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Implicit bias and the problem of certainty in the criminal standard of proof.


The heightened standard of proof in criminal cases is crafted to allocate the risk of error to the state in order to protect the defendant from wrongful conviction. I reviewed empirical research to determine whether juries actually understand and follow this standard, and whether current attempts to define reasonable doubt adequately protect the defendant against a jurors' unconscious, or implicit bias. The research indicates that jurors have difficulty understanding the undefined reasonable doubt standard, and many current attempts at defining it. Further, current definitions are focused on the subjective doubt element, and few address the subjective certainty element, i.e. what types of inferences are proper in order for a juror to reach a subjective level of certainty. Research also indicates that various forms of implicit bias are widespread, difficult to identify, and could have a significant effect on verdicts. As a result, jurors are not instructed to be wary of their own implicit or explicit biases that may cause them to make improper inferences based on the evidence presented. An improved jury instruction on reasonable doubt would incorporate education about implicit bias and focus on the presumption of innocence, to prepare the jury to hear the evidence in an unbiased frame of mind. This instruction should be given as early in the proceeding as possible rather than at the end of the trial in order to reduce the risk of improper inferences based not only on the evidence, but on other aspects of the case such as the defendant and the nature of the charges.


Today, United States Supreme Court precedent requires that every element of a charge against a criminal defendant be proved "beyond a reasonable doubt" (BRD). (1) This mandate is drawn from the Due Process Clause and, when combined with case law on the Sixth Amendment, it has yielded a system where even sentence enhancement factors must be proven BRD to a jury. (2) In this way, the Court has changed the face of sentencing in the United States, underscoring the importance of this standard of proof in allocating the risk of error to the State in criminal cases. (3) Yet, despite the "axiomatic" (4) nature of the BRD concept, there is no requirement that it be explained to the jury at all, much less a consensus on how it should be explained. (5) Jurisdictions that have attempted to explain the standard to juries typically focus on subjective elements (i.e., what sort of doubt is sufficient for an acquittal), rather than giving any objective guideposts (i.e., what level of evidence is sufficient to meet the State's burden). (6) This lack of guidance, combined with a standard of review on appeal that is very deferential to the fact finder, yields a proof system in American criminal courts that does not live up to its reputation of giving a higher level of procedural due process to criminal versus civil defendants.

The stricter standard of proof in criminal cases is meant to allocate the risk of error to the State, thereby providing greater protection to the accused. (7) However, does the jury really understand their role in this process? Research on jurors' comprehension of reasonable doubt instructions suggests they do not--and further research on the impact of implicit bias on jurors' decision-making indicates failure to adequately explain this concept might make a real difference. (8) Most current explanations of the BRD standard focus on helping jurors probe their minds for a subjective level of doubt before settling on a conviction. (9) However, the definitions--when they are given at all--fail to warn jurors of the danger that they may have some pre-conceived notions about the defendant that help them reach a level of certainty about guilt, but do not constitute probative evidence. Examples abound--research suggests that whether jurors are conscious of it or not, they bring implicit bias to the courtroom on race, gender, economic status, and other factors based on their own individual experiences. (10) While voir dire is designed to reduce the impact of more severe forms of bias, research shows that this effect is impossible to completely eradicate. (11)

What can we do then, to help jurors protect against their own implicit bias toward a defendant--bias that they may not even realize is present, yet may influence their decisions despite their own best intentions? The answer may lie, at least as a beginning, in reviving a concept long disregarded as vital to due process by the United States Supreme Court: explanation of the presumption of innocence. (12) This article will suggest that, contrary to the Supreme Court's reasoning in Kentucky v. Whorton, (13) the presumption of innocence is not the logical equivalent of the reasonable doubt standard. Rather, development of jury instructions on the presumption coupled with instructions on reasonable doubt could provide a much-needed objective standard for juries in determining the sufficiency of evidence they need from the State in order to convict.

A. Supreme Court Jurisprudence on the Criminal Standard of Proof

In 1970, the United States Supreme Court made the common law concept of "proof beyond a reasonable doubt" the mandatory standard of proof for all criminal convictions in In re Winship. (14) The Court based this mandate on the Due Process Clause of the Fourteenth Amendment, stating that this standard is a "prime instrument for reducing the risk of convictions resting on factual error." (15) The Court went on to say that the standard "provides concrete substance for the presumption of innocence--that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law." (16) Nine years after In re Winship, the Court added that failure to instruct juries on the reasonable doubt standard could never be harmless error. (17) However, the Court has never required more than instructing the jury that the prosecution's burden of proof is "beyond a reasonable doubt." (18)

In fact, several circuits have advised that the concept of BRD does not lend itself to definition, and the best practice is to let the jury discern the meaning of the term without defining it. (19) These courts have argued that the term "reasonable doubt" is self-explanatory to the lay juror, and accurately conveys the government's burden of proof. (20) On the other hand, some jurisdictions favor attempts to define reasonable doubt to the jury. (21) These courts focus on the importance of the standard to ensure the defendant's due process rights, and argue that the term is not self-evident, but can convey the right standard to the jury when coupled with the correct definition. (22)

