F 2.90

F 2.90 n1 Whether “Beyond Reasonable Doubt” Should Be Defined.

In United States v. Nolasco (9th Cir. 1991) 926 F2d 869, 871-72 the 9th Circuit held en banc, that it does not violate federal due process principles to fail to define the term “beyond a reasonable doubt” in the jury instructions. Rather, the district judge’s decision not to define reasonable doubt will be reviewed under an abuse of discretion standard. In so holding, the 9th Circuit noted that several circuits have held that the phrase “reasonable doubt” is one of common usage and acceptance requiring no definition beyond the language itself.

Nolasco raises interesting considerations for California. There appears to be no state constitutional requirement that the term be defined. Instead, the authorization for definition of the term in California is governed by PC 1096a which provides that the court “may” define the term in the jury instructions. (The only definition permitted is the one included in PC 1096a.) (See concurrence of Justice Mosk in People v. Brigham (79) 25 C3d 283, 292-316 [157 CR 905] arguing that the statutory definition is archaic, confusing and misleading and should be changed by the legislature.) Therefore, due to the lack of any state constitutional basis for definition of beyond a reasonable doubt and due to the permissive nature of PC 1096a, it would seem that the trial court could omit any definition and — absent an abuse of discretion — no error would be found. (See People v. Castro (45) 68 CA2d 491, 498 [157 P2d 25], noting that the definition “is not mandatory so that unless there appears a great discrepancy that mislead the jury, the judgment may be affirmed.”; see also People v. Ahern (1892) 93 C 518, 519 [29 P 49] [failure to define reasonable doubt was not error, in the absence of any request for a definition]; but see People v. Soldavini (41) 45 CA2d 460, 463-64 [114 P2d 415] [definition of reasonable doubt required sua sponte as a “general principle of law”].)

In short, it may be argued that “the term `reasonable doubt’ best defines itself [and that] [a]ll attempts at definition are likely to prove confusing and dangerous. Every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary. It is in a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it. [G]enerally, the attempted definitions of [reasonable doubt] … are simply misleading and confusing, and not proper explanations of their meaning at all. [Internal citations and quote marks omitted.]” (People v. Johnson (2004) 119 CA4th 976, 986 [quoting collected cases from other jurisdictions].)

While most defense counsel would probably prefer to have the PC 1096a definition rather than no definition at all, should counsel feel that the archaic language of CJ 2.90 gives the jury too much latitude, consideration could be given to objecting to any definition of beyond a reasonable doubt and addressing the matter of the definition in argument. In so doing, counsel could then attempt to utilize the following model instruction: “[A] reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.” (Devitt, et al., Fed. Jury Prac. & Inst. (3d Ed. 1977) § 11.14.) The Supreme Court approved similar language in Holland v. U.S. (54) 348 US 121, 140 [99 LEd2d 150]. Therefore, the judge would be hard pressed to prevent counsel from making such an argument.

Of course, one should not embark upon such a strategy lightly. Many practitioners feel that the definition provided by PC 1096a, despite its confusing and archaic nature, is useful to the defense. Moreover, if there is no instructional definition of the term, counsel will also have to contend with any prosecutorial slant given to the term during the district attorney’s argument.

[Research Note: See FORECITE BIBLIO 2.90]

F 2.90 n2 Due Process Challenge To CJ 2.90 Rejected; CJ 2.90 Revised; PC 1096 Amended.

In Victor v. Nebraska (94) 511 US 1 [127 LEd2d 583; 114 SCt 1239], the United States Supreme Court rejected the due process challenge to CJ 2.90 concluding that “taken as a whole, the instructions correctly convey the concept of reasonable doubt to the jury.” However, 5 of the court’s 9 justices criticized the instruction with words ranging from “archaic” to “indefensible”.

In People v. Freeman (94) 8 C4th 450, 503-04 [34 CR2d 558], the Supreme Court suggested that it would be permissible to change the definition of reasonable doubt to provide as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible doubt 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 of the truth of the charge.” (Id. at 504, fn 9.)

The 1994 revision to CJ 2.90 (first appearing in the January 1995 pocket part) eliminated the reference to “moral certainty” and “moral evidence”. Effective on July 1, 1995, PC 1096 was amended to delete the challenged language. However, potential challenges to the new instruction do remain. (See e.g. FORECITE F 2.90e, FORECITE F 2.90 n5.)

[Additional briefing advancing other potential challenges to the 1994 revision of CJ 2.90 is available to FORECITE subscribers. Ask for Brief Bank # B-666.]

[Research Note: See FORECITE BIBLIO 2.90]

F 2.90 n3 Erroneous Reasonable Doubt Instruction As Reversible Per Se.

See FORECITE PG X(C)(19).

F 2.90 n4 Alternative Definition Of Reasonable Doubt.

For alternative definitions of proof beyond a reasonable doubt, see Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 21, p. 28; 9th Cir. Crim. Jury Instr. § 303 (1992); Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 12.10). However, the Devitt definition was held to be error in several early California Supreme Court opinions. (People v. Bemmerly (1890) 87 C 117, 120-21 [25 P 266]; People v. Ah Sing (1876) 51 C 372, 373-74; People v. Brannon (1873) 47 C 96, 97.) [A collection of definitions of proof beyond a reasonable doubt from other jurisdictions is available to FORECITE subscribers. Ask for Instruction Bank #I-864.]

NOTE: See FORECITE’s proposed alternatives and supplements to the reasonable doubt instruction under FORECITE F 2.90a, et seq.

[Research Note: See FORECITE BIBLIO 2.90]

F 2.90 n5 Due Process/Ex Post Facto Challenge To CJ 2.90 (1994 Revision).

The failure of CJ 2.90 (1994 Revision) to adequately define the reasonable-doubt standard as required by the federal constitution provides a basis for challenging the instruction under 14th Amendment due process principles. (See FORECITE F 2.90e.) Moreover, in cases involving crimes committed before People v. Freeman (94) 8 C4th 450, 503-04 [34 CR2d 558], the case upon which CJ 2.90 (1994 Revision) is founded, and/or before revision of PC 1096 on June 30, 1995 (see FORECITE F 2.90 n2) use of the new instruction also violates the ex post facto principles of the state (Art. I § 9) and federal (Art. I § 10, cl 1) constitutions. This is so if the new instruction is interpreted to permit conviction based upon less evidence. (See People v. Sobiek (73) 30 CA3d 458, 473 [106 CR 519].)

Moreover, due process principles (U.S. Const. 14th Amendment) may be implicated if a new standard is applied in a trial for crimes committed before the advent of the new definition. (See In re Baert (88) 205 CA3d 514, 517-18 [252 CR 418] [retroactive judicial enlargement of criminal liability violates due process]; People v. Seldomridge (84) 154 CA3d 362, 364 [201 CR 377] [changes to the prosecution’s burden may not be applied retroactively].)

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-667.]

