Amicus Curiae Brief — Sandoval v. California

oe

SUPREME COURT OF THE UNITED STATES

October Term, 1993

ALFRED ARTHUR SANDOVAL,

PETITIONER,

v.

STATE OF CALIFORNIA,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

MOTION FOR LEAVE TO FILE AND BRIEF OF AMICUS

-

BEST AVAILABLE COPY?"

CURIAE, CALIFORNIA DISTRICT ATTORNEYS’

ASSOCIATION, IN SUPPORT OF THE STATE OF

CALIFORNIA

GIL GARCETTI

District Attorney

County of Los Angeles

Counsel of Record:

BRENT RIGGS

Of Counsel:

GEORGE M. PALMER

GEORGE G. SIZE

849 South Broadway, 11th Floor

Los Angeles, CA 90014-3570

Telephone: (213) 974-2946

QUESTION PRESENTED

Was petitioner deprived of due process and a fair jury trial by the use

of a constitutionally defective reasonable doubt instruction which

invited the jury to base its verdict on improper “moral” considera-

tions rather than on an evidentiary evaluation?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

IN SUPPORT OF THE STATE OF CALIFORNIA

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

INTRODUCTION

I CONSIDERED AS A WHOLE, IT IS

UNLIKELY THAT CALJIC INSTRUC-

TION 2.90 WOULD MISLEAD A

JURY

Il EVEN CONSIDERED IN ISOLATION, THE

USE OF THE WORD "MORAL” IN CALJIC

INSTRUCTION 2.90 DOES NOT DILUTE

THE DUE PROCESS RIGHT STANDARD

OF PROOF "BEYOND A REASONABLE

DOUBT"

Ill IF THE CHARGE TO THE JURY IS

CONSIDERED AS A WHOLE, IT IS

CLEAR THAT NO REASONABLE

JURY WOULD LIKELY BE MISLED

12

CONCLUSION

16

TABLE OF AUTHORITIES

CASES

Boyde v. California,

__ U.S. _ , 110 S.Ct. 1190, 1198 (1990)

Bruce v. State,

616 A.2d 392, 403 (Md. 1992)

Cage v. Louisiana,

__ U.S. __, 111 S.Ct. 328, 329 (1990)

Commonwealth v. Rankin,

311 A.2d 660, 661 fn.1 (Pa. Super. 1973)

Crocker v. State,

573 S.W.2d 190, 207. (Tex.Crim.App. 1978)

Cupp v. Naughten,

414 U.S. 141, 146-47 (1973)

Dominick v. State,

433 S.E.2d 405 (Ga. App. 1993)

Erving v. State,

427 So.2d 701, 704-05 (Miss. 1983)

Evans v. State 499 A.2d 1261,

1287 (Md. 1985)

Hamling v. United States,

418 U.S. 87, 107-08 (1974)

Holland v. United States,

348 U.S. 121, 138-39 (1954)

iv

a 7

ll

10

11

12

10

In re Winship,

397 U.S. 362 (1970)

Jackson v. Virginia,

443 U.S. 307 (1979)

Monk v. Zelez,

901 F.2d 885, 890 (10th Cir. 1990)

Moore v. State,

318 S.E.2d 172, 173 (Ga.App. 1984)

People v. Hall,

396 P.2d 700 (Cal. 1964)

People v. Johnson,

842 P.2d 1, 46 fn.1 (Cal. 1992)

People v. Rossman 463 N.Y.S.2d 891,

893 (N.Y.App.Div. 1983)

People v. Sammons 478 N.W.2d 901,

912 (Mich.App. 1991)

Rhinehart v. State,

299 S.W. 755, 757 (Ark. 1927)

Smith v. State,

394 So.2d 882, 884-85 (Miss. 1981)

State v. Butler,

543 A.2d 270, 278 (Conn. 1988)

State v. Desrosiers,

559 A.2d 641, 645 (R.I. 1989)

6, 10

10

10

6,8

11

10

11

10

11

10

State v. Galvan,

368 N.W.2d 400, 403 (Minn.App. 1985)

State v. Oliver,

354 S.E.2d 527, 541 (N.C.App. 1987)

State v. Payne,

289 N.W.2d 173, 179 (Neb. 1980)

State v. Ramey,

60 S.E.2d 66, 72 (S.C. 1950)

State v. Reid,

267 P.2d 986, 990 (Mont. 1954)

State v. Udstuen,

345 N.W.2d 766, 768 (Minn. 1984)

State v. Watson,

240 S.E.2d 440, 446 (N.C. 1978)

Sullivan v. Louisiana U.S. ___,

113 S.Ct. 2078 (1993)

United States v. Park,

421 U.S. 658 (1975)

United States v. Smaldone,

485 F.2d 1333, 1348 (10th Cir. 1973)

United States v. Tobin,

576 F.2d 687, 694 (Sth Cir. 1978)

Wintjen v. State 398 A.2d 780,

781 (Del. 1979)

