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Beyond reasonable doubt; Judge's words reign in courtrooms for 160 years.

Byline: Gary V. Murray

WORCESTER - Carefully chosen words first spoken 160 years ago still resound today in courtrooms from Nantucket to North Adams and beyond.

Judge Lemuel Shaw's jury instructions in the 1850 murder trial of John White Webster included a definition of "proof beyond a reasonable doubt" that the state Supreme Judicial Court has all but insisted Massachusetts judges continue to use to this day.

A Harvard Medical School professor, Mr. Webster was accused of murdering Dr. George Parkman over a debt and disposing of his dismembered remains in his chemistry laboratory.

The case was tried in Boston before the Supreme Judicial Court, which then had sole jurisdiction over capital crimes. Brookfield-born Pliny T. Merrick, who practiced law in Worcester and would later become an associate justice of the Supreme Judicial Court, was the senior defense counsel.

Mr. Webster was found guilty of first-degree murder and sentenced to death by hanging. Chief Justice Shaw's words lived on. His explanation of the standard of proof borne by the government when it accuses a citizen of a crime has come to be known as the "Webster charge."

Included in the model jury instructions used by Massachusetts judges, both in its original and "modern syntax" forms, the Webster charge has also been adopted verbatim by several other states and still others have borrowed liberally from it.

The California Supreme Court once said it was "probably the most satisfactory definition ever given to the words `reasonable doubt' in any case known to criminal jurisprudence."

Judge Shaw began by acknowledging the difficulty of the task at hand, telling the jury reasonable doubt was a term "often used, probably pretty well understood, but not easily defined."

Undaunted, he went on to say that reasonable doubt "is not mere possible doubt; because everything relating to human affairs, and depending on ... evidence, is open to some possible or imaginary doubt.

"It (reasonable doubt) is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge," he said.

He told the jurors a person accused of a crime was presumed innocent until proven guilty and reminded them that the burden of proof was on the prosecution. If a reasonable doubt remained in their minds after considering all the evidence, the accused was entitled to the benefit of it by an acquittal, he said.

"For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt," Judge Shaw said.

Massachusetts appellate courts have urged judges to stick closely to the Webster language and have discouraged what the SJC once called "freehand embellishments." The state Appeals Court has noted that judges "create appellate issues unnecessarily" when they deviate from Judge Shaw's words.

One local jurist's attempt to improve upon the language of Webster more than a quarter-century ago failed to pass appellate muster. The late Judge Francis H. George told the members of a Central District Court jury in a 1983 larceny case they had to be "pretty darn sure" of the defendant's guilt before convicting him.

They apparently were and did.

Accusing Judge George of disregarding "the teaching of an unbroken line of cases which all but command that the definition of reasonable doubt be taken from the Webster case," the Appeals Court reversed the conviction.

Unlike Massachusetts judges, federal judges are not required to define reasonable doubt for jurors if they choose not to and the U.S. Supreme Court opined long ago that attempts to explain the term "do not usually result in making it any clearer to the minds of the jury."

Whether the Webster charge helps 21st century jurors understand what proof beyond a reasonable doubt means is a matter of debate among those involved in the trial of criminal cases.

"I think that charge is perfect. I think it's right on the money. I think they said it best over 100 years ago and why change it?" asked criminal defense lawyer Christopher P. LoConto.

Peter L. Ettenberg, another member of the local criminal defense bar, said he believed the instructions could be "streamlined, perhaps, in a way that's easier to grasp.

"I just think that a jury listening to it for the very first time could potentially have trouble completely understanding its meaning," he said.

Superior Court Judge Peter W. Agnes Jr. also questioned whether Judge Shaw's words made the concept of proof beyond a reasonable doubt any clearer to modern-day jurors.

"A moral certainty. What does that mean to people? That was the language of the 19th century. We're talking to the jury in language the jurors would not hear anywhere else in their lives," he said.

Judge Agnes pointed out that the SJC, in the spirit of the "plain English movement" that has been gaining momentum in the United States and other English-speaking countries, has appointed a committee to look into the possibility of revamping jury instructions in civil cases so they are easier to comprehend.

A similar review of the instructions given to jurors in criminal cases might lead to "a simpler and maybe a better way of expressing some of these concepts," he said.

ART: PHOTOS

CUTLINE: (1) Judge Lemuel Shaw (2) Pliny Merrick
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Title Annotation:LOCAL NEWS
Publication:Telegram & Gazette (Worcester, MA)
Date:Feb 11, 2010
Words:955
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