Amicus Curiae Brief — Sandoval v. California

-*!!__-.... m

Miyreme Court, Wa

FILED

on

Nos. & 92-9049

—— Toa | |

Iu the Supreme Court of the United Betya"* cers

OCTOBER TERM, 1993

CLARENCE VICTOR, PETITIONER

Vv.

STATE OF NEBRASKA

ALFRED ARTHUR SANDOVAL, PETITIONER

Vv.

STATE OF CALIFORNIA

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA AND

THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

Drew S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202)514-2217

BEST AVAILABLE COPY)

QUESTION PRESENTED

Whether the jury instructions given in these cases

on the meaning of reasonable doubt violated the Due

Process Clause.

(1)

—— ee

TABLE OF CONTENTS

Interest of the United States sss sists | 1

a cssnsanbenambuauseuenananens 2

Suminary of argument 4

Argument:

The jury instructions given in these cases on the

meaning of reasonable doubt did not violate the Due

Process Clause | 5

A. The Due Process Clause does not require a trial

court to define for the jury the meaning of “rea-

sonable doubt” —=ss_—ss sees : 6

B. The Due Process Clause tolerates a range of

definitions of “reasonable doubt” __. . | 11

C. This Court’s decision in Cage v. Louisiana does

not require reversal of the judgments below 16

Conclusion 23

Appendix SEN ST ee la

TABLE OF AUTHORITIES

Cases:

Agnew V. United States, 165 U.S. 36 (1897) 20

Apodaca V. Oregon, 406 U.S. 404 (1972) 6

Becher V. United States, 5 F.2d 45 (2d Cir. 1924),

cert. denied, 267 U.S. 602 (1925) 11-12

Platt Vv. United States, 60 F.2d 481 (3d Cir. 1932) 7

Poude V. California, 494 U.S. 370 (1990) 22

Brewer V. Williams, 430 U.S. 387 (1977) __. 19

Rumpus V. Gunter, 635 F.2d 907 (1st Cir. 1980),

cert. denied, 450 U.S. 1008 (1981) = 16

Cage V. Louisiana:

498 U.S. 39 (1990) | 5, 6, 16, 17, 18, 22

554 So, 24 39 (1989) es Ee 17

City of Canton Vv. Harris, 489 U.S. 878 (1989) 19

Commonwealth V. Costley, 118 Mass. 1 (1875) 6

(111)

Iv Vv

Cases—Continued: Page Cases—Continued: Page

Commonwealth Vv. Webster, 59 Mass. (5 Cush.) 295 United Staes v. Blackburn, 992 F.2d 666 (7th Cir.),

(1850) 12, 18, 20 cert. denied, 114 S. Ct. 393 (1993) sss 8

Donnelly Vv. State, 26 N. LL. 601. ae: 57) re 18 United States v. Dale, 991 F.2d 819 (D.C. Cir.),

Dunbar Vv. United States, 156 U.S. 185 (1895) 7,13 cert. denied, 114 S. Ct. 286 (1993)... s«éi2S Ba

Estelle Vv. McGuire, 112 S. Ct. 475 (1991) 22 United States v. Daniels, 986 F.2d 451 (11th Cir.

Fidelity Mutual Life Ass'n Vv. Mettler, 185 US. le a ben aed 15, 2a-3a

308 (1902) ees 19 United States v. Edelin, 996 F.2d 1238 (D.C. Cir.

Francis Vv. Franklin, 471 U. S. 307 (198: 5) =raes 22 SEY sescuisedehemcsnenninieitetticstabetmnihiec entities eS 15

Friedman Vv. United States, 381 F.2d 155 (8th Cir. United States v. Glass, 846 F.2d 386 (7th Cir.

RRC SEE <r Wie ae Si 7 1988) | a a a 7-8

Gaskins v. McKellar, 916 F.2d 941 (4th Cir. 1990), United States v. Goodlett, 3 F.3d 976 (6th Cir.

cert. denied, 111 S. Ct. 2277 (1991) 15 TET rere See nN ee Er ae la

Holland Vv. United States, 348 U.S. 121 (1954) 7, 12,14 l'nited States v. Hall, 854 F.2d 1036 (7th Cir.

Hopt v. Utah, 120 U.S. 430 (1887) 7, 13,19 EEE Sap ORS a SO a 9, 16

Jackson V. Virginia, 443 U.S ae (1979) », 12, 21 United States v. Harris, 974 F.2d 84 (8th Cir.

Johnson V. Louisiana, 406 U.S. 356 (1972) __ 13 ERE SGA eh Pl Sea ae aan 15

Leecan V. Lopes, 893 F.2d oe (2d Cir.), cert. United States Vv. ‘Tek it, 700 F.2d 51 (2d Cir. 1983). . 8,10

denied, 496 U.S. 929 nr a i ittdieens 15 United States Vv. Jorge, 865 F.2d 6 (1st Cir.), cert.

McCleskey Vv. Kemp, 481 U.S. 279 (1987) 19 denied, 490 U.S. 1027 (1989) ————i . 15-16

Medina V. California, 112 S. Ct. 2572 (1992) 9 United States v. Moss, 756 F.2d 329 (4th Cir.

Miles Vv. United States, 103 U.S. 304 (1880) 7,19 1985) .......... Ee a ee TR ee SE Oe 8

Nanfito v. United States, 20 F.2d 376 (Sth Cir. United States v. Nolasco, 926 F.2d 869 (9th Cir.),

1927) ............ 7 cert. denied, 112 S. Ct. 111 (1991) 8

Patterson Vv. New York, 432 U Ss. 197 (1977) 9 United States v. Olmstead, 832 F.2d 642 (1st Cir.

Perovich v. United States, 205 U.S. 86 (1907) 20 1987), cert. denied, 486 U.S. 1009 (1988) 8

Schencks v. United States, 2 F.2d 185 (D.C. Cir. United States v. Polan, 970 F.2d 1280 (3d Cir.

ES eee aeees 7 1992), cert. denied, 113 S. Ct. 1367 (1993) 15

Schneble v. Florida, 105 U S. 427 (1972) 19 l’nited States v. Regilio, 669 F.2d 1169 (7th Cir.),

Smith v. Bordenkircher, 718 F.2d 1273 (4th Cir. cert. denied, 457 U.S. 1133 (1982) 16

1983), cert. denied, 466 U.S. 976 (1984) 16 United States Vv. Russell, 971 F.2d 1098 (4th Cir.

