F 103 NOTES

SERIES 100 PRETRIAL INSTRUCTIONS

F 103 NOTES

TABLE OF CONTENTS
F 103 Note 1 Prosecution’s Burden Should Be Included In Pretrial Instructions On Jurors Duties
F 103 Note 2 Whether “Beyond Reasonable Doubt” Should Be Defined
F 103 Note 3 Alternative Definition Of Reasonable Doubt
F 103 Note 4 Improper To Describe Proof Beyond A Reasonable Doubt In Terms Of “Every Day” Decisions
F 103 Note 5 Error To Instruct Jury That Defendant Is Presumed Not Guilty
F 103 Note 6 Counsel Has Duty To Challenge CC 103 Notwithstanding View Of Intermediate California Appellate Court That The Issue Is Frivolous
F 103 Note 7 Pretrial Instructions During Voir Dire: Impact On Jury Instruction Errors At Trial
F 103 Note 8 Equal Protection Challenge To CALCRIM 103 Based On Bush v. Gore (2000) 531 US 98 [148 LEd2d 388; 121 SCt 525]
F 103 Note 9 No State Has Reduced Reasonable Doubt To A Feeling Of An “Abiding Conviction” In The Truth Of The Charge As “Satisfactorily” Shown
F 103 Note 10 CALJIC 2.90 Unconstitutionally Admonishes The Jury That A Possible Doubt Is Not A Reasonable Doubt
F 103 Note 11 Precluding Prosecutor From Unduly Emphasizing Instructional Language Regarding “Mere Possible Or Imaginary Doubt”

Return to Series 100 Table of Contents.

F 103 Note 1 Prosecution’s Burden Should Be Included In Pretrial Instructions On Jurors Duties

The Bench Notes for CALCRIM 103 state that pretrial instruction on the presumption of innocence may be given at the judge’s discretion. However, the presumption of innocence is such a crucial principle that it should be required in the pretrial instructions. (See U.S. Maccini (1st Cri. 1983) 721 F2d 840, 843.)

The presumption of innocence is the “bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” (In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368, quoting Coffin v. United States (1895) 156 US 432, 453 [15 SCt 394; 39 LEd 481.)

F 103 Note 2 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 (1979) 25 C3d 283, 292-316 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 (1945) 68 CA2d 491, 498 [definition “is not mandatory …” ]; People v. Ahern (1892) 93 C 518, 519 [failure to define reasonable doubt was not error, in the absence of any request for a definition]; but see People v. Soldavini (1941) 45 CA2d 460, 463-64 [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. (1954) 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.]

CALJIC NOTE: See FORECITE F 2.90 n1.

F 103 Note 3 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.)

NOTE: See FORECITE’s proposed alternatives and supplements to the reasonable doubt instruction under FORECITE F 103.3 Inst 1, et seq.

[Research Note: See FORECITE BIBLIO 2.90.]

CALJIC NOTE: See FORECITE F 2.90 n4.

F 103 Note 4 Improper To Describe Proof Beyond A Reasonable Doubt In Terms Of “Every Day” Decisions

In People v. Nguyen (1995) 40 CA4th 28, 35-37, 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.)

CALJIC NOTE: See FORECITE F 2.90 n8.

F 103 Note 5 Error To Instruct Jury That Defendant Is Presumed Not Guilty

CALCRIM 103 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 (1995 Okl. App) 896 P2d 558.)

CALJIC NOTE: See FORECITE F 2.90 n11.

F 103 Note 6 Counsel Has Duty To Challenge CC 103 Notwithstanding View Of Intermediate California Appellate Court That The Issue Is Frivolous

In People v. Hearon (1999) 72 CA4th 1285, 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.’ ” (72 CA4th at 1286.) 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 (1999) 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 CALCRIM 103, 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 103.3 Inst 1.) 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 (1967) 67 C2d 444, 447 [“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 (1999) 72 CA4th 1285: “Although we consider the issue conclusively resolved under state law, we do not agree with the court in People v. Hearon (1999) 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 (1999) 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 (1994) 8 C4th 450, 504-505 upon which CALJIC and the appellate courts have uniformly followed is just that, dicta. (See People v. Light (1996) 44 CA4th 879, 889.) 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 (1994) 8 C4th 1060, 1145 [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 misconception that the matter has been conclusively resolved under state law. (See Evans v. City of Bakersfield (1994) 22 CA4th 321, 328 [dictum of California Supreme Court, although “highly persuasive” is “not binding upon the lower courts” ].) And, it is also a misconception that the matter is subject to the Auto Equity doctrine. (Auto Equity Sales Inc. v. Superior Court (1962) 57 C2d 450.) That doctrine only applies to those portions of a court’s opinion which were “necessary to its decision.” (U.C. Regents v. Aubry (1996) 42 CA4th 579, 584.) 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 (1993) 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 (1999) 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.”

CALJIC NOTE: See FORECITE F 2.90 n13.

F 103 Note 7 Pretrial Instructions During Voir Dire: Impact On Jury Instruction Errors At Trial

See FORECITE F 0.25 n1.

F 103 Note 8 Equal Protection Challenge To CALCRIM 103 Based On Bush v. Gore (2000) 531 US 98 [148 LEd2d 388; 121 SCt 525]

A due process challenge to CJ 2.90 has been considered and rejected by several California courts. (See FORECITE F 103.3 Inst 1.) 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 103.3 Inst 1.) [See Brief Bank #B-887 for briefing on this issue.]

CALJIC NOTE: See FORECITE 2.90 n16.

F 103 Note 9 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] definitionC proof such that a juror would not hesitate to act in their own important affairs (Alaska, Arkansas, Colorado, Connecticut, 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 (A 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 Brief Bank #B-958.

CALJIC NOTE: See FORECITE F 2.90 n17.

F 103 Note 10 CALJIC 2.90 Unconstitutionally Admonishes the Jury That A Possible Doubt Is Not A Reasonable Doubt

See Brief Bank #B-974.