Brief Bank # B-958 (Re: F 2.90e [“Abiding Conviction,” Must Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard].)
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Date of Brief: December 2, 2002
In the Supreme Court of the United States
State of California,
PETITION FOR WRIT OF CERTIORARI TO
THE CALIFORNIA COURT OF APPEAL
(Fourth Appellate District, Div. One)
Petition for Writ of Certiorari
Charles M. Sevilla
Cleary & Sevilla
1010 Second Ave., Ste. 1825
San Diego, CA 92101-49026
Telephone: (619) 232-2222
Attorneys for Petitioner
PETITION FOR WRIT OF CERTIORARI
Petitioner Petitioner respectfully requests a writ of certiorari issue to review the judgment of the California Court of Appeals entered on June 7, 2002 (Appendix A), with review denied in the California Supreme Court on September 11, 2002. Appendix B.
OPINION BELOW (Rule 14.1.(d))
The opinion of the California Court of Appeal of June 7, 2002, by the Fourth Appellate District, Division One, which affirmed petitioner’s conviction for second degree murder of his wife, is not published in the official reporter. Appendix A, No. DO37914. A petition for review to the California Supreme Court was denied on September 11, 2002. Appendix B, No. S108214.
JURISDICTIONAL STATEMENT (Rule 14.1.(e))
The judgment of the court of appeals was entered on June 7, 2002. As noted, a petition for review in the California Supreme Court was denied on September 11, 2002. The jurisdiction of this court is based upon 28 U.S.C. 1257(a).
CONSTITUTIONAL & STATUTORY PROVISIONS (Rule 14.1.(f))
The Fifth and Fourteenth Amendments provide in part that no person shall be denied liberty except by due process of law. The Sixth Amendment guarantees the right to a jury trial.
Calif. Penal Code § 1096 states:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. West Pub. 2002; emphasis added.
Calif. Penal Code § 1096a states that “…no further instruction on the subject of the presumption of innocence or the definition of reasonable doubt need be given.” Ibid.
STATEMENT OF THE CASE [Footnote 1] (Rule 14.1.(g))
FEDERAL QUESTION RAISED (Rule 14(g)(i))
The issue presented is whether a contested reasonable doubt definition that reduces the standard to a feeling of an abiding conviction on evidence satisfactorily shown states the constitutional standard. The issue was first raised in the state trial court by petitioner’s written pre-trial motion stating that to instruct on the statutory “abiding conviction” language deprived petitioner of his right to a due process jury trial under Cage v. Louisiana, 498 U.S. 39, 41 (1990), disapproved on other grounds, Estelle v. McGuire, 502 U.S. 62, 73, fn.4. (1991)), or, and Victor v. Nebraska, 511 U.S. 1, 14, 15 (1994), and other precedent of this Court. When jury instructions were considered during the trial, petitioner again requested the court to insert the words “evidentiary certainty” or “near certainty” in the pattern reasonable doubt instruction so that the jury would have a definition with requirement of a very high probability (quantitative) standard of proof. The motion was denied. Petitioner then unsuccessfully raised the issue in the appellate and California Supreme Court proceedings in briefing. See Appendix A, pp. 57-58; see Appendix B.
REASONS FOR GRANTING CERTIORARI
Pursuant to Supreme Court Rule 10 and 14(h), as amplified in the following arguments, compelling reasons warrant review of the two questions presented. By misreading this Court’s direction in Victor v. Nebraska, 511 U.S. 1 (1994), California, by statutory amendment in 1995, reduced the burden of proof in criminal cases well below constitutional minimums: satisfactorily shown evidence leading to a feeling of an abiding conviction of the truth of the charge. No state appears to define reasonable doubt in California’s minimalist fashion. See Appendix C, petitioner’s survey of States’ reasonable doubt definitions. Petitioner objected to the trial court’s instruction on reasonable doubt. He proposed a jury definition taken from this Court’s case law, by inserting into the instruction a probability standard telling the jury that it should have an abiding conviction to an “evidentiary certainty” (Cage v. Louisiana, supra, at 41), or, as this Court stated in Victor v. Nebraska, 511 U.S. 1, 14, 15 (1994), and In re Winship, 397 U.S. 358, 364 (1970), a “subjective state of near certitude of the guilt of the accused.”
In Jackson v. Virginia, 443 U.S. 307 (1979), this Court held that a fundamental “substantive constitutional standard must also require that the factfinder will rationally apply that [reasonable doubt standard] to the facts.” That cannot be done when the reasonable doubt definition approximates a mere preponderance of evidence.