The United States Supreme Court has struck down some attempts to characterize the standard as improperly shifting the government's burden of proof to the defendant. (23) The Court has also stated that failure to adequately convey the reasonable doubt standard to the jury in a definition can never be harmless error. (24) However, the Court has not resolved this split in the lower courts about whether reasonable doubt should be defined at all. The bottom line is that in some jurisdictions in the United States, a criminal defendant is considered to be denied due process if there is no reasonable doubt instruction, but accorded due process if those magic words are spoken at trial without a definition. (25)

But is the term "reasonable doubt," alone, enough to accurately convey the government's burden of proof?. Does the standard achieve the goals of In re Winship, namely to protect the defendant's due process rights by lowering the risk of convictions based on weak government cases, and to give "concrete substance" to the presumption of innocence? (26) The Supreme Court has stated that the prosecution's objective is to create a subjective state of mind in the juror of the defendant's guilt. (27) However, the Court has also said that "courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence." (28) For example, a court may not compel a defendant to show up for court in prison attire. (29) The reasonable doubt standard is meant to convey to jurors that they should be subjectively convinced of the defendant's guilt, yet, as one author has written, the "system puts no checks on how the juror goes about arriving at that subjective level of confidence." (30)

Despite the Court's insistence that the reasonable doubt standard is subjective, the Court has imposed a level of objectivity on the standard when reviewing criminal cases for sufficiency of evidence. (31) The federal sufficiency standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (32) Federal circuit court cases have applied this standard to jury verdicts and found that the convictions were based on evidence that no rational trier of fact could have found proved the charge beyond a reasonable doubt. (33)

Based on this standard of appellate review for criminal cases, there must be some objective component of the reasonable doubt standard--some way for a juror to reach a subjective state of certainty when the evidence still fails to meet the constitutional burden of proof requirement. If this is the case, how should courts explain this objective component of the innately subjective concept of doubt?

When courts overturn convictions based on insufficiency of evidence, they often point to speculation as the culprit in the jury's conclusions based on the evidence. (34) As one court wrote, "[I]t is not enough that the inferences in the government's favor are permissible.... [T]he inferences [must be] sufficiently supported to permit a rational juror to find that the element ... is established beyond a reasonable doubt." (35)

This language suggests that the juror's role goes beyond simply listening to the evidence and reaching or not reaching a subjective state of certainty about guilt. The juror must also take care that the inferences he uses to reach that subjective state are supported by the evidence put forth at trial, and do not stem from other non-probative evidence, for instance the juror's own explicit or implicit bias. (36) So while judges often take care to instruct juries that their doubt must not be based on speculation in order to acquit, the same problem of conviction based on speculation sometimes leads to overturned verdicts. (37)

B. The Supreme Court's Dismissal of Presumption of Innocence Instructions

In 1895, the Supreme Court held that both the concept of the presumption of innocence and that of reasonable doubt were necessary to understand the government's burden of proof in a criminal case. (38) The Court said that the presumption was a piece of evidence in favor of the accused, while reasonable doubt was the state of mind produced by the evidence. (39) The Court rejected this view almost 100 years later, stating that the presumption of innocence and the proof beyond a reasonable doubt standard are logically equivalent. (40) However, the Court admitted in the same case that the presumption may provide a "hint" to jurors that they should only consider probative evidence presented in the case, and not the defendant's present situation of being indicted, in court, or in custody. (41) Despite this, the Court said the following year that the Due Process Clause does not require courts to instruct on the presumption of innocence in every case, but that a reasonable doubt instruction is sufficient to communicate the government's burden of proof. (42)


The phrase "proof beyond a reasonable doubt" does not refer to an external standard of proof, but rather asks the juror to reflect on whether he has reached a subjective state of certainty about the defendant's guilt. (43) The government's burden in criminal cases is to convince the fact finder, or to create this subjective sense of certainty in the mind of the juror. (44) However, this state of certainty is distinguishable from mathematical certainty. The phrase "moral certainty," used by some courts to describe the reasonable doubt standard, (45) can be traced back to a philosophical distinction between scientific evidence and "moral evidence," or evidence coming from human sources. (46) "Moral evidence, "as the phrase began to be used by philosophers in the seventeenth century, was considered to be incapable of yielding absolute proof; so the phrase "moral certainty" referred to the highest degree of proof possible based on this type of evidence. (47)

The term "reasonable doubt" points to this gap between absolute certainty and the certainty that a juror can have based on "moral evidence" produced at trial; a doubt alone is not sufficient, it must be a certain kind or degree of doubt. (48) But how does a juror determine what doubts are reasonable? The fact that some convictions are overturned for insufficiency of evidence suggests that there is also an objective component to this standard. (49) The Supreme Court said in Victor v. Nebraska, that "[a]lthough [the reasonable doubt] standard is an ancient and honored aspect of our criminal justice system, it defies easy explication." (50) Several jurisdictions advise against defining the term at all, arguing that attempts to define it lead to more confusion than the term itself. (51) The Seventh Circuit has said that attempts to define the term are like "playing with fire," because any instruction proposed will generally tend to favor one side or the other. (52) Other courts have argued that jurors possess a fundamental understanding of the concept of reasonable doubt before they walk into the courtroom. (53)

However, it is not clear that this concept alone conveys the nuances of this important legal standard to the jury. One author argued in support of leaving the term undefined that "it is impossible to convey through words precisely what the standard requires. In fact, the term is at least as comprehensible when undefined as when it is defined because jurors ... possess a fundamental understanding of the reasonable doubt concept." (54) This argument is unpersuasive--if the standard by which fact finders in criminal trials convict defendants is not capable of clear definition, it would seem to show that jurors do not actually have a fundamental understanding of the term.

