Free Impossible: The Case Against Lee Harvey Oswald by Barry Krusch Page B

community, past criminal history, and availability of assets. To detain a defendant, a judicial officer must find the defendant to be either a risk of flight or a danger to the community; proof of both is not necessary.

    As noted above, these lower standards can be utilized in arrest before trial. But to find a person guilty of a crime after they have been arrested and after a trial, the reasonable doubt standard rules. The purpose of the standard from the American perspective was described by Barbara Underwood, Associate Professor of Law at Yale University, writing in the Yale Law Journal (emphasis supplied): 6

The first function of the reasonable doubt rule is to reduce the chance of conviction in an individual case, by putting a thumb on the defendant’s side of the scales of justice . . . . One reason for putting a thumb on the defendant’s side is to compensate for a systematic flaw in the scales. That is, factfinders may favor the prosecution rather than weigh the evidence objectively. . . . In reducing the likelihood of an erroneous conviction, the reasonable doubt rule does not, however, simply restore an accurate balance; it is also understood to introduce a deliberate imbalance, tilting the scales in favor of the defendant . It represents “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

    Professor Underwood noted that the status of this right was explicitly recognized by the Supreme Court in 1970: 7

The requirement of proof beyond a reasonable doubt in criminal cases was given constitutional status by the Supreme Court in 1970, in the case of In re Winship . . .

    The Court itself noted in that case that their decision was merely the logical outcome of a line of previous cases ( In Re Winship , 397 US 358, 361-2; March 31, 1970; emphasis supplied):

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. . . . Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States , 103 U.S. 304, 312 (1881); Davis v. United States , 160 U.S. 469, 488 (1895); Holt v. United States , 218 U.S. 245, 253 (1910) . . .

    In Winship , the Supreme Court quoted noted judge Felix Frankfurter, who reminded us that the burden of proof is not on the accused , but on the government ( Winship at 361-2; emphasis supplied):

[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of “due process.”

    The Supreme Court linked the reasonable doubt standard with the related concept of the presumption of innocence , which they referred to as “axiomatic and elementary” ( Winship at 363 (quoting Coffin v. United States )):

The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error . The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.”

    The Supreme Court contrasted the standard of proof for criminal cases to civil litigation. In the litigation of civil cases, the risk to one of the parties is relatively minimal. However, in criminal cases, the risk to the accused is always his liberty , and in cases where the death penalty is involved, sometimes his life — consequently, a higher standard is called for ( Winship at 364; quoting Speiser v. Randall ):

There is always, in litigation, a margin of error, representing error in