F 2.90 n6 Arbitrary Denial Of State Created Right As Due Process Violation.

It is well settled that the due process clause of the federal constitution (14th Amendment) protects a person’s constitutional interest in adjudication of his or her liberty in the manner set forth by state statute. (See Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227]; see also, Walker v. Deeds (9th Cir. 1995) 50 F3d 670, 672-73.) Thus, for example, when a state statute requires that a jury use a particular statutory standard in a criminal proceeding, it is a violation of the due process clause to instruct the jury in a manner contrary to the statutory standard. (Hicks, 447 US at 346.) Pursuant to this principle, it may be argued that use of the modified CALJIC instruction defining reasonable doubt prior to modification of PC 1096 in July 1995 was a federal due process violation.

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-668.]

F 2.90 n7 Error To Characterize Reasonable Doubt As “Doubt For Which Some Good Reason Can Be Given”.

In Chalmers v. Mitchell (2nd Cir. 1996) 73 F3d 1262, the court observed that an instruction which states that a reasonable doubt is “a doubt for which some good reason can be given,” creates a danger “that a jury will believe it should look to the defendant to articulate a reason for the doubt, in essence requiring him to prove his innocence.” (Chalmers, 73 F3d at 1268.) Although the court held that this instruction was not reversible error, it cautioned trial courts that defining reasonable doubt in such a manner, “only complicates matters and adds little to the jury’s understanding of reasonable doubt.” (Id. at 1271.) The dissent argued that the “good reason can be given” instruction constitutes a denial of due process which unconstitutionally lowered the prosecutor’s burden of proof. (Chalmers, 73 F3d 1274-76, Newman, C.J. dissenting.)

F 2.90 n8 Improper To Describe Proof Beyond A Reasonable Doubt In Terms Of “Every Day” Decisions.

In People v. Nguyen (95) 40 CA4th 28, 35-37 [46 CR2d 840] the prosecutor argued to the jury that people apply the reasonable doubt standard “every day” and it is the same standard people customarily use in deciding whether to change lanes when driving or whether to get married. The court of appeal held that this argument trivialized the reasonable doubt standard. As the Supreme Court held in People v. Brannon (1873) 47 C 96, “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required…. There must be in the minds of the jury an abiding conviction, to a moral certainty, to the truth of the charge, derived from a comparison and consideration of the evidence.” (See also People v. Johnson (2004) 115 CA4th 1169.)

The court of appeal concluded: “We strongly disapprove of arguments suggesting the reasonable doubt standard is used in a daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is ‘very high’ and tells the jury to read the instructions.” (Nguyen, 40 CA4th at 36; see also People v. Johnson (2004) 119 CA4th 976, 984-86.)

F 2.90 n9 Proof Beyond A Reasonable Doubt: Instruction That Absolute Certainty Is Not Required.

Jones v. State (Fla.Ct.App 1995) 656 So2d 489, held that it was reversible error for the trial court to tell the jury in a preliminary instruction that the prosecution need not “convince [the jury] to an absolute certainty of the defendant’s guilt.”

F 2.90 n10 No Duty To Instruct Sua Sponte On Presumption Of Innocence Or Prosecutorial Burden At Penalty Phase.

People v. Davenport (95) 11 C4th 1171, 1228 [47 CR2d 800] held that the court has no sua sponte duty to instruct on the presumption of innocence and the prosecutorial burden at the penalty phase.

F 2.90 n11 Error To Instruct Jury That Defendant Is Presumed Not Guilty.

CJ 2.90 correctly instructs the jury that the defendant is presumed innocent until the contrary is proved. It would be error to instruct the jury that the defendant is presumed not guilty rather than innocent. (See Flores v. State (95 OklApp) 896 P2d 558.)

F 2.90 n12 Reversible Error For Failure To Define Proof Beyond A Reasonable Doubt.

The failure to instruct on the prosecution’s burden to proof beyond a reasonable doubt has been held to be reversible error notwithstanding reference to the proper standard in other instructions and during the argument of counsel. (People v. Phillips (97) 59 CA4th 952 [69 CR2d 532].)

The error has also been held to be reversible notwithstanding the giving of a proper instruction during voir dire of the jurors but before the jury was impaneled and sworn. (People v. Crawford (97) 58 CA4th 815, 824-25 [68 CR2d 546].)

F 2.90 n13 Counsel Has Duty To Challenge CJ 2.90 Notwithstanding View Of Intermediate California Appellate Court That The Issue Is Frivolous.

In People v. Hearon (99) 72 CA4th 1285 [85 CR2d 424] Presiding Justice Scotland, chastised appellate counsel for challenging CJ 2.90 based on its failure to provide a standard of certainty. “In a well-worn argument that has become the soup d’jour of appellate advocacy in criminal cases, defendant…claims the definition of reasonable doubt given to the jury…is ‘defective in that it gave the jury no guidance as to the level of certainty to which it must be persuaded before it could reliably determine that the prosecution had met its burden of proof beyond a reasonable doubt.’” (99 DAR at 5305.) The opinion goes on to conclude that the court regards “the issue as conclusively settled adversely to defendant’s position. [Citation.] ¶ The time has come for appellate attorneys to take this frivolous contention off their menus.” (Ibid.)

However, appellate counsel should be careful before heeding this advice. It comes from the perspective of an intermediate state court of appeal which is tired of seeing and rejecting the same issue over and over. From that perspective, it is understandable that the court may not see the bigger picture from the perspective of appellate counsel.

This “bigger picture” includes consideration of whether there are potential federal constitutional issues which appellate counsel should preserve for his or her client. As to any such issues, there can be no doubt that counsel is obligated to raise them on appeal in order to preserve the client’s right to litigate the issue in the California Supreme Court and in federal court. (See FORECITE PG VII(B); see also O’Sullivan v. Boerckel (99) 526 US 838 [144 LEd2d 1; 119 SCt 1728] [discretionary review must be requested as to all potential habeas issues]; California Rules of Court, Rule 8.516(b)(1) (formerly Rule 29(b)(1)) [issue must be raised in appellate court as prerequisite to review by California Supreme Court].)

Hence, until an issue is “conclusively settled adversely to the defendant’s position” in both the California Supreme Court and in federal court, appellate counsel who fail to raise the issue will forfeit their client’s right to subsequently litigate the issue.

As to the specific issue raised regarding CJ 2.90, the issue not settled in federal court or the California Supreme Court. The latter court has not directly rejected the issue and the Ninth Circuit opinion in Lisenbee v. Henry (9th Cir. 1999) 166 F3d 997 is far from conclusive. (See FORECITE F 2.90e.) Moreover, Lisenbee represents the opinion of a single three-judge panel in the Ninth Circuit and does not have the authority of an en banc opinion. Furthermore, the Supreme Court, which is not bashful about disagreeing with the Ninth Circuit, has not spoken on the issue. The version of CJ 2.90 which was considered in Victor v. Nebraska, contained decidedly different language from the current version of CJ 2.90. In fact, it is the subsequent revision of CJ 2.90 in response to Victor v. Nebraska which is the basis for the claim which has been so consistently rejected in California.

