This article has been written by Samridhi Prakash from Symbiosis Law School, Noida.

“One of the most fearful aspects of death penalty is its finality…. The belief that such an ultimate and final penalty is inappropriate where there are doubts as to guilt, even if they do not rise to the level necessary for acquittal, is a feeling that stems from common sense and fundamental notions of justice.”


-Justice Thurgood Marshall (1984)


When there is a residual question about a capital murderer’s innocence, the thought of executing the worst of penalties is morally and socially abhorrent, according to Justice Marshall’s statement. In fact, residual doubt may be the most powerful mitigating element a jury can consider when deciding on the right sentencing for a capital offender. In circumstances of capital punishment, residual doubt is a mitigating element. It is a state of mind that sits halfway between ‘beyond reasonable doubt’ and ‘absolute certainty.’ It is not a fact about the defendant or the circumstances of the crime, but a lingering question about facts. Despite being recognised as a mitigating element in death sentencing, ‘residual doubt,’ a notion born in America, has been mired in factual uncertainty— a state of mind that hovers somewhere in between ‘beyond reasonable doubt’ and ‘absolute certainty.’




The term ‘residual doubt’ refers to any remaining or lingering uncertainty a jury has about the defendant’s guilt after being convinced ‘beyond a reasonable doubt.’ The doctrine of ‘residual doubt’ entered Indian criminal law in 2014, however its origin dates back to 1984 in the United States of America. In Lockett v. Ohio (438 U.S. 586, 604 1978), the United States Supreme Court construed the Eighth and Fourteenth Amendments to allow a sentencer to consider “any of the circumstances of the offence that the defendant proffers as a reason for a sentence less than death.”


Reasonable doubt is a legitimate doubt based on reason and common sense, not a fictitious, trifling, or trivial doubt. Although residual doubt is not relevant for conviction, it is relevant at the stage of sentencing when the death penalty is being considered to determine whether the case falls into the rarest of rare’ category. This idea establishes a higher threshold of proof than the ‘beyond a reasonable doubt’ level employed at the time of conviction as a protection against routine capital punishment, taking into account the irreversibility of death.




The persuasive power of various types of residual doubt evidence can be determined through empirical study. By studying the effects of different types of residual doubt evidence in the penalty phases of capital murder cases, researchers could bring valuable empirical evidence to light on this topic. With the right facts, research psychologists could educate policymakers about this crucial topic and play a key role in capital murder sentencing policy.




The contemporary period of capital punishment in the United States began a little over two decades ago, when the Supreme Court approved six states’ new capital statutory regimes, four years after striking down death penalty statutes. The Court’s attempt to construct a rational, consistent, and nonarbitrary mechanism for imposing capital punishment began with this decision.


The American Supreme Court ruled in Franklin vs. Lynaugh in 1988 that ‘residual doubt’ was not a constituent of the Eighth Amendment and hence did not justify a necessary jury instruction to consider it. This erosion of its mandatory applicability was further exemplified in Oregon vs. Guzek, a case in which the Supreme Court of the United States of America was debating the admissibility of additional evidence at the sentencing stage. The Supreme Court clarified how ‘reasonable doubt’ and ‘residual doubt’ are applied during sentencing and clarified that sentencing is concerned with ‘how’ rather than ‘if’ a person committed a crime. The Supreme Court of the United States of America’s distinction between Eighth Amendment rights and residual doubt has tipped the scales against its mandatory implementation.




Bachan Singh vs. State of Punjab (1980), a landmark Supreme Court decision, heralded the beginning of constitutional administration of the death penalty. The court used the notion of ‘rarest of rare’ to show that Section 354(3) of the Code of Criminal Procedure, 1973 follows due process, holding that life imprisonment is the rule and death sentence is the exception.


In Indian capital punishment law, residual doubt has received little consideration. Courts have held the quality of evidence for passing the irreversible sentence of death to a higher standard than that which controls conviction, finding it hazardous to award the death penalty for convictions based on the nature of the circumstantial evidence on record on multiple occasions.


The Supreme Court first used the residual doubt theory in the case of Ashok Debbarma v. State of Tripura ruling that a decision-maker’s mind can hang between reasonable doubt and absolute conviction, resulting in lingering uncertainty. The death penalty was mitigated to life in prison with a minimum term of twenty years, based on the fact that while the evidence showed guilt beyond a reasonable doubt, it was unclear if the offence was committed exclusively by the accused. According to Krishnan and Another. v. State of Kerala, reasonable doubt is a fair doubt founded on reason and common sense, not an imaginary, insignificant, or mere possible uncertainty. Although residual doubt is not relevant for conviction, it is relevant at the stage of sentencing when the death penalty is being considered to determine whether the case falls into the ‘rarest of rare’ category. Sudam Alias Rahul Kumar Kaniram Jadhav v. State of Maharashtra, where the death sentence was remitted to life imprisonment based on the circumstantial character of the evidence, was another instance where this theory was applied.


The Supreme Court recently reaffirmed its decision in Ashok Debbarma v. State of Tripura in Ravishankar v. State of Madhya Pradesh stating that although the residual doubts are not important for conviction, they would tilt towards mitigating the circumstances while deciding whether the case comes under the umbrella of ‘rarest of rare cases’.




The Supreme Court of India’s acknowledgement of ‘residual doubt’ shows the court’s determination to offer protections against capital punishment. Despite the fact that it is impossible to formulate a clear policy for the imposition of death sentences, it has worked to establish safeguards to protect an individual’s constitutionally protected rights in light of the inevitability of a death sentence. The principles flowing from Article 21 of the Indian Constitution are responsible for the recognition and application of “residual doubt” as a safeguard. The Court has crystallised its approach of putting the quality of evidence to a higher bar for issuing a death sentence than for passing a conviction by recognising the principle of ‘residual doubt’ and explaining its applicability.




Heiney v. Florida, 469 U.S. 920,921-22 (1984) (Marshall, J., dissenting from denial of certiorari)


Jennifer R. Treadway, Residual Doubt in Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 Case W. Rsrv. L. Rev. 215 (1992)


Christina S. Pignatelli, Residual Doubt: It’s a Life Saver, 13 Cap. DEF J. 307 (2001)


Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today’s Arbitrary and Mandatory Capital Punishment Scheme, 6 Wm. & Mary Bill Rts. J. 345 (1998)


Edited by Shivanshika Samaddar of National Law University, Delhi.








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