State v. Hammonds, 85 S.F..2d 133 (N.C. 1954) 18 1992), cert. denied, 113 S. Ct. 1013 (1993). x

State v. Ostrander, 18 Iowa 435 (1865) _ iaiees 7 United States v. Taylor, 997 F.2d 1551 (D.C. Cir.

State v. Sauer, 38 N.W. 355 (Minn. 1888) 6 I ER cee ae. ie ....... 1-8, 14

Taylor Vv. Kentucky, 436 U.S. 478 (1978) 14 Universal Camera Corp. v. NLRB, 340 US. 474

Thompson V. Lynaugh, 821 F.2d 1054 (5th Cir.). ae aoe 21

cert. denied, 483 U.S. 1035 (1987) 8 Watkins v. Ponte, 987 F.2d 27 (ist Cir. 1993) ce 15

United States v. Alonzo, 681 F.2d 997 (5th Cir.). Whiteside Vv. Parke, 705 F.2d 869 (6th Cir.), cert.

cert. denied, 459 U.S. 1021 (1982) la denied, 464 U.S. 843 (1983) - 8-9

United States v. Barrera-Gonzales, 952 F.2d 1269 Williams v. United States, 271 F.2d 703 (4th Cir.

(10th Cir. 1992) 0000 ; 15 1959) _ RES EI LITE SE ee a 7

VI

Cases—Continued:

Wilson Vv. United States, 222 U.S. 563 (1914)

Winship, In ve, 397 U.S. 358 (1970)

Constitution:

U.S. Const.

Due Process Clause _. aa SS

Miscellaneous:

Cornish & Sealy, Juries and the Rules of Evidence.

1973 Crim. L. Rev. 208

1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley,

Federal Jury Practice & Instructions (Ath ed.

1992) ..

Federal Criminal Jury Instructions of the Ser e nth

Circuit (1980)

Kerr, Atkin, Stasser, Meek, Holt, & Davis is, Guilt

Beyond a Reasonable Doubt: Effects of Concept

Definition and Assigned Decision Rule on the

Judgments of Mock Jurors, 34 J. Personality &

Soc. Psychology 282 (1976)

Kramer & Koenig, Do Jurors U understand Crimi-

nal Jury Instructions? Analyzing the Results of

the Michigan Juror Comprehension Project, 23

U. Mich. J.L. Ref. 401 (1990) |

1 W. LaFave & A. Scott, Substantive Criminal Law

| I EE... a

Manual of Model Criminal Jury Instructions for

the District Courts of the Eighth Circuit

SE aR SY oe aE a

Manual of Model Crimiant Jury Sustractions fer

the Ninth Circuit (1992) ;

2 C. McCormick, Evidence (J. Strong ed. 4th ed.

1992) . 7 LER

Model Penal Code (1985) .

Morano, A Reeramination of the Development. of

the Reasonable Doubt Rule, 55 B.UAL. Rev. 507

la ei

Severance & Loftus, Improving the Ability of

Jurors to Comprehend and Apply Criminal Jury

Instructions, 17 Law & Soc’y Rev. 153 ( 1982)

Page

19, 20

16,17

10

da

10

6, 18

11

VII

Miscellaneous—Continued:

Shapiro, “To a Moral Certainty’: Theories of

Knowledge and Anglo-American Juries 1600-

1850, 38 Hastings L.J. 153 (1986)

Underwood, The Thumb on the Scales of Justice:

Burdens of Persuasion in Criminal Cases, 86

Bale £5. UBDD (IGT) cececciceeeeeeeeeeee.

U.S. Eleventh Circuit District Judges Ass’n, Pat-

tern Jury Instructions, Criminal Cases (1985).

U.S. Fifth Circuit District Judges Ass’ n, Pattern

jury Instructions, Criminal Cases (1990) _

U.S. Sixth Circuit District Judges Ass’ n, Pattern

Criminal Jury Instructions ss See

9 J. Wigmore, Evidence (J. Chadbourn rev. ed.

DUNINE Lidbownnediniemeniimaatietiee: Gadeten omen

Young Lawyers Section of the Bar Association of

the District of Columbia, Criminal Jury Instrue-

nee es I ic an

Page

18

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-8894

CLARENCE VICTOR, PETITIONER

v.

STATE OF NEBRASKA

No. 92-9049

ALFRED ARTHUR SANDOVAL, PETITIONER

Vv.

STATE OF CALIFORNIA

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA AND

THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE UNITED STATES

As AMICUS CURIAE SUPPORTING KESPONDENTS

INTEREST OF THE UNITED STATES

The Due Process Clause requires the government

to prove a defendant’s guilt beyond a reasonable

doubt in every criminal case. The question of how

the reasonable doubt standard should be presented to

the jury will therefore affect every federal prosecu-

tion tried to a jury.

(1)

2

STATEMENT

1. Vietor v. Nebraska. Clarence Victor was con-

victed by a jury of murder in the first degree and was

sentenced to death. The Nebraska Supreme Court

affirmed petitioner’s conviction and sentence on direct

appeal, 457 N.W.2d 431 (1990), and this Court de-

nied certiorari, 498 U.S. 1127 (1991). Victor then

sought post-conviction relief, which was denied first

by the trial court and then by the Nebraska Supreme

Court. 494 N.W.2d 565 (1993). This Court granted

Victor's petition for a writ of certiorari on Septem-

ber 28, 1993. J.A. 44.

At trial, the court instructed the jury on the mean-

ing of reasonable doubt as follows, J.A. 11. (Ninth

Instruction) :

‘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 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 cer-

tainty 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 reason-

able doubt is an actual and substantial doubt

reasonably arising from the evidence, from the

facts or circumstances shown by the evidence, or

from the lack of evidence on the part of the

3

State, as distinevished from a doubt arising from

mere possibility, from bare imagination, or from

fanciful conjecture,

2. Sardoval y. California, Alfred Arthur Sandoval

was convicted by a jury on four counts of first de-

gree murder and on one count of attempted murder.

The jury sentenced him to death on one murder count

and to life imprisonment without the possibility of

parole on the remaining murder counts. The Califor-

nia Supreme Court affirmed petitioner’s convictions

and sentence. JA. 95-149. This Court granted the

petition for a writ of certiorari on September 28,

1995, and consolidated the case with Victor v. Ne-

braska, No, 92-8894, J.A. 151.

