SERIES 100 PRETRIAL INSTRUCTIONS
F 103.3 REASONABLE DOUBT DEFINED
TABLE OF CONTENTS
F 103.3 Inst 1 Comparison Of Burdens: “Abiding Conviction” Should Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard
F 103.3 Inst 2 (a-j) Juror May Have A Reasonable Doubt Based On A Lack Of Evidence
F 103.3 Inst 3 Definition Of “Abiding” As Lasting And Permanent
F 103.3 Inst 4 (a & b) Abiding Conviction Requires More Than “Strong And Convincing Belief”
F 103.3 Inst 5 (a & b) Reasonable Doubt May Be Based On Conflict In The Evidence
F 103.3 Inst 6 (a & b) Abiding Conviction Requires That Jurors Be More Than “Firmly Convinced” Of The Defendant’s Guilt
Return to Series 100 Table of Contents.
F 103.3 Inst 1 (a-c) Comparison Of Burdens: “Abiding Conviction” Should Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard
*Add to CC 103:
Alternative a:
An abiding conviction based on proof beyond a reasonable doubt is a higher burden of proof than clear and convincing evidence.
[Source: Adapted from CACI 201 [comparing preponderance and clear and convincing standards of proof.]
Alternative b:
An abiding conviction based on proof beyond a reasonable doubt is a higher burden of proof than clear and convincing evidence.
[Source: Adapted from CACI 201 [comparing preponderance and clear and convincing standards of proof.]
Alternative c:
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 103.3 Inst 4 / FORECITE F 103.3 Inst 6.]
Points and Authorities
Under the clear and convincing evidence standard, the prosecution would have to prove that it is highly probable that the defendant is guilty. Under the reasonable doubt standard a high probability that the defendant is guilty is not enough to convict.
In response to criticism of the term “moral certainty” in Victor v. Nebraska (1994) 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 (1994) 8 C4th 450, 504.) 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. The Judicial Council has also adopted the “Freeman” instruction (CALCRIM 103).
However, deletion of the “moral certainty” language from the instruction 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 (1982) 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 (1984) 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 (1994) 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 (1996) 41 CA4th 1232, 1252-53, 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 CALCRIM 103 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 (1970) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068]; see also, Jackson v. Virginia (1979) 443 US 307, 339 [61 LEd2d 560; 99 Sct 2781]; Lillian F. v. Superior Court (1984) 160 CA3d 314, 320; People v. Brigham (1979) 25 C3d 283, 291 [“a strong and convincing belief … is something short of having been ‘reasonably persuaded to a near certainty.’ [Citation].” ].)
Accordingly, the meaning of “abiding conviction” should be clarified in CALCRIM 103 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, 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 CALCRIM 103 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 CACI 201; 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 [internal citations and quote marks omitted]. (But see People v. Mabini (2001) 92 CA4th 654, 663 [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. (1991) 231 CA3d 552, 566 n 19; In re Marriage of Weaver (1990) 224 CA3d 478, 487 n 8; 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. (1969) 70 C2d 444, 458; In re Cristella C. (1992) 6 CA4th 1363, 1369; 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 (1994) 8 C4th 450, 504, fn 9. 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 above. (See also People v. Light (1996) 44 CA4th 879, 888-89 [court relied entirely upon the dicta in Freeman without any independent analysis of the federal constitutional issue].)
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 above argument, 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 103.3 Inst 1.) Accordingly, Lisenbee is not a 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 (1999) 69 CA4th 392, 402 [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 InstructionsC 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 103 Note 8 and F 103 Note 9.)
Identification Of Parties—See FORECITE 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[See Brief Bank #B-867 and #B-888 for briefing on this issue.] A cert petition on this issue is available to FORECITE subscribers; see Brief Bank #B-958.
CALJIC NOTE: See FORECITE 2.90e.
F 103.3 Inst 2 (a-j) Juror May Have A Reasonable Doubt Based On A Lack Of Evidence
*Add at end of CC 103, paragraph 3, as follows:
Alternative a:
Also consider the lack of evidence on any element or essential fact the prosecution is required to prove. A lack of evidence may alone be sufficient to leave you with a reasonable doubt.
Alternative b:
A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, jurors cannot say that they have a settled conviction of the truth of the charge.
[Source: United States v. Cleveland (1st Cir. 1997)106 F3d 1056, 1062-63.]
Alternative c:
A reasonable doubt may arise from the evidence or lack of evidence. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.