vi

10

10

10

10

3,7

12

10

10

11

JURY INSTRUCTIONS

California Jury J ;

Criminal

Section 1.00

Section 1.01

Section 1.02

Section 2.09

Section 2.20

Section 2.21.1

Section 2.61

Section 2.80

Section 2.91

Section 8.50

Section 8.71

Section 8.72

Section 8.80

Section 8.81.3

Section 2.00

Section 2.90

Vil

13, 14

14

5-9, 12, 14

District of Columbia, Criminal J

Instruction

Section 2.09 (3rd ed. 1978)

C ‘cut Criminal 3

Instruction

David M Borton and Leonard Orland, Criminal Jury

Instructions, in 5 Connecticut Practice

section 2.9 at 50-51 (1986 and Supp. 1993)

Georgia Suggested Pattern Jury

Part 2.D. (2d. ed. 1991)

Section 2:02 (1991)

Section 2.03 (3d.ed. 1992)

vill

ll

11

il

—

RULES OF THE SUPREME COURT

OF THE UNITED STATES

Rule 37.1

Rule 37.3

Rule 37.5

MISCELLANEOUS

Black’s Law Dictionary

1827 (Oxford, 1993)

The New Shorter Oxford English Dictionary

1827 (Oxford, 1993)

The Oxford English Dictionary, "M," 654

(Compact Edition, 1971)

10

No. 92-9049

IN THE

SUPREME COURT OF THE UNITED

STATES

October Term, 1993

ALFRED ARTHUR SANDOVAL,

PETITIONER,

STATE OF CALIFORNIA,

RESPONDENT.

MOTION FOR LEAVE TO FILE

BRIEF OF AMICUS CURIAE

IN SUPPORT OF

THE STATE OF CALIFORNIA

Pursuant to Rule 37.4, Rules of the Supreme Court of

the United States, amicus curiae, the Appellate Committee of the

California District Attorneys’ Association, including the District

Attorney of Los Angeies County, hereby moves for leave of this

Court to file the attached amicus curiae brief in support of the

State of California.

Pursuant to Rule 37.3, Rules of the Supreme Court of

the United States, amicus sought consent from petitioner in this

case. Petitioner's counsel agreed by telephone to the Commit-

tee's request to file an amicus brief in support of respondent in

the instant case, and counsel for the Committee sent a consent

form to counsel for petitioner, together with a self-addressed,

stamped envelope. Counsel for petitioner has failed to return the

consent form and, as of the date and time this brief was

submitted for printing, had not responded to repeated telephone

calls from counsel for the Committee.

2

The California District Attorneys’ Association is an

association of District Attorneys who are authorized law officers

of the State of California and of the counties they represent,

including the County of Los Angeles, such counties being

political subdivisions of the state. Thus, had the members of this

association individually and separately sought to file this brief,

consent would not have been required. See, Rule 37.5, Rules of

the Supreme Court of the United States.

In the event that this Court is not inclined to grant leave

to file this brief on behalf of the Association, amicus respectfully

requests that it be filed on behalf of the District Attorney of Los

Angeles County alone under Rule 37.5.

Amicus believes that, pursuant to Rule 37.1, Rules of the

Supreme Court of the United States, the amicus brief offered

herein brings relevant matter to the attention of the Court that

has not already been brought to its attention by the parties, and

will be of considerable help to the Court. It addresses the use of

the term "moral" in the context of the California “reasonable

doubt" jury instruction, considers how the phrases used have

been interpreted by other states and reference authorities, and

examines the role that these phrases play when considered in

light of the entire charge to the jury.