At the enilt phase, the trial court instructed the

juvyv on the meaning of reasonable doubt as follows,

J.A. 49:

A defendant in a criminal 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 preving him guilty beyond

a reasenable doubt.

Rensonable doubt is defined as follows: It is

not a mere possible doubt; because everything

relating to human affairs, and depending on

ioral evidence, is open to some possible or imagi-

nary doubt. Tt 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 mora! certainty, of

the truth of the charge,

At the penalty phase, the court similarly instructed

the jury as follows, J.A. 93:

4

As to any crime or criminal act of which de-

fendant is accused as a factor in aggravation, he

is presumed innocent until the contrary is proved

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 on

moral evidence, is open to some possible or imagi-

nary 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 any crime or criminal acts of which

defendant is accused used an aggravating ‘actor.

SUMMARY OF ARGUMENT

A. Due process does not require “reasonable doubt”

to be defined for juries. There has long been dis-

agreement over the wisdom of attempting to define

the term. This Court has said that attempts to ex-

plain the concept of reasonable doubt ordinarily do

not clarify it for the jury, and authorities such as

Dean Wigmore have concluded that attempted defini-

tions add nothing to the jury’s understanding of the

term and may be confusing.

B. Where courts choose to define reasonable doubt,

the Constitution does not require that a particular

jury instruction be given. Rather, due process toler-

ates a broad range of definitions. This Court has

approved definitions that characterize “reasonable

doubt” as “a doubt based on reason” and that define

“proof beyond a reasonable doubt” as proof to a

“moral certainty.” The lower federal courts tradi-

tionally have given trial courts broad latitude to de-

fine reasonable doubt, and some of them have drafted

5

model jury instructions, all of which differ to some

degree, and all of which permissibly define the term.

C. The jury instructions in this case do not run

afoul of Cage vy. Louisiana, 498 U.S. 39 (1990). The

principal vice of the jury instruction denounced in

Cage was the language equating a “reasonable doubt”

with a “substantial” doubt and with a “grave” doubt.

Neither the instruction used in Victor v. Nebraska

nor the instruction given in Sandoval v. California

made that erroneous equation. The use of the term

“moral certainty” was disapproved in Cage, but the

use of that term, in proper context, is not error.

This Court’s pre-Cage precedents have approved the

use of that term, and it is likely that, if anything,

jurors interpret that phrase to impose a heightened

standard for reasonable doubt, not a lower one.

ARGUMENT

THE JURY INSTRUCTIONS GIVEN IN THESE CASES

ON THE MEANING OF REASONABLE DOUBT DID

NOT VIOLATE THE DUE PROCESS CLAUSE

Under the Due Process Clause, no one may be con-

victed of a crime except upon proof beyond a reason-

able doubt of every element of a charged offense.

In re Winship, 397 U.S. 358 (1970); Jackson v.

Virginia, 448 U.S. 307 (1979). The question in these

cases is whether the jury instructions on the meaning

of the term “reasonable doubt” violated the Due Proc-

ess Clause by lightening the prosecution’s burden of

proof. In our view, the instructions did not have that

effect.

Proper analysis of this case involves three ques-

tions: The first question is whether the Due Process

6

Clause requires a trial court to define the reasonable

doubt standard for the jury. The second is how large

a range of definitions the Due Process Clause will

tolerate. The third is whether the jury instructions

given here fell beyond that range. In particular, the

issue is whether the Court’s per curiam opinion in

Cage v. Louisiana, 498 U.S. 89 (1990), requires that

the judgments below be set aside.

A. The Due Process Clause Does Not Require A Trial

Court To Define For The Jury The Meaning Of “Rea-

sonable Doubt”

1. The rule that criminal defendants must be

found guilty beyond a reasonable doubt “dates at

least from our early years as a Nation.” Jn re

Winship, 397 U.S. at 361; accord Apodaca y. Oregon,

406 U.S. 404, 412-418 & n.6 (1972) (plurality opin-

ion).’ By contrast, there has emerged no settled view

that reasonable doubt must be defined for juries.

See, e.g., 9 J. Wigmore, Evidence § 2497, at 405 (I.

Chadbourn rev. ed. 1981); 1 W. LaFave & A. Scott.

Substantive Criminal Law §1.8(f), at 80 (1986).

During the 19th century, some courts attempted to

define reasonable doubt, while others concluded that

it was unwise to do so. Compare, e.g., Commonaealth

v. Costley, 118 Mass. 1, 24 (1875) (aitemptine to

define reasonable doubt) (Gray, C.J.), with State vy.

Sauer, 38 N.W. 355, 356 (Minn. 1888) (“The term

‘In this country, the reasonable doubt rule dates back per-

haps as far as 1770 and received widespread application by

the mid-19th century. Morano, A Reewsamination of the De-

velopment of the Reasonable Douht Rule, 55 BULL. Rev. 507,

515-524 (1975); Underwood, The Thumb on the Scales of

Justice: Burdens of Persuasion in Criminal Cases, 86 Yale

L.J. 1299, 1301-1302 & n.9 (1977).

7

‘reasonable doubt’ is almost incapable of any defini-

tion which will add much to what the words them-

selves imply.”) (Mitchell, J.) ; see State v. Ostrander,

18 lowa 435, 458-459 (1865).

This Court’s precedents dispel any notion that the

Constitution requires a court to define reasonable

doubt for the jury. In Miles v. United States, 103

U.S. 504, 312 (1880), the Court stated that “‘Talt-

tempts to explain the term ‘reasonable doubt’ do not

usually result in making it any clearer to the minds

of the jury.” The Court has reaffirmed that view on

several occasions. See Holland vy. United States, 348

U.S. 121, 140 (1954); Dunbar v. United States, 156

U.S. 185, 199 (1895); see also Hopt vy. Utah, 120

U.S. 450, 440 (1887) (“an instruction to the jury

that they should be satisfied of the defendant’s guilt

beyond a reasonable doubt [has] often been held suffi-

cient, without further explanation”),

2. Some authorities from earlier in this century

hold (or state in dictum) that it is error for a trial

court not to define reasonable doubt for the jury.

see Friedman vy. United States, 381 F.2d 155, 160

(Sth Cir. 1967) (dictum); Williams v. United States,

271 F.2d 703, 705 (4th Cir. 1959) (dictum); Blatt

v. United States, 60 F.2d 481, 481 (3d Cir, 1932);

Navfito vy. United States, 20 F.2d 576, 3878 (8th Cir.

