The Standard of Proof in Criminal Proceedings in China

Ⅰ.Introduction
The proof standard is one of the most important core issues in criminal proceedings; it is vital to both bringing criminals to the justice and protecting the innocent people from being wrongly punished. At the end of 2004, the Chinese top legislature promulgated the Decision of Improving the Jury System, according to this law; jurors will play a more important role in criminal proceedings. During the trial, the jurors have the same power as the judges in deciding the facts and applying the relevant law to the cases. Jurors selected are most laymen, therefore the judges are not only required to implement the standard of proof properly themselves, but also are responsible to instruct the jurors how to understand the standard of proof and decide the fact correctly. Additionally, in China, it is reported that the National People’s Congress now is considering amending the Criminal Procedural Law, and the revision of the evidence rule will be the focus. So it is quite meaningful to the legislation to discuss and explore the proper and reasonable standard of proof. Of course, in the long run, it is essential for the judicial work dealing with criminal proceedings. In this essay, I will analyze the current mainstream theory about the standard of proof in criminal proceedings in China; then, I will study the theory and rules in other jurisdictions (mainly common law countries) to explore the proper standard for Chinese criminal proceeding. Afterwards, I will study how to interpret and apply this standard of proof to trial.

Ⅱ.The Defects of Current Mainstream Theory about the Standard of Proof in Criminal Proceedings in China
A. According to mainstream theory, absolute certainty is Chinese standard of proof in criminal proceedings
Since the promulgation of Criminal Procedural Law of People’s Republic of China 1979, most textbooks and treatises about the criminal proceedings declare that in criminal proceedings the standard of proof should be absolutely certain, namely, with 100 percent certainty. What is more, Chinese legal professionals usually criticize the standard of proof in criminal procedure  of common law countries—beyond a reasonable doubt. They argue that in criminal cases the standard of proof should not contain probability. In most Chinese legal professionals’ eyes, the probabilistic standard of proof in criminal cases means reckless to citizens’ liberties, the right of property or even the lives.
B. The background of such an opinion
 Such an opinion concerned about the standard of proof in criminal proceedings maybe seems ridiculous to western legal professionals. However, the appearance of such a point of view about the standard of proof criminal cases is natural in Chinese society.
In China, Marxism is the predominant and powerful philosophy and in a sense is the only legitimate philosophy. What is more, Chinese jurisprudence had been tremendously influenced by the former Soviet Union; naturally, the legal scholars could be labeled with the socialist professionals. Essentially, it is the starting point to study the popular opinion about the standard of proof in criminal proceedings. First of all, the Marxist epistemology is the philosophical base of this point of view about the standard of proof. According to the Marxist philosophy, the truth of the world could be discovered and acknowledged. Specifically in the level of the case fact trying in criminal cases, the fact could be revealed. Actually, such an understanding of the Marxist epistemology constitutes the basis for such an opinion about standard of proof in criminal proceedings.
Another reason for such an opinion is associated with the socialism system. According to Marxism, socialist society is in a more advanced stage than capitalism system in the evolution of human beings. Logically, the Chinese legal scholars argue that the socialist countries should implement higher standard of proof in criminal proceedings so that the rights of the people could be better protected. Actually, the Government declared to abolish all law enacted by predecessor capitalist government and to establish the brand-new socialist system immediately after the Chinese Communist Party came into the power. However, after around three decades, due to the implementation of reform and open-door policy, some law that had been abolished has been re-introduced into China.
Additionally, the social environment of legislation may be helpful to understand the prevalent opinion concerned about the standard of proof in criminal proceedings. The first criminal procedural law was promulgated in 1979,just after the end of the unprecedented so-called Cultural Revolution; after14 years, in 1993; the National People’s Congress amended the Criminal Procedural Law 1979 and promulgated the Criminal Procedural Law 1993.  In 1980s and 1990s, the left-wing thinking was still prevalent, and the legal scholars were too much idealist, but correspondingly too little reasonable. The mainstream opinion argued that the criminal judgment should base on the truth with definitely certainty. There existed a tendency to obsessively stick to the definite truth. Indeed, not only in criminal proceedings, but also even in the civil proceedings and administrative proceedings, the respective laws require to make clear all the truth in cases.
