Reasonable Doubt: an Overview and Examination of Jury Instructions in Colorado
Publication year | 2004 |
Pages | 85 |
2004, August, Pg. 85. Reasonable Doubt: An Overview and Examination of Jury Instructions In Colorado
Vol. 33, No. 8, Pg. 11
The Colorado Lawyer
August 2004
Vol. 33, No. 8 [Page 85]
August 2004
Vol. 33, No. 8 [Page 85]
Specialty Law Columns
Criminal Law Newsletter
Reasonable Doubt: An Overview and Examination of Jury Instructions In Colorado
by R. Jason Richards
Criminal Law Newsletter
Reasonable Doubt: An Overview and Examination of Jury Instructions In Colorado
by R. Jason Richards
This column is sponsored by the CBA Criminal Law Section. It
features articles written by prosecutors, defense lawyers
and judges to provide information about case law
legislation, and advocacy affecting the prosecution, defense
and administration of criminal cases in
Colorado state and federal courts.
Colorado state and federal courts.
Column Editors:
Leonard Frieling, a criminal defense attorney in private
practice, Boulder - (303) 449-0092, lfrieling@lfrieling.com;
and Morris Hoffman, a judge for the Second Judicial
District
Court, Denver.
Court, Denver.
R. Jason Richards
About The Author:
This month's article was written by R. Jason Richards, a
sole practitioner in Fort Collins - (970) 221-5655,
jason@jasonrichardslaw.com.
This article discusses the types of reasonable doubt
instructions used in federal and state courts. It suggests
how criminal law practitioners in Colorado might make use of
the perceived shortcomings of Colorado's reasonable doubt
instruction.
The notion that a defendant must be proven guilty
"beyond a reasonable doubt" is perhaps the most
fundamental part of the U.S. criminal justice system. This
standard embodies society's belief that it is better to
let ten guilty people go free than to convict one innocent
person. For that reason, proof beyond a reasonable doubt
requires a high level of certainty before a person may be
convicted of a crime.
Nonetheless, attempts to define the term "reasonable
doubt" have been described by courts as a
"hazardous undertaking"1 and "garbled
verbiage."2 In 1910, the Colorado Supreme Court observed
that it is "a term often used, pretty well understood,
but not easily defined."3 Even the U.S. Supreme Court
has remarked that attempts to explain the term "do not
usually result in making it any clearer to the minds of the
jury."4 Such observations have led some commentators to
argue that any attempt to define "reasonable doubt"
is futile.5 Nevertheless, the more widely accepted position
is that entrusting jurors to define the term for themselves
is "at best risky, and at worst foolish."6
Colorado, along with numerous state and federal
jurisdictions, favors an approach in which a definition is
provided.7 However, even in these jurisdictions, there is
considerable disagreement over what language to use. This is
for good reason; numerous studies and case law show that the
choice of definition of "reasonable doubt" can
significantly impact a jury's verdict.8
This article examines the history of reasonable doubt and a
number of studies and cases on the topic. It discusses
Colorado law and the evolution of various forms of reasonable
doubt instructions over the last half-century. Finally, it
addresses recent reform efforts that were catalyzed by two
justices of the U.S. Supreme Court.
Studies, Cases, and
Confusion
Confusion
A study that was published in 1976 tested three reasonable
doubt instructions on mock juries. One instruction did not
define reasonable doubt; one defined it broadly as any
conceivable doubt; a third instruction provided a definition
that could be expressed and supported. The study found that a
lower conviction rate was achieved when reasonable doubt was
loosely defined as opposed to strongly defined.9
Another study was conducted twenty years later by
psychologist Irwin Horowitz and evidence scholar Laird
Kirkpatrick. In this study, five mock juries were provided
different instructions on reasonable doubt, with half of the
subjects watching a "strong" case for the
prosecution and the other half watching a "weak"
case. Results of the study found that in the strong cases,
there was no difference in the conviction rates between
juries who were provided with no definition of reasonable
doubt and those provided with a definition of a stable
conviction in guilt. In contrast, when reasonable doubt was
defined in terms of being "firmly convinced" of
guilt, jurors had a higher conviction score in the strong
cases than in the weak cases.10
Evidence from case law also suggests that "jurors in
fact often misunderstand instructions in general and the
meaning of reasonable doubt in particular."11 Further,
attempts to remedy this confusion often are futile.12 For
example, in the California case of People v. Ruge,13 the
judge gave the jury the Penal Code definition of reasonable
doubt, which defined the term as a condition whereby jurors
could not say they felt an abiding conviction of the truth of
the charges. On retiring to the jury room, the members
returned to the courtroom and requested of the judge:
"[W]e would like to know what constitutes reasonable
doubt. . . . We read the instructions over and over. We want
you to tell us."14
Not surprisingly, attempts by lawyers to explain reasonable
doubt to potential jurors often fare no better. In People v.
