# Amicus Curiae Brief — Sandoval v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0436%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 942

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0436%3A09. Public record. Not legal advice.