Amicus Curiae Brief — Sandoval v. California

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AND BRIEF AMICUS CURIAE OF THE

| CRIMINAL JUSTICE LEGAL FOUNDATION

| IN SUPPORT OF RESPONDENTS

Cyt

IN THE OFFICE OF THE CLLaK |

Supreme Court of the Ginited States

OCTOBER TERM, 1993

ALFRED ARTHUR SANDOVAL, Petitioner,

THE PEOPLE OF THE STATE

OF CALIFORNIA,

---~ AND ----

CLARENCE VICTOR,

THE PEOPLE OF THE STATE OF NEBRASKA, Respondent. “$

vs.

Respondent,

Petitioner,

vs.

REY ay RE Se ee SRE Teo ae TY” hae

On Writs of Certiorari to the Supreme Courts of

the States of California and Nebraska

Criminal Justice Legal Foundation

| “Attorney of Record

ns

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Fdn.

2131 L Street

Emenin oh 8

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

QUESTION PRESENTED

Did Cage v. Louisiana, 498 U. S. 39 (1990) extend the

Due Process Clause so much that the California and

Nebraska reasonable doubt instructions § are

unconstitutional?

(i)

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

ALFRED ARTHUR SANDOVAL, Petitioner,

vs.

THE PEOPLE OF THE STATE

OF CALIFORNIA, Respondent,

---- AND ----

CLARENCE VICTOR, Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEBRASKA, Respondent.

MOTION OF AMICUS CURIAE FOR LEAVE TO FILE

BRIEF IN SUPPORT OF RESPONDENTS

Pursuant to Supreme Court Rule 37.3, the Criminal

Justice Legal Foundation respectfully moves for leave to

file the accompanying brief amicus curiae in support of

respondents in the above-captioned cases. Counsel for

petitioner Sandoval has refused consent; counsel for all

other parties have consented.

In the accompanying brief, amicus curiae argues that

the California and Nebraska reasonable doubt instructions

do not violate due process.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a

nonprofit California corporation organized to participate

in litigation relating to the criminal justice system as it

affects the public interest. CJLF seeks to bring the

constitutional rights of the victims and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

The present cases present the question of the contin-

ued validity of reasonable doubt instructions used in

California and Nebraska. Overturning these instructions

would require an unnecessary expansion of the Due

Process Clause and would severely disrupt the criminal

justice systems of several states. This needless disruption

is contrary to the interests CJLF was formed to protect.

For the foregoing reasons, amicus curiae requests leave

to file its brief.

December, 1993

Respectfully submitted,

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

TABLE OF CONTENTS

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I GE CUIOE 5. vines vcivccwccsescievnsions 2

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I

State criminal procedures that conform with traditional

practices are due great deference under the Due

PED bod oucascccdi.cnetadded deudwakans 4

A. Tradition of deferemce ..............000.: 4

B. Medina v. California ...... 2.0... ccc 6

Il

Neither instruction abrogates any traditional right, and

neither is fundamentally unfair ................. 10

iy EL ae kbeaesb ead econnsssvenceneeews 10

B. Contemporary practice .................. 16

C. Fundamental fairmess ............25005-: 17

Ill

Cage v. Louisiana does not render either instruction

ED evevedecuseswetscussiseas 18

(v)

vi

IV

This Court should not stifle experimentation in this

PE -aauabnoudcdvivesescaduxess cokes 22

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a Watidnldheetileed pi nednns ceeeseses 30

vii

TABLE OF AUTHORITIES

Cases

Anderson v. Dunn, 6 Wheat. (19 U. S.) 204,

is EE 6 nS aen ee whe cones chunscuees 26

Apodaca v. Oregon, 406 U. S. 404, 32 L. Ed. 2d 184,

See EEE ccdccbndentécsuacanees 10, 16

Arizona v. Roberson, 486 U. S. 675, 100 L. Ed. 2d 704,

Se ED habcokobssdbaccsicescess 28

Arnold v. State, 23 Ind. 170 (1864) ................ 13

Billard v. State, 30 Tex. 368 (1867)................ 11

Boyde v. California, 494 U. S. 370, 108 L. Ed. 2d 316,

ee ED acebc bev edcebevncceseans 20

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

Se LT EE ce nesénessadatanendcenes 15, 24

Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682,

Ce cicaiehkene ies di pe t's wens 0)

Cage v. Louisiana, 498 U. S. 39, 112 L. Ed. 2d 339,

Se ee ED scccdepacsvanes 3, 17-20, 22, 27

Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,

iceuechcnepesc iad weaned 28

California v. Green, 399 U. S. 149, 26 L. Ed. 2d 489,

we cveiwen cele windeees 29

Carter v. Illinois, 329 U. S. 173, 91 L. Ed. 172,

ee cecidicdddaknadsewewbaceeed 4

Coffin v. United States, 156 U. S. 432, 39 L. Ed. 481,

Pee SG EEE Scavevscdspucceccecese's 11, 14

Commonwealth v. Beldotti, 567 N. E. 2d 1219

SD Pa ceteGateanedsnscebebecnadcdedes 16

Commonwealth v. Stokes, 615 A. 2d 704

ED Nedeeeddaueuectcesentdnésaneneeoss 16

viii

Commonwealth v. Webster, 5 Cush. (S9 Mass.) 295

SE Ake dvb vueedeesskebbeandceseuseckeseus 10

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) ......... 25

Donnelly v. State, 2 Dutch. (26 N. J.) 601 (1857) .... 11

Dowling v. United States, 493 U. S. 342,

107 L. Ed. 2d 708, 110 S. Ct. 668 (1990) ........ 6, 17

Duckworth v. Eagan, 492 U.S. 195, 106 L. Ed. 2d 166,

ee ED Sekdushinoneuskaneaes 25, 26

Dunbar v. United States, 156 U. S. 185, 39 L. Ed. 390,

ee ee I a ib KGS Keesi bese Keanase ee 23

Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491,

ee Gs SE ne ckcsaserdeeses sauaees 5,14

Dutton v. Evans, 400 U. S. 74, 27 L. Ed. 2d 213,

te Re re Sgt Rae 29

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

RE eee er eee 28

Estelle v. McGuire, 116 L. Ed. 2d 385,

ee I So aN xe eCiehw se veveses des 19

Frye v. United States, 293 F. 1013 (D. C. App. 1923) . 25

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

ee Es Se aracsacds ven eeken es 23, 27

Garcia v. San Antonio Metropolitan Transit Authority,

469 U. S. 528, 83 L. Ed. 2d 1016,

ee EE sewed states chboekdnieure 27

Gaskins v. McKellar, 114 L. Ed. 2d 728,

EE co cccuyesaenseeceeesuees 22

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

EE cave cccauesueceeehecuececs 28

Holland v. United States, 209 F. 2d 516

SE EEE Se oe00bcebeusdeuucossd suave 17, 21

Holland v. United States, 348 U. S. 121, 99 L. Ed. 150,

We IO Scccncesnszvesvoenevcce 17, 24

Hopt v. Utah, 120 U. S. 430, 30 L. Ed. 708,

a Ge yy eee 12, 13, 20, 21, 23, 24

Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,

Gs SE Bios cc bs oc ceuecettessesse% 4,5

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

Fees Ges SUP OMUED cssvccnesczccceess 7, 14, 17, 26

James v. State, 45 Miss. 572 (1871) ............45. 11

Johnson v. Louisiana, 406 U. S. 356, 32 L. Ed. 2d 152,

SE CED coucesctesdweesasncerns 9, 21

Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377

SEE vcetescceasuneéaceecescecnceusaseesss 26

Leland v. Oregon, 343 U. S. 790, 96 L. Ed. 1302,

Wee IED cha rab etoscesossseeseecees 6

Lockett v. Ohio, 438 U. S. £86, 57 L. Ed. 2d 973,

PP SE, bebe céwcusbccessvceeeee’ 28

Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d 653,

Pe ED bc edeenccboeebersnedavaee 5

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

Pb Ge UN UE Socbcécevedsecevevessecne 15

Martin v. Ohio, 480 U. S. 228, 94 L. Ed. 2d 267,

Se ORs EE Soo bs dns crccudecencdcess 17

Mathews v. Eldridge, 424 U. S. 319, 47 L. Ed. 2d 18,

PP TEE kabeccoparcaecencioevenss 6,7

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262,

ee Oe Ss CUED nedeauecesedcusevesecses 28

Medina v. California, 120 L. Ed. 2d 353,

112 S. Ct. 2572 (1992) ................ 2, 6-9, 14, 16

Miles v. United States, 103 U. S. 304,

26 L. Ed. 481 SES Rs ee eee 11, 12, 13, 23

Mills v. Maryland, 486 U. S. 367, 100 L. Ed. 2d 384,

108 S. Ct. 1860 OR RE eS ee ee 28

Minnick v. Mississippi, 112 L. Ed. 2d 489,

111 S. Ct. 486 EE RS Ck, 2 ee ee 28

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 A ee ene eee 25, 28

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791,

55 S. Ct. 340 EN ee re ee 9

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543.