Nonetheless, such a impracticable standard of proof maybe have some positive effect The people’s court system was reestablished at the end of 1970s, although in recent years more and more legal graduate have been recruited into the legal profession, a good number of judicial officials have not received formal legal education. Needless to say, the judicial work is complicated and difficult to them. As for the standard of proof, the definite certainty standard could drive or compel them to do their best to find the truth of the criminal cases and avoid convicting innocent people. Suppose interpreting the standard of proof in criminal proceedings a probabilistic one, for example, beyond a reasonable doubt, the consequence of criminal case tried by such judge without formal legal education may be disastrous.
C. The defects of the current mainstream opinion about standard of proof in criminal proceedings
 In recent years, more and more legal scholars and judicial officers have begun to question the traditional mainstream opinion about the standard of proof in criminal proceedings. In their opinion, such a standard is impracticable and chimerical Most of them suggest the traditional opinion about standard of proof should be substituted for “beyond a reasonable doubt”. Actually, the traditional idea concerned about the standard is apparently wrong.
First of all, the investigation process in criminal cases is just the same as other research activities, Such as the scientific study. The goal of this investigation is to discover the truth of criminal cases, and the resource available for such research is only evidence left by the happening of the cases, which include the real evidence, witness testimony, and the document evidence and so on. To discover the truth, it is indispensable for judicial officials to infer from the evidence to the truth of the cases based on the empirical experience, common sense and other personal knowledge. However, the inference process, which aims to reflect the objective world, is subjective, depending on individual judicial official’s thinking. Even according to the Marxism epistemology, such a reflection of the objective world could not reach the definitely certainty, in other words, it is impossible to discover all the truth of the cases. In fact, the epistemology of Marxism has been misinterpreted. Indeed, the Marxism declare the world can be known, none the less, according to the philosophy, the world can be known, not by individual people, but by human being as a whole. What is more, the world can be understood not by the contemporary generations of human beings, but the world can be known gradually with the development of human beings. Namely, the human being can understand the world in the long run, not currently. Evidently, the legal scholars who hold the opinion about the standard of proof misunderstand the Marxism epistemology, either intentionally or ignorantly.
Furthermore, the discovering of the truth in criminal proceedings has its own special characteristics. Generally speaking, criminals tend to avoid the deserved penalty after committing a crime (it is the basic instinct of human beings), so they always hide or destroy the evidence left by the crime to prevent the investigating authorities to discover the truth of the cases. Definitely, such activities will inevitably hinder the investigating organs from probing the truth of the cases. In addition, the criminal proceeding is different from other research process as far as the time limit is concerned. The criminal proceeding should be ended in a prescribed or reasonable period. So the judicial officers could not have unlimited time to collect the evidence, and to infer, just like other researchers in other researching fields. What is more, the law will deliberately exclude some evidence from the criminal proceedings for some special purposes, even though such evidence might be quite helpful or even necessary for judicial officers to discover the truth. For example, the typical excluded evidence is the evidence obtained by judiciary authority through some illegitimate means.
Actually, in common law countries, it is well accepted that the fact of criminal cases could not be ascertained with absolute certainty.
Anglo-American writers about evidence, from Gilbert through Bentham, Thayer and Wigmore to Cross and McCormick, Almost without exception, show very similar assumptions, either explicitly or implicitly, about the nature and ends of adjudication, about knowledge or belief about past events and about what involved in reasoning about disputed questions of fact in forensic contexts (William Twining, 1985). Anglo-American writers believe that present knowledge about past events is typically based upon incomplete evidence; it follow from this that establishing the truth about alleged past events is typically a matter of probabilities or likelihood’s falling short of complete certainty (William Twining, 1985). Another similar assumption is about fact-finding in adjudication: Given that decisions about the truth of allegations of fact typically take place in conditions of uncertainty, justice under the law has to be satisfied with standards of proof falling short of absolute certainty (William Twining, 1985).
