Was the Maiden Voyage of the Titanic Merely “Incomplete”?
July 29th, 2016

In People v. Cortez (2016) 63 C4th 101 the prosecutor effectively told the jury that a non-imaginary belief is proof beyond a reasonable doubt:

“The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, ‘I believe I know what happened, and my belief is not imaginary. It’s based in the evidence in front of me.’ …That’s proof beyond a reasonable doubt.”

The four-justice majority concluded that the prosecutor’s definition was “incomplete at best.” (63 C4th at 131.)

However, Justice Werdegar, joined by Justices Liu and Cuéllar, concluded that the prosecutor’s definition of reasonable doubt effectively reversed the burden of proof:

The vice in the prosecutor’s explanation was that it reversed the standard of proof beyond a reasonable doubt, telling the jury that their belief in guilt need only be nonimaginary, rather than that the evidence must exclude all reasonable doubts.”  [Emphasis in original.] (Id at 134.)


The majority characterizes the prosecutor’s remarks as “correct” but “incomplete.” (Maj. opn., ante, at p. 131.) This is a bit like describing the maiden voyage of the Titanic as “incomplete.” The essence of the proof beyond a reasonable doubt standard is its specification of a particular level of certainty on the fact finder’s part; omitting mention of that level from an explanation of the standard, as the prosecutor did here, makes the explanation not merely incomplete but wrong. “Proof to a nonimaginary degree” is not equivalent to proof beyond a reasonable doubt, and the prosecutor erred in saying it is. [emphasis added.] (Id. at 135.)

The remark could not “reasonably … be understood in an unobjectionable manner.” (Ibid.)

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