The difficulty in defining the term has led some scholars and researchers to question the effectiveness of the words "reasonable doubt" to convey the government's burden of proof. (55) One study found that when some mock jurors were given definitions of reasonable doubt and some were not, the group without a definition of the concept experienced a higher degree of uncertainty about the correctness of their verdicts, and also had a higher number of hung juries. (56) In another study of jurors in Wyoming, where reasonable doubt was left undefined, 30.5% of jurors said they were "sure" or "pretty sure" that once the state comes forward with evidence of a defendant's guilt, it becomes the defendant's responsibility to persuade the jury of his innocence. (57)

In yet another study, jurors given an undefined reasonable doubt instruction were asked to quantify the government's burden of proof in criminal cases. (58) Before deliberation, the jurors gave an average response of only 52.87%, increasing to 55% after deliberation. (59) This can be compared to results between 85-90% when ten federal judges were polled on the same question. (60) These figures bring into question the effectiveness of the undefined reasonable doubt instruction in conveying the high burden of proof the Supreme Court requires of the prosecution in criminal cases. In another study of Florida jurors instructed on reasonable doubt, 23% believed that when the evidence was balanced between the state and the defendant, there should be a conviction; 50% believed the defendant had to present some evidence of his innocence; and 2% believed the defendant had the burden of proof of innocence. (61)

Part of the problem with jurors understanding and applying the correct legal standard of proof in criminal cases may be that the term "reasonable doubt" is itself misleading. One author has argued that the term improperly shifts the burden of creating a doubt in the mind of the juror to the defendant. (62) The word "doubt" has two distinct meanings, depending on whether it is used as a mass noun or count noun. (63) A mass noun, like "water" for instance, typically stays in the singular when you refer to it, i.e., "I have some water." (64) A count noun on the other hand takes the plural, as in "I have some trees." (65) When doubt is used as a mass noun, i.e., "I have some doubt," the word refers more to a subjective state of uncertainty. (66) Conversely, when used as a count noun, i.e., "I have some doubts," the word refers more to specific facts that are causing the uncertain state of mind. (67)

Because reasonable doubt instructions refer to "a reasonable doubt," used as count noun, (rather than "some reasonable doubt," for instance, as a mass noun) the phrase tends to suggest that jurors should be able to articulate facts that cause doubt about the government's case, thereby improperly shifting the burden of proof to the defendant. (68) To support this conclusion, one study found that when jurors were given instructions on the clear and convincing evidence standard and the reasonable doubt standard, they placed the threshold for the government's burden of proof for reasonable doubt far lower on a numerical scale than the clear and convincing standard. (69) Additionally, several overturned convictions based on judges incorrectly defining reasonable doubt lend support to the idea that the phrase is not self-defining. (70) If even judges cannot always get this standard right, it is unreasonable to expect that jurors will be able to comprehend the standard accurately on their own.

There is also ambiguity in the standard as to what constitutes a "reasonable" doubt. Studies show that jurors' understanding of what kind of doubt is sufficient ranges from any possible doubt they can speculate about, to a plausible alternative put forth by the defendant. (71) Both of these notions stray from the Supreme Court's definition of the standard as a "subjective state of certitude." (72) If a juror has any doubt, he is by definition not subjectively certain. However, the government is not required to prove its case to a degree of mathematical certainty, as that level of certainty is not possible in human affairs. (73) How, then, does a juror distinguish his own doubts as reasonable or unreasonable? The standard gives no guidance on this point. By focusing on the level of subjective doubt necessary to sustain a conviction, the "beyond a reasonable doubt" standard alone gives the juror no external standard by which to judge the quality of evidence the government must put forth to warrant a guilty verdict.

Jurisdictions that recognize the vagueness of the standard and attempt to define it for juries have taken several different approaches. Most instructions have focused on illuminating what kind of doubt is reasonable. (74) These types of instructions include language describing reasonable doubt as "an actual and substantial doubt, and not a mere possible doubt ... not a conjecture or a fanciful doubt.... [nor] a doubt which is raised by someone simply for the sake of raising doubts." (75) These types of instructions tend to focus on making sure jurors do not acquit based on a doubt that comes from forced speculation. For instance, if the prosecution asks a jury to conclude the ground was wet because it was raining, a juror should not have to consider the possibility that some rare geothermal event evaporated the water on contact. However, in closer cases where the outcome hinges, for example, on the credibility of a witness or the veracity of a theory of the case, these instructions do not help the juror decide whether his doubts are reasonable. Moreover, if the defendant presents no evidence, any doubt that the juror has will necessarily be speculative.