INTEREST OF AMICUS CURIAE

The Appellate Committee of the California District

Attorneys’ Association is a committee created by an association

consisting of the District Attorneys of the State of California and

their deputies. It has been established in order to utilize and

coordinate the resources of District Attorneys throughout the

State of California, for the purpose of presenting their views on

behalf of the People of the State of California in cases which may

have major statewide impact upon the prosecution of criminal

cases. One member of the Association is the District Attorney

of Los Angeles County. Upon review of the instant matter, the

Committee, including a representative of the District Attorney of

Los Angeles County, has concluded that the outcome of this case

3

may have profound impact upon the administration of criminal

justice throughout California because it places in jeopardy every

criminal conviction in the state not yet final. California's already-

vastly overburdened criminal justice system tries more than

12,000 jury trials in a given year. 2 Judicial Council of

California, 1993 Annual Report p.56 (felonies), p.78

(misdemeanors) (1993). This figure includes more than 5,000

felony trials. Jd., at 56. Pursuant to this Court's rulings in

Griffith v. Kentucky, 479 U.S. 314 (1987) and Sullsvan v.

Louisiana _U.S. _, 113 S.Ct. 2078 (1993), all of these cases

not yet final on appeal may be subject to per se reversal. This

would include not only all recent criminal judgments following

a jury trial, but all criminal cases pending on appeal in the six

districts of the California Courts of Appeal. It would also

include all pending criminal appeals before the Supreme Court,

among them roughly 200 death-penalty appeals currently

pending before that court. Gerald F. Uelman, How the Justices

Stack Up, Daily Journal Report, June 4, 1993 at p.10. Many, if

not most of these are from 5 to 10 years old, raising serious

doubt as to the practicability of retrying those cases. In addition,

as is discussed at length below, the Committee is convinced that

California's standard jury instruction regarding reasonable doubt

is Constitutionally sound. It is for these reasons that the Com-

4

mittee seeks leave to file the attached asmicus curiae brief herein.

Respectfully submitted

on behalf of the

California District Attorneys

Association, and the District Attorney

of Los Angeles County

GIL GARCETTI

District Attorney

County of Los Angeles

By

Counsel of Record

BRENT RIGGS

Deputy District Attorney

Appellate Division

Of Counsel

GEORGE M. PALMER

Acting Head Deputy

Appellate Division

GEORGE G. SIZE

Deputy District Attorney

Attorneys for Amicus Curiae

SUMMARY OF ARGUMENT

Jury instructions should be read as a whole. Jurors do

not parse every phrase of an instruction in the manner that

lawyers might. The relevant standard for review of an allegedly

ambiguous instruction is "whether there is a reasonable likelihood

that the jury has applied the challenged instruction in a way that

prevents the consideration of constitutionally relevant evidence.”

Boyde v. California, U.S. _, 110 S.Ct. 1190, 1198 (1990).

Read in the context of the instruction at issue, the terms “moral

evidence” and “moral certainty” are unlikely to confuse or mislead

a jury.

Even read in isolation, the uses of the word “moral” in

CALJIC instruction 2.90 are unlikely to mislead. “Moral

evidence” merely focusses the jury'sattention on the fact that the

evidence in a criminal trial is, for the most part, human evidence,

involving such issues as credibility, etc., rather than the sort of

evidence which is absolutely determinable. The use of "moral

certainty” emphasizes to the jury that, while absolute certainty is

not required, in order to return a guilty verdict the jury must

come to a subjective state of "near certitude.”

The entire charge to the jury is to be read as a whole.

A review of the instructions read in the instant case shows that,

while the terms “moral evidence” and “moral certainty” are used

but once and in passing, the phrase “beyond a reasonable doubt”

is used repeatedly in California's pattern jury instructions as the

touchstone for the determination of guilt.

INTRODUCTION

This Court has determined the fundamental Constitu-

tional standard of proof applicable in criminal trials to be proof

"beyond a reasonable doubt." Jn re Winship, 397 U.S. 362

(1970). In that case, the Court begins its analysis by tracing the

use of the phrase, “beyond a reasonable doubt,” from the late

eighteenth century to the present. Jd.,397 U.S. at 361-63. The

Court went on to conclude that, in light of the great interest of

defendants in not being wrongfully found guilty, the “beyond a

reasonable doubt" standard was required by the Due Process

clause as “aprime instrument for reducing the risk of convictions

resting on factual error." Jd., 397 U.S. at 363-64.

Almost a decade later, in Jackson v. Virginia, 443 U.S.