While a reasonable doubt instruction must be given in each case, this Court has not yet mandated a formulaic definition also be provided so long as the words conveyed to the jury do not understate the meaning of reasonable doubt. (Victor, supra at 1243) Petitioner is entitled to reversal given his objection, his proposed language taken from this Court’s cases, and the high likelihood that the jury used the challenged unconstitutional standard to convict him. The jury deliberated an extraordinary amount of time demonstrating this was a close case. Further, it was instructed during deliberations (when a juror said she had doubts as to the State’s proof and was reported to the court by others) that any juror who decided the case for “improper reasons” should be reported to the court by the other jurors. Other instructions told the jurors to determine the facts by probabilities, so that in combination with the defective reasonable doubt definition, the entire instructional message told the jury that a conviction could be returned on a mere probability.
1. THE FUNDAMENTAL CONCEPT DETERMINATIVE OF GUILT OR INNOCENCE — THE STATE’S BURDEN OF PROOF – IS NOT CONVEYED IN CALIFORNIA’S REASONABLE DOUBT INSTRUCTIONS.
California stands alone in its minimalist definition of reasonable doubt. See Appendix C. In an overreaction to this court’s decision in Victor v. Nebraska, 511 U.S. 1, 5, 127 L. Ed. 2d 583, 114 S. Ct. 1239 (1994), the California Legislature, acting at the suggestion of the California Supreme Court (People v. Freeman, 8 Cal.4th 450, 504, fn. 9, 882 P.2d 249 (1994)), eliminated the probability standard from the reasonable doubt definition (formerly “abiding conviction to a moral certainty”) by striking “moral certainty” and not replacing it with a probability (or a quantitative) standard. That left the standard as permitting a conviction based on evidence “satisfactorily shown” sufficient that a jury has a feeling, instead of an evidence-based belief, of an abiding conviction the truth of the charge. No other state has a definition of reasonable doubt that says it is a feeling of an abiding conviction in the truth of the charge based upon evidence “satisfactorily shown.” The constitutional quantitative requirement of proof beyond a reasonable doubt is not based on a “touchy-feely” emotion, is not proof merely “satisfactorily shown,” and it is far more than just a lasting belief.
One need not be a linguist to understand that the combination of phrases – a lasting feeling (i.e., a feeling of “abiding conviction”) based on satisfactory evidence is something shown by, at most [Footnote 2], a preponderance of evidence, and hardly approaches the “evidentiary certainty,” or “subjective state of near certitude” that this Court has explicitly stated as the meaning of the proof required for a conviction when established beyond a reasonable doubt.
This Court observed in 1880 in Miles v. United States, 103 U.S. 304, 312, “attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” Here, the attempt inflicted constitutional harm. The California definition dilutes meaning, does not convey a reasonable doubt standard, and thus invites convictions based upon suspicion or mere probability. That is what happened in petitioner’s case, as will be shown.
A. The Definition is Unconstitutional.
The right to a proper instruction on the State’s burden of proof is “indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ [Citation omitted].” In re Winship, 397 U.S. 358, 364 (1970). The reasonable doubt standard gives substance to the presumption of innocence and instills confidence in the community that the innocent will not be condemned. Id. at 363-64. Further, a defective reasonable doubt instruction undermines both Fifth and Fourteenth Amendment Due Process of Law (forbidding a State to convict a person of a crime without proving every element of the crime beyond a reasonable doubt (Jackson v. Virginia, 443 U.S. 307, 316 (1979)), and the Sixth Amendment jury trial right. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)(“It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt.”)
With the revelation of wrongful convictions in serious criminal cases (See Scheck, Neufeld, and Dwyer, Actual Innocence (Signet 2001)), the single most important bulwark against that phenomena is the reasonable doubt standard. In re Winship, 397 U.S. 358, 363 (1970)(“It is a prime instrument for reducing the risk of convictions resting on factual error.”)
There is no better way to bring about false convictions than to tell juries they can convict based upon mere feelings of lasting belief in guilt resting on “satisfactorily shown” evidence. These concepts gut the meaning of the State’s burden of proof which is to prove its case to a very high probability, described by this Court as “evidentiary certainty” or a subjective state in the minds of the jurors of near certainty. The right to a proper instruction on the burden
… beyond a reasonable doubt is “indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.'” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The reasonable doubt standard gives substance to the presumption of innocence and instills confidence in the community that the innocent will not be condemned. Id. at 363-64. A defendant in a criminal case therefore has a constitutional right to have the jury instructed that guilt must be established beyond a reasonable doubt. [Citation]. United States v. Nolasco, 926 F.2d 869, 871 (9th Cir. en banc 1990).
Over petitioner’s objection, his jury was told that reasonable doubt meant such a state of belief that the jury could not say that based upon satisfactory proof it had a feeling of “an abiding conviction of the truth of the charge.” RT 961-962. This Court has stated that “’taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.'” Victor v. Nebraska, 511 U.S. 1, 5 (1994) (quoting Holland v. United States, 348 U.S. 121, 140 (1954)) (internal citation omitted). As will be discussed, the rest of the instructions only reaffirmed a mere probability standard.