The Supreme Court has thus far invalidated at least one attempt to define reasonable doubt as improperly shifting the burden of proof to the defendant. (76) In Cage v. Louisiana, the defendant was convicted of first-degree murder and sentenced to death after the jury received an instruction defining reasonable doubt. (77) The instruction defined the level of doubt necessary to convict as a "grave uncertainty" or an "actual substantial doubt." (78) The Court found that this language suggested a higher degree of doubt than the reasonable doubt standard requires in order to convict. (79) Lower courts have invalidated instructions that stated the doubt had to be articulable by a "good and sufficient reason," (80) that the type of doubt is one that a person would have before buying a new car, (81) and that the doubt should not be one that is "for the purpose of permitting guilty men to escape," (82) to name a few examples.

On the other hand, the Supreme Court will uphold a reasonable doubt instruction as long as there is no reasonable likelihood that the jury applied the wrong constitutional standard. (83) The question is not whether they could have applied the wrong standard, but whether they actually did. (84) Additionally, the Court requires no particular words to describe the standard as long as it conveys the correct meaning. (85) The Court upheld an instruction in Victor v. Nebraska under this rule that described reasonable doubt as "not a mere possible doubt," but one that would prevent the jurors from having an "abiding conviction" of guilt. (86) In the same case, the Court upheld an instruction that described reasonable doubt in terms of "moral certainty." (87) The Court acknowledged in the second instruction that the phrase "moral certainty" alone may not convey to a jury the original meaning of the highest level of certainty possible in human affairs, and may in fact suggest only "likelihood" based on a modern definition. (88) However, the Court found that because there were other instructions directing the jury to only consider evidence presented in the case, and that they must reach an "abiding conviction" of guilt, the instruction was constitutional. (89)


While these attempts to define reasonable doubt arguably make some headway into explaining to jurors what level of doubt they should be looking for in order to acquit, they fail to address at least one crucial issue. Jurors come from diverse cultural and experiential backgrounds, and the idea that each juror will respond to evidence presented in a case with the same level of confidence about a defendant's guilt is untenable. All that the reasonable doubt standard communicates, even with the attempts to define it described above, is where the juror should end up. (90) None of these explanations give any guidance about where he should start. (91) One author has suggested that the term "reasonable doubt" should be discarded altogether and replaced with the instruction that a jury should be "firmly convinced" of a defendant's guilt. (92) This standard, he suggests, reduces the concern about shifting the burden of proof to the defendant by focusing affirmatively on the government's burden of proof rather than the necessity that the juror have a doubt to acquit. (93) However, even this instruction fails to address the problem of what evidence should form the basis for a juror's certainty.

Another way to state this problem is that the reasonable doubt standard does not refer the juror to any external standard of proof. Unlike scientific proof, which depends on an external frame of reference outside the researcher's mind to prove a hypothesis, courts asks jurors to determine guilt based purely on whether they think a person is guilty. Jurors are not asked to look objectively at the strength of the inferences between the evidence produced and the hypothesis of guilt, they are simply asked to reflect on whether or not they have been persuaded. Whether they choose to convict or acquit, they do not have to articulate a reason for why they are convinced or for why they are doubtful.

Studies of jurors in recent years have revealed differences in rates of convictions based on race, gender, and even weight. (94) Psychologists have traced these results at least in part back to "implicit biases" held by jurors about various social subsets. (95) These biases may be "so subtle that those who hold them may not realize that they do ... [and may] frequently conflict with self-reported attitudes." (96) However, "participants' implicit associations ... predict socially and organizationally significant behaviors, including employment, medical, and voting decisions." (97) Implicit bias has also been "shown to be widespread among the general public," and affects processes such as "perception, forming of impressions, processing of information, use of information, and retrieval of information." (98) These processes are exactly what jurors do in the courtroom during the course of a criminal trial. (99) The presence of implicit bias may cause jurors to come into court with a set of inferences about the defendant before the first witness is called, and research suggests the juror may not even be aware of these inferences. (100)

If jurors are instructed, as they are currently, with a subjective-certainty-based standard for conviction, there is no warning from the court that pre-trial inferences about a defendant should not form a baseline for reaching a level of certainty. These pre-trial inferences can cut both ways, either weakening or strengthening the prosecution's case. For instance, racial and economic prejudice against a black or Latino defendant in a burglary prosecution may weigh in the state's favor, while prejudice against an unattractive female victim may raise the government's burden in a rape case.

The Supreme Court addressed this issue in Estelle v. Williams, which dealt with the potential effect on the jury of compelling a defendant to show up to court in prison attire. (101) There the Court said:
      To implement the presumption [of innocence], courts must be alert
   to factors that may undermine the fairness of the fact-finding
   process. In the administration of criminal justice, courts must
   carefully guard against dilution of the principle that guilt is to
   be established by probative evidence and beyond a reasonable doubt.

