CALJIC 2.90 (1994 REVISION) SHOULD DEFINE THE TERM "ABIDING CONVICTION" TO AVOID CONFUSION WITH THE CLEAR AND CONVINCING EVIDENCE STANDARD

(June 1995)

    In response to criticism of the term "moral certainty" in Victor v. Nebraska (94) 511 US 1, 14-16 [127 LEd2d 583, 596; 114 SCt 1239], the California Supreme Court suggested that CJ 2.90 should be modified by deleting the "moral certainty" standard, leaving only the "abiding conviction" language as the measure of reasonable doubt. (People v. Freeman (94) 8 C4th 450, 504 [34 CR2d 558].) CALJIC followed suit with its 1994 revision of 2.90, which first appeared in the January 1995 pocket part.

    However, deletion of the "moral certainty" language has created an unconstitutional ambiguity in CJ 2.90 (1994 Revision) because there is no longer any language which defines the degree of persuasion to which the "abiding conviction" must be held. "Abiding conviction" requires definition because, standing alone, it may reasonably be interpreted by the jury to embody a degree of persuasion equivalent to the clear and convincing evidence standard. Indeed, other state and federal jurisdictions define clear and convincing evidence in their standard pattern instructions in terms, such as a "firm belief or conviction," which are difficult to distinguish from an abiding conviction. In fact, at least one state actually defines clear and convincing evidence as an "abiding conviction." Even the U.S. Supreme Court has had occasion to use the term "abiding conviction" in defining clear and convincing evidence: "... an abiding conviction that the truth of [the] factual contentions are 'highly probable.’ [Citation.]" (Colorado v. New Mexico (84) 467 US 310, 316 [81 LEd2d 247; 104 SCt 2433.].)

    Hence, even though "abiding conviction" was equated with proof beyond a reasonable doubt by dicta in Victor v. Nebraska (94) 511 US 1, 16-17 [127 LEd2d 583, 593; 114 SCt 1239], it has also been equated or associated with the lesser standard of clear and convincing evidence in many other contexts.

    Moreover, confusion of the "abiding conviction" language of CJ 2.90 with the clear and convincing standard is also a danger under the common meaning of the terms. A "conviction" is commonly defined as a "strong belief" and "abiding" is defined as "enduring" or "lasting". (Webster's, New World Dictionary (1979 ed.) pp. 2, 138.) Under these definitions, a juror could easily conclude that an "abiding conviction," and hence, proof beyond a reasonable doubt, is equivalent to a belief which is so strong and enduring "as to leave no substantial doubt" and "to command the unhesitating assent of every reasonable mind." Yet, these are descriptions of clear and convincing evidence, not proof beyond a reasonable doubt. (See Lillian F. v. Superior Court (84) 160 CA3d 314, 320 [206 CR 603]; see also (People v. Brigham (79) 25 C3d 283, 291 [157 CR 905] ["a strong and convincing belief ... is something short of having been 'reasonably persuaded to a near certainty.’ [Citation]."].)

    Accordingly, the meaning of "abiding conviction" should be clarified in CJ 2.90 (1994 Revision) to eliminate the current ambiguity as to the degree of persuasion that is required. Proof by any standard less than reasonable doubt violates the Due Process Clause. (In re Winship (70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068].) "To be a meaningful safeguard, the reasonable doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk." (Victor, 127 LEd2d at 604, Blackman & Souter, concurring and dissenting.)

    One way of adding the necessary precision to CJ 2.90 (1994 Revision) would be to explicitly inform the jury that proof beyond a reasonable doubt requires a greater degree of persuasion and/or a heavier burden than does clear and convincing evidence. A comparison of burdens is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. (See BAJI 2.62; Devitt, Blackmar, et al., Fed. Jury Prac. & Inst., (1987) § 97.04, p. 730.) There is no reason why it shouldn't also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. Such a comparison provides added perspective to the "abiding conviction" language and protects against the jurors use of the lesser standard.

    A sample instruction containing such a comparison of standards is set forth below. The definition of clear and convincing evidence was taken from Stone vs. New England Ins. Co (95) 33 CA4th 1175, 1211, fn 29 [39 CR2d 714], which held that the 2.62 "high probability" language, although legally correct, "does not go far enough." (Stone, 33 CA4th at 1212.) Upon request, the definition should be supplemented as set forth in the sample. (See also, DuBarry Int'l. Inc. v. Southwest Forest Industries, Inc. (91) 231 CA3d 552, 566 n 19 [282 CR 181]; In re Marriage of Weaver (90) 224 CA3d 478, 487 n 8 [273 CR 696]; Matthew Bender & Co., Inc., California Forms of Jury Instruction (1995) Vol. 1 § 1.26A[2].) The fact that proof beyond a reasonable doubt is a significantly heavier burden is based on the well-settled principle that clear and convincing evidence is an "intermediate" or "middle" quantum of proof between the significantly lesser preponderance test and the significantly greater reasonable doubt test. (See In re M. (69) 70 C2d 444, 458 [75 CR 1]; In re Cristella C. (92) 6 CA4th 1363, 1369 [8 CR2d 342]; see also, 1 Witkin, Cal. Evidence (3d ed. 1986) § 160, p. 137; Evid. Code (EC) 115.)

    An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a greater degree of certainty than is necessary to form a strong and convincing belief. It also requires a greater degree of certainty than the next lower standard of "clear and convincing evidence." The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind. Again, the proof beyond a reasonable doubt standard requires a greater degree of certainty than that required to meet the clear and convincing evidence standard.

Footnote 1 : See e.g,. Pattern Jury Instructions (1994) U.S. Fifth Circuit District Judges Assoc., Inst. 2.14, p. 18; Federal Criminal Jury Instructions (2nd ed. 1991, Michie Co.) No. 70.02, Insanity Defense; Virginia Model Jury Instructions - Civil (Rep. ed. 1993) No. 3.110. .

Footnote 2 : New Mexico Statutes Annotated - Uniform Jury Instructions, No. 13-1009. 

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