307 (1979), this Court described “beyond a reasonable doubt” as

the applicable standard of proof because it "impress[es] upon the

factfinder the need to reach a subjective state of near certitude of

the guilt of the accused.” Jd., at 315. This characterization of

the Constitutional standard was anticipated fifteen years earlier

by the California Supreme Court in People v. Hall, 396 P.2d 700

(Cal. 1964). Id., at 705 ("To justify a criminal conviction, the

trier of fact must be reasonably persuaded to a ear certainty .")

(Traynor, C.J., for the court). As addressed below, the

California pattern jury instruction regarding “reasonable doubt"

(hereinafter “CALJIC 2.90") does not reduce or dilute the

standard of proof of guilt, which both this Court and the courts

of California have found Constitutionally mandated.

CONSIDERED AS A WHOLE, IT IS UNLIKELY THAT

CALJIC INSTRUCTION 2.90 WOULD MISLEAD A

JURY

The fundamentally false premise underlying petitioner's

basic argument is that jurors minutely analyze every word of the

instructions given to them, such as a constitutional scholar might

do. It is settled that “jury instructions are to be judged as a

whole, rather than by picking isolated phrases from them.”

5

Hamling v. United States, 418 U.S. 87, 107-08 (1974); and see,

Cage v. Lowisana, _U.S. _,, 111 S.Ct. 328, 329 (1990).

Furthermore, this Court has recently determined that the

standard for interpreting an ambiguous instruction is "whether

there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence.” Boyde v. California, US.

, 110 S.Ct. 1190, 1198 (1990); accord, Estelle v. McGuire

US. , 112 S.Ct. 475, 482 fa.4 (1991) [disapproving the

standard applied in Cage, supra}.’

This Court explained its reasoning for laying down the

rule in Boyde, supra, in part as follows:

Jurors do not sit in solitary isolation booths parsing

instructions for subtle shades of meaning in the same

way that lawyers might. Differences among them in

interpretation of instructions may be thrashed out in

the deliberative process, with common _ sense

understanding of the instructions in the light of all that

has taken place at the trial likely to prevail over

technical hairsplitting.

Id., at 110 S.Ct. 1198.

Furthermore, the contexts in which the phrases “moral

evidence” and “moral certainty” are used in CALJIC instruction

2.90 are not such that these phrases would likely lead jurors

astray. First, as to the phrase "moral evidence,” it is used in

parallel with “human affairs” in CALJIC instruction 2.90: “It

[reasonable doubt] is not a mere possible doubt; because

everything relating to human affairs, and depending on moral

evidence, is open to some possible or imaginary doubt.” The

effect of these two phrases — “human affairs” and “moral

evidence” — used together is to emphasize that, as the trier of

1. Io Sullivan v. Loulsiana, _ U.S. _, 113 S.Ct. 2078 (1993), this Court

declined to apply the standard enunciated in Boyde and Estelle on the grounds

that the state had “failjed] to raise this issue below." /d., 113 S.Ct. at 2081

fo.1. By contrast, as soon as petitioner, with his case pending before the

California Supreme Court, raised the issue of the alleged unconstitutionality of

the “reasonable doubt" instruction io a supplemental brief, the State of

California responded by expressly raising the Boyde/Estelle issue. Respondent's

Reply to Appellant’s Supplemental Brief to the California Supreme Court, p.4.

fact, the jury will not be concerned primarily with matters — e.g.,

scientific or philosophical — that can be definitively resolved by

experiment or measurement, or which inhabit the realm of pure

reason. Rather, the jury will be concerned with the much more

problematic world of human evidence, where few truths are

ascertainable with absolute certainty. In its deliberations, the jury

will, for example, be called upon to judge the credibility of

witnesses, often relying (at least in part) upon subtle clues such

as demeanor or attitude. See CALJIC 2.20 (regarding credibility

of witnesses). In so doing, the jury must be alert to the possibil-

ity that a witness may intentionally not tell the truth, but they

must also allow for human frailties, such as forgetfulness or

innocent misrecollection. See CALJIC 2.21.1 (making this

point). In sum, the parallel usage of the terms “human affairs”

and “moral evidence” serves to put the jurors on notice as to the

nature of the evidence they will be evaluating in their

deliberations and to emphasize that absolute certainty is not to

be expected in such matters. Therefore, it is unlikely chat a jury

would be misled by the one-time use of the phrase “moral

evidence,” when considered in context.