The Court recognized this tendency of jurors to make judgments about defendants based on particularly prejudicial evidence, even when instructed on the proper standard of proof. (103) The court's ability to exclude probative evidence that is highly prejudicial to a defendant under Federal Rule of Evidence 403 also lends support to the idea that the court has a responsibility to manage a case so as to reduce juror prejudice as much as possible. (104)

The good news is that research suggests implicit bias can be reduced by education. (105) The Implicit Association Test (IAT) is the primary instrument used currently to measure implicit bias. (106) One study suggests that when jurors see the results of their own racial bias IAT, they may view evidence in the case afterwards with a more race-neutral approach. (107) Another study found that doctors who were aware they were involved in an implicit bias study treated patients of different races more neutrally, suggesting that people can compensate for implicit bias when they are aware of it. (108) At least one author has suggested that for these reasons IATs should be administered to potential jurors before voir dire, during the juror orientation process. (109)

The federal standard of review for sufficiency of evidence in criminal cases does not provide the defendant much protection from convictions that may be partially based on implicit bias. (110) Absent flagrant evidence of prejudice, the Court is not required to look into the collective mind of the jury to root out potential sources of unconscious prejudice. (111) Reviewing courts merely have to determine whether "the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt." (112) Essentially, the court must then determine that no hypothetical juror could have reached a subjective state of mind of certainty about the case in order to overturn a conviction. This gives extreme deference to the fact finder, and predictably rarely results in reversals. When contrasted with the Supreme Court's requirement that all punitive damages awards are reviewed de novo, (113) this seems a low threshold to sustain a factual finding that results in loss of liberty as compared to a quasi-criminal monetary award.

It is not necessary to assume the worst about jurors to validate these concerns. Implicit biases, after all, are often "so subtle that those who hold them may not realize that they do." (114) The ability to make inferences about our surroundings, after all, is how humans make sense of the world around them. In the environment of the courtroom, however, jurors must be instructed as clearly as possible that some of these inferences have no place in reaching a state of certainty about a defendant's guilt or innocence. The reasonable doubt standard standing alone, and the attempts to elaborate on the type of doubt that is acceptable, do nothing to put the juror on notice of his own potential tendency to unwittingly supplement the evidence adduced at trial and include impermissible inferences in his determination of guilt.


The Supreme Court described the importance of the presumption of innocence in criminal cases in the 1895 case of Coffin v. United States. (115) In Coffin, the trial court instructed the jury on reasonable doubt but did not instruct on the presumption of innocence. (116) The Court spoke of the presumption as a "maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman," and only overturned by "legal evidence of guilt." (117) The Court then embarked on an inquiry into whether the failure to give the presumption instruction was harmless because, as the prosecution argued, the presumption of innocence is legally equivalent to the reasonable doubt standard, (118) The conclusion in this case was that the two concepts are not equivalent, but that the presumption is a piece of evidence in favor of the accused, while reasonable doubt refers to the state of mind necessary to convict. (119) The Court said that at the beginning of a trial, the defendant's innocence is considered established as a matter of proof and the government can only overcome that proof with sufficient evidence of guilt. (120)

The Supreme Court did not directly address this issue again until 1978 in Taylor v. Kentucky. (121) In Taylor, the Court reversed a conviction because the trial judge failed to give a presumption of innocence instruction requested by the defendant. (122) The Court said that the presumption of innocence provides a helpful "hint" and "caution" to jurors that they should not consider certain pieces of evidence coming from outside the trial, including the arrest, indictment, and arraignment. (123) While the use of the phrase "presumption of innocence" is not constitutionally mandated, the Court concluded it "represents one means of protecting the accused's constitutional right to be judged solely on the basis of proof adduced at trial." (124)

In dicta, however, the Court stated that the Coffin distinction between the presumption of innocence and reasonable doubt was in error, and the two concepts are in fact logically indistinguishable. (125) The Court said that the presumption was not evidence, nor even an inference, but only described the prosecution's duty to produce evidence of guilt. (126) Accordingly, the following year, in Kentucky v. Whorton, the Court clarified its holding in Taylor v. Kentucky by saying that the presumption of innocence instruction is not a requirement so long as the jury is instructed on the reasonable doubt standard. (127)

In Taylor, the Court was quick to reject the Coffin analysis of the presumption of innocence as distinct from reasonable doubt, but the identity of the two concepts is far from clear. The Court cited a Mississippi Supreme Court case, Carr v. State, (128) for the proposition that the presumption of evidence is not a presumption at all because it is not a mandatory inference drawn from a fact in evidence. (129) The Mississippi court stated the presumption was actually just an "assumption" that places the burden of proof on anyone asserting guilt. (130) This court, and the United States Supreme Court, agreed that because the presumption is logically identical to the reasonable doubt standard, giving the instruction may be helpful, but it is not a necessary component of due process. (131)

A presumption is "a legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts." (132) In a criminal case, the presumption of innocence can be considered a mandatory inference of innocence the jury is required to make from a known set of facts; such as whether the defendant has been arrested, charged, or indicted; or that they are of one race or gender. (133) Without this mandatory inference, the government's burden of proof does not have firm grounding in the evidence produced at trial. Rather, the government is free to piggyback on any inferences the juror may make based on evidence not produced, whether rational or irrational.

Failure to drive home to the jury the importance of the presumption of innocence may create the risk that one or more irrational inferences end up being a pretext for conviction or acquittal at the end of the case. (134) Since the jury is not required to articulate why they have reached a subjective state of certainty, courts have no way of determining whether the government has proven its case beyond a reasonable doubt based on the evidence produced at trial, or on some other factor jurors are considering that creates an irrational inference.