In sum, while the appellate court’s frustration with the repetitive claims challenging CJ 2.90 is understandable, this should not deter appellate counsel from fulfilling their duty to preserve their client’s federal constitutional rights.

In addition, it should be noted that an intermediate appellate court has no authority to order lawyers to desist from making reasoned arguments. (People v. Feggans (67) 67 C2d 444, 447 [62 CR 419] [“counsel serves both the court and his client by advocating changes in the law if argument can be made supporting change”].)

NOTE: In an unpublished opinion (People v. Childress (8/27/99, B125174) the Second District Court of Appeal, Division One, disagreed with People v. Hearon (99) 72 CA4th 1285 [85 CR2d 424]: “Although we consider the issue conclusively resolved under state law, we do not agree with the court in People v. Hearon (99) 72 CA4th 1285, 1287, that ‘[t]he time has come for appellate attorneys to take this frivolous contention off their menus.’ The United States Supreme Court has yet to speak on this federal constitutional challenge. Until it does, a defendant’s failure to raise the issue may be deemed a waiver, thereby depriving him of whatever potential benefit might accrue in the unlikely event that some form of relief is ultimately granted. (See O’Sullivan v. Boerckel (99) 526 US 838 [144 LEd2d 1; 119 SCt 1728].)”

Neil Morse of San Francisco, who was counsel in Childress reports that Justice Mosk has voted to grant review in two of Neil’s cases where only the CJ 2.90 issue was included in the petition. Hence, at least one justice of the California Supreme Court does not feel that the issue is “conclusively resolved under state law.” Moreover, in point of fact, the issue has never been directly addressed by any California court. The dicta in People v. Freeman (94) 8 C4th 450, 504-505 [34 CR2d 558] upon which CALJIC and the appellate courts have uniformly followed is just that, dicta. (See People v. Light (96) 44 CA4th 879, 889 [52 CR2d 218].) Freeman never addressed or considered the issues. It merely issued an advisory suggestion — not driven by the facts in the case before it — that its suggested modification “might” be “safely” made. (Id., at 504; see also People v. Rodrigues (94) 8 C4th 1060, 1145 [36 CR2d 235] [trial courts “should consider” the Freeman instruction].)

Hence, until the California Supreme Court issues a holding in a case where the “Freeman” instruction was actually used and where the issues as to the propriety of that instruction are definitely resolved, it is a misnomer that the matter has been conclusively resolved under state law. (See Evans v. City of Bakersfield (94) 22 CA4th 321, 328 [27 CR2d 406] [dictum of California Supreme Court, although “highly persuasive” is “not binding upon the lower courts”].) And, it is also a misnomer that the matter is subject to the Auto Equity doctrine. (Auto Equity Sales Inc. v. Superior Court (62) 57 C2d 450 [20 CR 321].) That doctrine only applies to those portions of a court’s opinion which were “necessary to its decision.” (U.C. Regents v. Aubry (96) 42 CA4th 579, 584 [49 CR2d 703].) The advisory suggestion in Freeman regarding future modifications of CJ 2.90 was obviously not necessary to the court’s decision.

APPELLATE PRACTICE AID: The following language may be used to explain to the Appellate Courts why counsel is raising the issue:

“This argument has been rejected in numerous Supreme Court and Court of Appeal published opinions, and also recently by the Ninth Circuit. (Lisenbee v. Henry (9th Cir. 1999) 166 F3d 997.) Appellant is realistic about its chances. Nonetheless, if this instruction were ever held to be constitutional error, the error would likely be reversible per se. (Sullivan v. Louisiana (93) 508 US 275, 278-281 [124 LEd2d 182; 113 SCt 2078].) Given those very significant consequences in the event of a reversal, the fact that neither the Ninth Circuit, en banc, nor the U.S. Supreme Court has never ruled on the issue, and that an issue must be properly raised in the state courts for further review to be preserved (see O’Sullivan v. Boerckel (99) 526 US 838 [144 LEd2d 1; 119 SCt 1728]), appellant cannot conscientiously jettison his right to further review. He thus urges this Court to accept the argument.”

F 2.90 n14 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”

F 2.90 n15 Pretrial Instructions During Voir Dire: Impact On Jury Instruction Errors At Trial.

(See FORECITE F 0.25 n1.)

F 2.90 n16 Equal Protection Challenge To CJ 2.90 Based On Bush v. Gore.

A due process challenge to CJ 2.90 has been considered and rejected by several California courts. (See FORECITE F 2.90e.) However, Bush v. Gore (2000) 531 US 98 [148 LEd2d 388; 121 SCt 525] provides a basis for mounting a separate equal protection challenge to CJ 2.90, especially in the context of failing to give a comparative instruction on the preponderance and clear and convincing standards. (See FORECITE F 2.90e.) [See Brief Bank # B-887 for briefing on this issue.]

F 2.90 n17 No State Has Reduced Reasonable Doubt To A Feeling Of An “Abiding Conviction” In The Truth Of The Charge As “Satisfactorily” Shown.

A survey of the fifty states’ definitions of reasonable doubt shows the following: Several States have retained the “moral certainty” language in their definitions (Alabama, Idaho, Minnesota, Tennessee). A plurality of States use a variant of the Hopt v. Utah (1886) 120 US 430 [30 LEd 708; 7 SCt 614] definition – proof such that a juror would not hesitate to act in their own important affairs (Alaska, Arkansas, Colorado, Conn., D.C., Maryland, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Ohio, Pennsylvania, South Carolina, South Dakota, West Virginia, Wisconsin).

Other States employ definitions with a requirement of some form of high probability (Arizona, Hawaii, Virginia), or “firmly convinced” (Delaware, Louisiana, Missouri, Rhode Island), “firm and abiding” (North Dakota), “full and abiding” (Iowa), “reasonable certainty” (Georgia), that “almost certain” (Maine), “near certainty” (Massachusetts), or “more powerful than more likely true than not true.” (New Jersey, Indiana), “fully satisfies or entirely convinces you of the defendant’s guilt” (North Carolina), “proof which satisfies the mind, convinces the understanding of those who are bound to act.” (Utah)

A number of States dictate that there either be no definition given (accord U.S. v. Walton (4th Cir. 2000) 207 F3d 694), or that there is no definition that the court requires. (Illinois, Kansas, Kentucky, Michigan, Mississippi, Oklahoma, Oregon, Texas, Vermont, Wyoming).

Two States veer close to California’s minimal, defective definition –Washington (“a doubt as would exist in the mind of a reasonable person … abiding belief in the truth of the charge), and Florida (“if there is not an abiding conviction of guilt, or if having a conviction, it is one which is not stable, but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt”), but California’s instructions, taken as a whole, mandate convictions on mere probabilities. No State appears to have gone so far as California in reducing the definition of reasonable doubt simply to juror feelings of a lasting belief established by evidence satisfactorily shown.

