Probable cause is not proof

He must have done something, people say, or they would not have arrested him. It is the most reasonable wrong assumption in the system, and it comes from not knowing that a case passes through four different standards of proof on its way to a verdict.

The standards of proof

The standards are far apart. At the bottom is reasonable suspicion, what an officer needs to stop you, which the Supreme Court has described as considerably less than proof of wrongdoing by a preponderance of the evidence, requiring only some minimal level of objective justification.

Above it is probable cause, the standard for an arrest, a warrant and an indictment. It asks for a fair probability, it resists being reduced to a percentage, and the Court has said flatly that it is not a high bar. Above that sit preponderance and then clear and convincing, which Texas defines as proof producing a firm belief or conviction. At the top, alone, is proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.

The application

Nearly everything that happens to a person in the first months of a case happens on the bottom two rungs. The stop, the arrest, the warrant, the indictment. By the time anyone applies the standard at the top, a year may have gone by, and the person has already lost the job.

The indictment is the clearest example. Twelve grand jurors are selected and nine of them have to concur, which is in the Texas Constitution itself, and the proceeding is secret and not adversarial. By statute the only people who may address a Texas grand jury are the prosecutor and the witnesses, and the accused or his lawyer may address it only if the prosecutor approves. Defense lawyers do send over grand jury packets, and they work, but whether one ever reaches the grand jury is the prosecutor’s call.

The common misconception

Here is the part that surprises lawyers from other states. Texas does not tell the jury what reasonable doubt means.

For nine years it did. In 1991 the Court of Criminal Appeals adopted a definition and required it in every criminal case whether or not anybody asked for it. In 2000 the same court overruled that and held that the better practice is to give no definition of reasonable doubt at all to the jury. A trial court may still give the old one if the State and the defense both agree. Absent agreement, the charge does not define it.

So the most consequential phrase in American criminal law goes to twelve strangers with no instructions. Pull a capital murder charge off the state judiciary’s own website and you will find the presumption of innocence spelled out, the burden placed on the State, and not one word explaining what the burden is.

In Texas

What the charge does say: all persons are presumed innocent, no person may be convicted unless each element is proved beyond a reasonable doubt, and the fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at trial. That is section 2.01 of the Penal Code, repeated almost word for word at article 38.03 of the Code of Criminal Procedure. The Legislature wrote it because it knew what people assume when they hear that someone was arrested.

The takeaway

Neither an arrest nor an indictment is a finding about what happened, and neither is close to what it takes to convict.