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High court updates jury instruction that has been in use since infamous Harvard murder case in 1850

The Supreme Judicial Court today updated the definition of "reasonable doubt" that Massachusetts judges have been reading to jurors since 1850, when it was first used in the case of a Harvard professor charged with murdering and dismembering a prominent Beacon Hill doctor.

The updating comes in a ruling on a man convicted of seven counts of indecent assault and battery on a child under the age
of fourteen for attacks on his stepdaughter in the 1980s, and does nothing for him - the court upheld his convictions. His lawyers had argued that because the judge in his case used a different instruction to the jurors, one that required them to have a "firm" conviction of guilt, rather than an "abiding" conviction, and that "firm" was less absolute than "abiding." The SJC said nope, they mean pretty much the same thing.

Still, the English language changes and the court said it was time to tweak the "Webster charge" that has been the common instruction for more than 150 years - and to require judges to use the new version in all criminal cases going forward, by explaining just what "moral certainty" means when jurors consider whether somebody is guilty "beyond a reasonable doubt."

The Webster charge informs the jury that a reasonable doubt exists when "they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

The charge is named for the instructions on reasonable doubt given the jury in the case of John White Webster, convicted of killing Dr. George Parkman (of the Parkman House Parkmans) when Parkman began insisting Webster repay a loan.

The charge was formulated by SJC Chief Justice Lemuel Shaw - back in the day, the court heard all murder cases, including Webster's trial, which was also one of the first American trials to feature forensic science - Parkman had a prominent jaw and prosecutors presented a jawbone recovered from under Webster's office at Harvard Medical School (then located along the Charles River on land that's now part of Mass. General).

Other than the moral-certainty clause, the justices said the charge remains a good example of a jury instruction. The new version is:

The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charge(s) made against him (her).

What is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, though it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.

I have told you that every person is presumed to be innocent until he or she is proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted.

It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. "This is what we mean by proof beyond a reasonable doubt.

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adjective: abiding
(of a feeling or a memory) lasting a long time; enduring.
"he had an abiding respect for her"
synonyms: enduring, lasting, persisting, long-lasting, lifelong, continuing, remaining, surviving, standing, durable, everlasting, perpetual, eternal, unending, constant, permanent, unchanging, steadfast, immutable
"theirs is an abiding friendship"
antonyms: short-lived, ephemeral
gerund or present participle: abiding
accept or act in accordance with (a rule, decision, or recommendation).
"I said I would abide by their decision"
synonyms: comply with, obey, observe, follow, keep to, hold to, conform to, adhere to, stick to, stand by, act in accordance with, uphold, heed, accept, go along with, acknowledge, respect, defer to
"he expected everybody to abide by the rules"
antonyms: flout, disobey
be unable to tolerate (someone or something).
"if there is one thing I cannot abide it is a lack of discipline"
synonyms: tolerate, bear, stand, put up with, endure, take, countenance; More
antonyms: enjoy, relish
(of a feeling or a memory) continue without fading or being lost.
synonyms: continue, remain, survive, last, persist, stay, live on
"the memory of our parting will abide"
antonyms: fade, disappear
live; dwell.

Old English ābīdan ‘wait,’ from ā- ‘onward’ + bīdan (see bide).

[graphic. origin English a onward b bidan Old English abidan wait English bide abide]
[graphic. Use over time for: abiding. Mentions. 1800 1850 1900 1950 2010]

abiding, adj.

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Pronunciation: Brit. /əˈbʌɪdɪŋ/ , U.S. /əˈbaɪdɪŋ/
Forms: see abide v. and -ing suffix2.
Etymology: < abide v. + -ing suffix2. Compare earlier abiding n., and also biding adj.
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†1. That endures or stands firm; steadfast, unyielding. Obs. rare.
c1400 (▸c1378) Langland Piers Plowman (Laud 581) (1869) B. xix. 289 Bolde & abydynge bismeres to suffre.
a1425 (▸?a1400) Cloud of Unknowing (Harl. 674) (1944) 43 (MED), Innocentes, þe whiche neuer sinned deedly wiþ an abidyng [v.r. byding] wil & auisement, bot þorou freelte & vnknowyng.
1484 W. Cely Let. 14 Apr. in Cely Lett. (1975) 210 Yf the sewertys be of substaunce and abydyng then I wold avyse yow to take hem.

2. Lasting, enduring; long-lived; permanent. Now usu. modifying an abstract noun.
1448 in R. Willis & J. W. Clark Archit. Hist. Univ. Cambr. (1886) I. 378 (MED), The most substancial and best abidyng stuffe of stone, ledde, glas, and yron.
▸c1454 R. Pecock Folewer to Donet 52 (MED), Sum outward abidyng matter, as..an hous, a schipp.
1553 T. Wilson Arte of Rhetorique i, His unspeakable and ever abidyng love towarde his Churche.
1576 T. Newton tr. L. Lemnie Touchstone of Complexions i. vi. f. 38v, We haue not here any abyding Citie or place of continuall dwelling.
1638 F. Junius Painting of Ancients ii. 26 Till we have met with some right well conceived and stedfastly abiding Images.
1670 G. Harvey Little Venus Unmask'd (ed. 2) 111 These four symtomes threatning either a miserable death, or an abiding disgrace, require immediate help.
1715 R. Murrey Christ every Christian's Pattern 97 He lov'd Men with a constant and abiding Love.
1766 Compl. Farmer at Weed, It [sc. darnel-grass] is likewise annual: whereas ray-grass has an abiding root.
1851 F. D. Maurice Prophets & Kings 81 The ark..was there as an abiding witness of an invisible presence.
1876 E. A. Freeman Hist. Norman Conquest I. vi. 462 Witness to the abiding connexion between Normandy and the North.
1902 J. Conrad Heart of Darkness in Youth i. 53 We looked at the..stream..in the august light of abiding memories.
1991 Atlantic Nov. 11/1 It is not just ‘bad’ that there are no blacks in the Senate—it is disgraceful, and reflective of America's abiding elitism.

3. As the second element in compounds forming adjectives, with the sense ‘remaining true to, standing by (what is denoted by the first element)’.See also law-abiding adj., peace-abiding adj. at peace n. Compounds 1d.
1854 A. V. Brown Speeches 313 What a commentary on the fraternal, Constitution-abiding spirit of the north!
1916 Mod. Philol. 14 87 The well-meant efforts of scores of rule-abiding schoolmasters all over Europe.
1954 Big Spring (Texas) Daily Herald 12 Nov. 8/4 Whether retail outlets sell only books from code-abiding publishers.
2004 Wanderlust June–July 56/3 Get a real feel for the city by wandering its hutongs , slim lanes that comprise an atmospheric labyrinth lined with feng shui-abiding homes.

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