The presumption of innocence is still a common instruction in criminal trials despite the lack of a constitutional mandate to include it, and admittedly, most jurors will have heard of the concept before coming into trial. However, evidence suggests that despite the concept's prevalence, jurors may not actually understand it. (135) In the study of Florida jurors referenced above, half of jurors believed that the defendant had to provide some evidence of his innocence in order to be acquitted. (136) In another survey of Florida jurors who were given a presumption of innocence instruction at the end of a trial, less than one in four jurors "agreed strongly" with the presumption, and over 20% disagreed with the presumption entirely. (137) If jurors are divided on whether the defendant is presumed innocent even after instruction, the failure to instruct on this concept at all is surely unacceptably dangerous. (138) Further, since research on implicit bias suggests that many improper inferences are unconscious, even if jurors do understand the basic innocence presumption, they may not be able to follow it without further assistance from the court in becoming educated about their own potential biases.

The fact that the jurors in the Florida survey heard the presumption of innocence instruction at the end of the case is significant; most of these instructions are given at the end of the trial, after evidence is produced. However, if the purpose of the presumption of innocence is to caution jurors not to consider external evidence, and to guard against their own prejudices, how much is the warning going to accomplish when it is given after the juror has heard the case? If the goal of the prosecution is to produce a subjective sense of certainty in the juror through the presentation of evidence, that horse has already left the barn well before the final jury charge.


The interdependence of the jury's understanding of the presumption of innocence and the reasonable doubt standard of proof suggests that these instructions should not only be mandatory in criminal cases, but should be presented together as parts of the same concept, preferably at the beginning of the trial, if not before voir dire. While courts that attempt to define reasonable doubt have made some headway in guarding against misinterpretation of the necessary degree of doubt, those definitions are far from adequate. Research suggests that even when jurors are instructed on these concepts, many do not fully grasp their role as fact finders. The Supreme Court made progress in In re Winship by requiring that the standard of proof in criminal cases be higher than that in civil cases, but the Court's claim that reasonable doubt gives "concrete substance for the presumption of innocence" was too hopeful. (139) Courts cannot meet In re Winship's goal of ensuring the defendant's rights under the Due Process Clause unless the jury understands the government's burden of proof correctly, and to do that they must give concrete substance to the presumption of innocence in jury instructions.

While courts have focused primarily on pinpointing what types of doubt are reasonable in jury instructions, courts must also take care to explain what types of certainty are reasonable as well. A juror's subjective state of certainty at the end of a trial may have been reached by making sound inferences from the evidence produced at trial combined with his common sense generalizations about the world. However, the same juror may have skipped a few steps in reaching that state of certainty by including inferences based on implicit bias or irrelevant evidence, leading to what is essentially conscious or unconscious speculation about guilt.

To guard against this potential problem, an improved instruction would focus on the juror's role of making inferences based on relevant evidence. The instruction given at the beginning of trial would remind the juror that the defendant is presumed innocent--that no inferences should be made from the fact that the defendant has been arrested, charged, or is in court. The juror must also be careful to guard against making inferences based on other evidence that is not probative in the case, particularly their own conscious or unconscious prejudicial inferences based on stereotypes, positive or negative, unsupported by evidence in the particular case at hand. Recent research on the possibility of reducing the effect of implicit bias through juror education should be considered in drafting this instruction.

While courts have made some headway in defining reasonable doubt, as long as doubt is set forth as the lodestar for determining whether or not to convict, courts must couple reasonable doubt instructions with a clarification of what evidence a juror should use to reach a level of certainty. This instruction should be given at the beginning of the trial before jurors begin to stack inference upon inference to reach this subjective state of certainty or doubt. Without this type of instruction, courts run the risk of allowing convictions that fall between the gap of being rightful and patently unreasonable, and thus many convictions will stand upon appellate review despite a weak government case.

(1.) In re Winship, 397 U.S. 358, 364 (1970).

(2.) See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (400).

(3.) E.g., Winship, 397 U.S. at 371.

(4.) Id. at 363.

(5.) See Victor v. Nebraska, 511 U.S. 1, 5 (1994).

(6.) Michael S. Pardo, Second-Order Proof Rules, 61 FLA. L. REV. 1083, 1094 (2009).

(7.) Winship, 397 U.S. at 370.

(8.) See infra notes 51-55.

(9.) Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 TEX. L. REV. 105, 113 (1999).

(10.) See infra notes 88-91.

(11.) Anna Roberts, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias, 44 CONN. L. REV. 827, 840-41 (2012).

(12.) See Kentucky v. Whorton, 441 U.S. 786 (1974).

(13.) Id.

(14.) 397 U.S. 358, 364 (1970).

(15.) Id. at 363.

(16.) Id. (citing Coffin v. United States, 156 U.S. 432, 453 (1895)).

(17.) Jackson v. Virginia, 443 U.S. 307, 320 n.14 (1979).

(18.) Victor v. Nebraska, 511 U.S. 1, 5 (1994).

(19.) See, e.g., United States v. Cassiere, 4 F.3d 1006, 1024 (1st Cir. 1993); United States v. Ivic, 700 F.2d 51, 69 (2d Cir. 1983).