Petitioner’s defense counsel filed a lengthy pre-trial brief setting forth the issue presented here (CT 153-159), and proposing at trial a simple amendment to the pattern California instruction to add the missing, but essential, probability standard found in the precedent of this Court. He asked the court “on the instruction of reasonable doubt… I’m requesting that pursuant to the points an [sic] authorities that the court add in the words either near certainty, evidentiary certainty, or near certitude of the guilt of the person charged within the second paragraph of CALJIC 2.90.” (CALJIC stands for the Calif. Jury Instruction Committee, criminal instruction book (West. 2002), and 2.90 embodies the instruction found in Penal Code section 1096, quoted supra.) The trial court rejected the request. RT 926.
The words should have been added to make constitutional the burden of proof standard given petitioner’s jury. [Footnote 3] The trial court rejected the request because California’s appellate courts hold there is nothing erroneous in the current “feeling” of an “abiding conviction” reasonable doubt instruction. The California Court of Appeal in petitioner’s case wrote that it had to follow the California Supreme Court on the issue:
We conclude that CALJIC No. 2.90 [the pattern reasonable doubt instruction] properly defines the reasonable doubt standard of proof because it substantially adopts language suggested by the California Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9. Other courts have consistently upheld this instruction against similar constitutional attacks. [Citations omitted] We decline to adopt a contrary position and conclude the trial court properly instructed on reasonable doubt with CALJIC No. 2.90. As we stated in People v. Carroll (1996) 47 Cal.App.4th 892, 896: “We consider the opinion in People v. Freeman, supra, 8 Cal.4th 450 to be dispositive of this issue. The instruction comports with the Supreme Court’s determination of what is the appropriate definition of reasonable doubt. It is for the Supreme Court to reconsider such definition if it chooses to do so. Our task is simple: we will apply the law as the Supreme Court has stated it.” Appendix A-57.
Yet, the defect exists and the definition of reasonable doubt now has been diluted below constitutional minimums set by this Court. CALJIC 2.90’s language of “satisfactorily shown” evidence leading to a feeling of an “abiding conviction” in the truth of the charge does not in any way relay this high probability requirement to the trier of fact. To give reasonable doubt its special meaning, California has chosen to use a dictionary out of Alice in Wonderland. [Footnote 4] This is a due process defect and warrants reversal per se under Sullivan v. Louisiana, 508 U.S. 275 (1993).
B. Victor Does not Support the State’s Version of Reasonable Doubt.
Respondent may claim that Victor v. Nebraska, 511 U.S. 1, 14 (1994), holds that an instruction with only the “abiding conviction” terminology is constitutional. Not so. Victor upheld a California conviction where the “abiding conviction to a moral certainty” version of CALJIC 2.90 was challenged. In its discussion, the Court noted that the essential requirement of a reasonable doubt instruction is to convey the very high probability of guilt so that a jury understands it must have a “subjective state of near certitude of the guilt of the accused.” Id. at 15. In dictum, the opinion states: “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. Hopt v. Utah, 120 U.S. at 430.” The sentence makes perfect sense when understood for what it was meant – “moral certainty” is an outmoded and confusing concept and unnecessary to a proper definition of reasonable doubt. Victor cites Hopt as an example of an instruction without such language that passes constitutional muster. In Hopt v. Utah (1886) 120 U.S. 430, this Court ruled approvingly of the language of an “abiding conviction” but only in the context of an instruction which connected the abiding conviction concept (i.e., a fixed belief) to a level of a very high probability – a decision involving a juror’s own important affairs.
Thus, Hopt says “it is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs.” Id. at 339; italics added. This is because “[i]f the evidence produced be of such a convincing character that they would unhesitatingly be governed by it in such weighty and important matters, they may be said to have no reasonable doubt….” (Id. at 441.)
This Court did not suggest that a feeling of “abiding conviction” in the truth of the charge alone states the proper degree (or any degree) of certainty. As noted, the phrase at issue in Victor was “abiding conviction to a moral certainty,” which sets a much higher standard than does the naked phrase “abiding conviction” coupled with juror feelings based on satisfactory evidence.
Victor noted that in 1850, the phrase “moral certainty” meant “the state of subjective certitude about some event or occurrence.” Id. at 12. That level of certainty was appropriate, but the Court believed the phrase had lost its meaning over the next century. Id. at 23. Certainly, the meaning of “abiding conviction” has no contemporary meaning synonymous with proof beyond a reasonable doubt, that is, proof to an evidentiary certainty.