In Beyond ‘Reasonable Doubt’ and ‘Probable Cause’, Barbara Shapiro concludes, (Barbara J Shapiro. 1991)
Throughout this development two ideas to be conveyed to the jury have been central. The first idea is that there are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse is equal to the sum of the squares of the other two sides of a right triangle. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible. The second idea is that, in this realm of events, just because absolute certainty is not possible, we ought not to treat everything as merely a guess or a matter of opinion. Instead, in this realm there are levels of certainty, and we reach higher levels of certainty as the quantity and quality of the evidence available to us increase. The highest level of certainty in this empirical realm in which no absolute certainty is possible is what traditionally was called "moral certainty," a certainty which there was no reason to doubt.
In judicial practices, the common law judges acknowledge that the absolute certainty of the truth in cases is unachievable. The Supreme Court of the United States ruled in Hopt v. Utah  in 1887 (Jessica Cohen, 1995):
Out of the domain of the exact sciences and actual observation, there is no absolute certainty.... Persons of speculative minds may in almost every such case suggest possibilities of truth being different from that established by the most convincing proof. The jurors are not to be led away by such speculative notions as to such possibilities.
Therefore, in the light of the analysis made above, it is impossible for human beings to achieve the absolute certainty of the truth, especially in criminal proceedings. Though the incentive of such an absolute certainty standard is justifiable, the absolute certainty standard of proof in criminal proceedings is impracticable; what is more, if sticking to the impossible standard, the consequence could be disastrous. Just like Justice Denning commented in Miller v Minister of Pensions , ‘the law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice’ (Adrian Keane, 2005). This standard will lead that quite few or even no criminal (theoretically speaking) could be convicted and serve the deserved. The community, and the society could not be protected, and the criminals will be encouraged to commit more and serious crimes. Such a standard of proof in china should be abandoned.
Ⅲ. China should adopt the ‘beyond a reasonable doubt’ standard of proof in criminal cases.
Actually, in most nations, either the eastern countries or western countries, and in any time, the societies are always prone to protect the innocent person from wrong penalties over bring the criminals to justice. Even 4000 years ago, a famous Chinese judicial official Gaoyao said, ‘ the law prefers to letting criminals escape justice to executing an innocent person.’ Interestingly, more than 400 years ago, Coke, a British justice said the similar words. As discussed above, the human being cannot achieve absolute certainty of the truth, especially in criminal cases, and it is inevitably on the cost of convicting some innocent people to prosecute and punish the criminals.
Obviously, it is absurd and stupid to abandon to prosecute the criminals because of the risk of convicting innocent people; the criminals must be prosecuted and brought to justice, or the safety of the communities and the society could not be protected. However, given the nature of the criminal penalty, the standard of proof in criminal proceedings deserves the highest standard as possible.
In common law countries, the mid-nineteenth century treatise writers called the highest level of certainty in the empirical category ‘moral certainty’ and equated it with the concept of ‘beyond a reasonable doubt’ (Thomas V Mulrine, 1997). Mathematically speaking, the level of certainty can be illustrates by a probability scale, the highest certainty is absolutely certainty (100 percent) which is beyond any doubts, either reasonable doubt or unreasonable doubt, then beyond reasonable doubt, preponderance, probable…until the least certainty, impossibility. Evidently, the ‘beyond a reasonable doubt’ standard is as a highest standard as a possible standard that human being could achieve. Logically, criminal proceedings should adopt the standard of proof —beyond a reasonable doubt.
