JurisdictionNorth Carolina



The rule regarding the burden of proof in criminal trials is familiar and may be stated with deceptive simplicity: The Due Process Clauses of the United States Constitution1 require the prosecution to prove "beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged."2 According to the Supreme Court, this rule plays the "vital role" of providing "concrete substance" to a core constitutional principle: that a person is presumed innocent until proven guilty.3 Yet this simple statement hides two significant questions. First, how much proof is proof beyond a reasonable doubt? Second, which are the "necessary facts" to which the burden applies?

[A] Meaning of "Beyond a Reasonable Doubt"4

In relative terms, proof beyond a reasonable doubt is the highest burden recognized in the law. Guilt is not proven on the basis of the traditional civil standard of "preponderance of the evidence" (i.e., 50.1%), or even on the heightened basis of "clear and convincing evidence." Instead, a "very high level of probability [is] required."5 Jurors must "reach a subjective state of near certitude of . . . guilt."6

Unfortunately, however, the standard "defies easy explication."7 Courts generally do not try to quantify the "inherently qualitative"8 reasonable-doubt standard in a numerical percentage of certainty. Indeed, according to the Supreme Court, so long as the jury is told that the defendant's guilt must be proved beyond a reasonable doubt, the Constitution does not require that the jury receive further definition. Moreover, if the judge does give the jury further definition (and, in most jurisdictions, judges do so), "the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof."9 In judging the constitutional sufficiency of any particular reasonable-doubt instruction, the question is whether, "taken as a whole, the instructions correctly conve[y] the concept of reasonable doubt to the jury."10

For more than one hundred years, a definition of reasonable doubt crafted by Chief Justice Shaw of the Massachusetts Supreme Judicial Court in 1850 served as a basic model for many reasonable-doubt jury instructions. In Commonwealth v. Webster,11 Justice Shaw explained that "reasonable doubt" is "not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt." Instead, reasonable doubt exists when the "state of the case . . . leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

Some of this language, however, is no longer favored. In Victor v. Nebraska,12 the Supreme Court expressed concern that the term " 'moral certainty' has lost its historical meaning, and that a modern jury [might] understand it to allow conviction on proof that does not meet the beyond a reasonable doubt standard." Therefore, standing alone, the "moral certainty" language might not be recognized "as a synonym for 'proof beyond a reasonable doubt.' " In Victor, however, the instruction at issue did not violate due process because other language in the instruction adequately emphasized "the need to reach a subjective state of near certitude."13 In particular, the Court stated that a definition "cast in terms of an abiding conviction as to guilt . . . correctly states the government's burden of proof."

In contrast to the outcome in Victor, the Court concluded in Cage v. Louisiana14 that an instruction describing a reasonable doubt as one that creates "a grave uncertainty" and as a "substantial doubt" fails to provide due process. The words "substantial" and "grave" simply suggest "a higher degree of doubt than is required . . . under the reasonable-doubt standard."

[B] What the Burden Applies To15

The Supreme Court has for many decades struggled to solve the Rubik's Cube of identifying what parts of a criminal case the burden of proof beyond a reasonable doubt must be applied to, and, indeed, the Court continues to struggle. The current "rule" can be usefully summarized as follows: "A prosecutor must prove every element of an offense beyond a reasonable doubt, and, except 'in certain limited circumstances,' a legislature may allocate to the defendant the burden of [proof] regarding 'facts not formally identified as elements of the offense charged.' "16 In other words, the facts that constitutionally must be proved beyond a reasonable doubt are the "elements" of an offense. The "elements" may be contrasted with "affirmative defenses," or "sentencing factors" as to which the legislature may impose a lesser burden of proof, or even place the burden on the defendant.17