[Cf. Washington Pattern Jury Instructions—Criminal, WPIC 1.01 [Advance Oral Instruction-Introductory] & 4 & 5 (West, 2nd ed. 1994).]
Alternative d:
A reasonable doubt may grow out of the evidence or lack of evidence.
[Cf. Michigan Criminal Jury Instructions CJI2d 3.2, [Presumption Of Innocence, Burden Of Proof, And Reasonable Doubt] & 3 (ICLE, 2nd ed. 2000/01).]
Alternative e:
Reasonable doubt is a doubt for which a reason may be given, arising from a consideration of the evidence, the lack of evidence, a conflict in the evidence, or a combination of these.
[See Georgia Suggested Pattern Jury Instructions—Criminal Cases part 2 (D), p. 7; para. 5, sent. 5 [Presumption of Innocence; Burden of Proof; reasonable Doubt] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]
Alternative f:
A reasonable doubt may arise from some or all of the evidence that has been presented, or from a lack or insufficiency of the evidence presented by the prosecution.
[Cf. North Carolina Pattern Jury Instructions—Criminal, NCPI-Crim 101.10 & 2 [Burden Of Proof And Reasonable Doubt] (TRCC, 1999).]
Alternative g:
A reasonable doubt may be based on the evidence or lack of evidence produced by the prosecution.
Alternative h:
Reasonable doubt is a doubt that exists in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.
Alternative i:
Reasonable doubt is an actual doubt based upon the evidence, the lack of evidence, a conflict in the evidence, or a combination thereof.
[See Alabama Pattern Jury Instructions—Criminal I.4 [Burden Of Proof] (Alabama Bar ICLE, 3rd ed. 1994).]
Alternative j:
You must give the defendant the benefit of any reasonable doubt of the defendant’s guilt that arises out of the evidence or want of evidence in this case.
[Cf. Mississippi Model Jury Instructions—Criminal, MJI-Criminal C:1:8 [Burden Of Proof; Evidentiary Matters–Reasonable Doubt] (West, 2000).]
Points and Authorities
The United States Supreme Court has noted with apparent approval that numerous cases have defined a reasonable doubt as one “based on reason which arises from the evidence or lack of evidence.” (Johnson v. Louisiana (1972) 406 US 356, 360 [32 LEd2d 152; 92 SCt 1620.) However, CALCRIM 103 defines the proof beyond a reasonable doubt standard in terms of the “evidence presented.” However, reasonable doubt may also be based on a lack of evidence. (See People v. Hill (1998) 17 C4th 800, 831 [” … to the extent [the DA] as 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 …” ]; see also People v. Simpson (1954) 43 C2d 553, 566 [reasonable doubt can “grow out of lack of evidence”]; U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056, 1062-63; U.S. v. Greer (App. DC 1997) 697 A2d 1207, 1210-11; State v. McFarland (IA 1980) 287 NW2d 162; U.S. v. Holland (10th Cir. 1954) 209 F2d 516, 522-23.)
For example, in U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354, 360, the 6th Circuit reversed a conviction based on the trial court’s failure to allow defense counsel to comment on the lack of fingerprint evidence. The court held, “In every criminal case, the mosaic of evidence that comprises the record before a jury includes both the evidence and the lack of evidence on material matters.” (See also U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, 454 [defendant entitled to argue that the government’s failure to present certain types of evidence (e.g., fingerprints) weakens its case].)
Moreover, reasonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two. (Georgia Suggested Pattern Jury Instructions – Criminal Cases part 2 (D) p. 7 [Presumption of Innocence; Burden of Proof; Reasonable Doubt] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).)
Furthermore, instructions which focus only on the evidence presented may unduly emphasize the evidence which was actually presented and frame the issue in terms of which side presented the more compelling evidence. (See, e.g., FORECITE F 104.1 Inst 1.)
Identification Of Parties—See FORECITE 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.6 [Lack Of Evidence May Result In Reasonable Doubt]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 103.3 Inst 3 Definition Of “Abiding” As Lasting And Permanent
*Add to CC 103:
An abiding conviction is one which is lasting and permanent in nature.
Points and Authorities
People v. Brigham (1979) 25 C3d 283, 291-92 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 (1994) 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 (1994) 8 C4th 450, 503-04, 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 103 Note 9.)
Identification Of Parties—See FORECITE 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
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 103.3 Inst 1.)
CALJIC NOTE: See FORECITE F 2.90f.
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