Indeed, it is difficult to prove one's innocence, and the legal system purports not to require defendants in criminal cases to do so. The shift in the burden of proof happened for a number of reasons. In this article, I will discuss another factor that I believe pervades the criminal justice system: jury instructions that shift the burden from the government to the defendant. Part II of this article establishes three criteria for good criminal jury instructions. They are fidelity to the law, comprehensibility, and consistency with the presumption of innocence. It then discusses the presumption of innocence, burden of proof and circumstantial evidence instructions used at the time of the first Sheppard trial in light of those criteria. None of them passes muster. While jury instructions in Ohio and elsewhere have made some progress since then, the system can still be improved in ways that are quite obvious. Part III discusses some of the empirical research on burden of proof instructions, and relates it to both the jury instructions on which Dr. Sheppard was convicted, and contemporary instructions. Part IV is a brief conclusion calling for the criminal justice system to take seriously the need to revise jury instructions to convey the messages they are supposed to convey in language that people can understand. It has been almost fifty years since Dr. Sheppard was convicted. The system has made some progress in that time, but not nearly enough.
Lawrence M. Solan,
Convicting the Innocent beyond a Reasonable Doubt: Some Lessons about Jury Instructions from the Sheppard Case,
49 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol49/iss3/11