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Reasonable doubt: uncertainty about 'moral certainty' continues.

In In re Winship (397 U.S. 358 (1970)), the Supreme Court held that due process requires that the prosecution establish the elements of a charged crime beyond a reasonable doubt.

What exactly is the difference between a reasonable doubt and an unreasonable doubt? In Victor v. Nebraska (114 S. Ct. 1239 (1994)) and a companion case, Sandoval v. California, the Supreme Court attempted to shed some light on the distinction between the two.

In each case, a jury convicted the defendant of murder; each was sentenced to death. Each defendant challenged the trial court's instructions to the jury regarding reasonable doubt. In Sandoval, the judge told the injury that

a defendant in a critical action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs, and depending an 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. at 1244 (emphasis added by the Supreme Court).) Sandoval argued that the references to "moral evidence" and "moral certainty" undermined the constitutionality of the instruction. The Supreme Court, per Justice Sandra Day O'Connor, disagreed.

The Court traced the history of the California instruction to an opinion by Lemuel Shaw, the great 19th century chief justice of the Supreme Judicial Court of Massachusetts. (See id. at 1245-46; Commonwealth v. Webster, 59 Mass. 295, 320 (1850).) Writers on evidence in the late 18th and early 19th centuries, the Court observed, distinguished "moral evidence" from "demonstrative evidence."

Nowadays "demonstrative evidence" refers to the performance of an experiment before the jury, and "moral evidence" has no common referent at all. But in those days the difference tracked the distinction between inductive and deductive reasoning. "Demonstrative evidence" was based on immutable features of nature, like the laws of physics, logic, or mathematics. "Moral evidence" was every other kind of evidence. In Shaw's vocabulary, any inference coming from human experience was based on "moral evidence."

Sandoval argued that this anachronistic vocabulary invited the jury to convict on constitutionally inadequate evidence or, worse, on the basis of prejudice strong enough to count as "moral certainty." Justice O'Connor expressed some concern that the "moral certainty" language might "mean something less than the very high level of probability required by the Constitution in criminal cases" (114 S. Ct. 1239, 1247) but in the end found that the charge as a whole satisfied constitutional standards. In particular, the charge required the jurors to entertain "an abiding conviction" based on "consideration of all the evidence" of Sandoval's guilt before voting to convict. (See id. at 1257-48.)

The Victor Instruction

In the Victor case, the trial judge instructed the jurors that

"reasonable doubt" is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from financial conjecture.

(Id. at 1249 (emphasis added by the Supreme Court).) As in Sandoval, the Court upheld the constitutionality of the instructions.

Victor argued that equating reasonable doubt with a "substantial" doubt understated the degree of confidence required for conviction. The Court agreed that this language was "problematic" (id. at 1250) but again looked to the charge as a whole to provide context for the challenged language. "Substantial doubt" was contrasted with "fanciful conjecture," and this juxtaposition sufficed to impress the appropriate standard on the minds of the jurors. (See id.)

The majority also found support for the constitutionality of the instruction in that part of the charge equating reasonable doubt with cause for hesitation in the "graver and more important transactions of life." The hesitate-to-act instruction "is a formulation we have repeatedly approved.... [T]o the extent the word substantial denotes the quantum of doubt necessary for acquittal, the hesitate to act standard gives a common-sense benchmark for just how substantial such a doubt must be." ( Id.)

Justices Harry Blackmun and David Souter agreed with the majority's analysis in Sandoval but dissented in Victor. In their view, there can be reasonable doubts that are not "substantial," relying on Cage v. Louisiana. (498 U.S. 39 (1990) (per curiam).)

The Cage instructions had used the language of "moral certainty." But they also included a fatal admonition that reasonable doubt "must be such a doubt as would give rise to grave uncertainty." (Id. at 40 (emphasis added by the Supreme Court).)

Requiring the defense to raise a "grave uncertainty" of guilt is a very different matter than requiring the defense to raise a reasonable doubt. The dissenters' reliance on Cage therefore seems to be misplaced.

None of the justices, however, was happy with the instructions given in Victor and Sandoval. The majority expressly refused to "condone" use of the "moral certainty" language. (114 S. Ct. 1239, 1248.) Justice Anthony Kennedy, concurring, could not "understand ... why such an unruly term should be used at all." (Id. at 1251 (Kennedy, J., concurring).) Disclaiming any "supervisory power over the state courts," the majority, in effect, found the challenged instructions dose enough for government work. (Id. at 1248.)