Actually, a good number of countries adopt ‘beyond reasonable doubt’ standard of proof. In the Anglo-American criminal justice system the reasonable doubt standard has held a central role since the late eighteenth century. (Barbara J Shapiro, 1991). In the United States, by the middle of the 19th century, the requirement that guilt must be proved beyond a reasonable doubt had taken root in several states, including New York, North Carolina, Georgia, Vermont, Massachusetts, Virginia, and Connecticut (Anthony A. Morano, 1975). In 1970, for the first time the Supreme Court of the United States explicitly ruled that, according to the Due Process Clause of the Fourteenth Amendment to Constitution, the state must prove every element of a charged criminal offense beyond a reasonable doubt to convict an accused criminal  (Thomas V Mulrine, 1997).
In civil law countries, the French Code of Criminal Procedure instructs the Cour d'Assise to read to a mixed panel of three judges and nine lay jurors a charge that includes the following: ‘The law asks [judges] only the single question, which encompasses the full measure of their duties: “Are you thoroughly convinced?” ’ (Jon O Newman, 1993)
The German criminal justice system is an inquisitorial system that uses a combination of professional judges sharing the bench with lay judges instead of a jury (Thomas V Mulrine, 1997). The court presumes the innocence of the accused until proven guilty; the government must convince the court of the accused’s guilt based on an accumulation of factors, which ‘leave no room for reasonable doubt’. This is nearly identical to the ‘beyond a reasonable doubt’ standard used in the United States (Thomas V Mulrine, 1997). As an additional safeguard against arbitrary decisions, the German law also requires that the judge submit a detailed written rationale of the court's deliberative process (Thomas V Mulrine, 1997).
Interestingly enough, though legal scholars and judiciary declare that Chinese standard of proof in criminal proceedings is absolute certainty, in practice, the judges just implement the standard that is the same as ‘beyond a reasonable doubt’. Even though the Chinese judges are very prudent and extremely serious, because they are human beings without the supernatural ability, they can only reach the certainty beyond a reasonable doubt.
Ⅳ.It is extremely difficult to precisely define the meaning of the standard of proof ‘beyond a reasonable doubt’.
Although ‘beyond a reasonable doubt’ has been commonly adopted as the standard of proof in criminal proceedings, due to the nature of the term ‘reasonable doubt’, it is extremely difficult or even impossible to interpret or explain the meaning of the standard.
 If the standard of proof ‘beyond a reasonable doubt’ could be illustrated by a certain degree of probability, the standard could have been interpreted and applied easily and accurately.  Actually, the 19th century Irish mathematician George Boole, for example, had no hesitation in applying the mathematical theory to the probability that a person accused in a criminal court is guilty (Cohen, L.J., 1977). Additionally, this type of view has not confined to mathematicians or to the past. It is also be found occasionally in contemporary law journals, where the probability is sometimes conceived objectively as the measure of frequency, and sometimes subjectively as the measure of a juror’s strength of belief. However, even if in theory the probability could be taken as mathematical one, in practice, such a probability is not calculable, not only because the human affairs is extremely complex, so that it is at least impracticable to collect the relevant statistical data, but due to the impossibility to measure intensity of belief. Some legal scholars have even held that the probabilities involved are not in principle mathematical ones. For example, Bentham declared that the doctrine of chances (that is, the mathematical calculus of probability) is inapplicable to the measurement of probative force (Cohen, L.J., 1977). Whether the probability involved in criminal proceeding is in principle a mathematical one, nonetheless, until now, no one has elaborated an effective mathematical mechanism which could be applied in adjudication in spite such a debates have lasted for hundreds of years.
The judicial practices trying to define the standard in the past several hundreds of years demonstrate that the precise and accurate interpretation is unattainable.
A Canadian court recently observed ‘throughout the common law jurisdictions of the world there is widespread disagreement as to the proper definition of both reasonable doubt and the reasonable doubt standard of proof.’