1927); Scheneks v. United States, 2 F.2d 185, 187

(D.C. Cir. 1924). That view, however, is not the

modern understanding.

The current state of the law in the federal] system

is as follows: Three circuits take the view that the

trial judge should not define reasonable doubt for the

jury, since the definition is likely to add little to the

jury’s understanding of the concept and may in some

instances lead to jury confusion. See United States v.

8

Glass, 846 F.2d 386, 387 (7th Cir. 1988) ;* United

States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985) ; *

Thompson v. Lynaugh, 821 F.2d 1054, 1060-1061

(5th Cir.), cert. denied, 483 U.S. 1035 (1987). Five

other courts of appeals have held that it is not error

for a district court to refrain from defining a “rea-

sonable doubt.” See United States v. Taylor, 997 F.2d

1551, 1557-1558 (D.C. Cir. 1993) >* United States y.

Nolasco, 926 F.2d 869, 872 (9th Cir.) (en banc),

cert. denied, 112 S. Ct. 111 (1991): United States y.

Olmstead, 832 F.2d 642, 646 (1st Cir. 1987), cert.

denied, 486 U.S. 1009 (1988): United States y. vie,

700 F.2d 51, 68-69 (2d Cir. 1983); ef. Whiteside v.

Parke, 705 F.2d 869, 871-873 (6th Cir.), cert. denied,

* The Seventh Circuit has pattern jury instructions that do

not define reasonable doubt and recommend against doing so.

The Seventh Circuit’s instructions state that “Tt}he Commit-

tee recommends that no instruction be given defining ‘reason-

able doubt.’ The phrase ‘reasonable doubt’ is self-explanatory

and is its own best definition. Further elaboration [tends to]

weaken and make imprecise the existing phrase.” Federal

Criminal Jury Instructions of the Seventh Circuit 2.07 (1980).

* The Fourth and Seventh Circuits are split as to whether

reasonable doubt should be defined if the jury asks the court

to do so. Compare United States vy. Russell, 971 F.2d 1098,

1108 (4th Cir. 1992) (court should define if jury is “demon-

strably confused or uncertain”), cert. denied, 113 S. Ct. 1012

(1993), with United States vy. Blackburn, 992 F.2d 666, 668

(7th Cir.) (court should refuse jury requests for definition),

cert. denied, 114 S. Ct. 393 (1993).

* The D.C. Circuit has expressly repudiated its earlier posi-

tion. See United States v. Taylor, 997 F.2d at 1558 (“[Wle

are now of the opinion that the greater wisdom may lie with

the Fourth Circuit’s and Seventh Circuit’s instruction to leave

to juries the task of deliberating the meaning of reasonable

doubt.”’).

9

464 U.S. 843 (1983). In light of these more recent

developments, the older decisions expressing the view

that it is error not to define reasonable doubt are now

of questionable authority.’

4. As the debate among the authorities strongly

siiggests, 4 trial court’s refusal to define reasonable

doubt does not violate due process, because it does not

“offend[] some principle of justice so rooted in the

traditions and conscience of our people as to be ranked

as fundamental.” Medina vy. California, 112 S. Ct.

2072, 2577 (1922), quoting Patterson vy. New York,

432 U.S. 197, 202 (1977). Even more today than in

the past, the concept of reasonable doubt has become

familiar to laymen throughout our society and ordi-

narily does not need embellishment by a court. As

Judge Posner has noted, “deeply entrenched in the

popular culture as it is, the term ‘beyond a reasonable

doubt’ may be the single legal term that jurors under-

stand best.” United States y. Hall, 854 F.2d 1036,

1014 (7th Cir. 1988) (concurring opinion). Profes-

sor McCormick has made the same observation, stat-

ing that “[rJeasonable doubt is a term in common use

almost as familiar to jurors as to lawyers.” 2 C.

McCormick, Evidence $341, at 447 (J. Strong ed.

dth ed, 1992),

The American Law Institute did not define reason-

able doubt in the Model Penal Code, because it be-

*In addition, the relevant statements in Friedman and

Willams are dicta, Nanfito and Blatt also relied on other

bases for reversal, and Schencks is no longer good law. See

page 8, note 4, supra. And, in any event, none of the early

decisions cited above expressly based their analysis on the

Constitution—as opposed to the federal common law govern-

ing jury instructions—so those decisions offer little by way of

enlightenment regarding the requirements of due process.

10

lieved that definition of the standard “ean add noth-

ing helpful to the phrase.” Model Penal Code § 1.12,

Comment 190 (1985). Dean Wigmore likewise con-

demned the practice of giving elaborate definitions of

reasonable doubt as “a useless one” that “should be

abandoned.” J. Wigmore § 2497, at 408-109." See

also, e.y., United States y. Ivie, T00 F.2d at 69

(Friendly, J.) (“a century’s experience has confirmed

the wisdom of the Supreme Court’s observation” in

Miles that reasonable doubt definitions are unhelp-

ful); C. MeCormick § 341, at 447 (“It is an ancient

maxim that all definitions are dangerous.”).? Under

* Dean Wigmore explained: “{W]hen anything more than

a simple caution and a brief definition is ¢iven, the matter

tends to become one of mere words, and the actual effect upon

the jury, instead of being enlightenment, is likely to be rather

confusion, or, at the least, a continued incomprehension, In

practice, these detailed amplifications of the doctrine have

usually degenerated into a mere tool for counsel who desire to

entrap an unwary judge into forgetfulness of some obscure

precedent, or to save a cause for a new trial by quibbling, on

appeal, over the verbal propriety of a form of words uttered

or declined to be uttered by the judge. The effort to perpetu-

ate and develop these elaborate unserviceable definitions is a

useless one, and serves today chiefly to aid the purposes of the

tactician. It should be abandoned.” J. Wigmore § 2497, at

406-409.

7 There is no consensus in the psychologieal literature about

the impact of reasonable doubt instructions upon jury verdicts.

