D. Burden of Proof and Presumptions
Library | The Criminal Law of South Carolina (SCBar) (2014 Ed.) |
D. Burden of Proof and Presumptions
1. Burden of Proof
a. The State's Burden and the Presumption of Innocence
Due process of law requires the State to establish each element of each offense by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). South Carolina has long recognized the weight and extent of the State's burden. State v. Orr, 131 S.C. 276, 126 S.E. 766 (1925). More recently the Court observed: "A shifting of the burden of proof [to require the defendant to prove that he lacked knowledge of his possession of a controlled substance] would impose a significantly greater onus on the defendant and, even more significantly, it would obliterate the presumption of innocence." State v. Attardo, 263 S.C. 546, 552, 211 S.E.2d 868, 870 (1975). "The guilt of the accused, of course, must be proven beyond a reasonable doubt. The reason for this rule is that all presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proved to be guilty." State v. Hyder, 242 S.C. 372, 379, 131 S.E.2d 96, 100 (1963) (citations omitted).
The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law."'
State v. Liberte, 336 S.C. 648, 654-55, 521 S.E.2d 744, 747-48 (Ct. App. 1999) (quoting In re Winship, 397 U.S. 358, 363 (1970) (citations omitted)).
The United States Supreme Court has held that failure to give a requested explicit instruction on the presumption of innocence is not a per se violation of due process, but must be assessed in terms of the totality of the circumstances, all instructions to the jury and the weight of the evidence. Kentucky v. Whorton, 441 U.S. 786 (1979). With due respect, it is submitted that the sketchy six justice per curiam opinion in Wharton misperceives the function of this time-honored presumption. It is more than a shorthand reference to the state's burden of proof; as the dissent points out, it is also a reminder to the jury that guilt is to be determined solely on the basis of properly introduced evidence and not on the basis of suspicions generated by the facts of arrest, indictment and arraignment. Whorton, at 791 (Stewart, J., dissenting). The dissent does recognize that while failure to give the requested instructions should always be considered violative of due process, nonetheless, in a given case such error might be harmless. Id.
The following instruction on accomplice liability was found to impermissibly dilute the presumption of innocence. "[I]f the unlawful act is committed, the act of one is the act of all. And all are presumed to be present and guilty, for this would be in pursuance of a common purpose in a common cause . . . ." State v. LaBarge, 275 S.C. 168, 173, 268 S.E.2d 278, 281 (1980).
Because prospective jurors in a capital case are questioned about their views on the death penalty, there is a concern that they may infer that the accused must be guilty. Consequently, it is important that they be instructed during voir dire that the accused is presumed to be innocent until the State has established guilt beyond a reasonable doubt. State v. Lucas, 285 S.C. 37, 328 S.E.2d 63 (1985), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating the doctrine of in favorem vitae).
b. Beyond a Reasonable Doubt
The guarantee of the protection of proof beyond a reasonable doubt is a core principle of America's system of criminal justice. Its denigration by the solicitor caused the reversal of a conviction because of the trial court's refusal to grant a mistrial after the solicitor asked in closing argument: "is it [reasonable doubt] being used as a sword to attack law and order, to attack law enforcement, to attack people who are trying to keep drugs off our streets?" State v. Liberte, 336 S.C. 648, 652, 521 S.E.2d 744, 746 (Ct. App. 1999).