To view the survey see Appendix to B-958.

F 2.90 n18 CALJIC 2.90 Unconstitutionally Admonishes the Jury That a Possible Doubt Is Not a Reasonable Doubt.

See Brief Bank # B-974.

See also FORECITE PG X(G)(8).

F 2.90 n19 Precluding Prosecutor From Unduly Emphasizing Instructional Language Regarding “Mere Possible Or Imaginary Doubt.”

(See FORECITE PG X(G)(8).)

F 2.90a

Burden Of Proof: Definition Of Burden

*Add to CJ 2.90:

A burden of proof draws a line. If the prosecution fails to cross that line, regardless of how close it may have come, then the prosecution has not met its burden of proof.

Points and Authorities

Most of the litigation concerning this instruction has centered around the definition of reasonable doubt. (See notes to CJ 2.90.) However, an aspect of the instruction which has not been specifically addressed is the failure of CJ 2.90 to define the meaning of the term “burden of proving.” A case could be made for the proposition that this term has a technical legal meaning requiring sua sponte definition. (See People v. McElheny (82) 137 CA3d 396, 403-04 [187 CR 39].) However, even if there is no sua sponte obligation to define the term, a party has the right to clarification of instructions upon request. (See People v. Medina (90) 51 C3d 870, 902 [274 CR 849].) Hence, the above instruction adapted, from People v. Mixon (90) 225 CA3d 1471, 1484 [275 CR 817], should be given when requested in order to protect the defendant’s federal (6th and 14th Amendment) constitutional rights to trial by jury and due process.

RESEARCH NOTES

See FORECITE BIBLIO 2.90.

F 2.90b

Rejection or Disbelief Does Not Satisfy Prosecution’s Burden

*Add to CJ 2.90:

This burden requires the prosecution to present affirmative evidence of guilt. However, rejection or disbelief of the defense evidence does not create such affirmative evidence. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.

Points and Authorities

“[D]isbelief of a witness does not establish that the contrary is true, only that the witness is not credible. [Citations.] “ (People v. Woodberry (70) 10 CA3d 695, 704 [89 CR 330].) Hence, “rejection of testimony ‘does not create affirmative evidence to the contrary of that which is discarded.’ [Citation.]” (Edmondson v. State Bar (81) 29 C3d 339, 343 [172 CR 899]; see also In re Anthony J. (2004) 117 CA4th 718, 733 [trial court’s rejection of defendant’s version of the events did “not matter” because “[t]here still was no positive evidence introduced supplying the necessary elements . . . .”]; People v. Brown (89) 216 CA3d 596, 600 [officer’s testimony “[gave] equal support to two inconsistent inferences” regarding which color lights were activated, and therefore “neither [were] established”]; see also People v. Acevedo (2003) 105 CA4th 195, 197 [evidentiary gap could not be filled by presumption that it was the police officer’s official duty to have his vehicle equipped with a red light visible from the front]; People v. Farnam (2002) 28 C4th 107, 143.) Accordingly, when the prosecution has failed to present sufficient credible evidence to meet its burden of proof, the jury should not be permitted to utilize its disbelief of the defendant’s testimony or other defense evidence to conclude that the prosecution’s burden has been met. The failure to adequately inform the jury concerning this principle implicates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) by allowing the jury to convict the defendant even though the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt.

ALTERNATIVE FORM

As I have instructed you, you are the sole judges of the credibility of witnesses and of the weight to be given the testimony of each. If, however, you should disbelieve the testimony of a witness, that circumstance does not warrant your finding that the direct opposite of such testimony is true, for disbelief in testimony, in whole or in part, is not the equivalent of affirmative evidence to the contrary of the disbelieved testimony.

Points and Authorities

(Deerings EC 702, “Suggested Forms.”)

F 2.90c

Prosecution Bound by Defendant’s Statement Unless Contrary

Evidence Presented

*Add to CJ 2.90:

The prosecution, having presented as part of its case the statements of the defendant as to [his] [her] lack of [lewd] intent, is bound by that evidence in the absence of proof to the contrary.

This burden requires the prosecution to present competent and substantial evidence to disprove defendant’s statement that [he] [she] __________ [e.g. acted in self-defense]. Unless the prosecution has presented credible evidence contrary to defendant’s statement that [he] [she] __________, the prosecution is bound by that statement and you may not find defendant guilty.

Points and Authorities

The prosecution, having presented defendant’s statement in order to prove their case, are bound by that statement and its explanation for the conduct in the absence of proof to the contrary. (People v. Lines (75) 13 C3d 500, 505-06 [119 CR 225]; People v. Collins (61) 189 CA2d 575, 589 [11 CR 504].) Hence, to meet its federal constitutional burden to prove guilt beyond a reasonable doubt (14th Amendment), the prosecution must present “competent and substantial evidence” beyond the defendant’s statement to establish guilt.

NOTES

This rule is analogous to the principle that rejection of a party’s evidence does not create affirmative evidence to the contrary and is not alone sufficient to establish guilt. (See FORECITE F 2.90b, above.) [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-617.]

F 2.90d

Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence

*Add to CJ 2.90:

I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the [prosecution] in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the [prosecution] to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. There’s no burden on [defendant] to produce any evidence. In every case, and I have no doubt in this case as well, the defendant will be presenting evidence by way of cross-examination of [prosecution] witnesses. The defendant relies upon evidence elicited by cross-examination. So that the opportunity that [defendant] will have, as the defendant in every case has, to bring out certain facts by way of cross-examination and by way of argument and analysis to the jury, does not in any way imply a necessity on the part of the defendant to produce any evidence. That’s fundamental. There is no need of the defendant to produce any evidence. There is no need in law for him to take advantage of the opportunity. He doesn’t have to put a single question on cross-examination if counsel decides not to do so. The bottom line is that the burden is on the [prosecution] to prove guilt beyond a reasonable doubt. There is no burden on the defendant to prove his innocence, and there’s no burden on the defendant to come forward with a single item of evidence or testimony.

Points and Authorities

The above instruction was given in U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843, in response to an implication by the prosecutor in the opening statement that the defendant would be presenting evidence. However, even absent such a statement by the prosecution, the jury should understand that the defendant has no obligation to present evidence and that any attempt by the defendant to present evidence — either through cross-examination or by affirmative testimony — does not alter the burden of the prosecution. (See also, FORECITE F 2.90b [Rejection or Disbelief of Defendant’s Testimony Does Not Satisfy Prosecution’s Burden]; People v. Hill (98) 17 C4th 800, 831 [72 CR2d 656] […[T]o the extent [the DA] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence. (Cf. CJ 2.61 (6th ed. bound volume)”…].)

