Next week, FX will begin airing its 10-part miniseries, The People v. O.J. Simpson: American Crime Story. I’ve seen the first few episodes of the series, and despite what you might expect from a Ryan Murphy show, the American Horror Story and Glee creator plays it (mostly) straight. It’s very good. Based on Jeffrey Toobin’s The Run of His Life, American Crime Story presents the Simpson case from all the angles, with much of the focus on the legal strategies devised by the prosecution and defense.
One of the many questions the series attempts to answer is why Simpson wasn’t convicted. Some of it has to do with the prosecution team led by Marcia Cross (Sarah Paulson), whom the series depicts as wildly overconfident. The evidence seems so overwhelmingly in favor of the prosecution that the state doesn’t see any way they can lose, in spite of the many mistakes made by the police and the prosecution’s legal team, and the public sentiment in Simpson’s favor.
Simpson’s team, meanwhile, knows the evidence has them dead to rights — there’s essentially a trail of blood from Nicole Simpson’s house to O.J.’s home that ends in a pair of bloody gloves — so their strategy is not to prove that O.J. is innocent, but to poke holes into the prosecution’s theory, to call into question every single piece of evidence, and to cast doubt on his guilt. A lot of that involves confusing the jurors.
Obviously, it worked. Simpson’s legal team got him off for a murder that the majority of people — both then and now — believe he committed. But why?
It’s a simple reason, really, and it’s the same reason that comes up time and again in murder cases. In fact, though the circumstances, the race and gender, and the socioeconomics of the defendants in the two most talked about legal cases in pop culture of the last year and a half are wildly different, there is a through line between O.J. Simpson case, the case at the center of Making a Murderer and the case in the first season of Sarah Koenig’s podcast Serial. Each of those three cases turned on a simple legal concept that is easy to explain but complicated in its application: Reasonable doubt.
Anyone who has ever seen an episode of Law and Order or a David E. Kelley legal drama understands that in a criminal trial, the prosecution must prove “beyond a reasonable doubt” that the defendant committed a crime. In other words, a reasonable juror can only convict if he or she has ruled out any reasonable belief that the defendant didn’t do it. It’s not the defendant’s job to prove he is innocent; it’s the prosecution’s burden to prove guilt.
While that definition may sound relatively clear in theory, it’s anything but in practice. Reasonable doubt is a subjective term and can mean different things to different people, and even what one might consider a “reasonable person” may differ depending on one’s perspective. (Historically, in fact, a “reasonable person” has referred to what a “reasonable man” might conclude, which would obviously differ from a what a “reasonable woman” might believe in many sexual assault cases.)
To understand the application of reasonable doubt, it’s also important to understand who determines what during a trial. A criminal trial is broken down into two kinds of questions: Legal questions and factual questions. Legal questions, which refer to what kind of evidence is admissible or who is and is not allowed to testify, are decided by a judge. Factual and credibility questions, for the most part, are determined by the jury. In other words, it’s up to a judge to decide whether a particular witness is allowed to testify, but it’s up to a jury to decide if that witness is credible or believable. Likewise, a judge decides what evidence can be introduced at trial, but it is up to a jury to decide if the evidence is credible.
The distinction is important because, in the Steven Avery murder trial, for instance, whether the RAV4 key should have been admitted was up to a judge. The judge ruled it was properly admissible under a valid search warrant. The judge wasn’t even allowed to make a finding as to whether the key was planted. The question of whether the key fell off a bookcase or was planted by the police was left up to the jury to decide. Likewise, the judge properly admitted the blood evidence, but it was up to a jury to decide whether the blood was planted by the police. Similarly, the remains of Teresa Halbach found in Steven Avery’s burn barrel were properly admitted by the judge, but it was up to a jury to decide if those bones were moved there from another location. In all three instances, the jury apparently decided against Avery.
In other words, though there may have been evidence of police tampering in the case, that was a question ultimately left to a jury, not a judge. The thing about juries, however, is that they are wildly unpredictable. Theoretically, they’re made up of all classes of people from all walks of life. In reality, they’re largely made up of people who can’t figure out how to get out of jury duty.
To wit: Based on what we know from Making a Murderer, many of us would have found enough reasonable doubt to determine that Avery was not guilty.
Or would we have?
Did the jury appropriately acquit given what information they had? They did not have the benefit of the sympathetic portrait of Steven Avery’s parents that was painted in Making a Murderer, for instance, and they did not have the benefit of the charming interview footage of Avery’s lawyers. But they also didn’t have the benefit of Brendan Dassey’s questionably obtained confession. All the jury saw was the prosecution’s evidence against Steven Avery — presented by over 50 witnesses — and the defense’s attempt to convince the jury that the evidence and witnesses weren’t credible. (As I understand it, Avery only presented seven or eight witnesses on his own behalf, and did not testify for himself).