Members of the California or Nebraska bar might well take umbrage at this characterization. The instructions given in Victor and Sandoval were standard ones, adopted after extensive study. Justice Kennedy is surely right that the California instruction uses hidebound language. justice Ruth Bader Ginsburg may be right that the hesitate-to-act formula falsely analogizes the criminal jury's retrospective inquiry to the prospective inquiry of a future bride or homebuyer. (See id. at 1252 (Ginsburg, J., concurring).) But what's the trial judge supposed to do?

The majority apparently approved of the Federal Judicial Center's pattern instruction (see id. at 1248), which Justice Ginsburg expressly defended (see id. at 1253). The Court noted that the instruction contrasts being "firmly convinced of the defendant's guilt" with thinking that "there is a real possibility that he is not guilty." (See id. at 1253.)

This approach omits any arcane references or questionable analogies, but it also seems to reduce the government's burden of proof. We have all been "firmly convinced" and quite mistaken; we have all discounted any "real possibility" of events that turn out to have occurred. At least two federal courts of appeals discourage the use of any reasonable doubt instruction, precisely because "definitions tend to impermissibly lessen the burden of proof." (United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991); see also United States v. Hall, 854 F.2d 1036, 1039 (7th Cir. 1988).)

What to Do?

Giving no instruction on reasonable doubt, however, has problems too. The jury may acquit on the basis of an extremely far-fetched hypothesis of innocence. There might be jurors who have served on civil juries in the past who could be prone to confuse the criminal standard with its civil counterpart. In any event, juries sometimes ask for a definition of reasonable doubt during the course of their deliberations.

The Justices no doubt had in mind the difficulties plaguing any of the alternative definitions of reasonable doubt when they upheld the convictions in Victor and Sandoval. If one definition were fully satisfactory, a majority would have thrown out the less-than-perfect instructions given in these cases. But it does not follow that the difficulties of crafting an instruction immunize reasonable doubt charges from constitutional challenge.

The majority cautioned that "trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires." (114 S. Ct. 1239,1251.) Trial judges, legislatures, and bar commissions responsible for converting this somewhat Delphic pronouncement into actual instructions can derive at least some guidance from the Court's most recent decisions concerning the issue of reasonable doubt.

Safe Harbors

First, there are at least two apparently safe harbors for the trial judge. The first is to adopt the federal pattern jury instructions. In the course of condemning the California instruction as unwise but not as unconstitutional, the Court contrasted the "moral certainty" language with that of both the Federal Judicial Center and the Devitt and Blackmar pattern instructions. (See id. at 1248 (citing Federal Judicial Center, Pattern Criminal Jury Instructions 28 (1988)) and 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions [sections] 11.14 (3d ed. 1977).)

Justice Ginsburg strongly endorsed the Federal Judicial Center instruction, and none of the justices took issue with her characterization of it as the best available. It would seem to follow that the state courts can count on the constitutionality of that instruction's language.

Second, the majority described the hesitate-to-act instruction as one "repeatedly approved" by the Court's decisions. (114 S. Ct. 1239,1250 citing Holland v. United States, 348 U.S. 121 (1954), and Hopt v. Utah, 120 U.S. 430 (1887).) Both Holland and Hopt were federal cases in which the issue was presented as a question of practice rather than of constitutionality. In both cases the Court refused to reverse the convictions returned following a hesitate-to-act instruction.

The Hopt Court stated that the reasonable doubt rule

may be, and often is, rendered obscure by attempts at definition, which serve to create doubts instead of removing them. But an illustration ... by reference to the conviction upon which the jurors would act in the weighty and important concerns of life, would be likely to aid them to a right conclusion, when an attempted definition might fail. (120 U.S. 430,440-41.)

Success Formula

The majority in Victor concluded that the hesitate-to-act language rescued the otherwise dubious "moral certainty" language from constitutional attack. From this it would seem that the hesitate-to-act formula is as constitutionally sound as references to "moral certainty" are constitutionally hazardous.

State trial courts would be well-advised to abandon any references to moral certainty in their instructions and to adopt either the Federal Judicial Center instruction on how to establish the elements of a charged crime beyond a reasonable doubt or some version of the hesitate-to-act approach.
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Author:Dripps, Donald A.
Date:Jul 1, 1994
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