From Volume 87, Number 3 (March 2014)
The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play—the one in which defendants get the tools to poke holes in the cases against them—does not mean it is premature to consider what should happen in the second period: What tools should we give jurors to assess the alleged holes—the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? These questions do not simply go to the fairness and, to use Simon’s term, the “diagnosticity of the trial.” They also, as I hope to show here, go to the role that criminal trials will play in a world with so few of them.