Justice O'Connor of the Supreme Court of the United States, in Victor v. Nebraska , noted that although the standard of reasonable doubt ‘is an ancient and honored aspect of our criminal justice system, it defies easy explication.’ (Thomas V Mulrine, 1997) In spite of the international judicial attention, however, just as Thomas comments, the ‘reasonable doubt’ concept appears no less elusive today than it was in 1880 when Justice Woods, delivering the opinion of the Court in Miles v. United States, observed that ‘attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury.’ (Thomas V Mulrine, 1997)
Actually, in the judicial history, the legal scholars and judges have elaborated a good number of instructions. Quite interestingly, most instruction interpret the term ‘reasonable doubt’ by use of analogy, which on the other hand demonstrates the difficulty of the explanation of the standard. In Britain it has been for many years a common practice of judges to expand the bare expression ‘reasonable doubt’ by use of analogies  (Adrian Keane, 2005). In the United States, courts have defined reasonable doubt by comparing it to the amount of air in a balloon , newlyweds deciding to buy a car , and decisions about major surgery (Jessica Cohen, 1995).
Below are listed some typical instructions in Britain and the Unite States.
A reasonable doubt…is a doubt to which you can give a reason as opposed to a mere fanciful sort of speculation such as ‘well, nothing in this world is certain, nothing in this world can be proved’…it is sometimes said the sort of matter which might influence you if you were to consider some business matter. A matter, for example, of a mortgage concerning you house, or something of that nature.
A reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or the other’.
A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitates to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
A reasonable doubt as proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives; ‘possible’ doubts or doubts based purely on speculation are not reasonable ones. 
A ‘reasonable doubt’ is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof 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. The prosecution is not required to establish proof ‘beyond all possible doubt’.
However, among so many definitions of the standard invented in the past hundreds of years, no one, even the commonly accepted is perfect.
For example, the commonly used ‘hesitate to act’ definition has drawn widespread criticism. Chief Judge Newman of the United States Court of Appeals for the Second Circuit relates that (Jon O Newman, 1993),
While as a district judge I dutifully repeated that bit of `guidance' to juries in scores of criminal trials, I was always bemused by its ambiguity. If the jurors encounter a doubt that would cause them to `hesitate to act in a matter of importance,' what are they to do then? Should they decline to convict because they have reached a point of hesitation, or should they simply hesitate, then ask themselves whether, in their own private matters, they would resolve the doubt in favor of action, and, if so, continue on to convict?
Justice Ginsburg, in her concurring opinion in Victor v Nebraska , noted that a committee of federal judges had criticized the ‘hesitate to act’ formulation
‘Because the analogy it uses seems misplaced. In the decisions people make in the most important of their own affairs, resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important affairs of our own lives choosing a spouse, a job, a place to live, and the like generally involve a very heavy element of uncertainty and risk-taking. They are whole unlike the
decisions jurors ought to make in criminal cases.’
Additionally, Some British jurists also find the ‘hesitate to act’ phrasing unclear (Thomas V Mulrine, 1997). Lord Goddard noted that ,
It is very difficult to tell a jury what is a reasonable doubt . . .. To tell them that a reasonable doubt is such a doubt as would cause them to hesitate in their own affairs never seems to me to convey any particular standard; one member of the jury might say he would hesitate over something and another member might say it would not cause him to hesitate at all.
In 1850, Chief Justice Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Webster  Delivered what has come to be known as the ‘Webster charge’, Chief Justice Shaw instructed the jury that,
What is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of the law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proven guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond a reasonable doubt.
 However, The Supreme Court of the united states, in the 1887 case Hop v. Utah , criticized the Webster definition, stating that ‘the difficulty with the Webster instruction is that the words “to a reasonable and moral certainty” add nothing to the words “beyond a reasonable doubt”; one may require explanation as much as the other.’ 
