Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.
For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.
Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.
In a 1997 article in the University of Pennsylvania Law Review, Alexander Volokh took a wry view of the subject:
Abraham's celebrated haggle from the book of Genesis, allegedly written by Moses but also attributed to God, 25 provisionally sets a value of n = (P - 10) / 10, where P is the population of Sodom. 26 However, as it turns out, no innocents were killed in the destruction of Sodom; there were only four righteous people in the city, and they were all saved, though they lost their real estate. 27 Earlier, 28 God had killed the entire population of the earth for its wickedness 29 except for Noah and his family, 30 in a mass capital punishment which, though carried out without benefit of jury or other due process protections, apparently also produced no false positives or false negatives. It is also said that one day, there will be a massive post-capital punishment, which will also produce no false positives or false negatives. 31 These anecdotes, however, may only be meant to explain criminal procedure for God Himself, Who can do whatever He likes.
Commandments for man can be found in the book of Exodus, by the same Author(s), where God rejects the tradeoff between convicting the guilty and convicting the innocent, and simply commands, "the innocent and righteous slay thou not." 32 One can take this to imply an infinite value of n, at least in capital cases. The twelfth-century Judeo-Spanish legal theorist Moses Maimonides, however, interpreted the commandment of Exodus as implying a value of n = 1000 for execution. 33 He refers to it as the "290th Negative Commandment" and argues that executing an accused criminal on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice. Hence the Exalted One has shut this door" 34 against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way." 35
25. Capitalization of "god" refers to a Hebrew god named "Yahweh."
26. "I will not destroy it for ten's sake," Genesis 18:32, implies, "Better P - 10 guilty men escape than 10 righteous men be killed," or, dividing both quantities by 10, "Better (P - 10) / 10 guilty men escape than 1 righteous man be killed."
27. "And when the morning arose, then the angels hastened Lot, saying, Arise, take thy wife, and thy two daughters, which are here; lest thou be consumed in the iniquity of the city." Genesis 19:15. Note, however, that while Lot lost his real estate, he did acquire condiments. "His wife looked back from behind him, and she became a pillar of salt." Genesis 19:26.
28. Genesis 6-7.
29. "And God saw that the wickedness of man was great in the earth, and that every imagination of the thoughts of his heart was only evil continually." Genesis 6:5. "And God looked upon the earth, and, behold, it was corrupt; for all flesh had corrupted his way upon the earth." Genesis 6:12.
30. "But Noah found grace in the eyes of the Lord." Genesis 6:8. "But with thee will I establish my covenant; and thou shalt come into the ark, thou, and thy sons, and thy wife, and thy sons' wives with thee." Genesis6:18.
31. "If anyone is destined for captivity, to captivity he goes." Revelation 13:10 (New American Standard). "And whosoever was not found written in the book of life was cast into the lake of fire." Revelation 20:15.
32. "Keep thee far from a false matter; and the innocent and righteous slay thou not: for I will not justify the wicked." Exodus 23:7.
33. Students of statutory and Constitutional interpretation will recognize the Maimonidean leap. The number 1000, no doubt, emanates from a penumbra of Exodus 23:7.
34. 2 Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).
35. Id. This statement is, of course, consistent with an infinite value of n.
