Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In re Winship. Is there any doubt about what this sentence means? To you and me and regular practitioners of the English language, perhaps not. Which is why I was surprised to read this Maryland Court of Appeals (it’s another one of those states with a non-conventional name for its Supreme Court) opinion [PDF] holding that the above quote, while probably accurate, isn’t something juries need to know per se. In Carroll v. State, the defendant appealed, arguing that the jury instruction was unconstitutional because the trial court refused to tell the jury that the state had to prove every element of every crime beyond a reasonable doubt.
You know, that thing that In re Winship makes explicit. Because apparently when it comes to convicting A Very Bad Man, close enough for government work is the appropriate standard.
Here is the instruction given by the trial court in its entirety:
The defendant is presumed to be innocent of the charges. This presumption remains throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty of each charge.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his][her] innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.
A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. If you are not satisfied of the defendant’s guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
In rejecting the defendant’s claims, the Court of Appeals relies on Victor v. Nebraska (more on this in a second) and concludes that it’s not the specific language that’s important, but rather the certainty that the concept was adequately conveyed. [It is entirely appropriate to roll your eyes at this juncture.] The Court’s justification is that, while there is no mention of the “each element” requirement in the instruction on reasonable doubt, the trial court “referred to the burden of proof when introducing the elements of each charged offense with the words “the State must prove” those elements”.
If that jury was like any other jury I’ve tried a case in front of, they fell asleep when the judge began his instructions. To assume that a reference to the most important instruction to be given in a later, completely separate part of the instructions satisfies the Constitutional mandate beggars belief. If that were indeed the case, then why didn’t the Court of Appeals simple reproduce that section of the court’s charge for all to see?
To pretend that lay people that constitute juries would be astute enough to understand that proof beyond a reasonable doubt (putting aside the complete uselessness of the language used to define that) means proof of each element beyond a reasonable doubt is naive at best and dishonest at worst.
I’d venture to say that the vast majority of jurors have no clue what elements are and even after having the concept explained to them in jury selection, get it wrong half the time: “So, you’re saying the State has proven A and B, but not C? Well, my vote would be guilty, because that’s 2 out of 3, right? So that’s good enough!”
The Court of Appeals ends with a feckless plea to the Maryland State Bar Association Committee on Jury Instructions to amend their model instruction to include the language on “every element”. I’m sure the Committee can do an admirable job coming up with an instruction that includes those words (hint: cut and paste), but it occurs to me that there might be another body equally well-suited, if not better, with an immediate opportunity to do just the same. Oh, that’s right. It’s the fucking Supreme Court of Maryland. But that would place reversing the conviction of a horrible, horrible man at their feet and God knows the Constitution has no place in the modern criminal justice system.
These instructions are insipid and confusing to begin with and I am convinced that juries – heck, even lawyers – have no real idea what “reasonable doubt” means. Most jurors simply ask themselves “did he do it?” If the answer is yes, they vote guilty.
No one engages in an analysis of whether the State has met this illusory, amorphous, undefinable, vague burden, which they’re told is high, but not how high. To further dilute that burden by not requiring that they be told that this burden applies to each fact required for the commission of a crime is simply a veiled acknowledgment that the burden means nothing at all.
Quoth Justice Ginsburg:
“Although, as a district judge, I dutifully repeated [the `hesitate to act' standard] to juries in scores of criminal trials, I was always bemused by its ambiguity. If the jurors encounter a doubt that would cause them to `hesitate to act in a matter of importance,’ what are they to do then? Should they decline to convict because they have reached a point of hesitation, or should they simply hesitate, then ask themselves whether, in their own private matters, they would resolve the doubt in favor of action, and, if so, continue on to convict?” Beyond “Reasonable Doubt,” 68 N. Y. U. L. Rev. 201, 204 (1994) (James Madison Lecture, delivered at New York University Law School, Nov. 9, 1993).
Victor v. Nebraska, quoting then Second Circuit Chief Judge Jon O. Newman. And now we come to the issue of Victor that I alluded to earlier. The Maryland Court of Appeals relies heavily on it in reaching its conclusion. The quotes they rely heavily on are:
the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.
the proper inquiry is not whether the instruction “could have” been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.
But here’s the thing about Victor. In re Winship‘s mandate of proof on each and every element was never in question. The question in Victor was whether the definition of “reasonable doubt” was Constitutional. It says so, right there, in the opening paragraph:
The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U. S. 358 (1970). Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy explication. In these cases, we consider the constitutionality of two attempts to define “reasonable doubt.”
That’s it. There is absolutely no discussion in Victor about whether the “every element of a charged offense” part of the burden of proof is optional as long as the meaning is adequately conveyed.
The Maryland Court of Appeals misrepresents the holding of a United States Supreme Court to justify its untenable position that a jury instruction on reasonable doubt doesn’t have to be an accurate and complete statement of the law, it just has to be reasonably close.
H/T: Jon Katz
By comparison, CT’s model jury instruction states:
The state has the burden of proving that the defendant is guilty of the crime with which (he/she) is charged. The defendant does not have to prove (his/her) innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged.
As if that was so difficult, Maryland.