43 S. Ct. 265 I ee a ee a )

New State Ice Co. v. Liebmann, 285 U. S. 262,

76 L. Ed. 747, 52 S. Ct. 371 0 Sa 27

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

97 S. Ct. 2319 sia a Se 4, 6, 7,8, 14

Payne v. Tennessee, 115 L. Ed. 2d 720,

111 S. Ct. 2597 Ee ee 4

People v. Brigham, 25 Cal. 3d 283,

599 P. 2d 100 RR 16, 24

People v. Sandoval, 4 Cal. 4th 155,

841 P. 2d 862 RE at Ae le 1,2

People v. Strong, 30 Cal. 151 a ee ee 11

Perovich v. United States, 205 U. S. 86, 51 L. Ed. 722,

27 S. Ct. 456 eae a Cer a a ee 12

Planned Parenthood of SE Pa. v. Casey,

120 L. Ed. 2d 674, 112 S. Ct. 2791 ee 15

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

102 S. Ct. 1198 (1982) ......................... 9

Skipper v. South Carolina, 476 U. S. 1, 90 L. Ed. 2d 1,

106 S. Ct. 1669 (1986) ........0000..0..0....... 28

Smith v. State, 588 So. 2d 561

(Ala. Crim. App. 1991) .................... 16, 17

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

tee og Se Ee. 5,9

Speiser v. Randall, 357 U. S. 513, 2 L. Ed. 2d 1460,

PRM GE BCU occ c vc scccccccccese 7, 15

Spencer v. Texas, 385 U. S. 554, 17 L. Ed. 2d 606,

Pe ee OD nk oS in sak docs scuns 6, 18, 30

State v. Montgomery, 417 S. E. 2d 742 (N.C. 1992) .. 16

State v. Morley, 474 N. W. 2d 660

REE er ere ee 2, 13, 20, 23

State v. Oscar, 7 Jones (52 N. C.) 305 | 13

State v. Ostrander, 18 lowa 435 ET A eh ak wd es 1]

State v. Rhodes, 822 P. 2d 960 (Idaho ee 16

State v. Victor, 494 N. W. 2d 565 (Neb. er 2

State v. Williams, 828 P. 2d 1006 (Or. ree 16

Sullivan v. Louisiana, 124 L. Ed. 2d 182,

113 S. Ct. 2078 (1993) .... 2... 23, 26

United States v. Ivic, 700 F. 2d 51 (CA2 _. wren 24

Vasquez v. Hillery, 474 U. S. 254, 88 L. Ed. 2d 598,

106 S. Ct. 617 (1986) ... 2.0. 15

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

110 S. Ct. 3047 (1990) ........................ 28

xii

Wilson v. United States, 232 U. S. 563, 58 L. Ed. 728,

ee a ee eo 12

Withrow v. Williams, 123 L. Ed. 2d 407,

SEP Ge SOUP CUNUOD oko seeia de dbadwescsens os 29

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ........ 23, 28

Treatises

H. Kelley, Criminal Law and Practice § 374 (1876)... 11

LaFave, Search and Seizure (2d ed. 1987) .......... 29

J. Strong, McCormick on Evidence § 341

PE PP CebtbGbeteh<inddbwbesenes ees 11, 16

F. Wharton, Wharton’s Criminal Evidence

PE iid et nédevideheneensscvanness 11

Wigmore, Evidence (3d ed. 1940) ................ 29

J. Wigmore, Evidence (Chadbourn rev. 1981) .... 21, 23

B. Witkin and N. Epstein, California Criminal Law

Rt a a 10

Miscellaneous

American Heritage Dictionary (3d ed. 1992) ........ 20

PE giver Reece ciutoheseeereennes 1, 10

Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970)... 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

ALFRED ARTHUR SANDOVAL, Petitioner,

VS.

THE PEOPLE OF THE STATE

OF CALIFORNIA, Respondent,

CLARENCE VICTOR, Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEBRASKA, Respondent.

————————————$—$——_—oSSSQSS_

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

oo

SUMMARY OF FACTS AND CASE

Petitioner Sandoval in No. 92-9049 was convicted on

four counts of first degree murder with a multiple-murder

special circumstance finding. See People v. Sandoval, 4

Cal. 4th 155, 167-168, 841 P. 2d 862, 866 (1992). The jury

returned a verdict of death for one killing and verdicts of

life without possibility of parole for the three other

murders. /d., at 168, 841 P. 2d, at 866. The jury was

given an instruction substantially similar to the standard

jury instruction on reasonable doubt, CALJIC 2.90.' See

1. See Appendix for the text of CALJIC 2.90.

Opp., at 5, n. 2. The California Supreme Court affirmed

Sandoval’s convictions and sentence. See id., at 198, 841

P. 2d, at 886.

Petitioner Victor in No. 92-8894 was convicted of first

degree murder and use of a weapon to commit a felony

for killing 82-year-old Alice Singleton. He was sentenced

to death for the murder. State v. Victor, 494 N. W. 2d

565, 568 (Neb. 1993). His jury was given essentially the

same reasonable doubt instruction that was approved by

the Nebraska Supreme Court in State v. Morley, 474

N. W. 2d 660 (Neb. 1991). Victor, supra, 494 N. W. 2d,

at 569. Relying on Morley, the Nebraska Supreme Court

rejected Victor’s challenge to the reasonable doubt

instruction. Jbid.

SUMMARY OF ARGUMENT

Because due process arguments have great potential

for needless interference in state criminal procedure, this

Court has been very reluctant to expand the guarantee.

Instead, this Court has traditionally deferred to the state’s

primacy in criminal law.

This deference was reaffirmed in Medina v. California,

120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). Medina

established that a procedure that is not contrary to

established practice will not violate due process unless it

is fundamentally unfair. As few practices are so egregious

as to be fundamentally unfair, the vast majority will not

violate the Due Process Clause.

The California and Nebraska reasonable doubt

instructions are sanctioned by history and are not funda-

mentally unfair. The California instruction is taken from

the landmark case in the modern definition of reasonable

doubt. This definition of reasonable doubt has been

2. See Appendix for the text of the Morley instruction.

consistently popular with the states and has been

approved by this Court. The Nebraska instruction is

composed of similarly acceptable parts. Voiding these

traditional instructions would be a particularly excessive

expansion of due process.

Recent treatment of the instructions supports their

constitutionality. They are still popular in several states,

and the criticism of them has been primarily of a practi-

cal, not constitutional, nature.

Nor are these instructions fundamentally unfair.

These long-respected procedures are not the egregious

practices that fundamental fairness protects against. They

are the good faith efforts of two states to define reason-

able doubt. Due process requires no more.

Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam)

does not change the analysis. Neither instruction contains

any reference to “grave uncertainty,” the phrase that was

key to the Cage decision. While the California and

Nebraska instructions do contain language that was

criticized in Cage, this language was used in a different

context than what was condemned in Cage. Finally, the

standard of review for jury instructions employed by Cage

has been subsequently rejected by this Court.