F 2.90e

“Abiding Conviction,” Must Be Defined To Avoid Confusion

With The Clear And Convincing Evidence Standard

*Add to CJ 2.90 (1994 Revision):

An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a greater degree of certainty than the next lower standard of “clear and convincing evidence.” Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. Again, the proof beyond a reasonable doubt standard requires a greater degree of certainty than that required to meet the clear and convincing evidence standard.

[For alternative and/or additional instructions, see FORECITE F 2.90g / FORECITE F 2.90h.]

Points and Authorities

In response to criticism of the term “moral certainty” in Victor v. Nebraska (94) 511 US 1 [127 LEd2d 583, 596; 114 SCt 1239], the California Supreme Court suggested that CJ 2.90 should be modified by deleting the “moral certainty” standard, leaving only the “abiding conviction” language as the measure of reasonable doubt. (People v. Freeman (94) 8 C4th 450, 504 [34 CR2d 558].) CALJIC followed suit with its 1994 revision of 2.90, which first appeared in the January 1995 pocket part. The legislature amended PC 1096 to comply with Freeman effective June 30, 1995.

However, deletion of the “moral certainty” language from CJ 2.90 (1994 Revision) has created an unconstitutional ambiguity because there is no longer any language which defines the degree of persuasion to which the “abiding conviction” must be held. “Abiding conviction” requires definition because, standing alone, it may reasonably be interpreted by the jury to embody a degree of persuasion equivalent to the clear and convincing evidence standard. Indeed, other state and federal jurisdictions define clear and convincing evidence in their standard pattern instructions in terms, such as a “firm belief or conviction,” which are difficult to distinguish from an abiding conviction. (See e.g,. 5TH CIRCUIT PATTERN JURY INSTRUCTIONS – CIVIL Inst. 2.14 (1999) [“firm belief or conviction”]; Potuto, Saltzburg, Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS No. 70.02 [Insanity Defense] (Lexis, 2nd ed. 1993) [same]; Virginia Model Jury Instructions – Civil (Rep. ed. 1993) No. 3.110.) In fact, at least one state actually defines clear and convincing evidence as an “abiding conviction.” (New Mexico Statutes Annotated – Uniform Jury Instructions, No. 13-1009; see also In re Doe (82) 647 P2d 400, 402 [98 N.M. 198].) Even the U.S. Supreme Court has had occasion to use the term “abiding conviction” in defining clear and convincing evidence: “… an abiding conviction that the truth of [the] factual contentions are ‘highly probable.’ [Citation.]” (Colorado v. New Mexico (84) 467 US 310, 316 [81 LEd2d 247; 104 SCt 2433.].)

Hence, even though “abiding conviction” was equated with proof beyond a reasonable doubt by dicta in Victor v. Nebraska (94) 511 US 1 [127 LEd2d 583, 593; 114 SCt 1239], it has also been equated or associated with the lesser standard of clear and convincing evidence in many other contexts. For this reason, it is doubtful that Victor meant for “abiding conviction” to be used without any defining context. It is true that the Victor opinion contains a loose phrase in which the court said: “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” (Victor, 127 LEd2d at 596; see also, People v. Jackson REV GTD/DISD/DEPUB (96) 41 CA4th 1232, 1252-53 [49 CR2d 114] reprinted at 46 CA4th 232 [agreeing that CJ 2.90 (1994 Rev.) “does not specify what degree of certainty is required for proof beyond a reasonable doubt” but holding that reasonable doubt should not be subject to quantification].) However, this statement is not accompanied by any discussion or analysis of whether other defining language is needed to replace “moral certainty.” Hence, Victor should not be read to authorize a definition of proof beyond a reasonable doubt in terms of “abiding conviction” without any added definition which distinguishes “abiding conviction” from the lesser standard of clear and convincing evidence.

Moreover, confusion of the “abiding conviction” language of CJ 2.90 with the clear and convincing standard is also a danger under the common meaning of the terms. A “conviction” is commonly defined as a “strong belief” and “abiding” is defined as “enduring” or “lasting”. (Webster’s, New World Dictionary (1979 ed.) pp. 2, 138.) Under these definitions, a juror could easily conclude that an “abiding conviction,” and hence, proof beyond a reasonable doubt, is equivalent to a belief which is so strong and enduring “as to leave no substantial doubt” and “to command the unhesitating assent of every reasonable mind.” Yet, these are descriptions of clear and convincing evidence, not proof beyond a reasonable doubt which requires the “utmost certainty.” (In re Winship (70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068]; see also, Jackson v. Virginia (79) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781]; Lillian F. v. Superior Court (84) 160 CA3d 314, 320 [206 CR 603]; People v. Brigham (79) 25 C3d 283, 291 [157 CR 905] [“a strong and convincing belief … is something short of having been ‘reasonably persuaded to a near certainty.’ [Citation].”].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-669 a/b.]

Accordingly, the meaning of “abiding conviction” should be clarified in CJ 2.90 (1994 Revision) to eliminate the current ambiguity as to the degree of persuasion that is required. Proof by any standard less than reasonable doubt violates the Due Process Clause of the federal constitution (14 Amendment). (Winship, (70) 397 US at 363-64 [25 LEd2d 368; 90 SCt 1068].) “To be a meaningful safeguard, the reasonable doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk.” (Victor, 127 LEd2d at 604, Blackman & Souter, concurring and dissenting.)

One way of adding the necessary precision to CJ 2.90 (1994 Revision) would be to explicitly inform the jury that proof beyond a reasonable doubt requires a greater degree of persuasion and/or a heavier burden than does clear and convincing evidence. A comparison of burdens is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. (See BAJI 2.62; Devitt, Blackmar, et al., Fed. Jury Prac. & Inst., (1987) § 97.04, p. 730.) There is no reason why it shouldn’t also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. Such a comparison provides added perspective to the “abiding conviction” language and protects against the jurors use of the lesser standard.

The definition of clear and convincing evidence in the above instruction was taken from In re Jerome D. (2000) 84 CA4th 1200, 1206 [101 CR2d 449] [internal citations and quote marks omitted]. (But see People v. Mabini (2001) 92 CA4th 654, 663 [112 CR2d 159] [clear and convincing evidence is evidence that makes the existence of the issue propounded ‘highly probable’]; see also State v. King (AZ 1988) 763 P2d 239, 243-44.) Upon request, the definition should be supplemented as set forth in the sample. (See also, DuBarry Int’l. Inc. v. Southwest Forest Industries, Inc. (91) 231 CA3d 552, 566 n 19 [282 CR 181]; In re Marriage of Weaver (90) 224 CA3d 478, 487 n 8 [273 CR 696]; Matthew Bender & Co., Inc., California Forms of Jury Instruction (1995) Vol. 1 § 1.26A[2].) The fact that proof beyond a reasonable doubt is a significantly heavier burden is based on the well-settled principle that clear and convincing evidence is an “intermediate” or “middle” quantum of proof between the significantly lesser preponderance test and the significantly greater reasonable doubt test. (See In re M. (69) 70 C2d 444, 458 [75 CR 1]; In re Cristella C. (92) 6 CA4th 1363, 1369 [8 CR2d 342]; see also, 1 Witkin, Cal. Evidence (3d ed. 1986) § 160, p. 137; Evid. Code (EC) 115.)

