In People v. Daveggio and Michaud (2018) 4 Cal. 5th 790, 838-44 the judge addressed several groups of prospective jurors who had yet to complete juror questionnaires. In each session the judge discussed the presumption of innocence and requirement of proof beyond a reasonable doubt, in concepts such as the following:
The most important concept we deal with in the criminal system is the presumption of innocence. The fact that the defendants have been charged with the crime I just read to you, the fact that this trial is taking place, is no evidence whatsoever of the truth of those charges or any evidence of their guilt. [¶] … [¶]
The defendants sit here cloaked in innocence. Because they entered a plea of not guilty, it is up to the prosecution to prove the defendants’ guilt. They must prove each and every element of each and every charge that they have filed against the defendants, and they must prove it to beyond a reasonable doubt, which I will discuss with you in a moment. [¶] … [¶]
The burden of proof that the prosecution has to meet is what we call beyond a reasonable doubt. And it is the highest burden of proof provided for in the law. It does not mean beyond all possible or imaginary doubt, because every time you talk about human affairs and human interaction you can always conjure up some imaginary doubt.
Basically, it is an evaluation of the facts and the evidence, based upon common sense and reason, to see if you are left with any reasonable doubt after you hear the testimony and see the other evidence.
You have all seen the Lady of Justice who has the scales, maybe not all of you, but some of you have. In a criminal case, the scales of justice start tipped in favor of the defense, because the defendants are presumed to be innocent. The burden the prosecution must meet is to bring those scales into balance and then substantially tip them in favor of the truth of the charges that were filed against the defendants.
The CSC concluded that this analogy did “not evoke a simple preponderance inquiry” because the judge “also stressed that the prosecutor’s burden of proof was ‘the highest burden [or “standard” or “level”] of proof provided for in the law[,]” and “that, in a criminal case, the scales of justice begin weighted in favor of the defendant…, and must not only be returned to equipoise, but ‘substantially tipped’ in favor of the prosecution, to sustain a conviction.” (4 Cal 4th at 843.)
In so doing the CSC distinguished People v. Garcia (1975) 54 Cal.App.3d 61 and other out of state cases which criticized the scales of justice metaphor. In Garcia the judge did not include the concept that the proof must go substantially beyond a state of equipoise as did the judge in Daveggio.
Nevertheless, the CSC made it “clear” that “we do not encourage the use of the [scales of justice] metaphor.” (4 Cal. 4th at 843.)
See also this post Party With Burden of Proof Loses When the Fact Finder is “On the Fence”