The instructions given in petitioner’s case only conveyed that the jury should acquit unless the evidence, as “satisfactorily shown” produced a feeling of a lasting belief in the truth of the charge. The concept does not come close to requiring the required high level of “evidentiary certainty” (Cage, supra at 41), or a “subjective state of near certitude of the guilt of the accused.” (Victor, supra at 15.) It permits convictions without the high probability proof, that is proof beyond a reasonable doubt. Without an instructional requirement of a “high probability” (such as an abiding conviction in proof concerning the most important of one’s own affairs, or to an evidentiary certainty), this instruction violated due process and violated the Sixth Amendment right to have a jury trial on each element of the offense.
There are many examples of State reasonable doubt instructions that employ “abiding conviction” plus a probability standard. See Appendix C. Thus, in Ramirez v. Hatcher, 136 F.3d 1209, 1219 (9th Cir. 1998), the circuit court upheld a Nevada state formulation that contained “abiding conviction” language plus a probability standard that there must be “such a doubt as would govern or control a person in the more weighty affairs of life.” Id. at 1210-1211. This was not an instruction that merely used a feeling of an “abiding conviction” as the determinative concept of the instruction. Nevada’s formulation is derived from Hopt v. Utah, 120 U.S. 430 (1886).
Relying on Ramirez, another Ninth Circuit panel upheld the California “abiding conviction” reasonable doubt instruction in the context of a federal habeas corpus review. Lisenbee v. Henry, 166 F.3d 997 (9th Cir. 1999), a ruling that Victor “expressly condoned the use of a jury instruction that only uses the term “abiding conviction” to define the reasonable doubt.” Id. at 999. That case attempted to distinguish this Court’s holding in Colorado v. New Mexico, 467 U.S. 310, 316 (1984). There, this Court held that there must be a standard higher than mere preponderance for settling a water dispute between two states. It selected the standard of “clear and convincing evidence” which it defined as an abiding conviction in the truth of the matter shown to a high probability. Ibid. See also New Mexico v. House, 127 N.M. 151 (1999) (defining “clear and convincing” evidence as “an abiding conviction”).
Lisenbee “distinguished” the Colorado definition of clear and convincing evidence by stating,
Although the Court did use the phrase “abiding conviction” in its definition of the clear-and-convincing-evidence standard, it did so in tandem with the use of the phrase “highly probable.” Colorado, 467 U.S. at 316, 104 S. Ct. at 2437-38, 81 L. Ed. 2d 247. The language in the jury instruction in this case, on the other hand, does not.
Precisely. The California standard does not add the term “highly probable” to the phrase “abiding conviction.” How then would the omission of the “highly probable” phrase convey a higher standard of proof (beyond a reasonable doubt) than that involved in the Colorado civil dispute? Obviously, the absence of a probability standard could not possibly elevate a feeling of lasting belief in the charge to one of near certitude.
This is no mere semantic discussion. Addington v. Texas, 441 U.S. 418, 425 (1979)(a standard of proof is more than an empty semantic exercise.) In In re Winship, supra at 363, this Court emphasized the “vital role in the American scheme of criminal procedure” of the reasonable doubt standard, one that insures persons are not convicted based on the same lower level of proof for a civil judgment:
It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259.
As this Court stated Colorado v. New Mexico, supra at 315-316:
It is the function of any standard of proof is 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.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). By informing the factfinder in this manner, the standard of proof allocates the risk of erroneous judgment between the litigants and indicates the relative importance society attaches to the ultimate decision.
California’s instructions allocate the standard of proof so low that the risk of erroneous judgments is unconstitutionally high. They convey nothing more than a feeling of a “fixed belief” on proof “satisfactorily shown.” At best this definition sets an intensity level for juror belief (abiding), but it not only does not state a probability standard; it undermines the quantitative requirement of a very high probability of proof. Taken in tandem with the other probability based instructions, the jury was misled to convict on less than the required amount of proof.
The late Justice Stanley Mosk of the California Supreme Court noted that the “abiding conviction” phrase was defective in his concurring opinion in People v. Brigham, 25 Cal.3d 283, 299, 599 P.2d 100 (1979). He asked, “what is an `abiding’ conviction?” and observed that “it has long since fallen into disuse and is no longer part of our daily speech” It is a phrase connoting the “duration of the jury’s belief.” Ibid. Justice Mosk rightly stated that “the duration of a juror’s belief in guilt is essentially irrelevant.” Id. at 300. Adding the word “conviction” is not only of no help; it adds to the confusion because that word has a meaning of an adjudication of guilt. Id. at 300, n. 5.