Note, this argument was described as “somewhat intriguing” in the unpublished opinion of People v. Calderon UNPUBLISHED (3/28/96, B094947), but the Calderon court did not address the argument in deference to the California Supreme Court’s opinion in People v. Freeman (94) 8 C4th 450, 504, fn 9 [34 CR2d 558]. However, the issue should have been addressed because the footnote relied on from Freeman is merely dicta and not binding, and because Freeman did not address the federal constitutional challenge to CJ 2.90 set forth in FORECITE 2.90e.

Lisenbee v. Henry (9th Cir. 1999) 166 F3d 997 addressed, on habeas corpus, a claim that the phrase “abiding conviction” describes standards lower than that required in a criminal case (i.e., the clear and convincing evidence standard). However, this case failed to discuss the core of the argument in FORECITE F 2.90e, regarding the hiatus created by removal of the “moral certainty” language from CJ 2.90 without adding language which defines the degree of persuasion to which the “abiding conviction” must be held. Moreover, the cursory discussion of the issue in the Lisenbee opinion failed to evaluate the instruction from the context of how it would be understood by lay jurors in light of the common dictionary definition of abiding conviction as an enduring and strong belief. Such a definition is equivalent to clear and convincing evidence as that term has been defined. (FORECITE F 2.90e.) Accordingly, Lisenbee is not persuasive authority for rejecting FORECITE’S proposal that proof beyond a reasonable doubt be defined by comparing it to the clear and convincing evidence standard. (See also People v. Yovanov (99) 69 CA4th 392, 402 [81 CR2d 586] [clear and convincing evidence “denotes proof that is clear, explicit and unequivocal and leaves no substantial doubt”].)

The fact that an “abiding” belief or conviction does not adequately describe proof beyond a reasonable doubt is further supported by the following:

(1) ILLINOIS PATTERN JURY INSTRUCTIONS – CRIMINAL, IPI-Criminal 3d 4.19 [Definition Of Clear And Convincing Evidence] p. 134 (West, 5th ed. 2000) which defines “clear and convincing evidence” in terms of a “firm and abiding belief that it is highly probable that the proposition … is true.”

(2) Patzwald v. U.S. (1898) 54 P 458, 459-60 [7 Okla. 232] held that defining proof beyond a reasonable doubt as requiring an “abiding faith” in the defendant’s guilt is reversible and prejudicial error, because although the word “abiding” states a temporal duration of the required faith in the defendant’s guilt, there is no word or phrase which states the necessary strength of that faith, and such a word or phrase is required. This particular hoary case says that adding the phrase “to a moral certainty” to “abiding faith” would be sufficient, because that phrase does contain a reference to the required strength. But since the “abiding faith” instruction actually given lacked any reference to the strength of faith required, the court reversed the judgment.

(3) Alexander v. City Of Kingfisher (1915) 151 P 1197, [2 Okla.Crim. 600], relying directly on Patzwald and some other Oklahoma cases, held that defining proof beyond a reasonable doubt as requiring an”abiding conviction” of the defendant’s guilt is reversible and prejudicial error, because “abiding conviction” is the same as the “abiding faith” phraseology rejected as insufficient in Patzwald. The court thus reversed the conviction.

(4) The argument that “abiding conviction” is a standard below proof beyond a reasonable doubt, also prevailed in the Mississippi Supreme Court case of Williams v. State (1896) 73 Miss. 820 [19 So. 826], which also assigned it as grounds for reversal of a conviction. (Id. at pp. 823, 830 [19 So. at pp. 826, 829]; see also Lipscomb v. State (1897) 75 Miss. 559, 577-578 [23 So. 210, 212] and id. at pp. 619-622 [23 So. at pp. 229-230] [conc. opn. of Thompson, J.] and id. at pp. 623-624 [23 So. at p. 230] [opn. of Whitfield, J., on reconsideration].)

(See also FORECITE F 2.90 n16 and F 2.90 n17.)

[See Brief Bank # B-867 and B-888 for briefing on this issue.] See Brief Bank # B-985 for a cert petition on this issue.

NOTES

An article by Richard Such of the First District Appellate Project discussing this issue is available to FORECITE subscribers. Ask for Article Bank # A-50.

People v. Light (96) 44 CA4th 879, 888-89 [52 CR2d 218], held that the term “abiding conviction” alone conveys the requisite level of certainty. However, the court did so by relying entirely upon the dicta in Freeman without any independent analysis of the federal constitutional issue.

F 2.90f

Definition Of “Abiding” As Lasting And Permanent

*Add to CJ 2.90:

An abiding conviction is one which is lasting and permanent in nature.

Points and Authorities

People v. Brigham (79) 25 C3d 283, 291-92 [157 CR2d 905] disapproved the giving of former CJ 22 because its omission of the term “abiding” allowed the jurors to convict without forming a “lasting, permanent” belief as to the defendant’s guilt. (See also Victor v. Nebraska (94) 511 US 1 [127 LEd2d 583; 114 SCt 1239, 1247] [conferring a definition of “settled and fixed” to the phrase “abiding conviction”]; see also Hopt v. Utah (1887) 120 US 430, 439 [30 LEd 708; 7 SCt 614].) Moreover, in People v. Freeman (94) 8 C4th 450, 503-04 [34 CR2d 558] the California Supreme Court interpreted Victor to have held that it was the “abiding conviction” language which “saved the standard instruction” from the constitutional challenge. (Victor, 8 C4th at 503, 505.)

Hence, the jury’s proper understanding of the meaning of the term “abiding conviction” is the linchpin of the current definition of the reasonable doubt standard in California, and therefore, the defendant should be permitted to have the term defined upon request. (See also FORECITE F 2.90 n17.)

Failure to adequately instruct the jury regarding the prosecution’s burden of proof beyond a reasonable doubt violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See generally, FORECITE PG VII(C).)

NOTES

[An unpublished Court of Appeal decision holding that the principles of stare decisis compel the trial and appellate courts to define the term “abiding conviction” as one of “lasting and permanent nature” is available to FORECITE subscribers. Ask for Opinion Bank # O-190.]

PRACTICE TIP: If the request to instruct the jury on the Brigham definition of “abiding” is rejected, it would still be proper to quote the Brigham definition to the jury during argument. (See FORECITE PG VI(C)(10) “reading case law during argument as alternative to refused instruction”.)

