, also deals with false witness. It means, that if someone falsely alleges that “X” committed a murder, then the liar should face the same penalty as ‘X’.
Secondly, convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The reasonable doubt rule developed in response to this possibility. It was originally a theological doctrine, intended to reassure jurors that they could convict the defendant without risking their own salvation.
It excluded absolute certainty; instead, used a moral certainty as the standard.
Today, Judges tell Juries that ‘Reasonable Doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is based on reason and common sense.
The doubt arises from the evidence or the lack of it as it relates to the essential elements of the offence …. It is not enough for you to believe that the accused is probably or likely guilty. In that case, you must find him not guilty.
The Criminal standard of Reasonable Doubt falls much closer to absolute certainty, than proof on a ‘balance of probabilities’ as in Civil Trials (51% certain). The Judge determines the law and the Jury, the facts.
A crime requires two factors: a law-breaking event, the Actus Reus and a criminal intent, a Mens Rea. Murder or manslaughter requires the act of killing, an Actus Reus, a homicide. Homicide simply means that someone killed someone. It is not a crime by itself. Whether a homicide is a murder or manslaughter depends on intent — an intentional, unintentional, negligent killing, a reaction to a provocation, duress and such.
If you lack an operating mind you could lack a criminal intent, be acting under a delusion and end with a “Not Guilty Because of Insanity”.
Juries like to compromise. Manslaughter is an included and lesser offence of murder. Juries find the facts from the evidence; thus, the verdict. A Jury has a choice. They need not explain their decision. They are empathetic and often, faced with a choice between a murder, manslaughter, they often choose manslaughter by deciding the intent of the accused.
This inclination for compromise or empathy became apparent when hanging was abolished. The conviction rate for murder increased. Before that, juries opted for manslaughter. The 15-century guys were right, reduce the responsibility and you increase conviction rates. But be careful of going too far. We could reduce the test for guilt to the Civil Law standard — a balance of probabilities. It would reduce the chance of the guilty getting away but would cause more innocent people being convicted.…oops! A law is like an aspirin; not perfect; it can cure a headache but may cause internal bleeding.
In Floyd, the Jury had several choices, assuming he caused the death. It depended on interpreting Chauvin’s intent . Sometimes empathy for the accused encourages a Jury to view the intention as more accidental – a manslaughter. Clearly, Chauvin drew no empathy.
In the Latimer Case, a farmer killed his teenage daughter. She had severe cerebral palsy, functioned as a four-month-old, suffered chronic pain, couldn’t walk, talk or feed herself. Latimer maintained her pain was unbearable. Latimer killed Tracy in 1993 using exhaust fumes from a truck. Recently, he maintained with the CBC, “The harm I caused by her death would have been less than the pain inflicted by her life”. He claimed innocence as a mercy killer. I believe, had he called evidence indicating he was under unbearable stress he would have been found guilty of the lesser offence of Manslaughter – less specific intent. He was wrong in law, ‘mercy killing’ is not a defense. He stood on his principles, leaving the Jury with no choice.
So, justice wins for Floyd. Destiny was in the hands of 12 Jurors. Notwithstanding, our systems aren’t
perfect – It took a thousand years to evolve the Jury System yet it remains the best of all possibilities.
ANSWER TO LAST MONTHS SENTENCE: I sentenced him to 2 yeas less a day to be served in his home followed by 3 years’ probation.
Judge Lloyd Budzinski retired after 28 years and was a former Crown Attorney, Defence Counsel and Ontario’s Deputy Minister of Criminal Law. He was a Chief Prosecutor in the high profile trial of ex-RCMP officer Patrick Michael Kelly, who was found guilty of murder for throwing his wife from a 17 th floor balcony n March 1981.
