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