Should Burden of Proof Be Illustrated by Examples Based on the Level of Certainty Needed to Make Decisions “In The Ordinary Affairs of Life?”
July 16th, 2019

In People v. Potts (2019) 6 Cal. 5th 1012, 1039-41 the court’s introductory comments to the jury panels illustrated the concept of circumstantial evidence as follows:

Let’s assume that you or your spouse prepared … a raspberry pie and you set that on the counter to cool. There’s nobody home except      you and your nine-year-old child, and you tell the child to stay away from that pie, that you have company coming that evening and   you don’t want the pie to be messed up, keep their fingers out of it. And then you leave and you go about your tasks. Nobody else comes or goes from the house. An[] hour or two later you come back into the kitchen and somebody has stuck their finger in that pie, and you go look for the child, and sure enough, there’s your nine-year-old in the bedroom and he or she has raspberry pie filling on their lower lip. I don’t think you’d have any trouble figuring out what happened to that pie. Now, that’s circumstantial evidence, sure, but I think most moms or dads would arrive at a conclusion beyond any reasonable doubt under those circumstances that that child was the one who got into that pie.” (Italics added.) Two seated jurors heard this version of the illustration. Other versions did not include the “reasonable doubt” language, instead stating, for example, “I don’t think any of you would have a problem figuring out what happened to that pie.”

While not finding error, the CSC did “not condone” use of the court’s illustration (6 Cal. App. 5th 1012, 1040):

We have explained that “jurors should not be instructed to convict based on the level of certainty needed to make decisions ‘in the       ordinary affairs of life.’” (Daveggio, supra, 4 Cal.5th at p. 841, quoting People v. Brannon (1873) 47 Cal. 96, 97; but cf. Victor,    supra, 511 U.S. at p. 19; Holland v. United States (1954) 348 U.S. 121, 140; Hopt v.Utah (1887) 120 U.S. 430, 439.) “Because people often act in important matters notwithstanding substantial uncertainty, the fear is that defining proof beyond a reasonable doubt in relation to a person’s willingness to act,” even “in the weightier affairs of life,” “might understate the government’s burden of proof.” (Ramirez v. Hatcher (9th Cir. 1998) 136 F.3d 1209, 1214.)

Tags: , ,