Ⅴ. Such a standard should be defined
In common law jurisdictions, whether the standard of proof should be explained to the jurors is a controversial issue. Some legal scholars hold that ‘beyond a reasonable doubt’ should not interpret to the jurors. It is argued that responsibility for determining the precise meaning of the concept is better located within the criminal jury because jurors, as community representatives, have the collective capacity legitimately to make the value judgment required to interpret the reasonable doubt standard and impose the criminal sanction.
Additionally, even the judges are divided as for as whether the standard should be explained to the jurors in the common law jurisdictions is concerned. In Britain, In fact, definition and explanation are generally to be avoided and there is no requirement to use any formula to direct the jury (Adrian Keane, 2005, p.111). In R v Yap Chuan Ching , trial judge explained the standard of proof at the request of the jurors; the Court of Appeal thought that the explanation of the trial judge on the standard of proof is as clear and accurate as possible. However, the Court of Appeal argued that in most cases judges should not attempt any gloss upon the meaning of ‘sure’ or ‘reasonable doubt’. The Court held that judicial comments of that kind usually create difficulties and more likely to confuse than help. ‘ We point out and emphasize … that if judges stopped to trying to define that which is almost impossible to define there would be fewer appeals’. Nonetheless. The Court of appeal acknowledged that exceptional cases the jury does require help.
In the United States, in the federal courts system, four circuit courts the 3rd, 8th, 10th, and 6th Circuits have ruled that a trial judge must define reasonable doubt or be reversed (Jessica Cohen, 1995). The first of these, the 3rd Circuit, ruled very simply in 1932 that it was ‘error prejudicial to the defendant’ to fail to define reasonable doubt.  The 10th Circuit ruled in 1954, and again in 1974, that trial courts must define the term. The court reasoned that because ‘the reasonable doubt standard is a constitutional cornerstone of the criminal justice system,’ the trial court must explain it to the jury.  Likewise, the 8th Circuit has held this to be the rule in cases that have come before the court.  The 6th Circuit approved the model instructions explaining reasonable doubt in 1993.  The 5th Circuit, while not requiring trial courts to explain reasonable doubt, has urged them to do so, most recently in United States v. Williams . Actually, the Fifth Circuit has strongly suggested for many years that lower courts use the model instruction that defines the term.  On the other hand, five federal appeals courts have held that reasonable doubt need not be defined the First, 4th, 7th, 9th, and D.C. Circuits (Jessica Cohen, 1995).
  As at the federal level, the states are split about defining reasonable doubt. The states requiring a definition include California, Indiana, Idaho, Maryland, Missouri, Montana, Massachusetts, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, and Washington. The Hawaii Supreme Court has held that it is not error to define the concept. Model jury instructions define reasonable doubt in the District of Columbia and Florida, thus implicitly recognizing the need to define it. Finally, a Louisiana statute allows trial judges to define reasonable doubt, although it does not compel them to do so (Jessica Cohen, 1995). In contrast, a number of other states have held that reasonable doubt should not be defined: Arizona, Georgia, Illinois, Kansas, Kentucky, Mississippi, Oregon, Vermont, and Wyoming. Oklahoma has even held that it is reversible error for courts to give a definition of reasonable doubt (Jessica Cohen, 1995). But some states are not as strong in their views. The Virginia courts have only discouraged giving a definition, and the Alaska Supreme Court, although suggesting that no definition is needed, has not yet held this to be the rule. (Jessica Cohen, 1995).
 The courts that discourage trial courts from defining reasonable doubt argue that the term ‘reasonable doubt’ standing alone is self-explanatory  because it is composed of ordinary words comprehensible to a lay person  and is of common use and acceptance.  They further contend that attempts to define the term not only are unhelpful1 and futile,  but also may ‘engender more confusion than does the term itself’,  and increase the risk that a reasonable doubt instruction will deviate from the required burden of proof.  These courts suggest that it falls upon the jury to define the meaning of reasonable doubt.  