(20.) See Note, Reasonable Doubt." An Argument Against Definition, 108 HARV. L. REV. 1955, 1957 (1995) [hereinafter Note, Reasonable Doubt: An Argument].

(21.) See, e.g., Mo. REV. STAT. [section] 546.070(4) (1994); United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974).

(22.) See Note, Reasonable Doubt: An Argument, supra note 20, at 1958-59.

(23.) Cage v. Louisiana, 498 U.S. 39, 41 (1990).

(24.) Sullivan v. Louisiana, 508 U.S. 275 (1993).

(25.) See Victor v. Nebraska, 511 U.S. 1, 5 (1994).

(26.) 397 U.S. 358, 364 (1970).

(27.) Jackson v Virginia, 443 U.S. 307, 315 (1979).

(28.) Estelle v. Williams, 425 U.S. 501,503 (1976) (quoting In re Winship, 397 U.S. at 364).

(29.) Id.

(30.) Larry Laudan, The Presumption of Innocence: Material or Probatory?, 11 LEGAL THEORY 333,352 (2005).

(31.) Jackson, 443 U.S. at 319 ("[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.").

(32.) Id.

(33.) See, e.g., Langston v. Smith, 630 F.3d 310, 319 (2d Cir. 2011) (evidence that defendant committed an assault in futherance of weapon possession insufficient to prove felony assault beyond a reasonable doubt); O'Laughlin v. O'Brien, 568 F.3d 287, 302 (1st Cir. 2009) (circumstantial evidence identifying defendant as the perpetrator in a burglary was insufficient to prove identity beyond a reasonable doubt); Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 2005) (evidence of intent was insufficient to convict defendant of first degree and second degree murders under an aiding and abetting theory).

(34.) See, e.g., Langston, 630 F.3d at 318; O'Laughlin, 568 F.3d at 303; Juan H., 408 F.3d at 1276.

(35.) United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (quoted in Langston, 630 F.3d at 314-15.)

(36.) Langston, 630 F.3d at 314-15.

(37.) See, e.g., Jackson v. Virginia, 443 U.S. 307, 317 (1979).

(38.) Coffin v. United States, 156 U.S. 432, 460 (1895).

(39.) Id.

(40.) See Taylor v. Kentucky, 436 U.S. 478, 485 (1978).

(41.) Id.

(42.) Kentucky v. Whorton, 441 U.S. 786, 789 (1979).

(43.) Jackson v. Virginia, 442 U.S. 307, 315 (1979).

(44.) In re Winship, 397 U.S. 358, 364 (1970).

(45.) See, e.g., Victor v. Nebraska, 511 U.S. 1 (1994) (approving "moral certainty" as an explanatory phrase for the BRD standard).

(46.) Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 TENN. L. REV. 45, 65 (1999).

(47.) Id.

(48.) See id. at 106.

(49.) See, e.g., Langston v. Smith, 630 F.3d 310 (2d Cir. 2011) (evidence that defendant committed an assault in furtherance of weapon possession insufficient to prove felony assault beyond a reasonable doubt); O'Laughlin v. O'Brien, 568 F.3d 287 (1st Cir. 2009) (circumstantial evidence identifying defendant as the perpetrator in a burglary was insufficient to prove identity beyond a reasonable doubt); Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) (evidence of intent was insufficient to convict defendant of first degree and second degree murders under an aiding and abetting theory).

(50.) Victor, 511 U.S. at 5.

(51.) United States v. Marquardt, 786 F.2d 771,784 (7th Cir. 1986) (quoting United States v. Martin-Trigona, 684 F.2d 485,493 (7th Cir. 1982)).

(52.) United States v. Shaffner, 524 F.2d 1021, 1023 (7th Cir. 1975).

(53.) United States v. Nolasco, 926 F.2d 869, 871-74 (9th Cir. 1991).

(54.) Note, Reasonable Doubt: An Argument, supra note 20, at 1968.

(55.) See Solan, supra note 9, at 105-06.

(56.) See Norbert L. Kerr et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision Rule on the Judgments of Mock Jurors, 34 J. PERSONALITY & SOC. PSYCHOL282, 285-86 (1976).

(57.) See Bradley Saxton, How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming, 33 LAND & WATER L. REV. 59, 97 (1998).

(58.) See Irwin A. Horowitz & Laird C. Kirkpatrick, A Concept in Search of a Definition: The Effects of Reasonable Doubt Instructions on Certainty of Guilt Standards and Jury Verdicts', 20 LAW& HUM. BEHAV. 655, 664 (1996).

(59.) Id.

(60.) United States v. Fatico, 458 F. Supp. 388, 410 (E.D.N.Y. 1978).

(61.) Henry A. Diamond, Note, Reasonable Doubt: to Define, or Not to Define, 90 COLUM. L. REV. 1716 (1990) (citing David U. Strawn & Raymond W. Buchanan, Jury Confusion." A Threat to Justice, 59 JUDICATURE 478,480-81 (1976)).

(62.) Solan, supra note 9, at 137.

(63.) Id. at 136.

(64.) Id. at 136-37.