This Court should be particularly hesitant to interfere

with a state’s definition of reasonable doubt. If this Court

strikes down the two instructions before it, then there will

be a great demand for this Court to supply an approved

definition of reasonable doubt. Unfortunately, no clearly

superior alternative standard exists. This Court should

therefore avoid announcing a standard, because it would

stifle innovation and prevent the states from developing

the best standard. Finally, undue interference with state

reasonable doubt instructions is too close to constitu-

tionalizing the law of evidence, a development this Court

must avoid.

ARGUMENT

I. State criminal procedures that conform with

traditional practices are due great deference

under the Due Process Clause.

A. Tradition of Deference.

“Due process” is a potentially loaded term. Because

it does not state what specific processes are due, it could

be misinterpreted to burden the states with virtually any

procedure. Such pervasive federal control of criminal

procedure violates a basic principle of federalism, that

preventing and dealing with crime is primarily a state

matter. See Patterson v. New York, 432 U.S. 197, 201

(1977).

Thus, “the Due Process Clause has never been

perverted so as to force upon the... States a uniform

code of criminal procedure.” Carter v. Illinois, 329 U. S.

173, 175 (1946). Instead, “[uJnder our constitutional

system, the primary responsibility for defining crimes

against state law, fixing punishments for commission of

these crimes, and establishing procedures for criminal

trials rests with the States.” Payne v. Tennessee, 115

L. Ed. 2d 720, 734, 111 S. Ct. 2597, 2607 (1991).

This still leaves the problem of how to protect state

criminal procedure from unduly expansive interpretations

of the Due Process Clause. One way to limit the reach of

due process would be to judge state procedures against

the common law. The advantage of using the common

law is that what process was due is relatively well known,

thus limiting the reach of the clause. Unfortunately, this

is too restrictive on the states. Preventing the states from

departing from the common law would stifle criminal

procedure, preventing much of the experimentation that

is so vital to federalism. Thus Hurtado v. California, 110

U. S. 516 (1884) allowed California to use a preliminary

hearing instead of the common law indictment because

States must be given the freedom to develop their own

procedures. The Due Process Clause of the Fourteenth

Amendment

“refers to that law of the land in each State, which

derives its authority from the inherent and reserved

powers of the State, exerted within the limits of those

fundamental principles of liberty and justice which lie

at the base of all our civil and political institutions,

and the greatest security for which resides in the right of

the people to make their own laws, and alter them at

their pleasure.” Jd., at 535 (emphasis added).

At the heart of this argument is the idea that this

Court cannot impose a particular procedure upon the

States simply because it believes that its procedure is

better. A state procedure “does not run foul of the

Fourteenth Amendment because another method may

seem to [this Court’s] thinking to be fairer or wiser or to

give a surer promise of protection to the prisoner at the

bar.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).

Instead, a state “is free to regulate the procedure of its

courts in accordance with its own conception of policy and

fairness unless in doing so it offends some principle of

justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Ibid. (emphasis

added).

The incorporation doctrine has narrowed the scope of

Snyder. Its statements about self-incrimination and jury

trial, see ibid., are no longer true. See Malloy v. Hogan,

378 U. S. 1, 8 (1964); Duncan v. Louisiana, 391 U. S. 145,

149 (1968). But incorporation, if anything, strengthens

the case for limiting the scope of procedural due process.

The incorporation of most of the Bill of Rights gives state

defendants many specific protections. As the Bill of

Rights has become more and more like a national code of

criminal procedure, see Friendly, Is Innocence Irrelevant?

Collateral Attack on Criminal Judgments, 38 U. Chi. L.

Rev. 142, 155-156 (1970), there is even less need for

expansive interpretations of the Due Process Clause. See

Dowling v. United States, 493 U. S. 342, 352 (1990). A

corollary to this development is that modern claims under

due process are less likely to invoke specific rights, but

instead rely on much more ephemeral claims of general

unfairness. Thus this Court today has even less reason

for expanding due process.

Justice Harlan affirmed this development in his

opinion for this Court in Spencer v. Texas, 385 U. S. 554

(1967). “In the procedures before us, in contrast, no

specific federal right . . . is involved; reliance is placed

solely on a general ‘fairness’ approach. In this area the

Court has always moved with caution before striking down

State procedures.” /d., at 565. Instead of adopting its

own code of fairness, this Court has instead deferred to

State judgments, choosing to limit its discretion under the

Due Process Clause. See Leland v. Oregon, 343 U. S. 790,

799 (1952).

B. Medina v. California.

The tradition of deference to state criminal procedure

was reaffirmed in Medina v. California, 120 L. Ed. 2d 353,

112 S. Ct. 2572 (1992). The Medina Court rejected the

balancing test that had been developed for administrative

law in Mathews v. Eldridge, 424 U. S. 319 (1976) and

adopted the traditional deference to state criminal

procedure enunciated in Patterson v. New York, 432 U. S.

197 (1977). Medina, supra, 120 L. Ed. 2d, at 361, 112

S. Ct., at 2576-2577.

The Patterson Court had rejected a due process

challenge to New York's placement of the burden of

proof of the affirmative defense of extreme emotional

disturbance on defendant. This decision was bottomed on

the tradition of deference to state courts in criminal

matters. See Patterson, supra, 424 U. S., at 201. Given its

decision not to interfere with the state procedure “unless

‘it offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked

as fundamental,’ ” id., at 202 (quoting Speiser v. Randall,

357 U. S. 513, 523 (1958)), the Patterson Court had to

find some substitute for a simple balancing of interests.

Deference to historically accepted procedures achieved

the twin goals of placing a limit on any open-ended

guarantees of fairness while at the same time preserving

those rights that are worthy of being called fundamental.

Thus, it was important to the Patterson Court that New

York's severe emotional disturbance defense was simply

“an expanded version of the common-law defense of heat

of passion on sudden provocation... .” /d., at 202. The

burden of proving this and other affirmative defenses was

traditionally on the defendant, both at the common law

and when the Fifth and Fourteenth Amendments were

passed. /d., at 202. History was thus able to define the

limits of the aphorism “that it is far worse to convict an

innocent man than to let a guilty man go free.” Jn re

Winship, 397 U. S. 358, 372 ( 1970) (Harlan, J., concur-

ring). “Proof of the non-existence of all affirmative

defenses has never been constitutionally required; and we

perceive no reason to fashion such a rule in this

case....” 432 U.S., at 210.

Medina reaffirms this tradition of deference to estab-

lished practices. “[B]ecause the States have considerable

expertise in matters of criminal procedure and the

criminal process is grounded in centuries of common law

tradition, it is appropriate to exercise substantial defer-

ence to legislative judgments in this area.” Medina, supra,

120 L. Ed. 2d, at 363, 112 S. Ct., at 2577. This approach,

approved in Puatte~-on, “is thus far less intrusive than that

approved in Mathews,” ibid., which involved balancing the

individual's against the government's interests in the

challenged procedure. See Mathews, supra, 424 U. S., at

335.

The Medina Court's decision to adopt the narrower

interpretation of the Due Process Clause hinged upon the

incorporation doctrine.

“The Bill of Rights speaks in explicit terms to many

aspects of criminal procedure, and the expansion of

those constitutional guarantees under the open-ended

rubric of the Due Process Clause invites undue

interference with both considered legislative judgments

and the careful balance that the Constitution strikes

between liberty and order.” Medina, supra, 120

L. Ed. 2d, at 362, 112 S. Ct., at 2576.

The Medina Court first limited the scope of the Due

Process Clause by looking to the historical basis of the

proposed constitutional rule. If a rule is “ ‘so rooted in

the traditions and conscience of our people as to be

ranked as fundamental,’ ” id., at 363, 112 S. Ct., at 2577

(quoting Patterson, supra, 432 U.S., at 202), then it

should be part of a long and commonly accepted practice

and thus protected under due process. Where the

constitutional rule proposed by defendant is not part of a

settled tradition, then the challenged state practice is on

a much stronger footing. See 120 L. Ed. 2d, at 364, 112

S. Ct., at 2578. A state procedure’s worthiness could be

further enhanced by looking to current practice. While

“of limited relevance to due process inquiry,” if the

constitutional rule proposed by defendant does not have

at least substantial contemporary acceptance there is little

reason to believe that the proposed rule is fundamental.