CAVEAT: This definition addresses only the duration of an abiding conviction. Therefore, use only of the term abiding conviction, without other instructions which convey the requisite strength of an abiding conviction, may dilute the reasonable doubt standard. (See e.g., FORECITE F 2.90e.)

F 2.90g

Abiding Conviction Requires More Than “Strong And Convincing Belief”

*Add to CJ 2.90:

An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a greater degree of certainty than is necessary to form a strong and convincing belief.

[For alternative and/or additional instructions, see FORECITE F 2.90e / FORECITE F 2.90h.]

Points and Authorities

Proof beyond a reasonable doubt requires the jurors to have “utmost certainty” in the defendant’s guilt. (In re Winship (70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068].) “A standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” [Internal citations, punctuation and quotation marks omitted.] (Jackson v. Virginia (79) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781].)

The term abiding conviction, without additional definition, is insufficient to convey the requisite degree of certitude. The common definition of abiding conviction may allow the jury to convict based upon a “strong and consuming belief” that the defendant is guilty. (See FORECITE F 2.90e.) Yet such a belief is not sufficient to convict. (See People v. Brigham (79) 25 C3d 283, 291 [157 CR 905] [“a strong and convincing belief … is something short of having been ‘reasonably persuaded to a near certainty.’ [Citation].”].) Hence, CJ 2.90 should be supplemented as set forth above to assure that the jury understands that proof beyond a reasonable doubt requires a greater degree of certainty than clear and convincing evidence.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

[For an alternative instruction, see FORECITE F 2.90e.]

F 2.90h

Proof Beyond A Reasonable Doubt Requires

That Jurors Be More Than “Firmly Convinced”

Of The Defendant’s Guilt

*Add to CJ 2.90:

In other words, even if you are firmly convinced that the defendant is guilty this is not enough to return a verdict of guilty. Your degree of certainty as to the defendant’s guilt must be even greater.

Points and Authorities

Without supplemental instruction the jurors may improperly conclude that the prosecution’s burden is satisfied if they are “firmly convinced” of the defendant’s guilt. This degree of proof corresponds with the lesser “clear and convincing evidence” standard. (See e.g., People v. Brigham (79) 25 C3d 283, 291 [157 CR 905] [“a strong and convincing belief” not sufficient to convict]; see also FORECITE F 2.90g; People v. Malave DEPUBLISHED (96) 49 CA4th 1425 [57 CR2d 383] [firmly convinced is “closer to” the clear and convincing evidence standard].) The definition of clear and convincing is remarkably analogous to “firmly convinced” as demonstrated by the following description of the clear and convincing standard:

Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.

(In re Jerome D. (2000) 84 CA4th 1200, 1206 [101 CR2d 449] [internal citations and quote marks omitted].)

In fact, other state and federal jurisdictions define clear and convincing evidence in terms, such as a “firm belief or conviction,” which are difficult to distinguish from the term “firmly convinced.” (See e.g., 5TH CIRCUIT PATTERN JURY INSTRUCTIONS – CIVIL Inst. 2.14 (1999) [“firm belief or conviction”]; Potuto, Saltzburg, Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS No. 70.02 [Insanity Defense] (Lexis, 2nd ed. 1993) [same]; Fred C. Walker Agency, Inc. v. Lucas (VA 1975) 211 SE2d 88, 92 [same]; In re Interest of Constance G. (NE 1998) 575 NW2d 133, 139; Cincinnati Bar Assn. v. Massengale (OH 1991) 58 Ohio St.3d 121, 122; In re Commitment Of Robert S. (NJ 1992) 622 A2d 1311, 1314; Standard Jury Instructions Civil Cases (No. 00-1) 2001 WL 223389, *5 (Fla) [26 Fla. L. Weekly § 151]; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL, SDCL 2-5-4 [Insanity–Burden Of Proof–Clear And Convincing Evidence] (State Bar of South Dakota, 2000) [“firm belief or conviction”]; ILLINOIS PATTERN JURY INSTRUCTIONS – CRIMINAL, IPI-Criminal 3d 4.19 [Definition Of Clear And Convincing Evidence] (West, 5th ed. 2000) [firm and abiding belief].)

The following definitions are emblematic of this standard:

The phrase “clear and convincing evidence” means that degree of proof which, considering all the evidence in the case, produces the firm and abiding belief that it is highly probable that the proposition on which the defendant has the burden of proof is true.

(ILLINOIS PATTERN JURY INSTRUCTIONS – CRIMINAL, IPI-Criminal 3d 4.19 [Definition Of Clear And Convincing Evidence] (West, 5th ed. 2000).)

“Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.”

(Standard Jury Instructions Civil Cases (No. 00-1) 2001 WL 223389, *5 (Fla) [26 Fla. L. Weekly § 151].)

Moreover, it has been expressly held that a “strong and convincing belief” is less than the degree of certitude necessary for proof beyond a reasonable doubt. (See FORECITE F 2.90g.)

There is a clear danger that the jury will not understand this crucial distinction between proof beyond a reasonable doubt and being “firmly convinced.” In fact, even those trained in the law have mistakenly equated “firmly convinced” with proof beyond a reasonable doubt. (See e.g., Sandoval v. California (94) 511 US 1, 10 [127 LEd2d 583; 114 SCt 1239] (Ginsburg concurring) [recommending “firmly convinced” language from Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS No. 21 [Definition Of Reasonable Doubt] (1988); see also United States v. Velasquez (9th Cir. 1992) 980 F2d 1275, 1278 [express approval of reasonable doubt instruction that informs the jury that the jury must be “firmly convinced” of the defendant’s guilt]; State v. Portillo (AZ 1995) 898 P2d 970, 974 [agreeing with Justice Ginsburg that “firmly convinced” instruction “surpasses others…in stating the reasonable doubt standard succinctly and comprehensively]; 9TH CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 3.5 [Reasonable Doubt–Defined] (2000); MISSOURI APPROVED INSTRUCTIONS – CRIMINAL, MAI-CR 3d 302.04 [Burden Of Proof And Related Matters] (Missouri Supreme Court Publications, 3rd ed. 1987); IOWA CRIMINAL JURY INSTRUCTIONS 100.10 [Reasonable Doubt] ¶ 2-4 (Iowa State Bar Association, 1997); WASHINGTON PATTERN JURY INSTRUCTIONS – CRIMINAL, WPIC 4.01A [Burden Of Proof–Presumption Of Innocence–Reasonable Doubt [Simplified Alternative] ¶ 2 & 3 (West, 2nd ed. 1994); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS – CRIMINAL, SDCL 1-6-1 [Reasonable Doubt] ¶ 2 (State Bar of South Dakota, 2000).)

Accordingly, the federal constitution requires that instructions assure that the jury not convict based only on being “firmly convinced” of the defendant’s guilt. The most effective way to obtain such assurance is by use of a comparative instruction which informs the jury that proof beyond a reasonable doubt is more than being firmly convinced. (See e.g., FORECITE F 2.90g.)