Jurors can have a fixed belief in hunches, possibilities, probabilities, or matters shown by clear and convincing evidence. None of these satisfies the required due process higher level of “evidentiary certainty” or a “subjective state of near certitude of the guilt of the accused.” The instructions trigger convictions without proof shown by a high level of probability. That is unconstitutional.
C. This Court’s Precedent Rejects Such a Minimalist Definition of Reasonable Doubt.
Examining the decisions of this Court after Hopt v. Utah, one finds that the Court has approved of reasonable doubt definitions with some form of language conveying a high probability of proof requirement.
In Wilson v. United States, 232 U.S. 563, 570 (1914), the court approved a definition that read: “reasonable doubt is that frame of mind which forbids you to say, all the evidence considered and weighed, ‘I have an abiding conviction of the defendants’ guilt,’ or as it has been expressed, ‘I am convinced of the defendants’ guilt to a moral certainty.‘ If you can say that you have such a conviction, then you have no reasonable doubt, and your verdict should be guilty. On the contrary, if that is your frame of mind, if you are in the frame of mind where if it was a matter of importance to you in your own affairs, away from here, you would pause and hesitate, before acting, then you have a reasonable doubt.” Emphasis added.
In Dunbar v. United States, 156 U.S. 185, 199 (1885), the court approved the following definition, “I will not undertake to define a reasonable doubt further than to say that a reasonable doubt is not an unreasonable doubt — that is to say, by a reasonable doubt you are not to understand that all doubt is to be excluded; it is impossible in the determination of these questions to be absolutely certain. You are required to decide the question submitted to you upon the strong probabilities of the case, and the probabilities must be so strong as, not to exclude all doubt or possibility of error, but as to exclude reasonable doubt“. Emphasis added.
In Miles v. United States, 103 U.S. 304, 309, 311 (1880), the court approved the following language: “The prisoner’s guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests.” Emphasis added.
In Holland v. United States, 348 U.S. 121, 140 (1954), the Court rejected a challenge to this definition: “‘the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon.'” We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act [citation], rather than the kind on which he would be willing to act. But we believe that the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some. A definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension.”
The Court’s more recent cases (Winship, Jackson, Cage and Victor) suggest the essential meaning to be conveyed by a reasonable doubt definition is a “subjective state of near certitude.” California’s definition is so far from requiring that high probability of proof for a conviction it falls far short of the constitutional due process limit-line. Studies on juror interpretation appear to show their confusion on the meaning of reasonable doubt. [Footnote 5] See Diamond, Note, “Reasonable Doubt: To Define, or Not to Define,” 90 Colum. L.Rev. 1716, 1723 (1990); cf., Note, “Reasonable Doubt: An Argument Against Definition,” 108 Harv. L.Rev. 1955, 1964-1967 (1995). Whatever the merits of general studies on juror under-standing, the definition given in this case was clearly wrong, insured constitutionally inadequate meaning, and virtually guaranteed a conviction on less than the required proof.
D. No State Has Reduced Reasonable Doubt to a Feeling of an “Abiding Conviction” in the Truth of the Charge as “Satisfactorily” Shown.
Appellant’s survey of the fifty states in Appendix C 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 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 F.3d 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.
2. PETITIONER IS ENTITLED TO REVERSAL WHEN HE OBJECTED TO THE UNCONSTITUTIONAL INSTRUCTION AND OFFERED AN INSTRUCTION WITH A PROBABILITY STANDARD SUGGESTED IN THIS COURT’S PRECEDENT.
A. The Issue Was Preserved.
Failure to object is a standard basis for waiver of a claim on appeal. See, e.g., F.R.Cr.P. 30. Calif. Penal Code § 1096a gives notice that “…no further instruction on the subject of the presumption of innocence or the definition of reasonable doubt need be given” other than that found in Penal Code § 1096. The statute does not state that amendments to the language in § 1096 cannot be made if requested. Petitioner did that. CT 153-159.
While defendants who fail to object and proffer their own instruction or who affirmatively request the deficient instruction likely have waived their right to complain about this issue, petitioner affirmatively sought to have a constitutional instruction given. “[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor [citation].” Mathews v. United States, 485 U.S. 58, 63 (1988); see also Taylor v. Kentucky, 436 U.S. 478, 490 (1978)(“We hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial.”)
B. Examination of the Whole Record.
This Court has stated that the whole record must be examined to determine if the instruction at issue correctly conveyed the concept of reasonable doubt to the jury. Victor v. Nebraska, supra at 511 U.S. 5. Reading the instructions as a whole here could not save the defective definition. This is because of the other instructions that reinforced the idea that the law mandated that mere probabilities are a sufficient basis upon which to decide guilt. The jury would believe a preponderance of evidence is sufficient to convict based on the reasonable doubt definition and these other instructions. [Footnote 6]
Taken as a whole, petitioner’s jury was primed to convict based upon a mere probability. In this close case involving nearly seven days of deliberations in which the jury had questions on the issue of malice, the instructions had to be decisive. The length of time and jury questions during the deliberations demonstrate that the jury was having difficulty finding that the State proved that petitioner guilty even under the diluted definition of reasonable doubt given them.