Ibid.

If the challenge to the state procedure has no basis in

history, then the only alternative is an appeal to funda-

mental fairness. The Medina Court recognizes that a

historically valid practice may nonetheless be unconstitu-

tional if it “transgresses any recognized principle of

‘fundamental fairness’ in operation.” Jd., at 365, 112

S. Ct., at 2578. This Court did not need to explain

exactly what constituted a fundamentally unfair procedure

because of the weakness of Medina’s claim.

Medina claimed that it violated due process for

California to place on defendant the burden of proof that

he is incompetent to stand trial. /d., at 359, 112 S. Ct., at

2574. As allocating the burden neither required defen-

dant to disprove any elements of the crime nor rewarded

the government for any impropriety, “it [was] not difficult

to dispose of petitioner's challenge to the presumption of

competence...." Jd., at 367, 112 S.Ct. at 2581.

Therefore, the Medina Court did not have to explore the

parameters of fundamental fairness.

Given the deference due to state procedures under the

Due Process Clause, a rule guaranteeing fundamental

fairness must be narrow. “[F]airness is a relative, not an

absolute concept.” Snyder v. Massachusetts, 291 U. S. 97,

116 (1934). Therefore, “what is fair in one set of circum-

stances may be an act of tyranny in others.” Jd., at 117.

Any standard that is as potentially subjective as fairness

must be narrowly construed in order to avoid swallowing

up the traditional deference to state criminal procedure.

Mere disagreement with a state procedure is not

enough to render it fundamentally unfair. See Johnson v.

Louisiana, 406 U. S. 356, 362 (1972). The definition of

fundamental fairness

“is best illustrated by recalling the classic grounds for

the issuance of a writ of habeas corpus—that the

proceeding was dominated by mob violence: that the

prosecutor knowingly made use of perjured testimony;

or that the conviction was based on a confession

extorted from the defendant by brutal methods.” Rose

v. Lundy, 455 U.S. 509, 544 ( 1982) (Stevens, J.,

dissenting) (footnotes omitted).

These cases deal with procedures or trials that under-

mine the basic integrity of the trial. The three cases cited

in the Lundy dissent—Moore v. Dempsey, 261 U.S. 86

(1923); Mooney v. Holohan, 294 U.S. 103 (1935); and

Brown v. Mississippi, 297 U. S. 278 (1936)—represent the

worst types of abuses found in the history of American

criminal procedure and are mercifully rare.

10

If a procedure does not violate a specific federal right,

is not contrary to a traditional right, and does not critical-

ly undermine the trial, then it does not violate due

process. The incorporated Bill of Rights and the many

protections provided by state law provide state defendants

with enough protection that it is unnecessary to turn due

process into a code of criminal procedure.

Il. Neither instruction abrogates any traditional right,

and neither is fundamentally unfair.

A. History.

The strongest argument in favor of the constitutional-

ity of the California and Nebraska instructions is their

history. The California instruction, CALJIC 2.90, is taken

from one of the landmark cases in American criminal law,

Commonwealth v. Webster, 5 Cush. (S9 Mass.) 295, 320

(1850). See 5 B. Witkin and N. Epstein, California

Criminal Law § 2652, at 3184 (2d ed. 1989). Webster

began the application of reasonable doubt “in its modern

form in criminal cases.” Apodaca v. Oregon, 406 UV. S.

404, 412, n. 6 (1972) (plurality). An attack on CALJIC

2.90 is thus an attack on the foundation of modern

reasonable doubt law.

Petitioner Sandoval attempts to distinguish the Califor-

nia instruction from that given in Webster. He notes that

the instruction read in Webster contains additional lan-

guage on the burden of proof and the need to prove each

fact beyond a reasonable doubt. See Petitioner's Brief, at

38-39. This no more than faint praise in light of the

assault petitioner makes on the rest of Webster. Sandoval

asserts that the California “instruction consists of a

passage extracted from Commonwealth v. Webster, each

component of which conveys an improper meaning to the

jury in current parlance. While the passage—at the time

it was penned—conveyed a meaning consistent with the

core concept of proof beyond a reasonable doubt, the

11

meaning presently conveyed is a gross deviation from that

core concept.” /d., at 37 (emphasis added).

This is a dagger thrust at the heart of the Webster

instruction. No amount of further instruction could save

a “gross deviation” from the definition of reasonable

doubt. The passage from Webster that was adopted by

California was, and still is, considered to be the heart of

the Webster definition of reasonable doubt. See

F. Wharton, Wharton's Criminal Evidence § 1, at 2-3 (9th

ed. 1884); J. Strong, McCormick on Evidence § 341, at

577 (4th ed. 1992). Sandoval’s attack on CALJIC 2.90 is

an attack on Webster.

The reasonable doubt standard is derived from the

presumption of innocence, a principle with roots reaching

at least as far back as Roman law, and possibly back to

the Old Testament. See Coffin v. United States, 156 U. S.

432, 453-454 (1895). Reasonable doubt is of much more

recent vintage. The earliest use of reasonable doubt is

believed to be a 1798 high treason case tried in Dublin.

See Apodaca, supra, 406 U. S., at 412, n. 6. There was a

fair amount of confusion over when and how to apply the

reasonable doubt standard until the Webster decision

ushered in the modern age. See ibid.

Webster was recognized as the leading definition of

reasonable doubt during the period after the ratification

of the Fourteenth Amendment. The treatise writers of

the day saw Webster as the authoritative definition of

reasonable doubt. See Wharton’s, supra, § 1, at 2-3;

H. Kelley, Criminal Law and Practice § 374, at 199

(1876). Many states also adopted Webster. See, €.g.,

Williams v. State, 52 Ala. 411, 413 (1875); Donnelly v.

State, 2 Dutch. (26 N. J.) 601, 615 (1857); State v.

Ostrander, 18 lowa 435, 459 (1865); James v. State, 45

Miss. 572, 575 (1871); Billard v. State, 30 Tex. 368, 373

(1867); People v. Strong, 30 Cal. 151, 155 (1866).

This Court has also accepted the Webster definition of

reasonable doubt. In Miles v. United States, 103 U. S. 304

SO es ee

12

(1881) the trial court instructed the jury that “ ‘[p]roof

beyond a reasonable doubt’ is such as will produce an

abiding conviction in the mind to a moral certainty that

the fact exists that is claimed to exist, so that you feel

certain that it exists.” Jd., at 309 (emphasis added).

While the Miles Court felt that most attempts to define

reasonable doubt were futile, see id., at 312, it upheld this

“moral certainty” definition. “The language used in this

case, however, was certainly very favorable to the accused,

and is sustained by respectable authority. Commonwealth

v. Webster, 5S Cush. (Mass.) 295... .” Ibid. (emphasis

added); accord Wilson v. United States, 232 U. S. 563, 570

(1914).

Webster was also endorsed in Perovich v. United States,

205 U. S. 86 (1907). There, “this instruction [on reason-

able doubt] is taken from the charge of Chief Justice

Shaw to the jury in Commonwealth v. Webster, 5 Cush.

295, 320....” 205 U. S., at 92. This Court upheld the

instruction, relying on the prior approval of Webster in

Miles. See ibid.

The other early decision that addressed the Webster

definition was Hopt v. Utah, 120 U. S. 430 (1887). The

instruction at issue did not define reasonable doubt in

terms of moral certainty, see id., at 439, but the Court

nonetheless noted the Webster definition of reasonable

doubt, feeling that “ ‘to a reasonable and moral certainty’

add{s] nothing to the words ‘beyond a reasonable

doubt’... .” Jd., at 440. The Hopt Court felt that in all

but the more complicated cases, the best instruction may

be to leave reasonable doubt undefined. /d., at 440-441.

Given the approval of Webster in Miles and the

subsequent support of Miles in Perovich and Wilson, this

mildly critical dicta is not damning. Furthermore, Webster

was not being criticized for restricting defendant's rights.

