[Update: See two proposed charges below, both of which are almost identical in content, but completely different in style.]
“Truth is a matter of semantics, whether we like it or not,” writes Michael Robotham in his novel ‘Suspect’. What he has done in that sentence, perhaps unknowingly, is describe in a nutshell the entire modern American criminal justice system. When it comes to jury trials, the guilt or innocence of a defendant rests in many cases upon the definition of the various elements that make up a crime, and most importantly on the definition of the standard of proof: beyond a reasonable doubt. For it is that standard governments across the country must clear in order to deprive another citizen of life and liberty.
As the Supreme Court said in In Re Winship, the reasonable doubt standard “provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” In other words, you can only have the presumption of innocence hold value if the State is permitted to overcome it by meeting the most exacting standard possible.
The phrase “reasonable doubt”, however ingrained it is in our lexicon, is difficult to pin down and define. By its very nature it is vague – what is reasonable, for instance and reasonable to whom and in what context; what is a doubt, etc – and thus in of itself provides very little reliable guidance to judges and juries whose job it is to interpret and apply it.
Thus, there are probably more discussions devoted to the definition of reasonable doubt than any other phrase in the criminal law. Unfortunately, after more than a decade grappling with this phrase, I am no more certain of its meaning today than I was when I started practicing criminal law.
Courts have developed several definitions that they claim pass Constitutional muster, but I’m afraid that the problem is more akin to that experienced by Justice Steward in Jacobellis v. Ohio; that reasonable doubt is something you know when you see. This, of course, is utterly useless because it provides no guidance.
So what do our courts provide for? There seem to be three primary schools: those that use Massachusetts’ venerable Webster description with its phrases of “moral certainty” and “abiding conviction” [PDF]. There is the other school, notably headlined by Justice Ginsburg in Victor v. Nebraska and the Federal Judicial Center’s pattern instruction, which favors the use of the phrase “firmly convinced”. Finally there is the school that follows neither, most notably Connecticut’s own model instructions. All three schools are ripe for criticism.
While the “moral certainty” in the Webster definition is centuries old and is loosely translated to “I am as certain as I can be, based on what I have seen and heard”, the masking of that more every day definition behind the charged “moral” is a tremendous disadvantage to the accused. For requiring a conviction only upon a moral certainty seeks to bring morality – and thus subjective opinions of what is right and wrong – into the equation. An equation that most accuseds in this day and age are sure to lose. It also does nothing to clearly define the phrase ‘reasonable doubt’.
Connecticut’s instruction, which can be found on the Judicial Branch website, focuses almost entirely on what a doubt is – it is a serious doubt that you would heed, an honest doubt, a real doubt – and does little to define the certainty level required. The first sentence of the instruction – “[t]he meaning of reasonable doubt can be arrived at by emphasizing the word reasonable” – is itself a head scratcher, liable to sidetrack even the most sophisticated listener.
Finally, Justice Ginsburg’s favored requirement of being “firmly convinced” comes closest to In re Winship’s mandate that no person should be adjudged guilty with a fact finder being convinced of guilt “with the utmost certainty”. Our supreme court, in State v. Jeffrey Jackson, implicitly approved this formulation but did not require it of our trial judges and it is not routinely given in our courts.
In order to formulate a clear, succinct and accurate definition of “reasonable doubt”, I think it would help to first understand what exactly we wish to convey to jurors. To me, the essential points seem to be the following:
- That every person is presumed innocent when arrested;
- That they can be found guilty and have their liberty deprived only if the evidence presented by the prosecution creates a high degree of certainty that the correct person has been arrested for the correct crime;
- That the high degree is not mathematical absolute certainty;
- That the high degree is greater than a possibility or a probability that the accused is guilty;
- That any realistic doubt must lead to an acquittal;
- That this decision must be made based on the evidence presented in court or evidence that could have or should have been presented but was not.
If that is what we want to convey, then why do we not simply say that? Why must we muck about with terms like “moral certainty” and “abiding conviction” and “a serious doubt that reasonable men would heed”. Why are so averse to speaking in plain English?
With all of the above in mind, I propose the following, which is a variation of the “firmly convinced” formulation:
The State has the burden of proving the defendant’s guilt beyond a reasonable doubt. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?
What it means is this: You must be fully and firmly convinced of the defendant’s guilt before you may return a verdict of guilty. Your state of mind must be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty.
After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture.
Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.
I am certain that my formulation will have its critics. I invite them to send me their concerns and suggestions, so that we may open a dialogue that seeks to fix the incomprehensible legalese we throw at jurors today and ask them to make the most solemn decision they might ever have to in their lives.
Update: Based on conversations in the comments below and taking into account feedback I’ve received via email, I’ve formulated this second alternative instruction:
Remember that every person is presumed not guilty when arrested. This presumption and status of being not guilty can only be overturned if the evidence presented creates a high degree of certainty by firmly convincing you that the correct person has been arrested [has committed?] for the correct crime. The high degree of certainty is not mathematical absolute certainty but it is also not a possibility, or a probability, or a likelihood that the accused is guilty. What prevents a juror from being firmly convinced to a high degree of certainty is what we call a reasonable doubt. If you have a realistic doubt, you cannot overturn the presumption that the accused is not guilty and you must vote accordingly. A realistic doubt can form based on the evidence presented in court or evidence that could have or should have been presented by the prosecution but was not.
Thus, only if you are firmly convinced to a high degree of certainty that the accused did, in fact, commit the charged crimes, can you overturn the status of being not guilty. If you do not reach that level of certainty, you must keep that status of not guilty in place and render a verdict accordingly.
Thoughts you have are, as always, welcome.