See Kerr, Atkin, Stasser, Meek, Holt & Davis, Guilt Revyond a

Reasonable Doubt: Effects of Concept Definition and Assiqned

Decision Rule on the Indamernts of Mock Jurors, 34 J. Per-

sonality & Soc. Psychology 282, 291 (1976) (“mock jurors’

verdicts may indeed be affected by a judge’s instructions con-

cerning reasonable doubt”). But see Cornish & Sealy, Juries

and the Rules of Evidence, 1973 Crim. L. Rev. 208, 222 (varia-

tions in reasonable doubt instructions had “little effect” upon

1]

these circumstances, it cannot be said that a trial

court’s decision not to instruct the jury on the mean-

ing of reasonable doubt violates any principle funda-

mental to the fair operation of a criminal justice

system under our Constitution.

B. The Due Process Clause Tolerates A Range Of Defini-

tions Of “Reasonable Doubt”

Since the Due Process Clause does not require

courts to define reasonable doubt for a jury, it fol-

lows that there is no single definition that is con-

stitutionally required. At the same time, the Due

Process Clause does not forbid trial courts from

defining a reasonable doubt: the history discussed

above shows that there has never been a consensus

that it is improper for trial courts to define reason-

able doubt for the jury. We submit, therefore, that

when a trial court instructs a jury as to the meaning

of reasonable doubt, the court may select from a

broad range of acceptable definitions. See C. MeCor-

mick $341, at 447 (a reasonable doubt definition is

proper if “in terms Jocally approved.”) (emphasis

added): Becher vy. United States, 5 F.2d 45, 51 (2d

Cir, 1924) (L. Hand, J.) (“It is enough if it ap-

pears that the jury has been told that the prosecu-

simulated jury verdicts). Compare also Severance & Loftus,

Improving the Ability of Jurors to Comprehend and Apply

Criminal Jury lustructions, 17 Law & Soc’y Rev. 153, 189-191

(1982) (instructions improved juror comprehension, but not

application, of reasonable doubt standard); Kramer & Koenig,

Do Jurors Understand Criminal Jury Instructions? A nalyzing

the Results of the Michigan Juror Comprehension Project,

25 U. Mich. J.L. Ref. 401, 414 (1990) (instructions “did little”

to improve juror understanding of certain aspects of the mean-

ing of reasonable doubt).

12

tion must establish all the facts to the required de-

gree of satisfaction of the jury, and there is no fixed

way in which this need be communicated, so long as

that idea is evident.”), cert. denied, 267 U.S. 602

(1925). We believe that the Constitution requires

only that, “taken as a whole, the instructions cor-

rectly convey[] the concept of reasonable doubt to

the jury.” Holland v. United States, 348 U.S. at 140.

Many attempts have been made to define reason-

able doubt. The most famous and influential early

attempt appeared in Commonwealth v. Webster, 59

Mass. (5 Cush.) 295, 320 (1850), where Chief

Justice Shaw defined a reasonable doubt as follows:

[W]hat is reasonable doubt? It is a term often

used, probably pretty well understood, but not

easily defined. It is not a mere possible doubt;

because every thing 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 jurors in that condition that they can-

not say they feel an abiding conviction, to &

mora! certainty, of the truth of the charge. * * *

| T]he evidence must establish the truth of the fact

to a reasonable and moral certainty; a certainty

that convinces and directs the understanding,

and satisfies the reason and judgment, of those

who are bound to act conscientiously upon it.

This we take to be proof beyond reasonable

doubt * * *.

Over the years since then, this Court has recited

or approved a variety of formulations defining rea-

sonable doubt. In Jackson v. Virginia, 443 U.S. at

317, the Court said that “[a] ‘reasonable doubt,’ at

13

a minimum, is one based upon ‘reason.’” Accord

Johnson y. Louisiana, 406 US. 396, 360 (1972). In

Hopt v. Utah, supra, the charge to the jury stated

that “a reasonable doubt is a doubt based on reason”

and that the defendant should be found not guilty

“upon any reasonable hypothesis consistent with the

defendant's innocence.” 120 U.S. at 439. The charge

also told the jury that if “you have an abiding con-

viction of the defendant's guilt, such as you would

be willing to act upon in the more weighty and im-

portant matters relating to your own affairs, you

have no reasonable doubt.” Ihid. The Court upheld

that jury instruction, calling it “as just a guide to

practical men as can well be given; and if it were

open to criticism it could not have misled the jury

When considered in connection With the further

charge, that if they could reconcile the evidence with

any reasonable hypothesis consistent with the de-

fendant’s innocence they should do so.” Id. at 44]

The Court specifically approved the “own affairs”

portion of the instruction. See id. at 439.

In Dunhar vy. United Slates, supra, the trial court

told the jury, “I will not undertake to define a rea-

sonable doubt further than to say that a reasonable

doubt is not an unrezsonable doubt—that is to say

by a reasonable doubt you are not to understand

that all doubt is to be excluded; it is impossible in

the determination of these questions to be absolutely

certain. You are required to decide the question sub-

mitted to you upon the strong probabilities of the

case, and the probabilities must be so strong as, not

to exclude all doubt or possibility of error, but as to

exclude reasonable doubt.” 156 U.S, at 199. Of that

instruction, this Court stated that “it gave all the

definition of reasonable doubt: which a court can be

14

required to give, and one which probably made the

meaning as intelligible to the jury as any elaborate

discussion of the subject would have done.” /bid.

The Court upheld another instruction in Holland

\. United States, supra, There, the trial court in-

structed the jury that reasonable doubt is “the kind

of doubt... which you folks in the more serious and

important affairs of your own lives might be willing

to act upon.” 348 U.S. at 140. Although this Court

was of the view that “the charge should have been

in terms of the kind of doubt that would make a

person hesitate to act,” j/id., it concluded that “the

instruction as given was not of the type that could

mislead the jury into finding no reasonable doubt

when in fact there was some.” Jhbid.”

Severnl federal courts of appeals have adopted pat-

tern jury instructions defining the term “reasonable

deubt.” The pattern instructions adopted by the

Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits

are reprinted in the appendix to this brief. Although

the District of Columbia Circuit has noted with ap-

nroval the practice of net defining a reasonable doubt

for the jury, Uniled States v. Taylor, 997 F.2d 1551,

1557-1558 (D.C. Cir. 1993), that court also has ap-

proved the use of the District of Columbia’s Criminal

Jury Instructions: that jury instruction also is re-

printed in the attached appendix.