In sum, the extraordinary length of the jury deliberations, the other mere probability based jury instructions, the jury questions on the instructions during deliberations, the fact that the offending instruction were sent into the jury room (RT 1031), and that the court told the jury it had to follow it (RT 950), shows that the instructions, taken as a whole, reveal a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the requirements of Winship’s due process standard. Victor, supra, at 1243.
One additional factor is that during jury deliberations, the court was told that one of the jurors had severe doubts the State had proven a criminal cause of death. The trial court responded by telling the jury that there was no cause for such concern and then told the jury for the second time [Footnote 7] to report to the court any juror who was deciding the case on unstated “improper reasons.” Appendix A-19-20, 22. Under this instruction, one juror’s demand for proof to an evidentiary certainty would have been an “improper reason” to be repudiated by the majority and a source of a threat to report the juror to the court for misconduct. See People v. Engelman, 28 Cal. 4th 436, 49 P.3d 209 (2002) (recently banning the “improper reason” instruction in future cases.)
C. There Was A Reasonable Likelihood That the Jury Understood the Instruction to Allow a Conviction on Proof Insufficient to Meet the Requirements of Due Process.
Victor v. Nebraska, 511 U.S. at 6. Given the nature of this instruction given, its central importance in this (and all) criminal cases, and the manner in which this instruction merged with other low probability instructions, there is every reasonable likelihood that petitioner’s jury interpreted it to allow a conviction based on proof insufficient to meet the requirements of due process. The error is reversible per se. Sullivan v. Louisiana, 508 U.S. 275 (1993).
In Sullivan, supra, this court focused on the speculation a reviewing court would engage in if it attempted to apply harmless error review when a defective burden of proof directive to the jury “vitiate[d] all the jury’s findings.” 508 U.S. at 281. Sullivan also focused on the serious nature of a denial of the right to trial by jury, without which a criminal trial cannot reliably serve its function. Ibid. The error, once determined, is structural. Here, the instructional error undermined the State’s burden to prove malice aforethought beyond a reasonable doubt. Relief is required.
Reducing reasonable doubt to a feeling of an “abiding conviction in the truth of the charge” based on evidence “satisfactorily shown” gave petitioner’s jury the means to resolve their lengthy deadlock on less proof than is constitutionally required. Petitioner had proposed a correct instructional definition with a high probability concept. It was improperly denied and so was due process of law.
It is respectfully requested that the Court grant certiorari on the question presented.
December 2, 2002
CHARLES M. SEVILLA
Cleary & Sevilla, LLP
Attorneys for Petitioner
In what follows, “CT” stands for the state Clerk’s Record. “RT” stands for the references to the state trial transcript.
Several older state decisions find the “abiding conviction” definition insufficient. E.g., Williams v. State, 73 Miss. 820, 823 (1896) (“abiding conviction” alone is not an appropriate standard); Patzwald v. United States, 7 Okla. 232, 236, 54 P. 458 (1898)(“It is certainly true that, before a jury can convict a person charged with a crime, they must have an abiding faith of the truth of the charge of his guilt. But what degree of faith? How strong must that faith be, before it crosses the line which separates the realm of doubt from that of moral certainty?”) Times have not changed such that the phrase has taken on the meaning necessary to convey the constitutional burden.
The defense proposed instruction would have inserted the words “evidentiary certainty” or “subjective state of near certitude” in the pattern instruction after the words “abiding conviction.” CT 153-159. The court rejected the proposed modification, “the modified 2.90 contained in [defense counsel’s] Mr. Phillips’ motion will not be given.” RT 926.
Lewis Carroll nicely describes how words can be given preposterous meaning. In Alice’s Adventures in Wonderland and Through the Looking-Glass (Collier Books 1962) p. 247, Alice and Humpty Dumpty are debating the very special meaning Humpty Dumpty’s gives the word “glory.” He states it means, “a nice knock-down argument.”
The instruction is so low-probability based that jurors would reasonably interpret it as requiring a preponderance of evidence to convict. Two authors, Saunders and Genser, in the September/October 1999 magazine, The Sciences, “Trial and Error,” 18, did a survey of business executives on the meaning of California’s instruction. One-third of this “relatively sophisticated and homogeneous population of business people” (id. at 20), thought the instruction meant that probabilities ranging from 50% to 80% were good enough to convict someone beyond a reasonable doubt.
