If the glove does not fit, you must acquit

by: in Law
Blog OJ Simpson - reasonable doubt

Those of you who were old enough to follow news headlines in the 90’s will probably remember this quote. For those of you who don’t: it is a famous phrase used by the defence team of O.J. Simpson in an – as would later turn out: successful – attempt to convince the jury of O.J.’s innocence.

It refers to the most well remembered piece of evidence in that trial: a pair of blood-covered gloves – one glove found at the scene of the crime and the other in O.J. Simpson’s possession. During the trial Simpson tried on the gloves and – as all present (as well as the millions of people watching the trial via live media coverage) could see – they seemed to be too tight. This prompted defence lawyer Johnnie Cochran to tell the jury ‘If it does not fit, you must acquit’. The defence strategy turned out to be effective: after only four hours of jury deliberation, Simpson was acquitted. According to some, the ordeal with the gloves resulted in the fact that proof ‘beyond a reasonable doubt’ was not possible.

In a nutshell, ‘reasonable doubt’ refers to the standard of proof used in common law countries. It means that the prosecution must prove the alleged offence to the extent that there can be no ‘reasonable doubt’ in the mind of a ‘reasonable person’ that the defendant is guilty. In the Netherlands there is no such specific standard of proof provided by law. We abide by the principle that – should there be any doubt – it should be used in favour of the defendant (in dubio pro reo) but the standard of proof that has to be met in case of a conviction is not specified. Dutch criminal procedure law does state that there should be a minimum of (legal) evidence and – and this is an important addition – that the judge should be ‘persuaded’ (or ‘convinced’) that the defendant is guilty. However, this condition of ‘persuasion’ has been criticized for being too general and too subjective. What does it mean that a judge is ‘persuaded’ and can we be sure that – in practice – it is nothing more than the judge’s gut feeling, which can be influenced by much more than only legal evidence?

Apparently, the Dutch legislator has taken notice of this criticism: in the context of the large scale modernisation of our current Code of Criminal Procedure (which stems from 1926) it is suggested to introduce a new article stating that proof of committing a criminal offence can only be accepted when it is clear ‘beyond a reasonable doubt’ that the defendant has committed an offence. In addition to this rule, it is stated that the court should acquit the defendant, when it is not convinced that he has committed the criminal offence. Therefore, although the legislator has preserved the condition of ‘persuasion’, the ‘beyond a reasonable doubt’ phrase clearly introduces a new standard of proof in Dutch criminal procedure. Main question of course is whether this change will foster actual change in judicial decision-making. According to some, it will not. Obviously, all will depend on how judges will interpret and apply this standard of proof. When judges perceive the standard of proof as a clear and specific obligation to motivate why they feel the evidence available provides objective proof ‘beyond a reasonable doubt’ that the defendant is guilty as charged, the new rule will – for sure – have added value. A lot can be learned from the American (and other common law) experience in this respect. Maybe it will even inspire Dutch defence lawyers to express powerful one-liners as ‘If it does not fit, you must acquit’. Who knows?