In general, these courts opine that the meaning of reasonable doubt is readily apparent to lay persons and that further definitions tend to be confusing and somehow lessen the burden of proof (Jessica Cohen, 1995).
However, the jurors, even some judges and lawyers, could not understand the meaning of ‘reasonable doubt’ well. A 1990 study by the Michigan Juror Comprehension Project tested 600 actual and potential jurors’ comprehension of the meaning of certain jury instructions.  Asked about the meaning of the reasonable doubt standard, only a quarter of the jurors knew that it did not mean ‘any possibility of doubt, no matter how slight.   Similarly, less than thirty-one percent understood that the guilt beyond a reasonable doubt did not mean absolute certainty of guilt.
  Another study investigated more than 600 students who acted as jurors in several mock trials.  Some of the mock panels were given an instruction defining reasonable doubt; others were not. The research found that those participants who had not been given instructions were more uncertain about their decisions. They tended to disagree more, resulting in more hung juries.  Likewise, several studies in Florida revealed that potential venire men were confused about what was required by the reasonable doubt and presumption of innocence standards. (Jessica Cohen, 1995).
 What is more, even judges and lawyers have difficulty understanding the term. As one court explained:
In our view, the term ‘reasonable doubt’ is not so commonplace, simple, and clear that its meaning is self-evident to a jury. Even judges, who have ‘professional expertise’ and ‘experience’ and who . . . learn to perceive, distinguish and interpret the nuances of the law which are its ‘warp and woof’... have difficulty construing the meaning of reasonable doubt.
In R v Gray  the trial judge explained a reasonable doubt as ‘a doubt based upon good and not a fanciful doubt’ and as ‘the sort of doubt which might affect you in the conduct of your everyday affairs’. The Court of Appeal held that if the judge had referred to the sort of doubt, which may affect the mind of a person in the conduct off important affairs. There could have been no criticism, but a reference to ‘everyday affairs’ might have suggested to the jury too low a standard of proof. (Adrian Keane, 2005,p.113).
In Cage v. Louisiana  the Supreme Court of the United States invalidated the trial court's use of the ‘the words “substantial” and “grave”, as they are commonly understood’ .  The Court rendered this instruction unconstitutional because it could induce a reasonable juror to convict on a lower level of guilt than that which is required by the Due Process Clause (Thomas V Mulrine, 1997)
There are a good number of other cases in which trial courts have committed reversible error (or come close to it) by incorrectly defining the term (Jessica Cohen, 1995). For example, In United States V. Colon Pagan,  the court ruled that defining guilt beyond a reasonable doubt as ‘proof of such convincing character that a person…. would be willing to rely and act upon it’ improperly enabled the jury to convict on as much evidence as would support a decision to go to the movies or do any other common act; in United States v. Merlos,   the court ruled that defining proof beyond a reasonable doubt as proof that establishes a ‘strong belief in the defendant’s guilt’ is erroneous, although harmless error under the circumstances; in Dunn v. Penin,  the court ruled that defining reasonable doubt as a ‘strong and abiding conviction’ that remains after carefully considering the case improperly creates presumption of guilt);  in United States v. Pinkney,  the court held that the trial court improperly raised the level of uncertainty meant by the term ‘reasonable doubt’ by comparing it to the way in which one would doubt the wisdom of a young couple’s buying a car. In State v. Harper, the court found that it was error to define reasonable doubt as ‘honest substantial misgiving’; in State v. Jeffrey,  the court observed that it was improper to explain reasonable doubt as a doubt ‘for which you can give an explanation to your fellow jurors’.
If the judge does not explain the term to lay jurors, the jurors will interpret the meaning of the standard of proof by themselves. Obviously, if they incorrectly understand it, they will apply the wrong standard of proof to the case, which could harm both the prosecution and the defendant. The jurors may mistakenly believe that the reasonable doubt test requires proof beyond the shadow of a doubt. On the other hand, the jury may erroneously interpret the standard as requiring stronger doubts than necessary to acquit. In all probability, the jurors could convict an innocent person because they apply too low standard, and likewise, they could acquit a guilty person because they apply an excessively stringent standard. Therefore, judges should explain the term to the jurors. Of course, first of all, they must grasp the standard of proof well themselves.