E.g., 1) the jury should not believe the defendant to be more likely guilty than not guilty based solely on his arrest, charge and standing trial (RT 950); 2) if one interpretation of the evidence is reasonable and another unreasonable, the jury must accept the reasonable (RT 954-55); 3) jury may reject a witness’s testimony if false in part unless it finds the probability of truth favors the witness’s version. RT 957.
The first being during the delivery of instructions prior to jury deliberations. RT 1030-1031.
Chart: Survey of 50 State’s reasonable doubt definitions
“abiding conviction to a moral certainty…actual doubt…a doubt for which reason can be assigned…”
Boyd v. State, 715 So.2d 825, 843 (1997)
“doubt based upon reason and common sense…proof of such a convincing character that…you would be willing to rely and act upon it without hesitation in your important affairs.”
Wilson v State, 967 P.2d 98, 101 (1998)
“more powerful” than “highly probable…firmly convinced”
State v. Portillo, 182 Ariz. 592,596 (1995)
Ariz St. RCRP R 21.1 (2002)
“…one that would cause a careful person to pause and hesitate in the graver transactions of life….abiding conviction of the truth…”
Jones v. State, 318 Ark. 704, 713 n2 (1994)
“abiding conviction” only
Freeman, 882 P.2d 249 (1994)
“doubt as would naturally arise in the mind of a reasonable man…a serious, substantial and well-founded doubt and not a mere possibility…a doubt as, in the important transactions or life, would cause a reasonable and prudent man to hesitate and pause…an abiding conviction of the truth of the charge…”
Minich v. People, 8 Colo 440, 455 (1885)
Gurule v. People, 150 Colo 240, 242 (1962)
“hesitate to act in matters of importance…a real doubt…an honest doubt…”
State v. Griffin, 253 Conn. 195, 204 (2000)
“proof that leaves you firmly convinced of the defendant’s guilt… If…there’s a reasonable possibility…that the defendant is not guilty…you must give the defendant the benefit of the doubt…”
Mills v. State, 732 A.2d 843, 852 (1999)
pattern Federal Judicial Center instruction
District of Columbia
more powerful than highly probable…”hesitate to act in the graver or more important matters in life…”
Smith v. US, 709 A.2d 78, 82 (1998)
“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 a every reasonable doubt…”
Smith v. State, 682 So.2d 1143, 1145 (1996)
Jury Instruction 97-1
Baldwin v. State, 264 Ga 664 (1994)
rejected use of “real possibility” and “firmly convinced”
“not…mere suspicion…or probably guilty…”
State v. Perez, 90 Haw. 113 (1998)
“abiding conviction to a moral certainty”
State v. Hairston, 133 Idaho 496, 515 (1999)
Illinois v. Failor, 271 Ill.App.3d 968, 970 (1995)
“more powerful” than “more likely true than not true”…firmly convinced”
Winegeart v. State, 665 N.E.2d 893, 902 (1996)
upheld McGregor v. State, 725 N.E.2d 840, 842 (2000)
“if….you find your mind wavering or vacillation, then you have a reasonable doubt….if you have a full and abiding conviction of guilt, then you are satisfied beyond a reasonable doubt.”
Iowa Uniform Jury Instruction No. 108
State v. Bishop, 387 N.W.2d 554 (1986)
State v. Lindsey, 302 N.W.2d 98 (1981)
State v. Price, 215 Kan. 718, 721 (1974)
Jacobs v. Commonwealth, 58 S.W.3d 435, 447 n.29 (2001)
“based on reason and common sense…firmly convinced of the truth”
State v. Williams, 708 So.2d 703 (1998)
“a doubt which you can assign a logical reason..almost certain that the crime has been committed”
State v. Varney, 641 A.2d 185, 188 (1994)
“doubt founded upon reason….requires such proof as would convince you…to the extent that you would be willing to act upon such belief without reservation in an important matter in your business or personal affairs.”
Merzbacher v. State, 346 Md 391, 399 (1997)
Maryland Pattern Jury Instruction, 2:02
“reasonable and moral certainty….near certainty”
Commonwealth v. Webster, 59 Mass 295, 320 (1850)
Model Jury Instructions
Commonwealth v. Stellberger, 515 N.E.2d 1207 (1987)
Allen v. Mich., 466 Mich. 86 (2002)
abiding conviction to a moral certainty
State v. Gates, 615 N.W.2d 331, 338 (2000)
Pittman v. State, 350 So.2d 67, 71 (1977)
Williams v. State, 73 Miss. 820, 823 (1896) (where court said abiding conviction alone is not an appropriate standard)
“proof that leaves you firmly convinced of the truth” consistently upheld
Wolfe, 13 S.W.3d 248 (2000)
State v. Dunn, 889 S.W.2d 65, (1994)
Twenter, 818 S.W.2d 628 (1993)
MAI – CR3d 302.04
“proof…that a reasonable person would rely and act upon it in the most important of his own affairs. State v. Lucero, 214 Mont. 334, 341 (1984)
“so convincing that you would rely and act upon it without hesitation in the more serious and important transactions of life.”
