The opinion
WELLIVER, Judge,
dissenting.
I respectfully dissent from the result and holding of the principal opinion that a defendant may not question a juror on voir dire concerning the juror’s definition of “reasonable doubt” for any purpose. Also, I respectfully disagree with the views of Bardgett, C. J., expressed in his dissenting opinion filed herein that a defendant may question a juror on voir dire concerning the juror’s definition of “reasonable doubt” for the purposes of formulating both challenges for cause and peremptory challenges.
While I agree that a party cannot use a juror’s preconceived definition of “reasonable doubt” as a basis for challenging a juror for cause, I believe that a defendant may question a juror concerning his definition of “reasonable doubt” for the purpose of formulating peremptory challenges. This is not a case in which the trial court refused questions that would serve neither the purpose of gathering information to support a challenge for cause nor the purpose of gathering information that might lead to a peremptory challenge. The trial court in this case refused to permit questions which would elicit information that might help the defendant identify those jurors he may desire to remove by peremptory challenge. I consider the trial court’s action in sustaining objections to these questions an abuse of discretion. I would reverse.
The precise questions to which objections were sustained in this case were: “What does the term ‘beyond a reasonable doubt’ mean to you?” “What is your [preconceived] notion [as to what the term ‘reasonable doubt’ means]?” “Do you have a notion that [‘reasonable doubt’] means a mere probability — ?” The issue presented is whether questions on voir dire that seek to determine a juror’s definition of “reasonable doubt” could further either of the two purposes of voir dire examinations: (a) that of gathering information to support a challenge of the juror for cause, or (b) that of gathering information that might lead to a peremptory challenge of the juror. “The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.” State v. Brown, 547 S.W.2d 797, 799 (Mo. banc 1977); State v. Granberry, 484 S.W.2d 295, 299 (Mo. banc 1972) (citing cases); State v. Mann, 83 Mo. 589, 599 (1884).
The principal opinion speaks of the public policy of this state as it is expressed in MAI-CR 2.20 and State v. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979). The principal opinion states that Missouri’s instructions, rules and case law express a policy “that reasonable doubt is not to be further defined by the court, let alone by a juror.” 1 The policy reflected in MAI-CR 2.20 is the policy against complicating instructions unnecessarily and confusing jurors. 2 The pro *233 scription against defining “reasonable doubt” in jury instructions is based on the belief that the terms cannot be usefully defined in other terms.
The Notes on Use to MAI-CR 2.20 do not disapprove a juror’s having a preconceived notion of the meaning of “reasonable doubt” — it depends on it. The proscription against defining “reasonable doubt” assumes that jurors, as speakers of the language, know the ordinary usage of the terms, and could not be aided by a court’s reformulation of the standard in other terms. No formulation in more basic terms is possible. The phrase “reasonable doubt” is itself so irreducibly basic that definition in terms of something else could not enlighten but would only confuse. 3 Forbidding a jury instruction defining “reasonable doubt” not only avoids confusing the jury, it prevents the court from being drawn into unsolvable disputes about the prejudicial effect of deviations from a standard definition of that phrase.
The belief that “reasonable doubt” cannot be usefully defined also underlies the court’s reluctance to attempt to judge the adequacy of the definition of “reasonable doubt” in contexts other than that of jury instructions. If information concerning a juror’s definition of “reasonable doubt” could form the basis of a challenge for cause, this Court could not long postpone *234 questions concerning the adequacy of the juror’s definition of “reasonable doubt”. There are four possibilities to consider. To rule that it is not error to deny or that it is error to grant a challenge for cause of a juror based on the juror’s preconceived definition of “reasonable doubt” is to determine that the juror’s definition was adequate; to rule that it is not error to grant or that it is error to deny a challenge for cause of a juror based on the juror’s definition of “reasonable doubt” would be to disapprove the juror’s definition. Making each of these judgments would require the Court to establish a standard definition of “reasonable doubt” against which to compare a juror’s definition to determine whether it is so extreme as to be prejudicial. Positing such a standard definition and weighing the prejudicial impact of a juror’s deviation from it would draw the Court back into the complexity and confusion that the Notes on Use to MAI-CR 2.20 were designed to avoid. I believe that the wisest course is to avoid passing on the adequacy of a juror’s preconceived notion of “reasonable doubt” altogether. Because permitting a juror to be challenged for cause based on the juror’s definition of “reasonable doubt” would require the courts to formulate a model definition of “reasonable doubt”, and because courts are no better able to avoid confusion than are jurors when they undertake to define “reasonable doubt” in terms of something else, I do not believe that a challenge of a juror for cause should ever be granted solely on the basis of the juror’s preconceived definition of “reasonable doubt”. This is not to say that a challenge of a juror for cause could not be based on answers indicating an unwillingness to obey the court’s instructions on, e. g., the state’s burden of proof, or an answers that provide other evidence of bias.
The challenge for cause is not the only device by which a defendant can participate in the selection of his jury, however. The right to use peremptory challenges is granted by statute. § 546.180, RSMo 1978. The second purpose of voir dire is to permit a defendant to make informed peremptory challenges. The questions which the defendant sought to ask in this case could have furthered this second purpose. The trial court’s refusal of questions on voir dire relating to preconceived notions as to the meaning of “reasonable doubt” went well beyond recognition of the futility of attempting to define a legal standard for reasonable doubt. This refusal amounted to a denial that such questions could elicit information that would be useful to a defendant in identifying jurors that he would want to include in his peremptory challenges. I think that such a limitation violates the principle that broad examination is permitted in voir dire. “Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias.” Brown, 547 S.W.2d at 799 .
