William Kennedy Smith will be found guilty of rape if the jury feels "beyond a reasonable doubt" that he committed the crime.
Not beyond any doubt. Not beyond the shadow of a doubt. But beyond a reasonable doubt.
So what is a reasonable doubt?
It is the doubt a reasonable person might have.
Is that clear? No? Well, you are not alone in feeling that way.
Many jurors are baffled and disappointed when, at the end of a trial, the judge is unable to explain what reasonable doubt means. Though it is possibly the most crucial point of any criminal trial, it is also one of the most elusive.
And for anyone who has been following the Smith rape trial, you can appreciate how your own feelings about his guilt seem to ping-pong back and forth.
The prosecution began its case with a witness whose demeanor, conflicting statements, and the fact she sold her story to TV for $40,000, made her barely believable.
And so many took to the TV airwaves to say that the case seemed in the bag for the defense.
Then the prosecution, perhaps sensing its case was slipping away, brought out its big gun: the alleged victim.
And she was terrific on the stand. An ideal complaining witness. Her testimony was convincing and her demeanor was exactly what a prosecutor could want in a rape case: calm and collected when she dealt with matter-of-fact details, yet highly emotional and tearful when she dealt with the alleged rape.
Why should the prosecutor want tears and emotion? Because often rape victims show no emotion on the stand. Months have passed since the crime occurred. They have told their story over and over again. And they want to forget, or at least insulate themselves from, the incident.
So they get on the stand and repeat everything in a dull monotone and the jurors think: Well, gee, she sounds awfully calm for such a supposedly terrible event. Maybe it didn't really happen at all.
But this alleged victim told her story with great emotion and held up very well under cross-examination. And so some reporters went back to the airwaves to say the case seemed in the bag for the prosecution.
It is important to remember, however, that doubt is created at trials in small and subtle ways as well as great big ones. One of the chief ways to create doubt is to show that a witness has changed her story or is not being completely truthful about seemingly small matters (under the theory that if she lies about the small things, she lies about the big things, too.)
And so Willie Smith's lawyer spent hours pointing out how the alleged victim could remember things that helped her case, but could not remember things that hurt it. And how things she said to the police within hours of the alleged rape are not the same things she is saying today.
And the ping-pong ball is not through bouncing. The defense has not yet presented its case. We have not yet heard their high-powered expert witnesses. And we have not yet heard from Willie Smith.
Does Smith have to testify? Absolutely not. Legally he does not have prove that he is innocent. But in real life, jurors want to hear the defendant get up and say he didn't do it.
So it is likely Smith will take the stand and tell his version of events and try to raise doubts as to the alleged victim's.
And the jurors then will have to decide whether they are so convinced by the state's case that all their reasonable doubts have been completely satisfied.
I have served on two juries. In one case, the judge didn't even try to define reasonable doubt. And in the other the judge said: "Beyond a reasonable doubt is that kind of certainty you would have to pull up stakes and move across the country to switch jobs."
Some judges tell juries that beyond a reasonable doubt is the "moral certainty" of guilt.
Recently, the Texas Court of Criminal Appeals defined beyond a beyond a reasonable doubt as "truth of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs."
Couldn't, however, all these definitions mean wildly different things to different people?
Sure they could.
But that is what the jury system is all about: a small group of people representing society at large, with all the benefits and all the flaws that this implies.
And as everyone keeps saying: It's not a perfect system. It's just the best one we can come up with.