The Due Process Clause mandates that the jury cannot convict unless it is satisfied beyond a reasonable doubt of the existence of guilt. In re Winship, 397 U.S. 358 (1970). Courts have struggled with the definition of reasonable doubt and with the scope of appropriate jury instructions. While there is no overall definitive answer, a few propositions are clear: The jury must be instructed that it cannot convict with a reasonable doubt as to guilt; and some definitions of reasonable doubt are to be avoided, and others are preferred. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996) cert. denied, Whipple v. South Carolina, 519 U.S. 1045 (1996); State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
In 1990 the United States Supreme Court condemned instructions that defined reasonable doubt in terms of "moral certainty" and "substantial doubt." Cage v. Louisiana, 498 U.S. 39 (1990). In a pair of 1994 cases, however, while still condemning those phrases, the Court concluded that instructions containing them, when read as a whole, were not necessarily invalid. Victor v. Nebraska, 511 U.S. 1 (1994) (combined with Sandoval v. California). The Court noted that the instruction in Victor included the definition of reasonable doubt as "a doubt that would cause a reasonable person to hesitate to act," a formulation the Court has repeatedly endorsed. Id. at 3, 20. The Court unanimously concluded that a constitutionally deficient instruction on reasonable doubt is not subject to harmless error analysis and mandates reversal of the conviction. Sullivan v. Louisiana, 508 U.S. 275 (1993).
The South Carolina Supreme Court condemned defining reasonable doubt in terms of "moral certainty" or a doubt for which the jury could "give a real reason," State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), cert. denied, 503 U.S. 914 (1992), and condemned the phrase, "a strong uncertainty." State v. Baker, 309 S.C. 436, 424 S.E.2d 492 (1992). The Court has specifically encouraged the following definition: "A reasonable doubt is the kind of doubt that would cause a reasonable person to hesitate to act." Manning at 417, 409 S.E.2d at 375 (the same language that the United States Supreme Court endorsed in Victor). Similar language was found adequate in State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994). The preferred instruction is not mandated. State v. Johnson, 315 S.C. 485, 445 S.E.2d 637 (1994).
The trial judge indicated that the reasonable doubt instructions would be those approved in Manning, including the "hesitate to act" language. Neither side objected, and defense counsel structured his closing argument around that phrase. Subsequently, the judge, on the solicitor's motion, excised that phrase from the instructions. When the jury did not hear the phrase that defense counsel told them to expect, defense counsel's credibility was undermined prejudicially. State v. Jones, 343 S.C. 562, 576-78, 541 S.E.2d 813, 820-22 (2001).
In a case in which the jury requested additional instruction on the definition of reasonable doubt, after having already been given the "hesitate to act" instruction, the Court approved the following, which equates beyond a reasonable doubt with "firmly convinced":
The State has the burden of proving the Defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases where you were told that [it] is only necessary to prove the fact is more likely true than not, such as by the greater weight or preponderance of the evidence. In criminal cases, the State's proof must be more powerful than that. It must be beyond a reasonable doubt.
Ladies and gentlemen, proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant's guilt. There are very few things in this world that we know with absolute certainty. And in criminal cases, the law does not require proof that overcomes every possible doubt. The law doesn't require that.
If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you must find him guilty. If on the other hand you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
State v. Darby, 324 S.C. 114, 115-16, 477 S.E.2d 710, 710-11 (1996). The Court explicitly rejected a claim that the "real possibility that he is not guilty" language dilutes the State's burden, especially because that language followed instructions that the juror be "firmly convinced" of guilt. The Court noted that the instruction substantially followed the text of one developed by the Federal Judicial Center and which had been approved by the courts of other jurisdictions. Id. at 116 n.2, 477 S.E.2d at 711, n.2. Accord State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001); State v. Lowery, 332 S.C. 261, 265, 503 S.E.2d 794, 797 (Ct. App. 1998), cert. denied (1999).
Later the Court concluded that the language in the Darby instruction requiring the jury to resolve doubts in the defendant's favor obviates the need for specific instruction to resolve doubts about whether the defendant is guilty of an offense or a lesser included offense. Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999) (overruling State v. King, 158 S.C. 251, 155 S.E. 409 (1930)).
A significant change has occurred in relation to proper instructions on circumstantial evidence. In State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997), a three justice majority concluded that, if a proper reasonable doubt instruction is given, the court need not instruct that the circumstantial evidence must be so strong as to exclude every other reasonable hypothesis than that of the guilt of the accused. Subsequently in State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004), four...
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