Second, as to the use of “moral certainty” in CALJIC

2.90, this term is used in conjunction with the phrase “abiding

conviction.” Far from lowering the standard of proof, as

petitioner alleges, the sentence in which these two phrases are

used serves as a counterpoint to the immediately preceding

sentence, addressing “possible or imaginary doubt.” That is,

although the jurors cannot expect absolute certainty, neither may

they return a guilty verdict if they harbor serious subjective

doubt; rather, they must come to an “abiding conviction to a

moral certainty.” As such, the two phrases used together embody

that standard of a “need to reach a state of near certitude,” or

“near certainty,” of guilt, which both this Court and the Califor-

nia Supreme Court have adopted as a measure of the standard of

proof required by the Due Process clause. Jn re Winship, supra,

397 U.S. at 364; People vy. Hall, supra, 396 P.2d at 705.

Third, California has not sat by idly or uncritically with

regard to the present “reasonable doubt” instruction. On the

contrary, as recently as 1987, the state legislature requested the

committee responsible for California's pattern jury instructions

(hereinafter, the "CALJIC Committee") to undertake a thorough

reexamination of the present instruction and of “alternatives” to

9

it.? The CALJIC Committee undertook this reexamination of

the instruction from several different perspectives. It noted the

lack of empirical evidence that the instruction was confusing or

ambiguous for jurors. CALJIC Report on Reasonable Doubt,

14-15 (bracket added). It also surveyed judges and lawyers in

California who actually observed CALJIC 2.90 in use. It found

“asubstantial consensus among judges and lawyers . . . that there

{should} be no change in the definition of reasonable doubt.”

Id., at 44 (bracket added). The committee then surveyed jury

instructions on reasonable doubt in all of the fifty states. Id., at

15-34. Based upon this careful review of the advantages and

disadvantages of changing California's “reasonable doubt"

instruction, the comraittee concluded that the present instruction

should be retained. Jd., at 7-10.

EVEN CONSIDERED IN ISOLATION, THE USE OF THE

WORD “MORAL” IN CALJIC INSTRUCTION 2.90 DOES

NOT DILUTE THE DUE PROCESS P.GHT STANDARD

OF PROOF “BEYOND A REASONABLE DOUBT"

The most recent, authoritative reference dictionary of the

English language, published just this year, defines “moral

certainty” to mean “a degree of probability so great as to admit

of no reasonable doubt; a practwal certainty." The New Shorter

2. Committee on Standard Jury lastructions, Criminal of the Superior

Court of Los Angeles, Report of the Committee on Standard Jury Instructions -

- Criminal of the Los Angeles Superior Court to the California Legislature on

Alternatives to the Reasonable Doubt Definition (1987), reprinted at Daily

Journal, May 22, 1987 — No. 87-10, hereinafter, “CALJIC Report on

Reasonable Doubt lastruction." The study was undertaken by the Committee

oo Standard Jury lastructions, Criminal of the Superior Court of Los Angeles

County (commonly referred to as the "CALJIC Committee"), which is a

comunittee of judges and attorneys responsible for California’s pattern jury

instructions in criminal law. Committee on Standard Jury lastructioas,

Criminal of the Superior Court of Los Angeles, California Jury Instructions,

Criminal |"CALJIC"] (Sth ed. 1988).

3. For example, the Committee's study reflected that, as of 1987, 2 dozen

States used the phrase, “moral certainty." /bid.

10

Oxford English Dictionary 1827 (Oxford, 1993). Similarly,

Black’s Law Dictionary defines “moral certainty” to mean:

That degree of assurance which induces a man of

sound mind to act, without doubt, upon the con-

clusions to which it leads. A high degree of impression

of the truth of a fact, falling short of absolute certainty,

but sufficient to justify a verdict of guilty, even in a

capital case. Such signifies a probability sufficiently

strong to justify action on it; a very high degree of

probability, although not demonstrable, as a certainty.

It has also been used as indicating a conclusion of the

mind established beyond a reasonable doubt.

Id., 909 (Sth ed. 1979).

And the Oxford English Dictionary, the most authoritative

dictionary in the history of the English Language, defines the

phrase in very similar language, as “apractical certainty resulting

from moral evidence; a degree of probability so great as to admit

of no reasonable doubt." The Oxford English Dictionary, “M,"654

(Compact Edition, 1971).

Many courts have expressly found the terms “moral

certainty” and “moral evidence” to be synonymous. Ré/inehart v.