Sherman,15 for example, the Colorado Court of Appeals
summarized this all-too-common encounter between a prosecutor
and prospective juror:
During voir dire, the prosecutor questioned one of the
potential jurors regarding her understanding of the
reasonable doubt instruction that the court had read to the
panel. The prosecutor first asked the juror whether there was
a distinction between reasonable doubt and "beyond all
doubt." She responded that she thought they could mean
the same thing. The prosecution next asked whether she
thought the prosecution had to prove a crime beyond "any
and all doubt in your mind." The juror replied
affirmatively. After further clarifying the meaning of
reasonable doubt, the prosecution again asked the juror
whether she would require the People to "prove a crime
was committed beyond any and all doubt," and the juror
again replied affirmatively.16
Despite such empirical evidence, many jurisdictions
(including Colorado) have, for historical and other reasons,
subscribed to virtually the same definition of reasonable
doubt for more than a century.17
Historical Background
The origins of reasonable doubt trace back to the
philosophers of seventeenth century England, when John
Wilkins and others rejected the long-standing notion that
absolute certainty and moral certainty were functionally
equivalent.18 They asserted that, because no one could be
absolutely certain of anything, moral certainty was the
highest degree of proof reasonably obtainable. According to
this philosophy, a juror need only be morally certain, as
opposed to absolutely certain, of a defendant's guilt -
that is, certain beyond every reasonable doubt.19
In one of the earliest cases to embrace this philosophical
and legal principle, the Massachusetts Supreme Judicial
Court, in the 1850 case of Commonwealth v. Webster,20 posed
this rhetorical question:
[W]hat is reasonable doubt? . . . It is not mere possible
doubt; because everything relating to human affairs, and
depending on moral evidence, is open to some possible or
imaginary doubt.21
The Court then defined reasonable doubt as a doubt in which
jurors "cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge."22 As the
U.S. Supreme Court subsequently would confirm, "[p]roof
to a 'moral certainty' is an equivalent phrase with
'beyond a reasonable doubt.'"23
Although the U.S. Constitution does not by its own terms
require the prosecution to prove a defendant's guilt
beyond a reasonable doubt, that requirement has been read
into the Fifth Amendment as part of the panoply of rights
embraced by the Due Process Clause.24 Any jury instruction
that may be interpreted as lowering the threshold required to
convict a defendant is, therefore, constitutionally
unsound.25 However, the U.S. Constitution neither prohibits
nor requires trial courts to define reasonable doubt. It also
does not require that any particular words be used to convey
to the jury the prosecution's burden of proof.26 Instead,
the instruction must, taken as a whole, accurately reflect
the general concept of "beyond a reasonable
doubt."27
Reasonable Doubt Varies in Jurisdictions
Because federal and state courts are given considerable
leeway regarding reasonable doubt instructions, no clear
precedent has emerged. The jurisdictions have taken varying
approaches:
At least fourteen jurisdictions either refuse to define
reasonable doubt for juries at all,28 or express a preference
for not defining the term;29
Nine jurisdictions make a reasonable doubt instruction
mandatory;30
Six jurisdictions leave the matter to the discretion of the
trial court;31 and
Colorado,32 as well as six other jurisdictions, imply, but do
not appear to require, that a reasonable doubt instruction
should be given.33
Among jurisdictions that provide instructions, those...
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