“we must again reiterate that the instruction as stated in California Jury Instruction 2.90 ... is preferred and is the one that all courts in Idaho should use in a criminal case”
How later courts described this case
- “we must again reiterate that the instruction as stated in California Jury Instruction 2.90 ... is preferred and is the one that all courts in Idaho should use in a criminal case”
Written by the judges who cited it.
The opinion
BAKES, Justice,
concurring specially:
I concur with the majority that there was no prejudicial error in this case and the judgment should be affirmed. I question, however, the Court’s carte blanche approval of the California jury instruction number 2.90 set out in footnote 1, ante at 74. That instruction has its own problems. As an example, the instruction states that everything relating to human affairs, and depending on “moral evidence,” is open to some possible or imaginary doubt. I have always thought that the use of the word “moral” in that part of the instruction was a typographical error which had been blindly perpetuated throughout the years. I was surprised to find the phrase “moral evidence” defined in Black’s Law Dictionary (5th ed.), p. 909, as:
“As opposed to ‘mathematical’ or ‘demonstrative’ evidence, this term denotes that kind of evidence which, without developing an absolute and necessary certainty, generates a high degree of probability or persuasive force. It is founded upon analogy or induction, experience of the ordinary course of nature or the sequence of events, and the testimony of men.”
We do not instruct the jury on the definition of “moral evidence” and it is well that we don’t; otherwise the jury might conclude that a reasonable doubt can only be raised by “moral evidence,” and not by the other kinds, /. e., “mathematical” or “demonstrative” evidence. If we are going to adopt the California jury instruction in Idaho, we ought to excise the word “moral” in front of the word “evidence.”
The instruction then goes on to advise the jury that there is a reasonable doubt if 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.” There certainly is a question whether a jury is any better informed by equating a lack of reasonable doubt with “an abiding conviction, to a moral certainty, of the truth of the charge,” as the California jury instruction provides, rather than by defining reasonable doubt as “the same kind of doubt interposed in the graver transactions of life [which] would cause a reasonable and prudent man to hesitate and pause,” as the trial court instructed in this case.
It is problematical whether a jury would be helped any more by giving one than the other, and it may well be that the words themselves, “reasonable doubt,” have a clearer meaning than the definition set out in either instruction. This no doubt accounts for those cases cited in footnote 3 of the majority opinion, ante at 75, which state that either it is error for a trial judge to attempt to define reasonable doubt, or that it is not error to fail to define the term. As the Wyoming Supreme Court recently observed:
“[T]he term ‘reasonable doubt’ need not be defined and a trial court would be well-advised to avoid instructions on rea *580 sonable doubt. Therefore, an instruction purporting to define reasonable doubt should not be given.
“We again reviewed the matter of giving a reasonable-doubt instruction in Bentley v. State, Wyo., 502 P.2d 203, 206 . In that case we said the phrase ‘reasonable doubt’ is self-explanatory and definitions do not clarify its meaning but rather tend to confuse the jury.” Cosco v. State, 521 P.2d 1345, 1346 (Wyo.1974).