State, 299 S.W. 755, 757 (Ark. 1927); State v. Desroners, 559

A.2d 641, 645 (R.1. 1989); Erving v. State, 427 So.2d 701, 704-

OS (Miss. 1983); Stase v. Reid, 267 P.2d 986, 990 (Mont.

1954); State v. Payne, 289 N.W.2d 173, 179 (Neb. 1980);

People vy. Rossman 463 N.Y.S.2d 891, 893 (N.Y.App.Div. 1983);

State v. Watson, 240 S.E.2d 440, 446 (N.C. 1978); Moore v.

State, 318 S.E.2d 172, 173 (Ga.App. 1984); Commonwealth v.

Rankin, 311 A.2d 660, 661 fn.1 (Pa.Super. 1973); State v.

Ramey, 60 S.E.2d 66, 72 (S.C. 1950).

Thus, the phrase, “moral certainty” in no way “dilutes

the burden of the state to prove a charge beyond a reasonable

doubt. On the contrary, it serves to impress upon the jury the

need for “near certitude” in their belief of a defendant's guilt

before returning a guilty verdict. Jackson v. Virginia, 443 U.S.,

supra, at 315. In fact, some courts have expressed the view that

"moral certainty” elevates the burden on the prosecution above

"beyond a reasonable doubt.” United States v. Tobin, S76 F.2d

687, 694 (Sth Cir. 1978); United States v. Smaldone, 485 F.2d

1333, 1348 (10th Cir. 1973); and see, Monk v. Zelez, 901 F.2d

885, 890 (10th Cir. 1990). Indeed, many defendants have

11

appealed their cases, arguing that an instruction prescribing the

“beyond a reasonable doubt" standard was not enough — that

they had a ryt to have the jury instructed that they must find

a defendant guilty to a “moral certainty.” Ey., State v. Butler,

543 A.2d 270, 278 (Conn. 1988); Bruce v. State, 616 A.2d 392,

403 (Md. 1992); Evans v. State 499 A.2d 1261, 1287 (Md.

1985); People v. Sammons 478 N.W.2d 901, 912 (Mich.App.

1991); State v. Galvan, 368 N.W.2d 400, 402-03 (Minn.App.

1985); State v. Udstuen, 345 N.W.2d 766, 768 (Minn. 1984);

Smith v. State, 394 So.2d 882, 884-85 (Miss. 1981); State v.

Oliver, 354 S.E.2d 527, 541 (N.C.App. 1987); Crocker v. State,

573 $.W.2d 190, 207 (Tex.Crim.App. 1978).

On the other hand, the phrase “moral certainty” serves to

emphasize that we are dealing here in the realm of human affairs,

not in a realm of abstractions. Other states emphasize this

distinction in different terms. Some courts explain to the jury in

the course of their “reasonable doubt" instruction that returning

a guilty verdict does not require a “mathematical certainty” be-

Cause in practical matters such as crime there is no such certainty.

See, David M Bordon and Leonard Orland, Criminal Jury

Instructions, in § Connecticut Practice §2.9 at 50-51 (1986 and

Supp. 1993*); Criminal Jury Instruction, District of Columbia

§2.09 (3rd ed. 1978) (and see, Foreman v. United States, 1993

WL 477614 at fn.2); Council of Superior Court Judges of

Georgia, Suggested Pattern Jury Instructions, Part 2.D. (2d. ed.

1991); Maryland Criminal Pattern Jury Instructions 2:02 (1991);

and see, Holland v. United States, 348 U.S. 121, 138-39 (1954).

Other states emphasize that what is called for is not “absolute”

certainty or freedom from “all” doubt. See, Criminal Jury

Instructions (Connecticut), supra, at §2.9; Georgia Suggested

Pattern Jury Instruction, supra, at Part 2.D.; Hawai Standard

Jury Instruction No. 3.02; South Dakota Pattern Jury Instructions,

Criminal, No. 1-6-1; Tenmessee Pattern Jury Instructions -

Criminal §2.03 (3d.ed. 1992); see also, People v. Johnson, 842

P.2d 1, 46 fn.1 (Cal. 1992); Wantyen v. State 398 A.2d 780, 781

(Del. 1979); Dominick v. State, 433 S.E.2d 405 (Ga.App. 1993).

4. Petitioner incorrectly states that Connecticut has no pattern jury

instructions. Petitioner’s Brief on the Merits, p.A-2.

