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 4 (a & b) Abiding Conviction Requires More Than “Strong And Convincing Belief”
*Add to CC 103:
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 103.3 Inst 1 / FORECITE F 103.3 Inst 6.]
Points and Authorities
Proof beyond a reasonable doubt requires the jurors to have “utmost certainty” in the defendant’s guilt. (In re Winship (1970) 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 (1979) 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 103.3 Inst 1.) Yet such a belief is not sufficient to convict. (See 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].”].) 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. (See also FORECITE F 103 Note 9.)
[For an alternative instruction, see FORECITE F 103.3 Inst 1.]
Identification Of Parties—See FORECITE F 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.
CALJIC NOTE: See FORECITE F 2.90g.
F 103.3 Inst 5 (a & b) Reasonable Doubt May Be Based On Conflict In The Evidence
Alternative a:
Reasonable doubt may be based upon 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 b:
Reasonable doubt does not mean a vague or arbitrary notion, but it is an actual doubt based upon the evidence, the lack of evidence, a conflict in the evidence, or a combination thereof.
[Source: Alabama Pattern Jury InstructionsC Criminal I.4 [Burden Of Proof] & 1, sent. 5 (Alabama Bar ICLE, 3rd ed. 1994).]
Points and Authorities
A reasonable doubt instruction which focuses only on the “evidence presented” may improperly frame the issues in terms of which side presented the more compelling evidence. Reasonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two. (See Georgia Suggested Pattern Jury Instructions—Criminal Cases part 2 (D) p. 7 [Instruction D] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).) This is so because two equally probable conflicting inferences do not overcome a burden of proof. (See FORECITE F 103.4 Inst 4.)
See also FORECITE F 100.1 Inst 1.
See also FORECITE F 103.3 Inst 2.
See also FORECITE F 302 Inst 4.
See also FORECITE F 302 Inst 6.
Identification Of Parties—See FORECITE F 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 6 (a & b) Abiding Conviction Requires That Jurors Be More Than “Firmly Convinced” Of The Defendant’s Guilt
*Add to CC 103:
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 be firmly convinced.
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
Proof beyond a reasonable doubt requires the jurors to have “utmost certainty” in the defendant’s guilt. (In re Winship (1970) 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 (1979) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781].)
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 (1979) 25 C3d 283, 291 [“a strong and convincing belief” not sufficient to convict]; see also FORECITE F 103.3 Inst 4; People v. Malave DEPUBLISHED (1996) 49 CA4th 1425 [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 [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 103.3 Inst 4.)
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 (1994) 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 A 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—January 6, 2006Presumption 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 103.3 Inst 4.)
(See also FORECITE F 103 Note 9.)
Identification Of Parties—See FORECITE F 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 Opinion Bank #O-271 for a copy of the Malave opinion.]
CALJIC NOTE: See FORECITE F 2.90h.