The Hopt Court instead felt that Webster was not up to

the task of keeping jurors from arriving at unsupported

acquittals.

13

“Out of the domain of the exact sciences and actual

observation there is no absolute certainty. The guilt

of the accused, in the majority of criminal cases, must

necessarily be deduced from a variety of circumstances

leading to proof of the fact. Persons of speculative

minds may in almost every such case suggest possibili-

ties of the truth being different from that established

by the most convincing proof. The jurors are not to

be led away by speculative notions as to such possibili-

ties.” Id., at 439-440.

The Nebraska definition of reasonable doubt uses

moral certainty language similar to that found in Webster

and also defines it as “such a doubt as would cause a

reasonable and prudent man, in one of the graver and

more important transactions of life, to pause and hesitate

before taking the represented facts as true and relying

and acting thereon.” State v. Morley, 474 N. W. 2d 660,

669 (Neb. 1991). While not found in Webster, this phrase

has a similarly strong background.

This analogy to “important transactions” had its own

adherents in 19th century state courts, see, e.g., Arnold v.

State, 23 Ind. 170 (1864); State v. Oscar, 7 Jones (52

N. C.) 305 (1860), and received strong support from this

Court. In Miles, supra, the trial court, in addition to using

moral certainty language from Webster, further defined

reasonable doubt as the level of belief so “ ‘that a

prudent man would feel safe to act upon that conviction

in matters of the highest concern and importance to his

own dearest personal interests.’ ” 103 U. S., at 309. This

language was also approved by the Miles Court. See id.

at 312.

The Hopt Court gave even more explicit approval of

this type of instruction. It noted that “an illustration like

the one given in this case, by reference to the conviction

upon which the jurors would act in the weighty and

important concerns of life, would be likely to aid them to

a right conclusion .. . .”. Hopt, supra, 120 U. S., at 441.

14

Using the term “substantial” to help define reasonable

doubt, while not as popular as the two definitions dis-

cussed above, was not contrary to the roots of reasonable

doubt. In Coffin v. United States, 156 U.S. 432, 453

(1895) the trial court instructed the jury that “[a] reason-

able doubt, as that term is employed in the administration

of the criminal law, is an honest, substantial misgiving,

generated by the proof or want of it.” (emphasis added).

This, and the rest of the reasonable doubt instruction, was

held to be a complete instruction on reasonable doubt.’

Ibid. If this term were fundamentally unfair, this Court

would have invalidated the instruction in Coffin.

“Historical practice is probative of whether a proce-

dural rule can be characterized as fundamental.” Medina

v. California, 120 L. Ed. 2d 353, 363, 112 S. Ct. 2572, 2577

(1992); see Patterson v. New York, 432 U.S. 197, 202

(1977); In re Winship, 397 U. S. 358, 361 (1970). The

Medina, Patterson, and Winship Courts were using history

to see if historical practice justified resorting to due

process to impose a particular rule upon the states.

“Although virtually unanimous adherence to the reason-

able-doubt standard in common-law jurisdictions may not

conclusively establish it as a requirement of due process,

such adherence does ‘reflect a profound judgment about

the way in which law should be enforced and justice

administered.’ ” Winship, supra, 397 U.S., at 361-362

(quoting Duncan v. Louisiana, 391 U. S. 145, 155 (1968)).

Petitioners do not advance such a rule. Instead, the

weight of history supports the language found in the

California and Nebraska instructions. In Medina, the fact

that it was unsettled whether history supported defend-

ant’s claim was enough to keep this Court from invoking

due process to impose a new procedural burden on the

state. See Medina, supra, 120 L. Ed. 2d, at 364, 112

3. The Coffin Court reversed the conviction because there was no additional

instruction on the presumption of innocence. See id., at 461.

15

S. Ct., at 2578. Here, where history favors the states’

positions, the argument against extending due process is

all the stronger.

The argument against extending due process is made

conclusive by this Court’s treatment of the language used

in the two instructions. Once this Court approves a

practice, other jurisdictions that employ the same or

similar practice should be able to rely on this Court’s

approval. While not infallible, this Court is final, see

Brown vy. Allen, 344 U. S. 443, 540 (1953) (Jackson, J.,

concurring), and state courts and legislatures have every

reason to continue a practice that this Court has approved

and has never overturned. Ignoring precedent and

dashing these expectations can only diminish respect for

the rule of law that is at the heart of stare decisis. See

Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986); Planned

Parenthood of SE Pa. v. Casey, 120 L. Ed. 2d 674, 700,

112 S. Ct. 2791, 2808 (1992). Ignoring the approval found

in Miles, Wilson, Perovich, and Hopt will diminish the rule

of law.

This Court has usually confined upsetting state

expectations in criminal procedure to extending the Bill of

Rights to the states. There was usually strong historic

precedent for such an extension and frequently a new

right was imposed only after many states had adopted

similar practices. See, e.g, Mapp v. Ohio, 367 U. S. 643,

651 (1961).

General due process, however, is another matter.

Where no specific federal right is asserted, “the Court has

always moved with caution before striking down state

procedures.” Spencer v. Texas, 385 U. S. 554, 565 (1967).

As due process is so open-ended, this Court must be

particularly careful not to upset state expectations.

Therefore, this Court should not undo what it has already

done.

16

B. Contemporary Practice.

“Contemporary practice, while of limited relevance to

the due process inquiry,” Medina v. California, 120

L. Ed. 2d 353, 364, 112 S. Ct. 2572, 2578 (1992), also

favors the two instructions. “Moral certainty” is still

accepted as a valid term for defining reasonable doubt by

other jurisdictions. See, e.g., Smith v. State, 588 So. 2d

561, 569 (Ala. Crim. App. 1991); Commonwealth v.

Beldotti, 567 N. E. 2d 1219, 1225 (Mass. 1991); State v.

Williams, 828 P. 2d 1006, 1018 (Or. 1992); State v. Rhodes,

822 P. 2d 960, 978 (Idaho 1991). While there has been

minor constitutional criticism of “moral certainty,” see

State v. Montgomery, 417 S. E. 2d 742, 750 (N. C. 1992),

the primary criticism of Webster is not that it unconstitu-

tionally deprives defendant of a reasonable doubt instruc-

tion, but that it does not help to clarify what reasonable

doubt means. See J. Strong, McCormick on Evidence

§ 341, at S77 (4th ed. 1992).

Even the most eloquent critic of California’s reason-

able doubt instruction did not assail it in constitutional

terms. In People v. Brigham, 25 Cal. 3d 283, 599 P. 2d

100 (1979) Justice Stanley Mosk, while criticizing CALJIC

No. 2.90 and Penal Code section 1096 extensively, con-

curred in the affirmance of a conviction where this

instruction was used. Instead of dissenting on the ground

that the reasonable doubt instruction was unconstitutional,

he simply called upon the legislature to provide a superior

solution to the problem of reasonable doubt. See id., at

314, 599 P. 2d, at 120 (Mosk, J., concurring). Further-

more, this Court’s last reference to Webster was favorable,

noting that it ushered in the modern age of reasonable

doubt. See Apodaca v. Oregon, 406 U. S. 404, 412, n. 6

(1972). “Moral certainty” is not a standard under sus-

tained constitutional assault.

Nor have the states necessarily seen the word “sub-

stantial” as poisonous. In Commonwealth v. Stokes, 615

A. 2d 704, 709-710 (Penn. 1992) the Pennsylvania

17

Supreme Court refused to invalidate a reasonable doubt

instruction just because it used the word “substantial” to

differentiate reasonable doubt from imagined doubt or

passing fancy. See also Smith v. State, 588 So. 2d 561, 569

(Ala. Crim. App. 1991). In Holland v. United States, 348

U. S. 121, 140 (1954) this Court affirmed an instruction

that stated that a reasonable doubt was a “ ‘substantial

doubt, not a trivial doubt....’” Holland v. United

States, 209 F. 2d 516, 522 (CA 10 1954). While “sub-

stantial doubt” must now be used with care, see Cage v.

Louisiana, 498 U.S. 39 (1990),* it has not required

automatic reversal.

In any event, neither instruction is against the over-

whelming weight of authority. Even if the bulk of

authority was against them, that would not be enough to

make them unconstitutional. See Martin v. Ohio, 480

U. S. 228, 235-236 (1987). Substantial approval, however,

should significantly weigh in favor of the challenged state

procedure. Due process only protects rules of fundamen-

tal fairness and it is difficult to see how a practice is

fundamentally unfair if it has strong historic roots and

continues to be observed in several jurisdictions.

C. Fundamental Fairness

The Due Process Clause’s guarantee of fundamental

fairness is not an invitation for federal courts to meddle

in State criminal procedure. This guarantee only protects

the accused from the very worst practices. See Part I B,

ante, at 6-10. The main source of federal protection is

now the Bill of Rights. See Dowling v. United States, 493

U. S. 342, 352 (1990).

Reasonable doubt is fundamental to the fairness of the

criminal trial. See Jn re Winship, 397 U. S. 358, 362-363

(1970). This requirement has roots deep in our constitu-

tional history. See id., at 362. The California and

4. Cage will be addressed in Part III of this brief.

18

Nebraska instructions are an important part of this

history. They have roots that stretch back to the first

modern definition of reasonable doubt and have been

widely used ever since. See Part Il, ante, at 10-18. It

would be a needless irony to strike down the roots of a

requirement steeped in history.

Both instructions tell the jury that they cannot convict

if they have a reasonable doubt. Neither definition of

reasonable doubt negates this basic requirement. See

Part III, post, at 18-22. Fundamental fairness can require

no more. “In the face of the legitimate state purpose and

the long-standing and widespread use that attend the

procedure under attack here, [this Court should] find it

impossible” to declare these instructions fundamentally

unfair. Spencer v. Texas, 385 U. S. 554, 564 (1967).

III. Cage v. Louisiana does not render either

instruction fundamentally unfair.

This Court's uninterrupted support for the language

found in the California and Nebraska reasonable doubt

instructions appeared to change in Cage v. Louisiana, 498

U.S. 39 (1990) (per curiam). Cage's criticism of

Louisiana’s use of “moral certainty” and “substantial

doubt” does not, however, change the mandate of history.

These historically sanctioned instructions are not rendered

invalid by this brief per curiam opinion. Careful analysis

of the instruction struck down by Cage, this Court's

subsequent treatment of that decision, and totality of the

California and Nebraska instructions show that neither

instruction is diminished by Cage.

Any analysis of Cage and its impact must begin with

the instruction it struck down. The pertinent part read:

“ “This doubt, however, must be a reasonable one; that

is one that is founded upon a real tangible substantial

basis and not upon mere caprice and conjecture. I/t

19

must be such doubt as would give rise to a grave uncer-

tainty, raised in your mind by reasons of the unsatis-

factory character of the evidence or lack thereof. A

reasonable doubt is not a mere possible doubt. /t is

an actual substantial doubt. It is a doubt that a

reasonable man can seriously entertain. What is

required is not an absolute or mathematical certainty,

but a moral certainty.” Id., at 40 (emphasis in

original).

While three phrases struck the eye of the Cage Court,

the first was by far the most serious. “Grave” is

“1. [rjequiring serious thought; momentous; a grave

decision in a time of crisis.” American Heritage

Dictionary 791 (3d ed. 1992) (emphasis in original). This

is fundamentally incompatible with any possible definition

of reasonable doubt. In effect, the trial court told the

jury that it must convict the capital defendant unless it

had a momentous doubt.

This gross inaccuracy has the effect of shifting the

burden of proof to defendant. For the jury to have a

“grave” doubt about defendant's guilt, it must feel that

defendant's case was stronger than the prosecution's.

This role reversal clearly violates due process.

The Cage Court did not stop there. It also stated that

“substantial,” like “grave,” “suggest|ed] a higher degree of

doubt than is required for acquittal under the reasonable

doubt standard.” /d., at 41. This, combined with the

reference to moral certainty, made it “clear that a reason-

able 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.” /bid.

This attack on the grossly inadequate instruction in

Cage cannot be translated into a broader assault on the

California and Nebraska instructions. The Cage decision

uses a standard for analyzing jury instructions that has

since been disapproved. In Estelle v. McGuire, 116

L. Ed. 2d 385, 399, n. 4, 112 S. Ct. 475, 482, n. 4 (1991)

20

this Court formally disapproved the “reasonable juror”

standard employed in Cage, recognizing that Boyde v.

California, 494 U. S. 370, 379-380 (1990) made “reason-

able likelihood” the single standard for reviewing jury

instructions. While the Boyde Court doubted that there

was much difference between the various standards used

to evaluate instructions, see id., at 379, this opinion still

places Cage in a different light.

It is no longer enough that a reasonable juror could

have misapplied the reasonable doubt standard; there

must now be a stronger, reasonable likelihood. This

change embodies the “strong policy against retrials years

after the first trial where the claimed error amounts to no

more than speculation.” Boyde, supra, 494 U. S., at 380.

This places the California and Nebraska instructions

in a different light. Although Nebraska refers to “sub-

stantial doubt,” it does so in a much different context.

The Louisiana instruction bluntly asserted that “A

reasonable doubt is not a mere possible doubt. /t is an

actual substantial doubt.” Cage, supra, 498 U. S., at 40

(emphasis in original). Nebraska, however, takes a much

more nuanced approach.

“A reasonable doubt is an actual and substantial doubt

reasonably arising from the evidence, from the facts and

circumstances shown by the evidence, or from the lack

of evidence on the part of the State, as distinguished

from a doubt arising from mere possibility, from bare

imagination, or from fanciful conjecture.” Morley,

supra, 474 N. W. 2d, at 670 (emphasis added).

This is a different use of the term “substantial.” The

Cage instruction was using substantial to mean “[a)|mple;

sustaining....” American Heritage Dictionary 1791

(3d ed. 1992). Nebraska, however, is using “substantial”

to mean “[t}rue or real; not imaginary.” J/bid. Because

there is some doubt inherent in all human affairs, there

is a risk that juries will use this inherent doubt as the

foundation for unwarranted acquittals. See Hopt v. Utah,

21

120 U. S. 430, 439-440 (1887). By defining “substantial”

as not “mere possibility, ... bare imagination, or. . .

fanciful conjecture” the Nebraska instruction advances the

important goal of minimizing the risk of jury error.

The validity of Nebraska’s instruction is further

enhanced by the inclusion of the “graver and more

important transactions of life” language. This type of

instruction has been consistently approved as one of the

best ways of defining reasonable doubt. See, e.g, id., at

441; Holland v. United States, 348 U. S. 121, 140 (1954).

Taken as a whole, Nebraska more than adequately

instructs its juries on reasonable doubt.

The use of “moral certainty” does not render either

the California or the Nebraska instruction unconstitution-

al. This old and well-respected term was criticized in

Cage because it was combined with the grossly improper

uses of “grave” and “substantial.” As California uses

neither of these terms and Nebraska’s use of “substantial”

is proper within its context, “moral certainty” does not

poison either instruction. It is a term “that has received

frequent sanction and has been quoted innumerable

times....” 9 J. Wigmore, Evidence § 2497, at 405

(Chadbourn rev. 1981). The brief, partially overruled

Cage per curiam should not be allowed to strike down this

long-accepted instruction.

“Moral certainty” may not be this Court's ideal of a

proper reasonable doubt instruction, but this Court does

not review the wisdom of a state’s practice. See Johnson

v. Louisiana, 406 U. S. 356, 362 (1972). It is looking for

that rarest of practices, a fundamentally unfair procedure.

Unlike “grave doubt,” moral certainty does not tell the

jury to use a standard different from reasonable doubt.

Instead, the Webster instruction used by California refers

to simple “reasonable doubt” and requires the jury to

have “an abiding conviction” of defendant’s guilt. See

Opp., at 5, n. 2.

22

Furthermore, the California instruction places moral

certainty in a different context than the instruction in

Cage. The California instruction states “[i}t is that state

of the case which after the entire comparison and consider-

ation of all the evidence \eaves the minds of the jurors in

that condition that they cannot say they feel an abiding

conviction to 4 moral certainty of the truth of the charge.”

Ibid. (emphasis added). The Cage Court was concerned

that the instruction before it would keep the jury from

basing its verdict on “evidentiary certainty.” Cage, supra,

498 U.S., at 41. California’s instruction, however,

explicitly requires the jury to consider all the evidence

before reaching its verdict.

The key to the Cage opinion is the “grave uncertainty”

language. As Justice Stevens has noted, an instruction

that does not contain the “grave uncertainty” language

condemned by Cage does not raise the question of

whether Cage was violated. See Gaskins v. McKellar, 114

L. Ed. 2d 728, 111 S. Ct. 2277 (1991) (Stevens, J., concur-

ring in denial of certiorari). As neither of these instruc-

tions have that fatal flaw, Cage should not be invoked to

void the long-respected practices embodied in the Califor-

nia and Nebraska instructions.

IV. This Court should not stifle experimentation in

this difficult area.

A. Limited Alternatives.

Before this Court considers voiding the California and

Nebraska instructions, it should consider the problem of

coming up with a constitutionally acceptable alternative.

Several states use language that is the same or similar to

that found in these two instructions, and many states rely

on pattern instructions in order to insure an important

consistency in the treatment of defendants. This means

that disapproval of the instructions in question could leave

23

many convictions vulnerable, as a key instruction used in

every prosecution is suddenly uprooted.

If this Court does not provide the states with guidance

on what is an acceptable instruction, confusion is sure to

follow. One need only look at the aftermath of Furman

v. Georgia, 408 U.S. 238 (1972), where many states

responded to the many Furman opinions by eliminating

the sentencer’s discretion in capital cases, only to have

this approach rejected in Woodson v. North Carolina, 428

U. S. 280 (1976). The reasonable doubt instruction must

be given in every criminal case. As failure to give a

proper reasonable doubt instruction is never harmless

error, see Sullivan v. Louisiana, 124 L. Ed. 2d 182, 190,

113 S. Ct. 2078, 2082 (1993), this matter is too important

to be left undecided.

The problem, however, is that there is no clearly

superior definition of reasonable doubt. The problem of

defining reasonable doubt has been well-documented and

widely lamented. See, e.g, Miles v. United States, 103

U. S. 304, 312 (1881); Dunbar v. United States, 156 U. S.

185, 199 (1895); 9 J. Wigmore, Evidence § 2497, at 405

(Chadbourn rev. 1981). This Court should not use the

Due Process Clause to try to solve this mystery.

The problem with defining reasonable doubt is that

“{ojut of the domain of the exact sciences and actual

observation there is no absolute certainty.” Hopt v. Utah,

120 U.S. 430, 439 (1887). Since trials are far from

scientific, the reasonable doubt instruction must prevent

the trivial doubt inevitable in human affairs from requir-

ing an acquittal in every case, while at the same time

preserving the presumption of innocence.

Perhaps the most popular alternative to the Webster

definition is one of the many variants of the “important

transactions” instruction found in Nebraska. See Siate v.

Morley, 474 N. W. 2d 660, 669 (1991). This illustration is

popular in the federal courts and has been well-received

by this Court. See Hopt, supra, 120 UV. S., at 441; Miles,

24

supra, 103 U.S., at 312; Holland v. United States, 348

U. S. 121, 140 (1954); United States v. Ivic, 700 F. 2d 51,

68 (CA2 1983).

There is nothing wrong with this type of instruction

and any instruction that used this language would help the

jury understand its duty. Yet it is not necessarily the best

definition. Because it illustrates by way of analogy, it

requires jurors to make an extra logical connection that

they would not have to make if reasonable doubt were

defined directly. While it may be better than any current

definition, it is by no means the best possible one. There

may be some undiscovered instruction that will even

better illustrate the jury’s duty to weigh the evidence.

The other popular posture is to leave reasonable

doubt undefined. See, e.g., People v. Brigham, 25 Cal. 3d

283, 314, 599 P. 2d 100, 120 (1979) (Mosk, J., concurring).

This approach would upset the many instructions that try

to define reasonable doubt. Furthermore, in complicated

cases some definition of reasonable doubt may be neces-

sary to guide the jury. See Hopt v. Utah, 120 U. S. 430,

440 (1887). Adopting a no-definition rule leaves juries in

the dark and precludes trial courts from finding better

alternatives.

It is unfair to expect perfection, even from this Court.

After all, this Court is final, not infallible. See Brown v.

Allen, 344 U. S. 443, 540 (1953) (Jackson, J., concurring).

But when this Court invokes the Constitution to require

a state to follow a particular standard, it should impose

only the best possible standard.

If this Court says that as a matter of constitutional law

the states must define reasonable doubt in a particular

way, then the debate and experimentation over the proper

reasonable doubt instruction will ossify, and this Court's

standard will become the unanimous rule. This will stifle

all innovation until this Court decides to return to the

issue. Given the great pressures on this Court's resourc-

es, it is unlikely that it will soon return to the issue of

25

defining reasonable doubt. For example, for nearly

seventy years the leading case on the key issue of admit-

ting scientific testimony did not come from this Court, but

from a federal circuit court, Frye v. United States, 293 F.

1013 (D. C. App. 1923). Only many years after changes

in Rule 702 of the Federal Rules of Evidence did this

Court weigh in with its own standard. See Daubert v.

Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 113

S. Ct. 2786 (1993). Thus, any standard announced in this

case 1s likely to be the sole standard for a very long time.

Even if this Court allows the states to vary from

whatever definition of reasonable doubt it announces,

innovation is likely to stop. Miranda v. Arizona, 384 U. S.

436 (1966) shows how the inherent coercive power behind

this Court’s pronouncement can turn even the most

voluntary standards into rigid rules.

When the Miranda Court announced the now famous

warnings, it did not intend to end the dialogue on what

warning would be proper. “The warnings required and

the waiver necessary in accordance with our opinion today

are, in the absence oj a fully effective equivalent, prerequi-

sites to the admissibility of any statement made by a

defendant.” /d., at 476 (emphasis added). Yet there has

been no flowering of ideas on alternative warnings after

Miranda.

While some agencies like the FBI do vary their

warnings from Miranda, see Duckworth v. Eagan, 492

U. S. 195, 202, n. 4 (1989), for the most part, Miranda is

the standard. This happens because any state that varies

from the Miranda standard risks substantial litigation and

the prospect of having many convictions reversed for

Miranda violations. In Eagan, the Miranda warnings given

by the police varied from the original by noting that “We

have no way of giving you a lawyer, but one will be appoint-

ed for you, if you wish, if and when you go to court.” Id.,

26

at 198 (emphasis in original). The Eagan Court vindicat-

ed this minor variance, but it did so on a narrow five-to-

four majority, and had to overturn a decision by the

Seventh Circuit granting habeas corpus. See id., at 200-

201. If such a small deviation from the norm requires

that much effort to defend, there is no question why

Miranda has stopped most innovation.

Reasonable doubt is even more important than the

Miranda warnings. A reasonable doubt instruction must

be given in every criminal trial, see Jn re Winship, 397

U. S. 358, 364 (1970), and failure to give an adequate

instruction is never harmless error. See Sullivan v.

Louisiana, 124 L. Ed. 2d 182, 190, 113 S. Ct. 2078, 2082

(1993). Thus, any standard announced in the present case

would have to be followed even more closely than the one

in Miranda.

That would be a real tragedy. The states are the

laboratories of the law. They must be given the freedom

to experiment so that we can all profit by picking from

the best of the diverse approaches adopted by the fifty

states. “The science of government... . is the science of

experiment.” Anderson v. Dunn, 6 Wheat. (19 U. S.) 204,

226 (1821), overruled on other grounds in Kilbourn v.

Thompson, 103 U. S. 168, 199-200 (1881).

“To stay experimentation in things social and econom-

ic is a grave responsibility. Denial of the right to

experiment may be fraught with serious consequences

to the Nation. It is one of the happy incidents of the

federal system that a single courageous State may, if

its citizens choose, serve as a laboratory; and try novel

social and economic experiments without risk to the

rest of the country. This Court has the power to

prevent an experiment. We may strike down the

Statute which embodies it on the ground that, in our

opinion, the measure is arbitrary, capricious or unrea-

sonable. We have power to do this, because the due

process clause has been held by the Court applicable

27

to matters of substantive laws as well as to matters of

procedure. But in the exercise of this high power, we

must be ever on our guard, lest we erect our prejudic-

es into legal principles. If we would guide by the light

of reason, we must let our minds be bold.” New State

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting) (footnote omitted); accord

Garcia v. San Antonio Metropolitan Transit Authority,

469 U. S. 528, 546 (1985).

B. The Slippery Slope.

Petitioners’ desire to invoke the Due Process Clause

to interfere with these two traditionally accepted instruc-

tions places this Court at the precipice of a particularly

slippery slope. If this Court heeds their wishes, it will

come much closer to creating a constitutional code of

evidence. That result is a calamity that must be resisted.

There are times when this Court should strike down

a reasonable doubt instruction. When one is as egre-

giously bad as the instruction in Cage v. Louisiana, 498

U. S. 39 (1990), then reversal is deserved. But the

instructions in the present case are of a different type.

Whatever their minor imperfections, they do not contain

the gross inaccuracies found in the instruction condemned

in Cage. See Part III, ante, at 18-22. A decision con-

demning the California and Nebraska decisions thus

comes much closer to an intrusion into the law of evi-

dence.

This Court’s experience with other constitutional

evidence issues should keep it from expanding this field.

One of the best examples of the problems associated with

constitutionalizing evidentiary issues is the current tangled

state of death penalty law. What started with a general-

ized disapproval of the unfettered jury discretion in

Furman v. Georgia, 408 U. S. 238 (1972) has evolved into

one of the most complicated areas of American law.

Responding to the various circumstances of capital

28

litigation, this Court now simultaneously requires the

states to limit the sentencer’s discretion, see Gregg v.

Georgia, 428 U. S. 153, 189 (1976) (plurality), while at the

same time giving the sentencer the discretion and infor-

mation necessary to make an individualized determination

of the appropriate sentence for each capital defendant.

See Woodson v. North Carolina, 428 U. S. 280, 303-305

(1976) (plurality); Lockett v. Ohio, 438 U. S. 586, 604

(1978) (plurality). At the very least there is “inherent

tension between” these two lines, see McCleskey v. Kemp,

481 U. S. 279, 363 (1987) (Blackmun, J., dissenting), while

others would be even less charitably disposed towards the

dissonance. See Walton v. Arizona, 497 U. S. 639, 664

(1990) (Scalia, J., concurring). In any event, they are a

fertile source of complexity and unending litigation.

The Eighth Amendment is now drenched in evidentia-

ry issues such as requiring the admission of certain types

of evidence, see, e.g., Skipper v. South Carolina, 476 U. S.

1 (1986), and the instructions given juries, see, ¢.g.,

Caldwell v. Mississippi, 472 U.S. 320 (1985); Mills v.

Maryland, 486 U. S. 367 (1988). While these inquiries

may be necessary, there is no doubt that they are very

complicated and take up enormous judicial resources.

This Court's experience with Miranda v. Arizona, 384

U. S. 436 (1966) is similar. Miranda should have limited

the complexity of the law of confessions. It forbids courts

from using the facts of a particular case beyond determin-

ing whether the Miranda guidelines were followed. /d., at

468-469. Instead, the Miranda Court supplied a set of

guidelines for the courts and police to follow. /d., at 441-

442.

This did not eliminate litigation. Miranda has been a

steady source of cases for this Court over the years, and

the supply has not yet abated. See, e.g, Edwards v.

Arizona, 451 U. S. 477 (1981); Arizona v. Roberson, 486

U. S. 675 (1988); Minnick v. Mississippi, 112 L. Ed. 2d

489, 111 S.Ct. 486 (1990); Stansbury v. California,

29

No. 93-5770 (cert. granted Nov. 1, 1993). Considerable

problems have arisen over such issues as the difference

between interrogation and spontaneous declaration,

adequacy of the waiver, and the adequacy of the warning.

See Withrow v. Williams, 123 L. Ed. 2d 407, 432, 113

S. Ct. 1745, 1763 (1993) (O’Connor, J., dissenting).

Miranda involves just one part of the law of evidence,

the privilege against self-incrimination. While the deci-

sion itself may be worthwhile, it has come at a high cost

of complexity and continued litigation.

The law of evidence is inherently complex. Because

it is very fact-intensive and involves an extraordinarily

large set of legal principles, evidentiary issues always carry

with them the threat of complexity. Thus, while it took

Professor LaFave only four volumes to complete his

masterwork on search and seizure, see LaFave, Search

and Seizure (2d ed. 1987), it took Dean Wigmore nine

larger volumes to explain the law of evidence. See

Wigmore, Evidence (3d ed. 1940). While not precise, this

is a good measure of how dangerous constitutionalizing

the law of evidence can be.

Therefore, it comes as no surprise that this Court has

taken great pains to avoid using the confrontation clause

to constitutionalize the rule against hearsay. See Dutton

v. Evans, 400 U. S. 74, 80 (1970). Instead it has sought to

protect the narrower principles of confrontation by

focusing on protecting defendant's right to “full and

effective cross-examination.” California v. Green, 399

U. S. 149, 158 (1970). This is much less complex and

disruptive than “a reappraisal of every exception to the

hearsay rule, no matter how long established... .”

Dutton, supra, 400 U. S., at 80.

Such deference is even more important in the present

case. The death penalty, Miranda, and the confrontation

clause involved specific protections grounded in the Bill

of Rights. The present case involves the much more

subjective claim of general unfairness. This Court has

30

been unwilling to aggressively extend this ephemeral

portion of the Due Process Clause and should continue to

do so here. See Spencer v. Texas, 385 U.S. 554, 565

(1967).

CONCLUSION

The decisions of the California Supreme Court and

the Nebraska Supreme Court should be affirmed.

December, 1993

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

APPENDIX

California Jury Instructions—Criminal (“CALJIC”)

that is rea ble. A

No. 2.90 (Sth ed. 1988): sonable reasonable doubt is an actual

and substantial doubt reasonably arising from the

“A defendant in a criminal action is presumed to be

innocent until the contrary is proved, and in case of a

reasonable doubt whether [his] [her] guilt is satis-

factorily shown, [he] [she] is entitled to a verdict of

not guilty. This presumption places upon the People

the burden of proving [him] [her] guilty beyond a

reasonable doubt.

“Reasonable doubt is defined as follows: It is not a

mere possible doubt; because everything relating to

human affairs, and depending on moral evidence, is

open to some possible or imaginary doubt. It is that

state of the case which, after the entire comparison

and consideration of all the evidence, leaves the minds

of the jurors in that condition that they cannot say

they feel an abiding conviction, to a moral certainty,

of the truth of the charge.”

State v. Morley, 474 N. W. 2d 660, 669-670 (Neb. 1991):

“ ‘Reasonable doubt’ is such a doubt as would cause

a reasonable and prudent man, in one of the graver

and more important transactions of life, to pause and

hesitate before taking the represented facts as true

and relying and acting thereon. It is such a doubt as

will not permit you, after full, fair, and impartial

consideration of all the evidence, to have an abiding

conviction, to a moral certainty, of the guilt of the

accused. At the same time, absolute or mathematical

certainty is not required. You may be convinced of

the truth of a fact beyond reasonable doubt and yet be

fully aware that possibly you may be mistaken. The

jury may find an accused guilty upon the strong

probabilities of the case, provided such probabilities

are strong enough to exclude any doubt of his guilt

evidence, from the facts and circumstances shown by

the evidence, or from the lack of evidence on the part

of the State, as distinguished from a doubt arising

from mere possibility, from bare imagination, or from

fanciful conjecture.”