12

Similarly, “moral evidence” imports evidence of a

practical, rather than mathematical or absolute nature. Black’s

Law Dictionary defines that phrase,

[aJs 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.

Id., at 909.

In sum, the employment of these terms, “moral certainty”

and "moral evidence,” even considered in isolation from the rest

of the instruction, is unlikely to mislead a jury from its duty to

apply the “beyond a reasonable doubt" standard of proof.

IF THE CHARGE TO THE JURY IS CONSIDERED AS

A WHOLE, IT IS CLEAR THAT NO REASONABLE

JURY WOULD LIKELY BE MISLED

It is the settled jurisprudence of this Court that the

charge to the jury must be read as a whole. As the Court stated

in United States v. Park, 421 U.S. 658 (1975), “asingle

instruction to a jury may not be judged in artificial isolation, but

must be viewed in the context of the overall charge.” Jd., at 674,

quoting from Cupp v. Naughten, 414 U.S. i141, 146-47 (1973).°

Reading the jury instructions in the instant case as a whole

demonstrates that the jurors would not likely have been led

astray by the passing use of the "moral evidence” and “moral cer-

tainty” in instruction 2.90.

Petitioner argues that “the term ‘moral certainty’ .. .

invites the jury to base their decision on feelings rather than facts,

on emotion rather than on evidence.” Petitioner's Brief on the

Merits, at 25; and see pp.25-32 (passim). With regard to “moral

evidence,” petitioner claims that the term “connotes matters

5. In fact, California’s standard, pattern jury instructions expressly instruct

jurors that they must consider the instructions as a whole. (CALJIC 1.01.)

Bit

13

relating to the ethics or morality of a particular situation, rather

than the objective, verifiable facts comprising the situation." Jd.,

at 32-34. But when the “reasonable doubt” instruction is read in

the context of the other instructions, it is clear that neither of

these claims is justified.

The very first jury instruction generally given in criminal

cases in California is CALJIC 1.00, the complete text of which

is set out in the margin.* This pattern instruction is given in

virtually all criminal jury trials, and was given in petitioner's case.

Joint Appendix, at 51-52. By sts terms, it instructs jurors that

they “must not be influenced . . . by prejudice against” the

defendant, and that they “must not be influenced by mere

sentiment, conjecture, sympathy, passion, prejudice, public

opinion or public feeling.” CALJIC 1.00. Thus, even assuming

arguendo that “moral certainty” invites jurors to consider their

“feelings” and “emotions,” as petitioner contends, they have

6. You have heard all the evidence [and the arguments of the attorneys},

and now it is my duty to instruct you on the law that applies to this case.

[The law requires that | read the instructions to you.}] [You will have these

instructions in written form in the jury room to refer to during your

deliberations.]

You must base your decision on the facts and the law.

You have two duties to perform. First, you must determine the facts from

the evidence received in the trial and not from any other source. A “fact” is

something proved directly or circumstantially by the evidence [or by stipulation.

A stipulation is an agreement between attorneys regarding the facts}. Second,

you must apply the law that I state to you, to the facts, as you determine them,

and in this way arrive at your verdict [and any finding you are instructed to

include in your verdict}.

You must accept and follow the law as I state it to you, whether or not

you agree with the law. If anything concerning the law said by the attorneys

in their arguments or at any other time during the trial conflicts with my

instructions on the law, you must follow my instructions.

You must not be influenced by pity for a defendant or by prejudice

against [him] [ber]. You must not be biased against the defendant because [be]

[she] has been arrested for this offense, charged with a crime, or brought to

trial. None of these circumstances is evidence of guilt and you must not infer

or assume from any or all of them that [he] [she] is more likely to be guilty than

innocent. You must not be influenced by mere sentiment, conjecture,

sympathy, passion, prejudice, public opinion or public feeling. Both the People

and the defendant have a right to expect that you will conscientiously consider

and weigh the evidence, apply the law, and reach a just verdict regardiess of the

consequences.

14

already been expressly instructed that that is one thing they “must

not” do. Again, with regard to the assertion that “moral

evidence” invites a jury to consider improper ethical consider-

ations, Instruction 1.00 expressly directs the jurors that they

must determine the facts from the evidence received in

the trial and not from any other source. A “fact” is

something proved directly or circumstantially by the

evidence. Second, you must apply the law that I state

to you, to the facts, as you determine them, and in this

way arrive at your verdict.