(65.) Id.

(66.) Id. at 136.

(67.) Id. at 137.

(68.) Id.

(69.) See Solan, supra note 9, at 128-29 (citing William R. Cornish & A. Philip Scaly, L.S.E. Jury Project, Juries and the Rules of Evidence, 1973 CRIM. L. REV. 208, 213 (l973)).

(70.) See, e.g., Lanigan v. Maloney, 853 F.2d 40, 45-48 (1st Cir. 1988); Dunn v. Perrin, 570 F.2d 21, 23-24 (1st Cir. 1978); United States v. Pinkney, 551 F.2d 1241, 1244-46 (D.C. Cir. 1976); United States v. Bridges, 499 F.2d 179, 186 (7th Cir. 1974); United States v. Alvero, 470 F.2d 981,982-83 (5th Cir. 1972).

(71.) See Solan, supra note 9, at 128-29 (citing Cornish & Scaly, supra note 69, at 213).

(72.) In re Winship, 397 U.S. 358, 364 (1970).

(73.) Victor v. Nebraska, 511 U.S. 1, 13 (1994).

(74.) Solan, supra note 9, at 113.

(75.) Id.

(76.) Cage v. Louisiana, 498 U.S. 39, 40 (1990).

(77.) Id.

(78.) Id. at 40. The entire instruction read in relevant part: "If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty." Id. (citing State v. Cage, 554 So.2d 39, 41 (La. 1989)).

(79.) Id.

(80.) Dunn. v. Perrin, 570 F.2d 21, 23 (1st Cir. 1978).

(81.) United States v. Pinkney, 551 F.2d 1241, 1244 (D.C. Cir. 1976).

(82.) United States v. Bridges, 499 F.2d 179 (7th Cir. 1974).

(83.) Victor v. Nebraska, 511 U.S. 1, 6 (citing Estelle v. McGuire, 502 U.S. 62, 72 (1978)).

(84.) Id.

(85.) Id. at 5.

(86.) Id. at 7. The entire instruction read: "Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." Id.

(87.) Id. at 8.

(88.) Id. at 15.

(89.) Id. at 16-17.

(90.) See, e.g., Laudan, supra note 30, at 25.

(91.) Id.

(92.) Solan, supra note 9, at 147.

(93.) See id.

(94.) See, e.g., Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias." An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 PSYCHOL. PUB. POL'Y. & L. 201, 216 (2001).

(95.) Roberts, supra note 11, at 833-34.

(96.) Id.

(97.) John T. Jost et al., The Existence of Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore, 29 RES. ORGANIZATIONAL BEHAV. 39, 39 (2009).

(98.) Roberts, supra note 11, at 834.

(99.) Id.

(100.) See Dale Larson, A Fair and Implicitly Impartial Jury: An Argument for Administering the Implicit Association Test During Voir Dire, 3 DEPAUL J. SOC. JUST. 139, 144 (2010).

(101.) 425 U.S. 501, 503 (1976).

(102.) Id.

(103.) See id. at 504.

(104.) FED. R. EVID. 403.

(105.) Roberts, supra note 11, at 858.

(106.) See id. at 848.

(107.) Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 MINN. L. REV. 367, 489-90 (1996) (citing Jeffrey E. Pfeifer & James R.P. Ogloff, Ambiguity and Guilt Determinations: A Modern Racism Perspective, 21 J. APPLIED SOC. PSYCHOL. 1713, 1718 (1991)).

(108.) Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1202-03 (2009).

(109.) Roberts, supra note 11, at 858.

(110.) United States v. Powell, 469 U.S. 57, 67, (1984).

(111.) Id.

(112.) Id. (emphasis added).

(113.) Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001).

(114.) Roberts, supra note 11, at 833.

(115.) 156 U.S. 432, 456 (1895).

(116.) Id. at 453.

(117.) Id. at 456.

(118.) Id. at 457.

(119.) Id. at 459-60.

(120.) Id.

(121.) 436 U.S. 478, 489 (1979).

(122.) Id.

(123.) Id. at 485.

(124.) Id. at 486.

(125.) Id. at 483 n. 12.

(126.) Id.

(127.) Kentucky v. Whorton, 441 U.S. 786, 789 (1974).

(128.) 4 So.2d 887, 888 (Miss. 1941).

(129.) Taylor, 436 U.S. at 483.

(130.) Carr, 4 So.2d at 888.

(131.) Id.; Whorton, 441 U.S. at 789.

(132.) BLACK'S LAW DICTIONARY 1304 (9th ed. 2009).

(133.) Taylor, 436 U.S. at 487.

(134.) See id. at 485-86.

(135.) See Strawn & Buchanan, supra note 61, at 481.

(136.) Id.

(137.) Mitchell J. Frank & Dawn Broschard, The Silent Criminal Defendant and the Presumption of Innocence, 10 LEWIS & CLARK L. REV. 237, 259 (2006). The instruction provided in relevant part: "The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything." Id.

(138.) Id. at 245.

(139.) 397 U.S. 358, 363 (1970).

Casey Reynolds, J.D. Candidate, University of Alabama School of Law, 2013; B.A., St. John's College, Annapolis, Maryland, 2003.
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