[See Opinion Bank # O-271 for a copy of the Malave opinion.]

F 2.90i

Jury Must Find All Required Elements Beyond A Reasonable Doubt

*Add to CJ 2.90:

You may not convict the defendant unless all elements and requirements set forth in the definition[s] of the charged offense[s] have been proven beyond a reasonable doubt as to defendant __________.

Points and authorities

Neither CJ 2.90 nor the specific CALJIC instructions which define the elements of the charged offense contain an “application paragraph” which expressly informs the jury which conditions must be met before the defendant may be convicted. The absence of such an “application paragraph” has been held to be reversible error. (See Plata v. State (Texas) (TexApp 1996) 926 SW2d 300].)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]

F 2.90j

Clarification of the Burden of Proof When One Defendant Points the

Finger at Another

*Add to CJ 2.90:

It is crucial that you understand that only the prosecution, not a defendant, bears the burden of proof. In this case, both the defendant ____________ and the prosecution contend that codefendant _______ is guilty of ____________. However, because the prosecution has the burden of proof and defendant________ does not, your decision as to whether codefendant ________ committed _______must actually be made twice under two different standards.

One decision must be made as to whether the prosecution has met its burden of proving _________ guilty of _____ beyond a reasonable doubt.

The other decision must be made as to whether the evidence of _______ guilt raises a reasonable doubt as to the guilt of defendant ___________.

Thus, even if you decide that the prosecution failed to prove _______ guilty of _______ beyond a reasonable doubt, this does not prevent you from deciding that there still is enough evidence of codefendant’s guilt to raise a reasonable doubt as to the guilt of the defendant.

Points and Authorities

In multi-defendant trials when one defendant points the finger at another, the jury is required to perform the difficult task of judging a single factual issue under two distinct standards. In other words, when one defendant contends that the other is the guilty party, or otherwise is culpable, such as having provoked an altercation, the situation is analogous to third party guilt situations where the evidence of the other party’s guilt need only leave the jury with a reasonable doubt as to defendant’s guilt. (See People v. Hall (86) 41 C3d 826, 833 [266 CR 112]; FORECITE F 4.020.) However, when the alleged third party is a codefendant in the trial, the jury must also judge the party’s guilt under the prosecution’s burden of proof beyond a reasonable doubt. In such cases, there is a danger that the jury may not differentiate between the two different standards and reject the defendant’s contention that the co-defendant is guilty or culpable on the basis that the prosecution did not succeed in proving the co-defendant guilty beyond a reasonable doubt.

The above instruction is intended to clarify this distinction which is a difficult task due to the complexity of the principles involved. It is likely that the concept will have to be elucidated in argument to the jury.

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

PRACTICE NOTE: The complexity of this legal principle and difficulty of the jury in understanding it should be an added basis for severance. (See People v. Massie (67) 66 C2d 899, 916 [59 CR 733]; see Calderon v. Superior Court (2001) 87 CA4th 933 [104 CR2d 903] [multiple defendants charged with crimes arising from separate, unrelated incidents should not be tried together if it would result in unfair prejudice].)

[Sample instructions are available to FORECITE subscribers. Ask for Instruction Bank # I-866.]

F 2.90k

Constitutional Challenge To CJ 2.90:

Defendant Presumed Innocent “Unless” Contrary Is Proven

*Modify the first sentence of CJ 2.90 as follows [added language is capitalized; deleted language is between <<>>]:

A defendant in a criminal action is presumed to be innocent <<until>> UNLESS the contrary is proved, …

Points and Authorities

“Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.” [Emphasis added; internal citation and quotation marks omitted.] (In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068].)

This principle is a bedrock element of the federal constitutional rights to a fair trial by jury and due process. (6th and 14th Amendments.) Any instructional language which dilutes or reduces the prosecution’s burden is constitutionally suspect. (See e.g., Cage v. Louisiana (90) 498 US 39 [112 LEd2d 339; 111 SCt 328].)

CJ 2.90 undermines the presumption of innocence by improperly replacing the word “unless” with the word “until.” Use of the word “until” is less clear and definitive than “unless.” That is, “until” implies that the proof will be forthcoming, while “unless” implies that sufficient proof might not ever be presented.

In apparent recognition of how use of the term “until” fails to comport with Winship and risks misleading the jurors, other standard pattern instructions throughout the nation use “unless” or “unless and until.” (See e.g., ICJI (Idaho) No. 1501 [“unless”]; OUJIC (2nd Ed.) No. 1 [same]; State v. Hutchinson (Tenn. 1994) 898 SW2d 161 [same]; CJI (New York) (1st Ed. 1983) No. 3.05, ¶ 2, sent.2 [“unless and until”]; KRS 532.025 (Kentucky) [same]; CJI (Washington D.C.) (4th Ed.) 1.03 [same]; UCrJI (Oregon) No. 1006 [same]; 1st Circuit Model Instructions Criminal No. 1.01 [same]; 8th Circuit Model Instructions Criminal No. 1.01 [same].)

Alternatively, it has been recommended that the jury be more directly instructed on this point as follows:

The law presumes the defendant to be innocent of all the charges against him. I therefore instruct you that the defendant is to be presumed by you to be innocent throughout your deliberations until such time, if ever, you as a jury are satisfied that the government has proven him guilty beyond a reasonable doubt. [Emphasis added.]

(Leonard B. Sand, et al., 1 Modern Federal Jury Instructions, § 4.01; Form 4-1 (1994).)

Another alternative is the following instruction from United States v. Walker (7th Cir. 1993) 9 F3d 1245, 1250:

The defendant is presumed to be innocent ofthe charges. This presumption remains with the defendant throughout every stage of the trial and during during your deliberations onthe verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.

F 2.90l

Strong Suspicion No Substitute For Proof

Beyond A Reasonable Doubt

*Add to CJ 2.90:

An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. A strong suspicion that someone is involved in criminal activity is no substitute for proof beyond a reasonable doubt.

Points and Authorities

“Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (69) 71 C2d 745, 755; see also Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560] [near certitude required]; People v. Martin (CA 1973) 9 C3d 687, 695; In re Leanna W. (2004) 120 CA4th 735, 741; People v. Briggs (67) 255 CA2d 497, 500-501; People v. Tatge (63) 219 CA2d 430, 435-436; Piaskowski v. Bett (7th Cir. 2001) 256 F3d 687; Johnson v. State (OK 1988) 764 P2d 530, 535; Whaley v. Commonwealth (VA 1973) 200 SE2d 556, 558.)

Moreover, when a fact is inferred based on a mere possibility or suspicion, it cannot be said “with substantial assurance” that the inference is “more likely than not” to flow from the underlying facts. Therefore, such an inference is constitutionally deficient. (See Ulster County v. Allen (79) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213] [instruction embodying a permissive inference may be unconstitutional “if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference”]; Leary v. U.S. (69) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532] [permissive presumption is unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend”]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316.)