CALJIC 1.00.

CALJIC instruction 2.00 goes on to define evidence and

to distinguish between direct and circumstantial evidence. Many

other instructions explain or direct the jury as to how to consider

particular types of evidence and what factors are relevant to

weighing that evidence. For example, at petitioner's trial, the

jury was instructed that statements and questions by lawyers are

not evidence. Joint Appendix, at 54 (CALJIC 1.02). They were

instructed as to what specific factors may be used to evaluate the

credibility of witnesses. Joint Appendix, at 60-61 (CALJIC

2.20). They were told that certain evidence was admitted for a

limited purpose and could not be considered for any other

purpose. Joint Appendix, at 58 (CALJIC 2.09). They were told

how to weigh the testimony of expert witnesses. Joint Appendix,

at 75 (CALJIC 2.80). The fact is that the practices and

procedures which a jury must use in evaluating the evidence

adduced at trial are carefully controlled and limited to evidence

relevant to the determination of the defendant's guilt or inno-

cence. Thus, there is no reasonable likelihood that one passing

reference to “moral evidence” would mislead a jury from their

duty.

Finally, it is fundamental to petitioner's claim that the

due process requirement that the prosecution prove its case

“beyond a reasonable doubt” has been reduced or diluted. But,

reading the instructions as a whole shows that this is not so.

"Moral evidence” and “moral certainty" are used but once, in

CALJIC 2.90. The phrase, “beyond a reasonable doubt,” by

contrast, is used repeatedly in California's standard instructions

as the touchstone for proof of guilt. Thus, the standard in-

struction regarding the defendant's right not to testify reads:

15

In deciding whether or not to testify, the defendant

may choose to rely on the state of the evidence and

upon the failure, if any, of the People to prove beyond

a reasonable doubt every essential element of the charge

against him. No lack of testimony on defendant's part

will make up for a failure of proof by the People so as

to support a finding against [him] [her] on any such

essential element.

CALJIC 2.61.

The standard instruction regarding eye-witness identifica-

tion reads:

The burden is on the People to prove beyond a

reasonable doubt that the defendant is the person who

committed the crime with which [he] [she] is charged.

If, after considering the circumstances of the

identification . . . you have a reasonable doubt whether

defendant was the person who committed the crime,

you must give the defendant the benefit of that doubt

and find [him] [her] not guilty.

CALJIC 2.91.

Again, the instruction distinguishing murder (the crime

charged in the instant case) from manslaughter includes the

following language: “To establish that a killing is murder .. .

and not manslaughter, the burden is on the People to prove

beyond a reasonable doubt each of the elements of murder ... .”

CALJIC 8.50.

Each of these instructions was given at petitioner's trial.

Joint Appendix, at 72, 79 and 95. The jury was also instructed

that, if they have “areasonable doubt" as to whether the crime is

first or second degree murder, they must return a verdict in the

second degree. Joint Appendix, at 97 (CALJIC 8.71). They

were given a similar instruction with regard to the distinction

between murder and manslaughter. Joint Appendix, at 98

(CALJIC 8.72). In fact, the jurors were told, expressly, that the

standard of proof was “beyond a reasonable doubt,” at least six

times in six different instructions. See also, Joint Appendix, at

118 (CALJIC 8.72 and CALJIC 8.80 and 8.81.3 as modified by

the trial court). And this does not count how many other times

they were given the corresponding phrase (in one form or

another) that “if you [the jury] have a reasonable doubt" you

must find the defendant not guilty, or guilty of the lesser crime,

16

etc. Under these circumstances, or anything like them, no juror

would be confused as to what the applicable standard of proof

was — that is, beyond a reasonable doubt.

CONCLUSION

For the reasons stated above, and in view of the poten-

tially serious consequences for the criminal justice systems of

California and of several of its sister states, amicus urges this

Court to affirm the ruling of the California Supreme Court.

Respectfully submitted

on behalf of the

California District Attorneys

Association, and the District Attorney

of Los Angeles County

GIL GARCETTI

District Attorney

County of Los Angeles

By

Counsel of Record

BRENT RIGGS

Deputy District Attorney

Appellate Division

Of Counsel

GEORGE M. PALMER

Acting Head Deputy

Appellate Division

GEORGE G. SIZE

Deputy District Attorney

Attorneys for Amicus Curiae