Wednesday 2nd April 2025: Dr Chris Heffer

Seminar: Wednesday 2nd April 2025 (Week 10 of term) 1.10-2.15pm

Dangerous Convictions: On Being Sure in the Criminal Standard of Proof
Dr Chris Heffer (Cardiff University)

The criminal standard of proof is the degree of proof required in a criminal case in order for the jury to convict the defendant. If this standard is not conveyed effectively to jurors, it can lead to the guilty being acquitted or the innocent being convicted and so it is an issue of fundamental ethical importance (Heffer in press). The standard is traditionally conveyed by beyond reasonable doubt. While originally ordinary language, by the mid-19th century the phrase was already not being understood by jurors and complex definitions of the concept emerged in US jury instructions (Horowitz and Kirkpatrick 1996). By the mid-20th century, senior judges in England and Wales were recognising that jurors were not understanding the term but also that many of the definitions or explanations of the phrase in US jury instructions were incomprehensible to lay jurors. Accordingly, they opted for a plain English paraphrase of the standard to be used in jury instruction, often conveyed simply today as ‘the prosecution must make you sure’. While ‘being sure’ is undoubtedly easier to understand than ‘beyond reasonable doubt’, what was not anticipated in introducing this plain English version of the standard is that any ordinary word that is enlisted to perform an important legal function will almost inevitably take on legal meaning. Consequently, sure has become a legal term with a specialised set of meanings but jurors don’t know this, and legal authorities refuse to accept it (Heffer and Coulthard in press). The paper explores how sure has become a legal term, how it differs from ordinary language sure, and why presenting expert evidence on this matter to the Court of Appeal has fallen on deaf ears (McKeown 2022).

References

Heffer, C. (in press) The golden rule and the golden thread: The ethics of communicating the criminal standard of proof. In Nick, I. and Blewitt, K. (eds.) The Routledge Handbook of Ethics in Forensic Linguistics. London: Routledge.
Heffer, C. and Coulthard, M. (in press) ‘Being sure’: Judicial practices in directing juries on the criminal standard of proof. In Grieshofer, T. and Haworth, K. (eds) Communication and Legal Practice. Cambridge: CUP.
Horowitz, I. A. and Kirkpatrick, L. C. (1996). A concept in search of a definition: The effects of reasonable doubt instructions on certainty of guilt standards and jury verdicts. Law and Human Behavior, 20(6), 655-670.
McKeown, P. (2022). Dreaded questions, doubtful answers and the trouble with ‘sure’. New Law Journal 13-14 (29 July).

This session will take place at 1.10pm in Room 3.58 of the John Percival Building at Cardiff University or can be accessed online using this link.