This is where reasonable doubt comes into play. Different juries interpret reasonable doubt differently. In the Simpson case and the Casey Anthony trial, for instance, the jury held the prosecution to a ridiculously high standard. In the Casey Anthony trial, they seemed to ask themselves, “Is there any way at all, no matter how remote, that Casey Anthony did not commit these murders?” The seed of doubt that the defense planted was enough to convince the jury to acquit Casey Anthony. Likewise, the Simpson jury seemed to interpret reasonable doubt similarly: “Is there any possibility, no matter how remote, that the police planted all that evidence against Simpson?” Again, Simpson’s legal team planted a small seed of doubt and that was all it took for the jury to acquit a sympathetic and popular defendant.
In other words, even if there was only a one or two percent chance that Simpson or Casey Anthony didn’t do it, the jury interpreted that doubt as “reasonable” enough to acquit. The degree of “doubt” often depends on who the defendant is.
Meanwhile, in the Avery case — and the Adnan Syed case at the center of the Serial podcast — the jury seemed to interpret reasonable doubt completely different. In both cases, the jury seemed to ignore doubts — reasonable or otherwise — and simply asked themselves, “Do we think he did it?” There answer seemed to be, “Yeah, he probably did.” In other words, they seemed to ignore the legal standard and convicted because they believed Adnan Syed and Steven Avery more likely than not murdered their victims. If Syed’s and Avery’s jury had held the prosecution to the same standard that the jury in the Casey Anthony and O.J. trials had, however, neither would have been convicted.
The reality is this: Reasonable doubt is a meaningless standard.
Reasonable doubt is the biggest problem at the root of our imperfect legal system because there’s no objective application of the standard. One jury made up entirely of people who would vote for Sarah Palin in a presidential election may interpret reasonable doubt differently than a group of Bernie Sanders’ voters, and their interpretation of reasonable doubt may also depend on the color of the defendant’s skin, the gender of the defendant, or even the defendant’s occupation. All-white jury pools, for instance, convict black defendants 16 percent more often than whites. Middle-aged Italian men are more likely to convict a man accused of rape than female jurors. This bias is not limited to the race or gender of the defendant, either. In fact, defendants with black or female lawyers are also more likely to be convicted than defendants with white male lawyers.
These biases play into a juror’s interpretation of reasonable doubt. The reasonable doubt standard is so fluid and so subjective as to literally be meaningless, based not on any true legal definition but on the whims and prejudices of jurors.
That’s hugely dangerous to the legal justice system because of the importance placed on a jury verdict. If a judge screws up, a defendant might have grounds for appeal. If the defendant’s lawyer is incompetent, there may also be grounds for appeal. But a jury finding of “guilty” cannot be appealed on its own. The interpretation of reasonable doubt can’t be challenged by a either a trial judge or an appellate judge unless the jury was clearly and obviously out of its damn head when it arrived at the verdict. To put it in football terms, “reasonable doubt” is not a reviewable play. Except in extreme and rare cases seen almost exclusively in legal dramas, a judge cannot set aside a jury verdict. A jury verdict — and therefore, a jury’s interpretation of reasonable doubt — is scripture. Nearly everything else can be appealed, except how a jury determines reasonable doubt.
Here’s the other wrinkle: Steven Avery has sought a new trial, in at least one instance, because of pressure that one juror put on the rest of the jurors to convict. But here’s the thing about that: Peer pressure is allowed. It’s part of the jury process. Holdouts are regularly berated. They are bullied and threatened, coerced and browbeaten until they relent. Some jurors end up regretting their verdicts for the rest of their lives, but that’s not a grounds for appeal. If nine people in a room interpret reasonable doubt one way, they can bully and torment the other three until they come around, and that verdict ultimately cannot be overturned because of second thoughts or juror remorse. It’s permanent.
Ultimately, that’s what’s been so frustrating for so many people in the Steven Avery case, but short of a pardon by the governor (and Scott Walker will not give one) or convincing new evidence, there’s nothing anyone can do. Both sides got to present their cases, and the jury decided that Steven Avery was guilty beyond a reasonable doubt. That cannot be appealed or overturned, even if the jury itself watched Making a Murderer and decided that they were wrong.
For all its difficulties, however, until Google or Apple comes up with a perfect algorithm to weigh the reliability of evidence or the credibility of a witness, it’s still the best legal system available. It’s not always right, but what’s a better alternative? We simply haven’t found one yet, and until we do, some people will be judged based on the evidence. Other people will be judged based on what a jury thinks of the defendant’s outfit, or how he smiles, or if he gives off a “creepy vibe.” Unfortunately, that’s the nature of our system. People like O.J. Simpson get off because they’re famous, while people like Steven Avery spend the rest of their lives in prison because a jury might have thought he “looked” guilty. It’s the malleability of the reasonable doubt standard that often allows a jury to make those life-and-death decisions, based not on legal principles, but upon personal biases.