# Could Congress hypothetically change the prosecution's burden of proof for certain crimes?
**URL:** https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938
**Category:** Great Debates
**Created:** [February 6, 2012, 4:46am UTC](https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938 "2012-02-06T04:46:00Z")
**Posts on this page:** 4
**Page:** 1
### Author:  [@Koxinga](https://boards.straightdope.com/u/Koxinga)
#### Post date: [February 6, 2012, 4:46am UTC](https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938/1 "2012-02-06T04:46:00Z")
Imagine that the “20th hijacker” of 9/11, [Zacarias Moussaoui](http://en.wikipedia.org/wiki/Zacarias_Moussaoui), had been acquitted of all charges rather than convicted, and there was national outrage as he went off scott free. An ineffectual prosecution was widely blamed, and in the aftermath Congress passed a bill, and President Bush signed it, to the effect that:
“In cases of conspiracy to commit a terroristic act, prosecutors shall be held to a standard of meeting ‘a preponderance of the evidence’ rather than 'beyond a reasonable doubt.”
Could Congress pass such a law and make it stick (i.e., pass constitutional muster)? After a bit of [perfunctory](http://en.wikipedia.org/wiki/Reasonable_doubt) research it doesn’t look to me as if there is an explicit constitutional requirement that people must be convicted only on the basis of “beyond a reasonable doubt.”
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### Author:  [@Colibri](https://boards.straightdope.com/u/Colibri)
#### Post date: [February 6, 2012, 4:55am UTC](https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938/2 "2012-02-06T04:55:12Z")
As a hypothetical, this is probably better suited to GD than GQ.
Colibri
General Questions Moderator
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### Author:  [@Koxinga](https://boards.straightdope.com/u/Koxinga)
#### Post date: [February 6, 2012, 4:56am UTC](https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938/3 "2012-02-06T04:56:45Z")
Perhaps I worded my OP poorly, but I was hoping for a factual answer, i.e., would it be constitutionally permissible for Congress to do such a thing – not whether it’s a good idea! :eek:
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [February 6, 2012, 5:01am UTC](https://boards.straightdope.com/t/could-congress-hypothetically-change-the-prosecutions-burden-of-proof-for-certain-crimes/611938/4 "2012-02-06T05:01:43Z")
From Victor v Nebraska:
> [@](#):
>
> “The Due Process Clause requires the government to prove a criminal defendant’s guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires. In these cases, [the court] conclude[d] that, ‘taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.’ ”
So the standard is necessary to meet Due Process for criminal trials. A lesser standard would be unconstitutional.