holding that witness bias instruction is not required, especially when “it has been made clear to the jury that it is permitted to disbelieve testimony to the extent it finds that the testimony was driven more by a self-serving desire for leniency than a sense of duty to tell the truth”; and noting that this Court has never held that it is error per se for a trial court to refuse to give such a bias instruction even when requested
How later courts described this case
- holding that witness bias instruction is not required, especially when “it has been made clear to the jury that it is permitted to disbelieve testimony to the extent it finds that the testimony was driven more by a self-serving desire for leniency than a sense of duty to tell the truth”; and noting that this Court has never held that it is error per se for a trial court to refuse to give such a bias instruction even when requested
- finding that defense counsel opened door to mention of defendant’s failure to testify when he attacked credibility of prosecution’s only witnesses besides defendant
- upholding a reasonable doubt instruction because although part of the instruction was erroneous, “this defect was counterbalanced by the explanation that preceded and succeeded it”
- prosecutor did not violate 5th amendment by stating in his closing argument that “[the defendant] captained that boat from Jamaica, and the 14 only people who would know that [the defendant] captained that boat from Jamaica are [the defendant], Conrad Brown, Irvin Reid, and that fourth individual in Jamaica. Those are the only people”
Written by the judges who cited it.
The opinion
McKEE, Circuit Judge,
concurring.
I concur in the judgment and the opinion of the majority. I write separately, however, to express my concern over the district court's "two-inference" jury instruction on reasonable doubt. In defining "reasonable doubt," the district court instructed the jury:
Reasonable doubt is a term often used, probably well understood, but not easily defined. Reasonable doubt is what the term implies. The doubt must be reasonable. . . . The government is not required to produce evidence that will exclude every possibility of a defendant's innocence. It is only *483 required to prove his guilt beyond a reasonable doubt, not beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a fair doubt, based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. . . .
While bearing in mind that it is rarely possible to prove anything to an absolute certainty, you must remember, as well, that a defendant must never be convicted on mere assumption, conjecture or speculation. So if the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury should, of course, adopt the conclusion of innocence.
. . . But if, after considering all of the evidence and giving the accused the benefit of a reasonable doubt, both as to the evidence presented or the lack of evidence, you are led to the conclusion that he is guilty, you should so declare by your verdict.
I agree with the majority that these instructions, taken as a whole, accurately conveyed the concept of reasonable doubt to the jury. In fact, the Supreme Court has expressly approved some of the language in the district court's charge. See, e.g., Holland v. United States, 348 U.S. 121, 140 (1954) ("We think [the reasonable doubt] charge should have been in terms of the kind of doubt that would make a person hesitate to act."). Therefore, I am satisfied that this approved language and other portions of the charge mitigated any harm that flowed from the language suggesting that conviction was appropriate if the jurors concluded that one inference was merely more likely than the other.
Isaac's trial preceded this Court's decision in United States v. Jacobs, 44 F.3d 1219 (3d Cir.), cert. denied, 115 S. Ct. 1835 (1995), where we joined the Second Circuit in criticizing the two-inference language, see United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994); United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989); United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987), and stated that district courts should not use that language "when it is specifically brought to the attention of trial judges in future cases," Jacobs, 44 F.3d at 1226 . This trial court did not have the advantage of that *484 guidance. Here, I write separately to reiterate that district courts should refrain from using the two-inference language, especially when, as here, the defendant objects to the language.
The two-inference language standing alone "may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt." Khan, 821 F.3d at 93; see also Inserra, 34 F.3d at 91 (same); Attanasio, 870 F.2d at 818 (same). The language suggests that the government merely has to prove guilt by a preponderance of the evidence, the "least demanding standard." Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 534 (3d Cir. 1996), cert. denied, 117 S. Ct. 1311 (1997). That standard is usually "appropriate to a typical civil case involving a monetary dispute between private parties." Id. (internal quotations omitted). Because society's stake in the outcome of this type of case is "minimal," "it is appropriate to [apply] a standard that allocates the risk of error between the litigants 'in roughly equal fashion.'" Id. at 534-35. The same is not true of criminal cases for which the standard proof beyond a reasonable doubt is reserved; "society wishes to 'exclude as nearly as possible the likelihood of an erroneous judgment.'" Id. at 535.
Another problem with the two-inference language is that it "does not go far enough." Khan, 821 F.2d at 93 . "It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt." Id.
Hopefully, courts will refrain from including the two-inference language in their charges to the jury in the future. The language does not aid in clarifying the elusive concept of reasonable doubt which, as the district court below recognized, "is a term often used, probably well understood, but not easily defined." Indeed, rather than clarifying the concept, the language will often create a substantial risk of a criminal conviction based only upon a preponderance of proof.