As to whether a particular issue in a criminal case is an "element" (as opposed to an affirmative defense or something else), the question is one of legislative intent. The "limited circumstances" in which a legislature would not be free to describe an issue as something other than an element have, for the most part, not been clearly delineated by the Court. One such circumstance, however, is when the presence of a fact relating to the offense charged (other than the defendant's criminal history) increases the potential penalty for a crime beyond the otherwise prescribed statutory maximum. Such a fact must be proven beyond a reasonable doubt, whether or not the legislature labeled it an "element." For example, suppose a statute provides for a term of imprisonment of five to ten years for the crime of "possession of a firearm for an unlawful purpose," but has a separate provision authorizing the judge to impose a sentence up to twenty years if, but only if, the crime was committed with "a purpose to intimidate because of race." Because the fact of the "purpose to intimidate because of race" raises the maximum potential sentence, the Constitution requires that it be treated as an element, i.e., that it be proven beyond a reasonable doubt.18


[A] Overview

In most jurisdictions, jury verdicts in criminal cases must be unanimous.20 This requirement "arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century."21 In state criminal trials, however, certain nonunanimous verdicts are permissible. As described below, the Court pursued a twisting path in establishing constitutional rules regarding jury unanimity, but those rules can be fairly summarized as follows: In state criminal trials using the traditional twelve-person jury, neither the Sixth Amend-ment22 nor due process23 requires a unanimous verdict; a 9-3 vote for conviction is constitutionally sufficient.24 In state cases involving six-person juries (the smallest juries constitutionally permissible25), unanimity is required.26

[B] Twelve-Member Juries: Apodaca v. Oregon27 and Johnson v. Louisiana28

The Court's modern consideration of nonunanimous jury verdicts began with the companion cases of Apodaca v. Oregon and Johnson v. Louisiana. In Apodaca, the Court considered whether Oregon's procedure allowing guilty verdicts on a 10-2 vote violated the Sixth Amendment's jury trial guarantee as incorporated against the states through the 14th Amendment. In Johnson, the Court considered whether Louisiana's procedure allowing verdicts on a 9-3 vote violated the proof-beyond-a-reasonable-doubt requirement of the Due Process Clause of the Fourteenth Amendment.29 In both cases, the Court, by votes of 5-4, found that the state procedures passed constitutional muster — though as to the trial-by-jury claim, without a majority opinion.

[1] Unanimity and the Right to a Trial by Jury

In Apodaca, a four-justice plurality of the Court concluded that the Sixth Amendment (applicable to the states through the Due Process Clause of the Fourteenth Amendment) does not require unanimous verdicts. Relying on the same reasoning the Court used to conclude that the Sixth Amendment does not mandate the traditional jury size of twelve,30 Justice White wrote for the plurality that a unanimity requirement "does not materially contribute" to the exercise of the jury's "essential feature[:] . . . [T]he interposition between the accused and his accuser of the commonsense judgment of a group of laymen."31 In contrast, Justice Powell and the four dissenting justices concluded that the Sixth Amendment does require unanimous verdicts — primarily on the basis of an historical argument and language in numerous Supreme Court opinions assuming that unanimity was an essential feature of federal trials.

Critically, however, Justice Powell, alone among the nine justices, concluded that this particular aspect of the Sixth Amendment was not applicable to the states through the Due Process Clause of the Fourteenth Amendment.32 Echoing the views previously expressed by Justice Harlan33 and others, Justice Powell contended that the Court's process of incorporating the Bill of Rights "jot for jot" against the states "deprives the States of freedom to experiment," while also "culminat[ing] in the dilution of federal rights."34

Justice Powell's view created the anomalous result that five justices held that application of the Sixth Amendment to the states through the Fourteenth Amendment does not require state juries to be unanimous and five justices concluded that the Sixth Amendment itself does require federal juries to be unanimous, even though eight justices thought the effect of the Sixth Amendment should be the same in both federal and state cases.

[2] Unanimity and Proof Beyond a Reasonable Doubt

In Johnson, the Court considered whether the use of a nonunanimous verdict violated the Due Process Clause of the Fourteenth Amendment on the ground that it undermined the protection of the requirement of proof beyond a reasonable doubt, in contrast to Apodaca's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT