Amicus Curiae Brief — Sandoval v. California

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SUPREME COURT OF THE UNITED S

ae October Term 1993.

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ALFRED ARTHUR SANDOVAL,

Petitioner,

v.

PEOPLE OF THE STATE OF CALIFORNIA,

-.

>

. and TENNESSEE, IN SUPPORT OF RESPONDENT

ON WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

: BRIEF AMICUS CURIAE OF THE STATES OF

A MASSACHUSETTS, ALABAMA, IDAHO, INDIANA,

> MISSOURI, MONTANA, NEVADA, NORTH CAROLINA,

.., |. OBIRO,OREGON, PENNSYLVANIA, SOUTH CAROLINA,

|

SCOTT HARSHBARGER

ATTORNEY GENERAL

OF MASSACHUSETTS

Pamela L. Hunt*

Assistant Attorney General

Gregory L Massing

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

| (617) 727-2200 ext. 2826

=e Commonwealth of Massachusetts

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BEST AVAILABL

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COUNSEL

Honorable James H. Evans Honorable Michael F. Easley

Attorney General of Alabama Attorney General of North Carolina

Alabama State House North Carolina Department of Justice

11 South Union Street Post Office Box 629

Montgomery, Alabama 36130 Raleigh, North Carolina 27602

(205) 242-7300 (919) 733-3377

Honorable Larry EchoHawk Honorable Lee Fisher

Attorney General of Idaho Attorney General of Ohio

State House 30 East Broad Street, 17th Floor

Boise, idaho 83720 Columbus, Ohio 43215

(208) 334-2400 (614) 466-3376

Honorable Pamela Caner Honorable Theodore R. Kulongoski

Attorney General of Indiana Attorney General of Oregon

402 West Washington Street Justice Building

Indianapolis, Indiana 46204 Salem, Oregon 97310

(317) 232-6201 (503) 378-4402

Honorable Jeremiah W. Jay) Nixon Honorable Emest D. Preate, Jr.

Attomey General of Missouri Attorney General of Pennsylvania

Post Office Box 899 16th Floor

Jefferson City, Missouri 65102 Suawberry Square

(314) 751-3321 Harrisburg, Pennsylvania 17120

(717) 787-6348

Honorable Joseph P. Mazurek

Attorney General of Montana Honorable T. Travis Medlock

Justice Building Attorney General of South Carolina

215 Nosth Sanders Post Office Box 11549

Helena, Montana 59620 Columbia, South Carolina 29211

(406) 444-2026 (803) 734-3970

Honorable Frankie Sue Del Papa § Honorable Charles W. Burson

Attorney General of Nevada Attorney General and Reporter

Capitol Complex of Tennessee

Heroes Memorial Building 450 James Robertson Parkway

Carson City, Nevada 89710 Nashville, Tennessee 37243

(702) 687-4170 (615) 741-3491

Honorable Elizabeth Barreu-Anderson

Attorney General of Guam

120 West O'Brien Drive

Agana, Guam U.S.A. 96910

-i-

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE.........-..550. 1

SUMMARY OF THE ARGUMENT..........255000- 4

pct |<» Se ee 6

A DEFINITION OF THE GOVERMENT’S

PROOF IN A CRIMINAL CASE THAT

REQUIRES THE JURY, AFTER FULL

CONSIDERATION OF THE EVIDENCE, TO

HAVE "AN ABIDING CONVICTION, TO A

MORAL CERTAINTY," OF THE GUILT OF

THE ACCUSED, SATISFIES THE

REQUIREMENTS OF THE DUE PROCESS

Ft) ) SPOT ere rere eee eee ee ee 6

A. The Moral Certainty Formulation

TABLE OF AUTHORITIES

CASES

Addington v. Texas

441 U.S. 418 (1979)... .... ccc cee eee 32

Agnew v. United States

165 U.S. 36 (1897)......c cee eeeceee 27

Aime v. Commonwealth

414 Mass. 667,

611 N.E.2d 204 (1993)........eeeeeee 3

Apodaca v. Oregon

006 U.B. GEE (2078). cccccccscccvcses 9

Bell v. State

610 N.E.2d 229 (Ind. 1993)......... 41

Bone v. State

102 Ga. 387,

30 S.B. O65 (1897). ccccccccccvecess 15

Bradford v. State

261 Ga. 833,

S28 G.8 08 Se CIN i od kicccoecaces 37

Bradley v. State

SO. ee Se COA cc cdkcucceusanes 15

Cage v. Louisiana

et eS FS, lle 5,34,39

Carlton v.

150 Ill. 181,

ST BeBe B66 (1B94) ccccccccccesvoses 14

- iii -

City of Minot v. Rubbelke

456 N.W.2d 511 (N.D. 1990)......... 18

Commonwealth v. Beldotti

409 Mass. 553,

eg eee eT ee 16

Commonwealth v. Costley

181 Mass. 1, 24 (1875)......... 14, 25

Commonwealth v. Dinkins

415 Mass. 715,

615 N.E.2d 570 (1993)..........00e- 10

Commonwealth v. Ferreira

373 Mass. 116,

364 N.E.2d 1264 (1977)...........-. 16

Commonwealth v. Robinson

382 Mass. 189,

— fe SF LG errs 33

Commonwealth v. Stellberger

25 Mass. App. Ct. 148,

515 N.E.2d 1207 (1987)............-. 30

Commonwealth v. Webster

59 Mass. (5 Cush.) 295 (1850)..passim

Commonwealth v. Williams

378 Mass. 217,

SO8 Del O8 SOGR. CIS R cc cccccsvcces 33

Commonwealth v. Wood

380 Mass. 545,

O06 Gul. BO BERS COORG occ ccécctcccns 21

- iv -

Davis v. United States

SOO OB, GE CRED coccscuscesecess 40

Donnelly v. State

BE Medichs GE CBORD ccccccvcccseces 10

Dunbar v. United States

ae CO. Be CUO 606s vcceseeveces 27

Estelle v. McGuire

‘Se we) we are 33

‘nv. Mettler

SE Welc BOD CEBEED cccccoccecccsess 25

Gaskins v. McKellar

San O. Ge, Bee CASBED ccc cccccccess 36

Gaskins v. McKellar .

916 F.2d 941 (4th Cir. 1990),

cert. denied,

111 S. Ct. 2277 (1991).........- 35,36

Hardin v. State

210 Tenn. 116,

355 S.W.2d 105 (1962) ...-- eee eevee 20

Holland v. United States

348 U.B. 1310 (1984) cccccccccccecces 33

Hopt v. Utah

120 U.S. 430 (1887).......---4-- 30,31

gg 8 ag ee 26,39

Lanigan v.

853 F.2d 40 (lst Cir. 1988),

cert. denied,

Se Gus BOO? CADGDD ccccccceccscece 12

Marshall v. State

528 S.W.2d 822

(Tenn. Crim. App. 1975).........65- 19

Medina v. California

See ais le Se SD vs acca cdccdwe 32

Miles v. United States

ee Ci Rccssceseuucesses 26

Monk v. Zelez

901 F.2d 885

i i ec cucenbetens acneus 34

Morgan v. State

48 Ohio St. 371,

27 M.E. 710 (1891)... cccccccccccces 12

Morley v. Stenberg

828 F. Supp. 1413

i i Cnc sc deenenbanenepess 40

People v. Fox

72 A.D.2d 146,

ee Sue Bee COO, wc ce ceeceus 22

People v. Strong

Ff ee ef ” eerererrr rr. 12

Perovich v. United States

«gf ee og, er eee 28

Randolph v. State

266 Ind. 179,

361 N.E.2d 900 (1977)... cccccceees 16

- vli-

State v. Bryant

334 N.C. 333,

432 S.E.2d 291 (N.C. 1993),

petition for cert. filed

62 U.S.L.W. 23360

(U.S. Nov. 12, 1993)

TO. SBFES) wccccccccccccccsescsens 40

State v. Crenshaw

51 Ohio App. 2d 63,

366 N.E.20 84 (1977) ..ccccccccsccves 13

State v. Desrosiers

508 B.38 GEL CRB. 19OD) occcececces 20

State v. Gonzalez

822 P.2d 1214 (Utah 1991)........268.

State v. Hallock

1993 Tenn. Crim. App. Lexis 694,

at #23 (Oct. 7, 1993) ..ccccccvccees 20

State v. Hammond

241 N.C. 226,

oe Sn Oe C6ROES seceeseane 40

State v. Hoffman

123 Idaho 638,

851 P.2d 934 (1993),

(U.S. Aug. 24, 1993)

i MERE. cacesncenveteseses 17,37

State v. Mantia

[Oa G@iks DO?

ee eT rr 21

- vii -

State v. Morley

239 Neb. 141,

474 N.W.2d 660 (1991).......+..-- 24,37

State v. Rhoades

121 Idaho 63,

822 P.2d 960 (1991),

cert. denied,

log § = Bil errr ree 17

State v. Williams

313 Or. 19,

828 P.2d 1006, cert. denied,

113 S. Ct. 171 (1992) cece eee venee 37

Stewart v. State

601 So. 2d 491

(Ala. Crim. App. 1992).......... 23,37

Taylor v. Kentucky

a a. Cr Pee. co sceececensens 41

Vv.

352 F.2d 570 (2d Cir. 1965)........ 35

United States v. Drake

673 F.2d 15 (lst Cir. 1982)........ 40

v. Indorato

628 F.2d 711, (lst Cir.),

cert. denied,

Se tan CODER) cc ccccccecss 35,40

United States v. Moss

756 F.2d 329 (4th Cir. 1985)....... 34

Victor v. Nebraska

242 Neb. 306, 494 N.W.2d 565,

cert. granted, 114 S. Ct. 39 (1993)

(NO. 92-8894)... cere eescveressvvces 24

- viii -

Wilson v. United States

232 UB. SES (ADS) ccccsccvcccscess 29

OTHER AUTHORITIES

California Jury Instructions - Criminal,

at Prerrerrrrrerrrrrrerrerererary t passim

North Dakota Pattern Jury Instruction on

Reasonable Doubt, No. 2002........2e666-. 18

Massachusetts Trial Court Interim Annual

R@POrt (1992)... cc cvcccscsvvesecsccececs 4

NO. 92-9049

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

ALFRED ARTHUR SANDOVAL,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

BRIEF AMICUS CURIAE OF THE STATES OF

MASSACHUSETTS, ALABAMA, IDAHO, INDIANA,

MISSOURI, MONTANA, NEVADA, NORTH

CAROLINA, OREGON, PENNSYLVANIA,

SOUTH CAROLINA, and TENNESSEE,

IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

The amici states and commonwealths

are vitally interested in this case,

which challenges California’s choice of

how to define the government’s burden of

persuasion in criminal cases. While

every jury must, as a matter of due

process, be properly instructed as to

the quantum of proof necessary to

convict, the manner in which that notion

is conveyed to a jury widely varies

among the states. So long as the

instructions employed do not permit

conviction on a lesser quantum of proof

than is required by the Due Process

Clause, the states should remain free to

decide, if they elect to define the term

"beyond a reasonable doubt" at all, how

that concept should be explained to

juries in their jurisdictions.

The California reasonable doubt

instruction employed in this case

contains precise language derived from

Commonwealth v. Webster, 59 Mass. (5

Cush.) 295 (1850). The Webster

formulation of the definition of proof

beyond a reasonable doubt provides the

- 2-

basis for instructions used and approved

in a number of states for well over a

century. The amici have a strong

interest in preserving the time-honored

definition and could suffer

substantially were this Court to

determine that it violates due process.

While it is not possible to determine

the precise number of criminal cases in

which juries have been instructed by

language similar to that in Sandoval and

Webster, it is beyond question that the

number is astronomical. For example, in

Massachusetts, approximately six

thousand individuals are arraigned for

criminal charges each week, Aime v.

Commonwealth, 414 Mass. 667, 683-684,

611 N.E.2d 204, 214 (1993), and there

are over three thousand criminal jury

trials each year in the District and

Superior Courts of the Commonwealth.

Administrative Office of the Trial

Court, Massachusetts Trial Court Interim

Annual Report 19, 59 (1992) (1099

criminal jury trials in Superior Court

during fiscal year 1992; 2042 criminal

jury trials in District Court during

calendar year 1992).

SUMMARY OF THE ARGUMENT

Amici demonstrate that California

Jury Instruction 2.90 has its source and

is grounded in specific language used

and approved in the various states and

by this Court for well over a century.

An instruction which charges the jury

that the government must convince them

beyond a reasonable doubt of a

defendant’s guilt, and then informs them

that this means that they have an

abiding conviction, to a moral

certainty, of guilt, fully conveys the

government’s burden.

Invalidating any instruction for its

mere mention of "moral certainty" in

describing the degree of certainty of

guilt necessary for conviction is both

inappropriate and unwise. The states

have, over the years, found different

ways to define for their juries the

quantum of proof required by the Due

Process Clause. The right to continue

to make those judgments should be

honored.

Cage v. Louisiana does not require

the California reasonable doubt

instruction be invalidated. It does not

contain the quantification of what doubt

would be reasonable that was troublesome

in Cage. And unlike the Cage

instruction, which made but a general

reference to "moral certainty" as the

degree of conviction the jurors should

have, the California instruction clearly

and directly informs that "an abiding

conviction, to a moral certainty" of

guilt can only be reached upon an

evaluation of the evidence. There is no

risk that the verdict in this case was

based on subjective feelings or emotions

apart from the evidence.

ARGUMENT

A DEFINITION OF THE GOVERNMENT’S

PROOF IN A CRIMINAL CASE THAT

REQUIRES THE JURY, AFTER FULL

CONSIDERATION OF THE EVIDENCE,

TO HAVE "AN ABIDING CONVICTION,

TO A MORAL CERTAINTY" OF THE

GUILT OF THE ACCUSED, SATISFIES

THE REQUIREMENTS OF THE DUE

PROCESS CLAUSE

California Jury Instruction (CJI)

2.90, like reasonable doubt

l/ California Jury Instructions -

Criminal, No. 2.90 provides:

(footnote continued)

~- oe oven

instructions delivered in criminal cases

in a number of states, informs the jury

that the government’s burden of

persuasion beyond a reasonable doubt

(footnote continued)

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 satisfactorily 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.

requires the minds of the jury to reach

"an abiding conviction, to a moral

certainty" of the guilt of the accused.

Whether stated positively in terms of

the certainty required for proof beyond

a reasonable doubt, or described

negatively as the state of mental

conviction or belief which does not

permit a reasonable doubt, the

instruction adequately protects against

convictions in violation of the Due

Process Clause.

A. The Moral Certainty

Formulation of Proof

Has Longstanding and

; ive J =

State Jurisprudence

The “abiding conviction, to a moral

certainty" language in reasonable doubt

instructions is generally said to have

its source in the jury charge delivered

in Commonwealth v. Webster, 59 Mass. (5

Cush.) 295 (1850), by Chief Justice Shaw

of the Massachusetts Supreme Judicial

Court. 2/ See Apodaca v. Oregon, 406

a

2/ “Then, what is reasonable doubt? It

is a term often used, probably pretty

well understood, but not easily

defined. It is not mere possible doubt;

because every thing relating to human

affairs, and depending on moral

evidence, is open to some possible or

imaginary doubt. It is that state of

the case, which, after the entire

comparison and consideration of all the

evidence, leaves the minds of jurors in

that condition that they cannot say they

feel an abiding conviction, to a moral

certainty, of the truth of the charge.

The burden of proof is upon the

prosecutor. All the presumptions of law

independent of evidence are in favor of

innocence; and every person is presumed

to be innocent until he is proved

guilty. If upon such proof there is

reasonable doubt remaining, the accused

is entitled to the benefit of it by an

acquittal. For it is not sufficient to

establish a probability, though a strong

one arising from the doctrine of

chances, that the fact charged is more

likely to be true than the contrary; but

the evidence must establish the truth of

the fact to a reasonable and moral

certainty; a certainty that convinces

and directs the understanding, and

satisfies the reason and judgment, of

(footnote continued)

- 9 -

U.S. 404, 412 n.6 (1972).

Apart from Massachusetts, which

continues to frame its reasonable doubt

instructions in the Webster language,

Commonwealth v. Dinkins, 415 Mass. 715,

724, 615 N.E.2d 570, 575 (1993), a

number of other states have approved and

encouraged the use of Webster’s

definition specifically, while others

have adopted similar language that

conveys the core of Webster’s “moral

certainty" formulation.

For example, in Donnelly v. State,

26 N.J.L. 601, 615 (1857), the New

Jersey Supreme Court (Ogden, J.),

reviewing a reasonable doubt

(footnote continued)

those who are bound to act

conscientiously upon it. This we take

to be proof beyond reasonable

doubt...." Commonwealth v. Webster, 59

Mass. (5 Cush.) at 320.

- 10 -

instruction, stated, “Upon a careful

search of treatises and reports of

trials, I have not found an answer more

satisfactory to my mind, than that which

was given by Ch. Just. Shaw, upon the

trial of John C. Webster." The Court

then quoted portions of the Webster

charge, including the language that

appears verbatim in the second paragraph

of CJI 2.90. In 1866, the California

Supreme Court itself, reviewing the

trial court’s charge on the subject of

reasonable doubt, found that the

instructions given were "substantially

in the language of Mr. Chief Justice

Shaw, in the case of the Commonwealth v.

Webster, 5 Cush. 320, which is probably

the most satisfactory definition ever

given to the words ‘reasonable doubt’ in

any case known to criminal

- ll -

jurisprudence." People v. Strong, 30

Cal. 151, 155 (1866). See also Lanigan

v. Maloney, 85° F.2d 40, 43 (lst Cir.

1988), cert. denied, 488 U.S. 1007

(1989) ("We find it hard to imagine,

without recourse to prolixity, a charge

more reflective of the solemn and

vigorous standard intended.")

The Supreme Court of Ohio reached

the same conclusion in 1891: "Perhaps

no more satisfactory definition is to be

found than that given by Chief Justice

Shaw, in the Webster Case: ‘It is that

state of the case which, after the

entire comparison and consideration of

all the evidence, leaves the minds of

jurors in that condition that they

cannot say they feel an abiding

conviction to a moral certainty of the

truth of the charge.’" Morgan v. State,

- 12 -

48 Ohio St. 371, 377, 27 N.E. 710, 712

(1891) .2/

In its definition of reasonable

doubt, the Illinois Supreme Court in

1894 cited a number of authorities,

including Webster, and concluded that

proof beyond a reasonable doubt

is proof "to a moral

certainty," as distinguished

from an absolute certainty.

The two phrases, "proof beyond

a reasonable doubt," and proof

"to a moral certainty," are

synonymous and equivalent.

"Each signifies such proof as

satisfies the judgment and

conscience of the jury, as

reasonable men, and applying

3/ In the 1970’s, when Ohio replaced

the “abiding conviction to a moral

certainty" test in its statutory

definition of reasonable doubt with a

"present firm conviction" standard, this

change was generally considered to

reduce the prosecution’s burden, to the

disadvantage of the accused. See State

v. Crenshaw, 51 Ohio App. 2d 63, 366

N.E.2d 84, 85 (1977).

~ 13-

their reason to the evidence

before them, that the crime

charged has been committed by

the defendant, and so

satisfies them as to leave no

other reasonable conclusion

possible."

Carlton v. People, 150 Ill. 181, 192, 37

N.E. 244, 247 (1894), quoting

Commonwealth v. Costley, 181 Mass. 1, 24

(1875).

Other courts, without referring to

Webster, defined reasonable doubt in

terms of moral certainty. In 1869, the

Supreme Court of Indiana found it to be

"such a certainty as would justify to

the mind action, not only in matters of

importance, but in those of the highest

import, involving the dearest

interests. Nothing short of this can

se S an example o hat m

certainty which should alone authorize a

- 14 -

verdict of quilty." Bradley v. State,

31 Ind. 492, 505 (1869) (emphasis

supplied). Similarly, the Georgia

Supreme Court, after noting that "(t]he

term ‘moral certainty’ is equivalent to

the words ‘beyond a reasonable doubt, ’"

approved of a jury instruction that

conveyed the reasonable doubt charge in

terms of moral certainty, finding that

"as the judge charged that the

defendants could not be found guilty

until the evidence satisfied the jury of

their guilt beyond a reasonable doubt,

++. there was no error in further

charging that they must be satisfied of

their guilt to a reasonable and moral

certainty." Bone v. State, 102 Ga. 387,

391, 30 S.E. 845, 847 (1897).

Many states continue to endorse the

moral certainty formulation.

- 15 -

California, of course, does so in CJI

2.90, and Massachusetts insists that the

government’s burden be explained "in

close reliance on the time-tested

language." Commonwealth v. Ferreira,

373 Mass. 116, 130 n.12, 364 N.E.2d

1264, 1273 n.12 (1977). See, e.g.,

Commonwealth v. Beldotti, 409 Mass. 553,

562, 567 N.E.2a 1219, 1225 (1991). The

Supreme Court of Indiana also recognizes

the continuing vitality of the concept

of moral certainty. Randolph v. State,

266 Ind. 179, 182-183, 361 N.E.2d 900,

902 (1977).

Idaho requires that jurors be

charged in the language of CJI 2.90.

The Idaho Supreme Court has held that

"the only appropriate instruction on

reasonable doubt is the California jury

instruction," and that "[a])ny

- 16-

embellishment or addition to the

California reasonable doubt instruction

risks misstating the law." State v.

Rhoades, 121 Idaho 63, 82-83, 822 P.2d

960, 979-980 (1991), cert. denied, 113

S. Ct. 962 (1993). Recently, the same

court reviewed a case in which the

reasonable doubt instruction included

the following language:

If you have a reasonable doubt

as to the guilt of the

defendant, you must acquit

him. But if, after going over

in your minds the entire case,

you have an abiding

conviction, to a moral

certainty, of the truth of the

charge, then you are convinced

beyond a reasonable doubt, and

you should render your verdict

accordingly.

State v. Hoffman, 123 Idaho 638, 851

P.2d 934, 939 n.3 (1993), petition for

cert. filed, (U.S. Aug. 24, 1993) (No.

93-5784). The defendant challenged this

instruction on due process grounds

- 17 «

“because it required the jury to base

their verdict on a ‘moral certainty.’"

123 Idaho 638, 851 P.2d at 939. The

Court reaffirmed the California jury

instruction, finding the challenged

instruction was "substantially the

same." Id.

The moral certainty formulation is

also used in North Dakota’s Pattern Jury

Instruction on Reasonable Doubt, No.

2002, which states,

It is that state of mind in

which you do not feel an

abiding conviction amounting

to a moral certainty of the

truth of the charge... . If,

after careful deliberation,

you are convinced to a moral

certainty that the Defendant

is guilty of the crime

charged, then you are

satisfied beyond a reasonable

doubt.

City of Minot v. Rubbelke, 456 N.W.2d

511, 512 n.1 (N.D. 1990). The Supreme

Court of North Dakota "strongly

- a6

recommend[s]) adherence" to the pattern

instruction: "[(T)he pattern instruction

serves as a model, that has withstood

the test of time, for attorneys and

judges on which to base their respective

arguments and decisions." Id. at 515.

In a Tennessee case, after

instructing the jury as to the

presumption of innocence and the proof

beyond a reasonable doubt standard, the

trial judge told the jury, "Absolute

certainty of guilt is not demanded by

the law to convict of any criminal

charge, but moral certainty is required,

and this certainty is required as to

every proposition of proof requisite to

constitute the offense." Marshall v.

State, 528 S.W.2d 823, 824 (Tenn. Crim.

App. 1975). The defendant argued that

it was error for the triai judge to say

- 19 -

that each element must be proven to a

moral certainty rather than beyond a

reasonable doubt. Id. at 825. The

Court disagreed, stating simply, "The

use of this language on moral certainty

is approved in Hardin v. State, 210

Tenn. 116, 122, 355 S.W.2d 105 [1962]}."

Id. Accord State v. Hallock, 1993 Tenn.

Crim. App. Lexis 694, at *23 (Oct. 7,

1993).

The Rhode Island Supreme Court also

approves of the moral certainty

formulation. "[{A) trial justice must

instruct a jury that the prosecution is

required to prove a defendant’s guilt

beyond a reasonable doubt. Proof beyond

a reasonable doubt may be properly

equated to proof of guilt to a moral

certainty." State v. Desrosiers, 559

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

- 20 -

Commonwealth v. Wood, 380 Mass. 545,

547, 404 N.E.2d 1223, 1225-1226 (1980),

and State v. Mantia, 101 R.I. 367, 223

A.2d 843 (1966). In the Mantia case,

the Rhode Island Supreme Court quotes

Webster to convey the "constituent

elements" of reasonable doubt. Id. at

375, 223 A.2d at 848.

In 1980, a five-judge panel of the

First Department of the Appellate

Division of the Supreme Court of New

York issued a per curiam opinion

specifically to address numerous

challenges to the “moral certainty"

formulation:

The correct and determinative

standard is of course that

guilt must be proved beyond a

reasonable doubt. And in

every case the trial court

should explicitly charge that

as the determinative standard,

using the statutory phrase

“beyond a reasonable doubt."

CPL § 300.10 subd. 2. But

- 21-

this does not mean that

elaboration and semantic

variations on this theme which

do not reduce the standard are

GETOE « «

In particular, it is not

error to equate the standard

of proof of guilt beyond a

reasonable doubt to proof "to

a moral certainty." The

phrase “to a moral certainty"

has been used in this state by

generations of trial judges.

"Whether the expression used

is ‘beyond a reasonable

doubt,’ or ‘to a moral

certainty,’ is immaterial; for

they are synonymous, and each

simply means that the proof

must be such as would satisfy

the judgment and consciences

of the jurors that the crime

charged had been committed by

the defendant, and that no

other reasonable conclusion

was possible."

People v. Fox, 72 A.D.2d 146, 146-147,

423 N.Y.S.2d 171, 172 (1980) (citations

omitted).

In a recent Alabama case, the Court

of Criminal Appeals affirmed a

reasonable doubt instruction that

- 22 -

contained references to moral certainty:

When I say the State has the

burden of proving guilt beyond

a reasonable doubt and to a

moral certainty, that does not

mean that the State must prove

the alleged crime beyond every

imaginable or speculative

doubt or beyond all

possibility of mistake,

because that would be

impossible. A reasonable

doubt means an actual

substantial doubt. It could

arise out of the testimony in

the case or it could arise

from a lack for which a reason

can be assigned. And the

expression "to a moral

certainty" means practically

the same thing as beyond a

reasonable doubt, because if

you are convinced to a point

where you no longer have a

reasonable doubt, then you are

convinced to a moral certainty.

Stewart v. State, 601 So. 2d 491, 505

(Ala. Crim. App. 1992). Evaluating this

instruction in light of the charge as a

whole, the Court found that it "was

thorough and did not mislead the jury."

id. at 505.

- 23 -

In State v. Morley, 239 Neb. 141,

474 N.W.2d 660 (1991), the Nebraska

Supreme Court upheld an instruction that

defined reasonable doubt as "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," id. at 154-155,

474 N.W.2d at 669-670, against a

challenge that it lessened the state’s

burden of proof. 4/

B. This Court Has Approved

In a number of cases, this Court has

also found that the "moral certainty"

4/ The identical instruction is at

issue in Victor v. Nebraska, 242 Neb.

306, 494 N.W.2d 565, cert. granted, 114

S. Ct. 39 (1993) (No. 92-8894).

- 24 <

provision appropriately defines the

concept of belief beyond a reasonable

doubt, and has accepted that "[p)roof to

a ‘moral certainty’ is an equivalent

phrase with ‘beyond a reasonable

doubt.’" Fidelity Mutual Life Ass’n v.

Mettler, 185 U.S. 308, 317 (1902),

citing Commonwealth v. Costley, 118

Mass. at 24.

This Court has never held that an

instruction explaining the concept of

proof beyond a reasonable doubt in terms

of abiding conviction, to a moral

certainty, either reduces the quantum of

proof necessary for conviction or

invites the jury to decide the case on

anything other than the evidence merely

because it uses that language. In fact,

in a number of cases the Court has

rejected challenges to instructions

- 25 -

framed in the Sandoval-Webster

language. Apart from demonstrating that

proof beyond a reasonable doubt is

constitutionally required in criminal

cases, see In re Winship, 397 U.S. 358,

362 (1970), these cases show that the

Court has never found an instruction to

be flawed if it conveys that abiding

conviction or moral certainty is the

state of mind necessary to be reached,

upon consideration of the evidence, to

warrant a guilty verdict.

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

304 (1881), the trial court had

apparently charged in the language then

used in Webster, and endorsed in five

other states. While cautioning that

"“[ajttempts to explain the term

‘reasonable doubt’ do not usually result

in making it clearer to the minds of the

- 26 -

jury," id. at 312, the Court indicated

that the Webster language used in that

case was “certainly very favorable to

the accused, and sustained by

respectable authority," id. That this

Court has found it permissible merely to

announce the standard of proof beyond a

reasonable doubt, without further

definition, see Dunbar v. United States,

156 U.S. 185, 199 (1895), does not mean

that a definition such as used in

Sandoval-Webster, which properly conveys

the quantum of proof, is

constitutionally impermissible.

Error in an instruction that a

presumption of intent to defraud could

only be overcome by sufficiently strong

evidence that created a reasonable doubt

of its correctness in Agnew v. United

States, 165 U.S. 36, 50 (1897), was

- 27 «

neutralized because in other language

the trial court had charged the jury

that they could only convict if they

were satisfied beyond a reasonable doubt

that the defendant had the requisite

intent. Id. at 51-52. In that case the

trial judge used Sandoval-Webster

language:

By a reasonable doubt is not

meant a possible doubt, but

such doubt arising from the

evidence that leaves the minds

of the jury in such a state

that they cannot say, after

having reviewed all the

evidence, that they have an

abiding conviction, to a moral

certainty, of the guilt of the

accused.

Id. at 51. An objection to another

instruction on reasonable doubt taken

from Webster was summarily rejected as

"that case has been cited with approval

by this court." Perovich v. Unite

States, 205 U.S. 86, 92 (1907).

- 28 -

Similarly, in Wilson v. United

States, 232 U.S. 563 (1914), the

defendants complained about the

following instructions on reasonable

doubt:

(R]easonable doubt is that

frame of mind which forbids

you to say, all the evidence

considered and weighed, "I

have an abiding conviction of

the defendants’ guilt," or as

it has been expressed, "I am

convinced of the defendants’

guilt to a moral certainty."

If you can say that you have

such a conviction, then you

have no reasonable doubt, and

your verdict should be

guilty. On the contrary, if

that is your frame of mind, if

you are in the frame of mind

where if it was a matter of

importance to you in your own

affairs, away from here, you

would pause and hesitate,

before acting, then you have a

reasonable doubt.

Id. at 570. The defendant claimed this

instruction was flawed because it never

specifically stated that the government

must prove its case beyond a reasonable

- 29 -

doubt, but the Court approved the

instruction, as it "meant nothing less

than that, and was sufficiently

favorable to the defendants." Id.

In Hopt v. Utah, 120 U.S. 430

(1887), this Court recognized that the

Massachusetts Supreme Judicial Court had

found “to a reasonable and moral

certainty" to be "synonymous and

equivalent" with “beyond a reasonable

doubt." Id. at 440. Agreeing that

informing the jury that a defendant’s

guilt had to be proved beyond a

reasonable doubt, without further

explanation, would be sufficient in many

cases, this Court specifically noted

that in other cases, "some explanation

or illustration of the rule may aid in

its full and just comprehension." Id.

Compare Commonwealth v. Stellberger, 25

- 30 -

Mass. App. Ct. 148, 515 N.E.2d 1207

(1987) (in a close case it is error to

give no definition of beyond a

reasonable doubt). Warning that some

attempts at definition would not be

appropriate, the Court found that the

Utah court’s reference to the certainty

with which jurors would act in the

important concerns of their own lives,

was “as just a guide to practical men as

well can be given." Hopt, 120 U.S. at

441.

Hopt supports the view that per se

rules forbidding definition of the proof

necessary for conviction, or condeming

mention of moral certainty, are unwise,

and reflects the Court’s Willingness to

permit trial judges, or the various

jurisdictions, to define the required

degree of certainty as they deem

- 31 -

appropriate. See Medina v. California,

112 S. Ct. 2572, 2577 (1992). So long

as a particular definition or

formulation does not lessen the degree

of proof mandated by due process, states

should be given the flexibility to

decide the best way to convey the

concept. Addington v. Texas, 441 U.S.

418, 433 (1979). Some jurisdictions

have determined that the prudent course

is not to attempt definition, but, as

has been seen, some have elected to

retain long-standing approved language,

while others have made individual

judgments about the value of various

parts of definitions approved

elsewhere. Whatever choice is

5/ For example, while many

jurisdictions believe it appropriate to

discuss reasonable doubt with the kind

of doubt

(footnote continued)

» 32 -

made, individual reasonable doubt

instructions will pass muster if there

is no reasonable likelihood that the

jury applied them in a way that lowered

the government’s burden of proof or

permitted a verdict on other than the

evidence. See Estelle v. McGuire, 112

S. Ct. 475, 482 (1991).

C. The California Jury

The only case in which this Court

has indicated that "moral certainty"

language may raise due process concerns

(footnote continued)

that would make one hesitate to act, see

Holland v. United States, 348 U.S. 121,

140 (1954), or to define it as doubt

based on reason and common sense,

Massachusetts disfavors both.

Commonwealth v. Williams, 378 Mass. 217,

232-233, 391 N.E.2d 1202, 1212 (1979);

Commonwealth v. Robinson, 382 Mass. 189,

197-198, 415 N.E.2d 805, 811 (1981).

- 33 -

is Cage v. Louisiana, 498 U.S. 39

(1990). In its per curiam opinion, this

Court suggested two reasons why the

instruction there was flawed. First, it

equated reasonable doubt with "grave

uncertainty" and “actual substantial

doubt," terms which "suggest a higher

degree of doubt than is required for

acquittal under the reasonable doubt

standard." Id. at 41. Second, the

error created by the use of these terms

was compounded when "considered with the

reference to ‘moral certainty,’ rather

1a. 2

than evidentiary certainty."

6/ Ina footnote, this Court cited five

cases as examples of "[s]Jimilar attempts

to define reasonable doubt [that] have

been widely criticized by the Federal

Courts of Appeals." 498 U.S. at 41

n.*. Two of these cases found fault

with "willingness to act" language, Monk

v. Zelez, 901 F.2d 885, 890 (10th Cir.

1990); United States v. Moss, 756 F.2d

(footnote continued)

- 34 -

These faults are not present in the

Sandoval-Webster instruction.

The chief deficiency of the

instruction discussed in Cage is that it

equated doubt with "grave uncertainty"

and “actual substantial doubt,"

effectively reducing the quantum of

proof that the prosecution must adduce

to convict. Id. at 40-41. See Gaskins

v. McKellar, 111 S. Ct. 2277 (1991)

(opinion of Stevens, J., respecting the

(footnote continued)

329, 333 (4th Cir. 1985); two criticized

language equating reasonable doubt with

“substantial doubt," Taylor v. Kentucky,

436 U.S. 478, 488 (1978); Monk, 756 F.2d

at 889; one was concerned that jurors

might base a conviction on their

feelings rather than on the facts,

v. Indorato, 628 F.2d 711,

United States

720-721 (list Cir.), cert. denied, 449

U.S. 1016 (1980); and one criticized

defining reasonable doubt as "doubt to a

moral certainty," a formulation which

may have reversed the burden of proof,

United States v. Byrd, 352 F.2d 570, 575

(2d Cir. 1965).

- 35 -

denial of the petition for

certiorari) . Moral certainty as to

guilt is different from grave

uncertainty as to guilt. The first

equates certainty with the state of mind

necessary for conviction while the

latter defines the amount of uncertainty

needed for an acquittal. It is only the

latter that can be construed to reduce

the government’s burden. In that case

jurors could reasonably believe that

unless their uncertainty was grave or

substantial, they should convict. A

7/ It may be that “grave uncertainty”

language is the most serious flaw in

Cage. In Gaskins, the trial court had

defined reasonable doubt as “a doubt for

which you can give reason(, } [ijt is a

." Gaskins v.

, 916 F.2d 941, 952 (4th Cir.

1990), cert. denied, 111 S. Ct. 2277

(1991) (emphasis supplied). The charge

did not contain "grave uncertainty"

language that was in Cage. Gaskins v.

McKellar, 111 S. Ct. at 2277 (opinion of

Stevens, J.).-

- 36 -

number of state courts construing Cage

have sustained jury instructions with

references to "moral certainty" but

which did not have the "grave

uncertainty" impediment. See, e.g.,

Stewart v. State, 601 So. 2d 491,

504-505 (Ala. Crim. App. 1992); Bradford

v. State, 261 Ga. 833, 835, 412 S.E.2d

534, 536 (1992); State v. Hoffman, 123

Idaho 638, 851 P.2d at 939; State v.

Morley, 239 Neb. at 155, 474 N.W.2d at

670; State v. Williams, 313 Or. 19,

40-42, 828 P.2d 1006, 1020-1021, cert.

denied, 113 S. Ct. 171 (1992). The

Sandoval-Webster reasonable doubt

instruction does not equate reasonable

doubt with “grave uncertainty." Nor

does it make use of the "actual

substantial doubt" formulation

criticized in Cage.

- 37 -

California Jury Instruction 2.90

states, in part, that reasonable doubt

is that state of the case

which,

, 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.

(emphasis supplied). The reference to

“moral certainty" clearly describes a

state of mind reached "after the entire

comparison and consideration of all the

evidence."

This juxtaposition is in stark

contrast to the Cage instruction, which

defined reasonable doubt as “such doubt

as would give rise to a grave

uncertainty," as “an actual substantial

doubt," and concluded with, “What is

required is not an absolute or

mathematical certainty, but a moral

- 38 -

certainty." Cage, 498 U.S. at 40. It

is only when the condemned "grave

uncertainty" and "actual substantial

doubt" are considered with the general

reference to moral certainty as opposed

to moral certainty reached upon

consideration of the evidence, that a

reasonable jury could interpret the

instruction to allow a conviction based

on a degree of proof below the

constitutional requirement. Id. at 41.

In fact, the moral certainty phrase in

Cage could have led a jury to conclude

that they needed to reach moral

certainty of doubt in order to acquit.

Because the reasonable doubt

standard contemplates a "subjective

State of certitude," In re Winship, 397

U.S. at 364, reached by jurors who "are

able upon their consciences, to say that

- 39 -

the evidence before them ... is

sufficient," id. at 363, quoting Davis

v. United States, 160 U.S. 469, 493

(1895), it is not the use of “moral

certainty" that was troublesome in Cage,

but the absence of any indication of

what the jury could rely upon to reach

that mental state. Compare United

States v. Drake, 673 F.2d 15, 21 (1st

Cir. 1982), citing United States v.

Indorato, 628 F.2d 711, 721 n.8 (1st

Cir. 1980); Morley v. Stenberg, 828 F.

Supp. 1413, 1421 (D. Neb. 1993); State

v. Bryant, 334 N.C. 333, 343, 432 S.E.2d

291, 297 (N.C. 1993), petition for cert.

filed, 62 U.S.L.W. 3360 (U.S. Nov. 12,

1993) (No. 93-753) .2/

8/ Until the Bryant decision in 1993,

the Supreme Court of North Carolina had

specifically endorsed the "moral

certainty" language from Webster. See

State v. Hammond, 241 N.C. 226, 232, 85

S.E.2d 133, 138 (2994) -

As defendants are entitled to have

their cases decided solely on the

evidence, Taylor v. Kentucky, 436 U.S.

478, 485 (1978), the infirmity in Cage

is nothing more than the fact that the

term "moral certainty," coupled with

inaccurate synonyms for reasonable

doubt, appears without reference to the

evidence. By contrast, in the

Sandoval-Webster formulation, "moral

certainty" describes the jurors’ degree

of conviction “after the entire

comparison and consideration of all the

evidence." See Bell v. State, 610

N.E.2d 229, 235 (Ind. 1993) ("The

wording, unlike that in Cage, bases the

doubt in terms of consideration of the

evidence.")

In the end, CJI 2.90, in four short

sentences, conveys all that is

- 41 -

constitutionally required for proof of

CONCLUSION

er

conviction, granting the defendant the For all the above reasons, the

’

full protection to which he is entitled

judgment of the California Supreme Court

by the Due Process Clause: upholding the constitutionality of

a) he is presumed innocent California Ju Tnetruct i

until the contrary is - ee

proved; be affirmed.

b) the people have the Respectfully submitted

burden of proving him ;

guilty beyond a SCOTT HARSHBARGER

reasonable doubt; ATTORNEY GENERAL

c)

da)

f)

g)

OF MASS

reasonable doubt ‘s not ACHUSETTS

mere possible or PAMELA L. HUNT*

imaginary doubt; Assistant Attorney General

Chief, Appellate Division

reasonable doubt exists

as a result of the state

of the case;

after considering the

evidence, the jury must

have an abiding

conviction, to a moral

certainty, of guilt;

if they do not have that

abiding conviction,

reasonable doubt exists;

if there is a reasonable

doubt as to his guilt,

the defendant must be

acquitted.

- 42 -

Cease

ae

GREGORY I. MASSING

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

Counsel for Amicus Curiae

Commonwealth Of Massachusetts

* Counsel of Record for Amici

- 43 -