Reasonable Doubt: an Overview and Examination of Jury Instructions in Colorado

JurisdictionUnited States,Federal
CitationVol. 33 No. 8 Pg. 85
Publication year2004
33 Colo.Law. 11
Colorado Lawyer

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]

Specialty Law Columns
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.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092,; and Morris Hoffman, a judge for the Second Judicial District
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,

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

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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