Conceivably, a very tall or very fat person charged with a crime might want to determine whether prospective jurors were hostile toward tall people or fat people. A defendant with shifty eyes and a heavy beard might desire to use his peremptory challenges to remove prospective jurors who harbor latent prejudices against people with shifty eyes or heavy beards. It would not be appropriate for a trial judge to so limit a defendant’s inquiry on voir dire that he could not elicit information about such prejudices, even though such petty biases might not support a challenge for cause. Accordingly, if a defendant wishes to use the peremptory challenge device to remove a prospective juror who entertains a notion of “reasonable doubt” that the defendant believes might decrease his chances of winning a verdict, he should be permitted to do so. A defendant should not be hampered in his inquiry into a juror’s preconceived notion of “reasonable doubt” for the purpose of informing himself whether he should challenge the juror peremptorily.
The right of a defendant to inquire as to a juror’s preconceived notion of the meaning of the phrase “reasonable doubt” for the purpose of making peremptory jury challenges requires that the judgment be reversed and the cause remanded for a new trial.
. Thjs statement, coming at a pivotal point in the principal opinion, is somewhat opaque. If this statement means that the policy against defining “reasonable doubt” in jury instructions also forbids a juror to come to the courtroom with a preconceived definition of “reasonable doubt,” articulated or intuitive, I must disagree. It is because jurors are presumed to have an understanding of the phrase that a definitional instruction is considered unnecessary.
. The policy underlying the rule against submitting a definition of “reasonable doubt” in jury instructions is evidenced in the authorities collected in Richardson, “Charge not Evidence, Presumption of Innocence; Burden of Proof; Reasonable Doubt” part III, p. 12, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1974):
[0]ur courts have on several occasions held that it is impossible satisfactorily to define “reasonable doubt” and that attempts to do so are more likely to confuse than to enlighten. “In the nature of things it must be left largely to the trier of the facts. Reasonable doubt is reasonable doubt and that is about *233 all that can be said in regard to it.” State v. Talmage, 107 Mo. 543 , 17 S.W. 990 (1891). “The attempts of the courts to make the definition of ‘reasonable doubt’ by paraphrases more intelligible to juries are futile. We may change the form of the instruction, but we do not, and indeed cannot, remove the difficulty. As soon as a person formulates a definition in the clearest and most prespica-cious language he is master of, he has at once an irresistible desire to define the definition, and the more verbose the definition is the more ambiguous it is, as a rule.” State v. Wells, 111 Mo. 533 , 20 S.W. 232 (1892). “It is difficult to explain simple terms like ‘reasonable doubt’ so as to make them plainer. 1 Bish.Crim.Proc., section 1094. Every attempt to explain them renders an explanation of the explanation necessary.” State v. Robinson, 117 Mo. 649 , 23 S.W. 1066 (1893). “Every man who has sufficient intelligence to sit upon a jury in a trial of a felony case knows the meaning of ‘reasonable doubt’, and definitions of it tend to confuse rather than enlighten.” State v. Bond, 191 Mo. 555 , 90 S.W. 830 (1905). “It is doubtful, as this court has repeatedly held, whether the defining of reasonable doubt tends toward clarity or the reverse thereof, it is just a little like the gilding of fine gold.” State v. Shaffer, 253 Mo. 320 , 161 S.W. 805 (1913). See also State v. Wells, Mo., 305 S.W.2d 457 (1957); State v. Lafferty, Mo., 416 S.W.2d 157 (1967); State v. Davis, 482 S.W.2d 486 (Mo. 1973), concurring opinion of Judge Seiler.
None of these cases hold that a juror may not define reasonable doubt. On the contrary, the “fine gold” which a definition of reasonable doubt would seek to “gild” is the juror’s understanding of the use of the phrase in ordinary language.
. State v. Bond, 191 Mo. 555, 564 , 90 S.W. 830, 833 (1905). “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” Holland v. United States, 348 U.S. 121, 140 , 75 S.Ct. 127, 138 , 99 L.Ed. 150 (1954); Miles v. United States, 103 U.S. 304, 312 , 26 L.Ed. 481 (1880). A definition of “reasonable doubt” customarily offered in federal courts reads in part:
It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 11.14 (3rd Ed. 1977). The definition that was approved for over a hundred years in Missouri may be found in State v. Nueslein, 25 Mo. Ill, 124 (1857):
If you have a reasonable doubt of defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant’s guilt, and not a mere possibility of his innocence.
This definition has been criticized on at least four grounds: that it appears to shift the burden of proof to the defendant; that it is inaccurate because “reasonable” and “substantial” are not synonymous; that it is confusing to a jury because it states what “reasonable doubt” is not; and that it is argumentative, minimizing the state’s duty. Richardson, supra note 2, at 10-11. See, State v. Davis, 482 S.W.2d 486, 490 (Mo. 1973) (Seiler, J., concurring).