Vol. 3 No. 4 (April, 1993) pp. 35-37

BEYOND REASONABLE DOUBT AND PROBABLE CAUSE: HISTORICAL PERSPECTIVES ON THE ANGLO-AMERICAN LAW OF EVIDENCE by Barbara J. Shapiro. Berkeley: University of California Press, 1991. 365 pp. Cloth $42.50

Reviewed by Stephan Landsman, Cleveland-Marshall College of Law, Cleveland State University.

The history of the law of evidence might usefully be compared to the elephant encountered by the blind men. One's impressions will tend to reflect which part of the beast one has examined. Because of the substantial scope of evidentiary regulations, touching on both the admissibility and persuasive power of all sorts of proofs, as well as serious gaps in our historical knowledge about how trial and pretrial investigations were conducted in the sixteenth and seventeenth centuries and why the process came, at that time, to rely almost exclusively on the live testimony of witnesses in open court, it is exceedingly difficult for us to assemble a comprehensive and accurate picture.

Barbara Shapiro has set out to trace the development of the evidentiary rules regulating the trial and pretrial conduct of criminal law decision makers. She has canvassed much of this territory brilliantly. If there is a serious criticism to be made it is that she has concentrated her attention on several areas where there is a substantial body of information but has not ranged broadly enough over the entire field to provide us with a clear picture of what the beast really looks like.

Professor Shapiro pursues three major themes. The first involves "the way in which religious and philosophical notions concerning the nature of truth and the appropriate method of attaining it affect legal conceptions of evidence and proof," (p. xiii) most particularly in the development of the beyond reasonable doubt standard for conviction in criminal cases. The second concerns the migratory nature of a variety of evidentiary concepts including the reasonable doubt standard (affecting both petit and grand jury proceedings) and the probable cause requirement (influencing arrest, search and seizure decisions, and preliminary hearings). The third considers the impact of Roman-canon ideas on Anglo-American evidence doctrine.

In truly impressive fashion Professor Shapiro traces the intellectual roots of the beyond reasonable doubt standard. She convincingly demonstrates the substantial influence of seventeenth and eighteenth century Protestant doctrines concerning the nature of persuasive proof in religious matters as well as philosophical analyses from Locke, the Scottish Common Sense philosophers and others concerning the problem of epistemology. Her mastery of the religious and philosophical sources is impressive and she makes a strong case for the centrality of these bodies of literature to legal developments.

What her analysis does not encompass is the political and social forces that were at work at the same time. While Locke and Protestant theology provided a critical set of intellectual options one needs to look deeper to understand why they were taken up by the law. From the middle of the seventeenth century to at least the end of the eighteenth the petit jury was a social battleground. Before it were fought the great political contests of the era as translated into criminal charges like those against the alleged Popish plotters, the seven Anglican bishops who refused to read James II's second Declaration of Indulgences, the political agitator John Wilkes, and the radical members of the London Corresponding Society including Hardy and Horne Tooke. John Beattie has describe the late 1600's as "the heroic age of the English jury" from which "trial by jury emerged as the principle defense of English liberties." (1988, 214) These trials and the struggles they epitomized led judges, lawyers, and politicians to debate how and on what evidence jury decisions should be made. The principles taken from Locke and the divines appear to have met the needs of a society searching for standards that would empower jurors to curtail royal and judicial authority while extending reasonably reliable protection to the property and persons of the elite.

Page 36 follows:

Perhaps the strongest section for BEYOND REASONABLE DOUBT AND PROBABLE CAUSE is that devoted to the grand jury. Here the politics of the seventeenth century is effectively integrated with doctrinal insights. Professor Shapiro convincingly argues that the grand jury was an unstable institution troubled by epistemological and related institutional uncertainties. On the conceptual level there was no clarity about what decisional standard the grand jury should apply. If it were to mimic the petit jury and call for proof beyond a reasonable doubt the result would be two trials instead of one. If it were to rely on mere suspicion it could not provide any realistic protection against improper accusations. There did not appear to be any philosophically or legally satisfactory stopping point between these two. On the institutional level this problem translated into the question whether the grand jury served any purpose that was not already adequately met by other criminal law decision making mechanisms.

The instability identified by Professor Shapiro led to an oscillation in grand jury practice between positions staked out by Whigs and Tories in the 1600s and 1700s. The Whigs' conception of grand jury practice emphasized the protection of citizens from the King and his hand-picked judges. The Whigs called for grand jury inquiries that were the functional equivalent of petit jury trials and insisted that grand jurors carefully weigh all the evidence that came before them. This view seemed to gain ascendancy when London grand juries in the 1680s rejected the Crown's efforts to prosecute the Earl of Shaftsbury and Stephen Colledge. The Tories, on the other hand, urged that grand juries act swiftly and with a minimum of evidence so as to insure the rapid indictment of malefactors. The compromise that was eventually adopted was referred to as the "prima facie case" standard and required grand juries to consider only the prosecution's evidence and to measure it by something approximating the beyond reasonable doubt test. This compromise while perhaps intellectually satisfying because of its reliance on well understood evidentiary concepts did not end the debate between the warring camps. The prima facie case principle was eventually eroded as concerns about crime led to the abandonment of a rule that required the prosecution to try its case twice and convince two sets of jurors. The instability inherent in the grand jury's situation has, in fact, never been resolved and an increasing number of jurisdictions have gravitated toward the Tory approach.

Professor Shapiro is at pains to delineate the migration not only of the reasonable doubt standard but the idea of probable cause as it grew first in the arrest context and later in the areas of search and seizure, and preliminary hearing. She traces the evolution of the notion from its roots in the rhetorical traditions of ancient Greece and Rome through its development in the Roman- canon system of evidence. She succeeds in demonstrating its instability and thereby helps explain its historical alternation between crime control and individual liberty orientations.

This third section of the book, however, suffers from a lack of unity and focus. There are too many institutions and standards reviewed to provide anything like the single well-focused argument presented in the first half of the text. The absence of historical evidence concerning the actual behavior of the justices of the peace leaves a gap in the argument that Professor Shapiro has a hard time filling. Here and in the next section the work seems to cry out for more primary document based information concerning the criminal courts. The absence of such material leaves an uncomfortably speculative and partial picture.

Professor Shapiro's final chapter, explores Roman-canon contributions to Anglo-American evidence doctrine. It, like the preceding section, is arranged as a survey. This structure dilutes the focus of the work and weakens its argument. There are just too many rules canvassed in too brief a span of pages. Again, analysis would have been strengthened if more primary source material had been utilized. Detailed examination of court proceedings like those described in the OLD BAILEY SESSION PAPERS might have

Page 37 follows:

broadened Professor Shapiro's understanding of the nature and reasons for the growth and change of evidence rules. Professor Shapiro's heavy reliance on the cases recorded in STATE TRIALS gives her too constricted a view and denies her an appreciation of the importance of counsel to the development of a range of evidentiary requirements, especially the hearsay rule.

Be all this as it may, Professor Shapiro has written an exciting book. At its best, it lays bare the ancient tensions that still rule a number of our criminal law adjudicatory mechanisms and gives us a convincing portrait of the intellectual pedigree of some of our most cherished principles. Understanding the connection between our institutions, continental traditions, philosophical theory, and religious doctrine is of substantial value. It is a critical step along the road to a comprehensive understanding of the evidentiary system that governs over courts.

Reference

Beattie, John. 1988. "London Juries in the 1690s." In TWELVE GOOD MEN AND TRUE, eds., J.S. Cockburn and Thomas A. Green. Princeton: Princeton University Press.