‘In Taylor Vv. Kentuchu, 436 U.S. 478, 488 (1978), the

Court criticized a trial court’s definition of reasonable doubt

as “a substantial doubt, a real doubt.” Calling that definition

“truncated,” “confusing,” and “hardly a model of clarity,” the

Taylor Court nonetheless allowed that the instruction was

“nerhaps not in itself reversible error.” Thid. The adequacy

of the trial court’s definition of reasonable doubt, however,

was not at issue in Taylor.

hs)

The pattern instructions adopted by the courts of

appeals differ somewhat from one to the next, but

there has been no Suggestion by this Court or any

of the courts of appeals that only one formulation js

permissible and the others constitute reversible error.

To the contrary, whether following pattern instruec-

tions or acting on their own, trial courts have tradi-

tionally been given wide latitude to define “reason-

able doubt,” and the courts of appeals have repeatedly

ee ee to varying definitions of that

erm. see, e.g., United States y. Edelin, 9 ,

1238, 1242-1248 (D.C. Cir. 1993) (not “a leg

tion or suspicion”); United States y. Dale, 991 F.2d

819, 893 (D.C. Cir.) (“a doubt for which you can

give a reason”), cert. denied, 114 S. Ct. 286 (1993);

Watkins v. Ponte, 987 F.2d 27, 31-32 (Ist Cir. 1993 )

(not “foolish” or “fanciful” doubt): United States V

Daniels, 986 F.2d 451, 457 (llth Cir, 1993) (a

real doubt”); United States y. Harris, 974 F.2d 84

85 (Sth Cir. 1992) (“not the mere possibility of

innocence’); United States y. Polan, 970 F.2d 1280

1286 (3d Cir. 1992) (an “honest doubt” and “not a

fanciful doubt”), cert. denied, 113 S, Ct. 1367 (1993);

United States y. Barrera-Gonzales, 952 F.2d 1269,

1275 (10th Cir, 1992) (“a peal possibility that [the

defendant] is not guilty”); Gaskins vy. McKellar. 916

F.2d 941, 952 (4th Cir, 1996) (“a substantial dovbt"

not “some imaginary doubt or some slight doubt”)

cert. denied, 111 S., Ct. 2277 (1991); Leecan :,

Lopes, S93 F.2d 1434, 1443 (2d Cir.) (a doubt for

Which a reasonable man ean give a valid reason”

and “one founded on the evidence”), cert. denied

196 U.S. 929 (1990): United States vy. Jorae 865

F.2d 6, 10 (1st Cir.) (“not a doubt suggested by the

Ingenuity of counsel’), cert. denied, 490 U.S, 1027

16

(1989): United States v. Hall, 854 F.2d 1036, 1038-

1039 (7th Civ. 1988) (a “fair doubt as one ‘based

on reason and common sense’); Smith vy. Bord N-

lsivcher, T18 F.2d 1273, 1276-1277 (Ath Cir. 1983)

(a “good and substantial doubt” not “a mere vague,

fanciful or imaginary doubt”), cert. denied, 466 U.S.

976 (1984); United States vy. Regilio, 669 F.2d 1109,

1178 (7th Cir.) (a doubt that is based on reason’’),

cert. denied, 457 U.S. 1123 (1982); Bumpus vy. Gun-

ter, 635 F.2d $07, 910 (1st Cir. 1980) (“a doubt in

your mind that you can stand up in the jury room

and argue With principle and integrity to your fellow

jurors”), cert. denied, 459 U.S. 1008 (1981).

~The wide range of instructions that have been up-

held against constitutional challenge demonstrates

that due process does not require the adoption of a

single fixed model instruction on reasonable doubt,

and that, in fact, the Due Process Clause permits

the use of any formulation that does not manifestly

undermine the level of firm confidence that jurors

must have before they may find a fellow citizen

guilty of a crime,

C. This Court’s Decision in Cage v. Louisiana Does Not

Require Reversal Of The Judgments Below

The petitioners in both Victor and Sandoval rely

heavily on the Court’s 1990 per curiam decision in

Cage ¥. Louisiana, 498 U.S. 39, as the basis for

reversal. In Cage, the jury was instructed that a

reasonable doubt was “such doubt as would give rise

to a grave uncertainty,” that a reasonable doubt was

“an actual substantial doubt,” and that what was

necessary to convict the defendant was a “moral

17

certainty” of his guilt. Jd. at 40. This Court

reversed Cage's conviction, determining that “a rea-

sonable juror could have interpreted the instruction

to allow a finding of guilt based on a degree of proof

below that required by the Due Process Clause.” Jd.

at 41. The Court’s decision in Cage does not control

these cases, however, for several reasons.

1. The instructions given in these two cases have

in common with the instruction given in Cage the

use of the term “moral certainty” as part of the

definition of reasonable doubt. Cage, however, should

not be read to hold that a reference to “moral cer-

tainty,” by itself, renders a reasonable doubt in-

struction unconstitutional. The primary culprit in

the jury instruction denounced in Cage was the

equation of “reasonable doubt” with “substantial

doubt” and “grave uncertainty.” 498 U.S. at 41 (“It

is plain to us that the words ‘substantial’ and ‘grave,’

as they are commonly understood, suggest a higher

degree of doubt than is required for acquittal under

the reasonable doubt standard.”). The reference to

“moral certainty” was criticized because it operated

in conjunction with the references to substantial and

ee ee

* The instruction in Cage defined a reasonable doubt as

“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 char-

acter of the evidence or lack thereof. A reasonable doubt

is not a mere possible doubt. /¢ is an actual substantial

doubt. It is a doubt that a reasonable man can seriously

entertain. What is required is not an absolute or mathe-

matical certainty, but a moral certainty,”