Jury Instruction 2.0
State v. Nesbitt, 264 Neb. 612, 646 (2002)
Victor v. Nebraska, 511 US 1
“doubt as would govern or control a person in the more weighty affairs of life….an abiding conviction of the truth of the charge…”
NRS § 175.211 (2002)
Ramirez v. Hatcher, 136 F.3d 1209, 1219 (9th cir. 1998)
“strong and abiding conviction that still remains after a careful consideration of all the evidence…hesitate to act upon the strength of it to undertake something of importance and seriousness equal to this case
State v. Wentworth, 118 N.H. 832, 835 (1978)
State v. Black, 116 N.H. 836 (1976)
Mahoney, 143 N.H. 471 (1999)
more powerful that more likely true than not true…”
State v. Medina, 147 N.J. 43, 61 (1996)
“doubt based upon reason and common sense – the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.”
NMUJI Crim. 40.60
Naranjo, 94 N.M. 407, 413 (1980)
Also see: State v. House (where court defined clear and convincing evidence as “an abiding conviction”)
“…stronger than [proof that the defendant is probably guilty]…that a reasonable person acting in a matter of this importance, would be likely to entertain…firmly convinced.” State v. Duncan, 187 Misc.2d 205, 211-212 (2001)
“not mere possible…not an academic…not a forced doubt…nor is it a doubt suggested by the ingenuity of counsel…based on reason…that fully satisfies or entirely convinces you of the defendant’s guilt.”
State v. Hooks, 353 N.C. 629, 632-633 (2001)
Lambert, 341 N.C. 36 (1995)
“firm and abiding conviction”
State v. Schneider, 550 N.W.2d 405, 407 (1996)
Azure, 525 N.W.2d 654 (1994)
N.D.J.I. 2002 (1995)
“firmly convinced….doubt based on reason and common sense….an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”
Ohio Rev. Code Ann. § 2901.05(D)
State v. Satta, 2002 Ohio 5049 (2002)
Franzier, 652 N.E.2d 1000 (1995)
Underwood v. State, 659 P.2d 948, 950 (1983); Lafevers v. State, 897 P.2d 292 (1975)
“reasonable doubt is its own best explanation.”
State v. Castrejon, 317 Ore. 202, 206 (1993)
“a doubt as would cause a prudent, careful and sensible person to pause, hesitate, restrain himself or herself before acting upon a matter of the highest importance…”
Commonwealth v. Murphy, 559 Pa 71, 82 (1999)
Commonwealth v. Hawkins, 567 Pa 310, 326 (2001)
State v. Brown, 789 A.2d 942, 949 (2002)
Hazard, 797 A.2d 448 (2002)
“a doubt that would cause a reasonable person to hesitate to act…firmly convinced.”
State v. McHoney, 344 SC 85, 98 (2001)
State v. Darby, 324 SC 114 (1996)
“one which would ordinarily impress the judgment of a prudent person so as to cause him to pause or hesitate to act in the more important facts of life.”
State v. Larson, 512 N.W.2d 732, 738 (1994)
“let the mind rest easily as to the certainty of guilty… moral certainty”
State v. Bush, 942 S.W.2nd 489, 520 (1997)
Hall, 976 S.w.2d 121 (1998)
Dellinger, 79 S.W.3d 458 (2002)
Paulson v State, 28 S.W.3d 570, 573 (2000)
“in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to an acquittal…proof which satisfies the mind, convinces the understanding of those who are bound to act…”
State v. Jaeger, 973 P.2d 404, 412 (1999)
State v. McMahon, 158 Vt. 640, 641 (1992)
State v. Percy, 158 Vt. 410, 418 (1992)
“”probability of guilty is not enough for a conviction”
Jury Instruction No. 2.100 (1998)
O’Dell, 234 Va. 672, 698 (1988)
“a doubt as would exist in the mind of a reasonable person…abiding belief in the truth of the charge”
State v. Pirtle, 127 Wn.2d 628, 656 (1995)
“doubt based upon reason and common sense – the kind of doubt that would make a reasonable person hesitate to act…proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.”
State v. Goff, 166 W.Va 47, 55 (1980)
“doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affair of life…not…guesswork or speculation.”
State v. Avila, 192 Wis.2d 870, 888 (1995)
Wis. JI – Criminal 140 (1991)
Cosco v. State, 521 P.2d 1345, 1346 (1974); Harris v. State, 933 P.2d 1114, 1119 (1997)