# Amicus Curiae Brief — Sandoval v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0436%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 510 U.S. 942 ## Text -*!!__-.... 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 * 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?