198 U.S. at 40 (quoting 554 So. 2d 39, 41 (La. 1989); emphasis

added by this Court),

18

eyave doubt. Jbid. (“When those papa “

then considered with the reference to “oe “ “

tainty,’ rather than evidentiary certainty, It —_ e:

clear” that the instruction violates due lye :

teference to “moral certainty has long sph

standard component of jury instructions apr enag ay

concept of reasonable doubt. The use of a “

without more, has not been thought to suggest | ; ,

jury that the government has a reduced ge

proof. In fact, in common parlance a oe =

fidence “to a moral certainty” would pane yes (

viewed as even more exacting than a wihed 0 oe

fidence ‘theyond a reasonable doubt. The _ ’ “

term “moral certainty” in defining ayengpatin aon )

therefore does not jpso fucto violate due gl

During the 18th and 19th centuries, the a

“moral certainty” came to mean that, in we mer

of human affairs, absolute certainty is mah

able. Shapiro, “To a Moral Certainty’ : oii

Knowledge and Anglo-American Juries — —

38 Hastings L.J. 153, 192 (1986) (“Thus by t d ~

eighteenth century the concepts of moral arreonng: dee

proof beyond a reasonable doubt were tig it dng “

together in the philosophical literature, oy 1¢ —

treatises, and in discussions of law designer to - .

the educated public.’’); Morano, 55 B.U.L. 5 te

512. The influential 1850 decision by Chief = “

Shaw of the Massachusetts Supreme rw

in Commonivealth vy. Webster, supra, nen :

“moral certainty” to express a very high “egree :

confidence, but less than absolute certainty. g mn

Donnelly vy. State, 26 N.J.L. 601, 615 one? - Stat

v. Hammonds, 85 S.F.2d 133, 138 (N.C. 1954).

19

As the Webster case illustrates, jurists in the 19th

century came to regard the phrases “to a moral

certainty” and “beyond a reasonable doubt” as syn-

enymous. See Fidelity Mutual Life Ass'n y. Mettler,

185 U.S. 308, 317 (1902) (“[p]roof to a ‘moral

certainty’ is an equivalent phrase with ‘beyond a

reasonable doubt’); Hopt vy. Utah, 120 U.S. at 440

(same). Nor has the term lost that meaning in its

modern usage. See Schnehble y. Florida, 405 U.S.

427, 431 (1972) (equating “to a moral] certainty”

With “beyond a reasonable doubt” as a standard of

guilt). This Court recently used the term “moral

certainty” to denote a very high level of confidence.

City of Canton y. Harris, 489 U.S. 378, 390 n.10

(1989): McCleskey vy. Kemp, 481 U.S. 279, 308 n.29

(1987); see also Brewer y. Williams, 430 U.S. 387,

433-434 (1977) (White, J., dissenting).

This Court’s precedents reflect and confirm the

historical acceptance of the use of the term “mora]

certainty” in reasonable doubt instructions. In Miles

v. United States, the Court reviewed a charge using

the term “moral certainty.” 103 U.S. at 309. The

Court sustained that instruction, saying that “t]he

language used * * * was certainly very favorable to

the accused, and is sustained by respectable author-

ity.” Jd. at 312. In Wilson v. United States, 239

U.S. 563 (1914), the defendants objected to the trial

court’s definition of reasonable doubt in terms of

moral certainty. See id. at 969-570. The trial court

instructed the jury that, id. at 570:

“[R]easonable doubt is that frame of mind

which forbids you to say, all the evidence con-

sidered and weighed, ‘I have an abiding convic-

tion of the defendants’ guilt’ or as it has been

20

expressed, ‘I am convinced of the crepes

cuilt to a moral certainty.’ If you can say that

you have such a conviction, then you have no

reasonable doubt, and your verdict should be

cuilty. On the contrary, if that 1s your frame 01

mind, if you are in the frame of mind where if

it was a matter of importance to you In youl

own affairs, away from here, you would pause

and hesitate, before acting, then you have a

reasonable doubt.”

This Court upheld that instruction, stating that

“Tt]}he argument here Is that the instruction as —

is faulty, because the court did not tell the jury tha

the Government must prove its case against defend-

ants beyond a reasonable doubt. As we read the

charge, it meant nothing less than that, and was

sufficiently favorable to defendants. Ibid. See also

Perovich vy. United States, 205 USS. 86, 92 sage’

(approving the instruction given In Common a z

v. Webster, supra); Agnew v. United States, 165 U.S.

©6. 51 (1897) (quoting, with apparent approval, an

instruction defining reasonable doubt as “such a doubt

arising from the evidence that leaves the minds of the

iury in such a state that they cannot say, after hav-

ine reviewed all the evidence, that they have an

abiding conviction, to a moral certainty, of the guilt

of the accused”’). .

9 If it is constitutionally permissible to use the

phrase “moral certainty” to define reasonable doubt,

the judgment in Sandoval v. Californ ia, No. 92-9049,

should be affirmed. The jury instruction In that case

used the phrase “moral certainty,” but not in con-

junction with the other terms that this Court found

fatal to the instruction given in Cage. The Sandoval

jury instruction is therefore consistent with this

Court’s decisions in cases such as Miles, Hopt, and

21

Wilson, and is not rendered constitutionally invalid

under this Court’s analysis in Cage.

The jury instruction in Victor v. Nebraska, No.

92-8894, more closely resembles the one given in

Cage. Nonetheless, a close reading of the instructions

in those two cases reveals two critical differences.

First, the instruction in Victor did not refer to rea-

sonable doubt as requiring “grave uncertainty,” as

did the jury charge in Cage. That distinction is an

important one. Requiring jurors to convict unless

they entertain a “grave uncertainty” about a defend-

ant’s guilt is likely to persuade the jury that more

than a “ ‘doubt’ * * * based upon ‘reason,’” Jack-

son v. Virginia, 443 U.S. at 317, is necessary to

return a not guilty verdict.

Second, while the jury charge in Victor contained

the ‘‘actual and substantial doubt” phrase used in

the Cage jury charge, the instruction in Victor did

not use that phrase independently. Rather, the jury

instruction in Victor referred to ‘“‘an actual] and sub-

stantial doubt” only as part of a sentence that drew

a contrast between such a doubt and one “arising

from mere possibility, from bare imagination, or from

fanciful conjecture.” The context in which the phrase

“actual and substantial doubt” was used is important.

A lawyer might interpret the term “substantial” as

referring to the “substantial evidence” standard that

is commonly used in administrative law, see Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474 (1951),

but lay jurors are not likely to interpret the term

in that manner. Instead, they are likely to construe

the term “substantial,” in the context of the Victor

instruction, as referring to a doubt based on the

evidence of record, because that term was contrasted

with a doubt “arising from mere possibility, from

22

bare imagination, or from fanciful conjecture.” So

construed, the instruction in Victor does not run

afoul of the Court’s decision in Cage.