Ⅵ. How to properly apply such a standard of proof
Given the fact that in the past hundreds of years, there has never been any definition of the standard of proof ‘ beyond a reason doubt’ universally accepted, Undoubtedly, it is a challenging work to try to explain such a term, which defies being easily interpreted. However, it is definitely essential and meaningful taking into account that the role of this standard of proof in criminal proceedings.
While trying to explain the meaning of ‘beyond reasonable doubt’, some basic assumptions should be bore in mind. First, Just discussed the part Ⅱ, the ability of understanding of human beings cannot reach absolute certainty, so it is case that to convict and punish the accused is inevitably at the risk of that some innocent person could be convicted. Nonetheless, it is absurd to abandon prosecution and conviction only due to the possibility of convicting an innocent person. In fact, every society just compromise between protecting the whole society and preventing innocent person from punished.
However, the criminal proceedings concern about the liberties, right of wealth and even the lives of the people, therefore, the second assumption is that the standard of proof in criminal cases should be the highest probability, which is practicably achievable.
The two assumptions are vital for fact-deciders to properly grasp and apply the standard of proof in criminal proceedings. When explaining the term to the jurors, the judge should inform them of such basic knowledge.
Then, how on the earth to define the standard of ‘beyond a reasonable doubt’? Just discussed above, in judicial practice, the judges and the legal scholars usually explain it by analogy. Although such a way to explain the standard is not a perfect way without any flaws, it is the best one that is practicable. First, such an instruction is vivid and easily understood by jurors—the laymen, every adult person must make decisions relating to his own affairs almost everyday, and maybe everyone has make some important decisions on his important affairs. Such experience is quite useful for jurors and even judges themselves to apply the standard of proof. In addition, such a direction is reasonable and conforms to the ends of the jury system. The jurors are the representatives of communities; they should represent the view of points of the communities and reflect the common value of the communities. What is more, such laymen should help the judiciary to decide the facts of the criminal cases through their own knowledge, common sense and experiences .the jurors bring the ways they make decisions in their routine lives into the judicial process just fulfills such an end of jury system.
Last but not least, it is necessary to instruct jurors that they should differentiate the degree of reasonable doubt according to the seriousness of the accused crime and the would-be penalty. The nature of the crime charged is more serious, the judges or the jurors should be more prudent and apply the standard more strictly. It is obviously absurd and unreasonable to treat a slight thief case and a murder case the same.
  
 Ⅶ. Conclusion
    The mainstream opinion about the standard of proof in criminal proceedings in China is established on illusion based on the misinterpretation of Marxism epistemology. Either Marxism epistemology or epistemological assumption and assumptions about fact-finding in adjudication in common law countries reveals that the absolute certainty of truth, especially in criminal proceedings is beyond the capacity of human beings. Therefore, Chinese legal scholars should abandon the absolute certainty standard of proof in criminal proceedings; Chinese criminal procedural law should adopt ‘beyond a reasonable doubt’ standard of proof in criminal proceedings; In addition, although the term ‘beyond a reasonable doubt’ composed of ordinary words comprehensible to a layperson, it is difficult for laymen, even for some lawyers and judges to understand the standard correctly, so the judges themselves should grasp the meaning of the standard accurately and it is necessary for judges to explain the meaning to the jurors.
    
  
Bibliography
1.Adrian Keane, 2005, The Modern Law of Evidence, 6th edition, Oxford.
2.Anthony A. Morano, 1975, A Re-examination of the Reasonable Doubt Rule, 5,B.U.L.REV. 507.
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4.Cohen, L.J., 1977, The Probable and the Provable, Oxford: Clarendon Press
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