3. Finally, the Court’s analysis in Cage may have

been affected by what the Court has subsequently

recognized as an incorrect standard of review. Dur-

ing the Term before Cage was decided, this Court in

Boyde vy. California 494 U.S. 370, 378-881 (1990),

adopted a standard for reviewing jury instructions.

The proper inquiry, the Court held, is “whether there

is a reasonable likelihood that the jury has applied

the challenged instruction in” an unconstitutional

manner. 7d. at 380. In so ruling, the Court expressly

rejected use of the standard applied in Francis vy.

Franklin, 471 U.S. 307 (1985), which asked whether

a jury “could have” misapplied the instructions. 494

U.S. at 378. In Cage, however, the Court applied the

standard of review that it had first articulated in

Francis, but then had later rejected in Boyde. 498

U.S. at 41 (“In construing the instruction, we con-

sider how reasonable jurors could have understood

the charge as a whole. Francis vy. Franklin, 471

U.S. 307, 316 (1985).”). The Term after Cage, the

Court recognized that it had applied the wrong stand-

ard of review in that case, and it reaffirmed that

the standard of review articulated in Boyde is the

correct one. F’stelle v. McGuire, 112 S. Ct. 475, 482

n.4 (1991). Thus, particularly when the instructions

in these cases are analyzed under the proper standard

of review, Cage cannot be said to require reversal of

petitioners’ convictions.

23

CONCLUSION

The judgments of the Supreme Court of Nebraska

and the Supreme Court of California should be

affirmed.

Respectfully submitted.

Drew S. Days, ITI

Solicitor General

JO ANN HARRIS

Assistant Attorne y General

WILLIAM C. Bryson

Deputy Solicitor General

PAUL J. LARKIN, Jr.

Assistant to the Solicitor General

DECEMBER 1993

APPENDIX

Several courts of appeals have pattern jury instruc-

tions defining the reasonable doubt standard. The

Fifth Cireuit’s definition is as follow:

A “reasonable doubt” is a doubt based upon rea-

son and common sense after careful and impar-

tial consideration of all the evidence in the case.

Proof beyond a reasonable devbt, therefore. is

proof of such a convincing che? <io* that vou

would be willing to rely and act © ,.0.1 it withow

hesitation in the most important of your own

affairs.

U.S. Fifth Circuit District Judges Ass’n, Pottery

Jury Instructions, Criminal Cases 1.06 (1990). See

also United States vy. Alonzo, 681 F.2d 997 (Sth Cir. ),

cert. denied, 459 U.S. 1021 (1982) (approving that

instruction).

The Sixth Circuit’s definition is as follows:

(4) * * * Proof beyond a reasonable doubt

does not mean proof beyond all possible doubt.

Possible doubts or doubts based purely on specu-

lation are not reasonable doubts. A reasonable

doubt is a doubt based on reason and conimon

sense, * * *

(5) Proof beyond a reasonable doubt means

proof which is so convincing that you would not

hesitate to rely and act on it in making the most

important decisions in your own lives. * * *

U.S. Sixth Circuit District Judges Ass’n, Pottery

Criminal Jury Instructions 1,03 (1991). See also

United States v. Goodlett, 3 F.3d 976, 979 (6th Cir.

1993) (expressing approval of that instruction).

(la)

2a

The Eighth Circuit’s definition is as follows:

A reasonable doubt is a doubt based upon reason

and common sense, and not the mere possibility

of innocence. A reasonable doubt is the kind of

doubt that would make a reasonable person hesi-

tate to act. Proof beyond a reasonable doubt,

therefore, must be proof of such a convincing

character that a reasonable person would not

hesitate to rely and act upon it. However, proof

beyond a reasonable doubt does not mean proof

beyond all possible doubt.

Manual of Model Criminal Jury Instructions for the

District Courts of the Bighth Cireuit 3.11 (1922).

The Ninth Circuit’s definition is as follows:

A reasonable doubt is a doubt based upon reason

and common sense, ~ * *. Proof beyond a reason-

able doubt is proof that leaves you firmly con-

vinced that the defendant is guilty.

Manual of Model Criminal Instructions for the Ninth

Circuit 3.03 (1992).

The Eleventh Cireuit’s definition is as follows:

A “reasonable doubt” is a real doubt, based upon

reason and common sense after careful and im-

partial consideration of all the evidence in the

case.

Proof beyond a reasonable doubt, therefore, is

proof of such a convincing character that you

would be willing to rely and act upon it without

hesitation in the most important of your affairs.

U.S. Eleventh Cireuit District Judges Ass’n, Pattern

Jury Instructions, Criminal Cases 3 (1985). See also

United States v. Danicls, 986 F.2d 451, 456 (11th

3a

Cir. 1993) (upholding instruction that “closely

tracks” this language). The Eleventh Circuit’s defi-

nition is identical to the Fifth Circuit's with the ex-

ception of the word “real” before “doubt” in the first

sentence.

According to the District of Columbia’s “Red

Book”:

Reasonable doubt, as the name implies, is a doubt

based on reason, a doubt for which you can give

a reason. It is such doubt as would cause a

juror, after careful and candid and impartial

consideration of all the evidence, to be so unde-

cided that he cannot say that he has an abiding

conviction of the defendant’s guilt. It is such

doubt as would cause a reasonable person to

hesitate or pause in the graver or more impor-

tant transactions of life. However, it is not a

fanciful doubt nor a whimsical doubt, nor a

doubt based on conjecture. It is a doubt which

is based on reason. The government is not re-

quired to establish guilt beyond all doubt, or to

a mathematical certainty or a scientific certainty.

Its burden is to establish guilt beyond a reason-

able doubt.

Young Lawyers Section of the Bar Association of the

District of Columbia, Criminal Jury Instructions

2.09 (3d ed. 1978). See also United States vy. Dale,

991 F.2d 819, 853 (D.C. Cir.) (upholding use of that

instruction), cert. denied, 114 S. Ct. 286 (1993).

The leading treatise on federal jury instructions

defines reasonable doubt as follows:

It is not required that the government prove guilt

beyond all possible doubt. The test is one of rea-

sonable doubt. A reasonable doubt is a doubt

ased upon reas nd common sense—the kind

doubt that would make a reasonable person

Lal O act Proof be yond a reasonable doubt

st, therefore. he proof of such a convincing

haracter that reasonable person would not

esitate to rely and act upon it in the most im

ortant f | r ne