THE STANDARD PATTERN INSTRUCTION SHOULD DEFINE THE TERM
"ABIDING CONVICTION"

(June 1995)

    In response to criticism of the term "moral certainty" in Victor v. Nebraska (94) 511 US 1 [127 LEd2d 583, 596; 114 SCt 1239], the California Supreme Court suggested that CALJIC (California) 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 (CA 1994) 8 C4th 450, 504 [34 CR2d 558].) CALJIC (California) followed suit with its 1994 revision of 2.90, which first appeared in the January 1995 pocket part.

    However, it is doubtful that Victor meant for "abiding conviction" to be used without any defining context. In the old instruction, this defining context was provided by the concept of "moral certainty." Victor held that "moral certainty" -- though perhaps too arcane for modern day understanding -- was a correct concept which adequately defined proof beyond a reasonable doubt when used in context with "abiding conviction." "[T]he reference to moral certainty, in conjunction with the abiding conviction language, 'impress[ed] upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused.’ [Citation.]" (Victor 511 US 1, 15 [emphasis added].)

    It is true that the Victor opinion contains a loose phrase in which the court said:

"Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction given in Sandoval's case, lends content to the phrase. The jurors were told that they must have 'an abiding conviction, to a moral certainty, of the truth of the charge.’ . . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof." (Victor, 511 US at 15 [emphasis added].)

    However, this statement is not accompanied with any discussion or analysis to justify concluding that it was meant to suggest that "abiding conviction" should be used without any definitional context. Rather, Victor should be read as a whole for the proposition that proof beyond a reasonable doubt may be defined in terms of "abiding conviction" provided that it is combined with other language that conveys the standard of near certainty. Such a reading of Victor is reasonable and necessary because, standing alone, the term "abiding conviction" may convey a standard equivalent to clear and convincing evidence rather than proof beyond a reasonable doubt. Indeed, other state and federal jurisdictions define clear and convincing evidence in their standard pattern instructions as a "firm belief or conviction" [ ]or even as an "abiding conviction." [ ]

    Moreover, clear and convincing evidence has been described as evidence which produces in the mind of the trier of fact "an abiding conviction that the truth of [the] factual contentions are 'highly probable.’ [Citation.]" (Buildex Inc. v. Kason Industries (Fed. Cir. 1988) 849 F2d 1461, 1463.)

    Equation of "abiding conviction" with clear and convincing evidence is also possible under the common meaning of the terms. A conviction is "a strong persuasion or belief ... the state of being convinced" (Webster's, Seventh New Collegiate Dictionary) and abiding is defined as enduring or permanent. Under these definitions a juror could reasonably conclude that an abiding conviction is a belief which is "so clear as to leave no substantial doubt" or "sufficiently strong 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 (CA 1984) 160 CA3d 314, 320 [206 CR 603]; see also (People v. Brigham (CA 1979) 75 C3d 283, 291 [157 CR 905] ["a strong and convincing belief ... is something short of having been 'reasonably persuaded to a near certainty.’ [Citation]."].)

    In other words, abiding conviction as used in CALJIC (California) 2.90 has a legal meaning (i.e., proof to a near certitude) which differs from its meaning which encompasses proof which is only clear and convincing. Terms with a special legal meaning must, of course, be defined sua sponte. (See People v. Shoals (CA 1992) 8 CA4th 475, 484-91 [1- CR2d 296].)

    All this is not to say that "abiding conviction" should be deleted from the definition of proof beyond a reasonable doubt. As Victor recognized, it is descriptive of a heavy burden when given the proper context. Therefore, "abiding conviction" as used in CALJIC (California) 2.90 must be given definitional context, previously supplied by "moral certainty," to allow the jury to distinguish proof beyond a reasonable doubt from the lesser clear and convincing standard.

    One way of adding the necessary context to CALJIC (California) 2.90 (1994 Revision) would be to explicitly inform the jury that proof beyond a reasonable doubt requires a greater degree of persuasion than does clear and convincing evidence. This is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. The advantage of this method is that it avoids the danger of trying to further define what proof beyond a reasonable doubt is and, instead, explains what it is not. Such a comparison both provides added perspective and protects against the jurors unknowing use of a standard equivalent to the lesser standard.

    There may be other ways to define "abiding conviction" to avoid confusion with the clear and convincing standard, however one possible solution is the sample set forth below. The definition of clear and convincing in this instruction was taken from Lillian F. v. Superior Court, supra, 160 CA3d at 320. 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 Dennis M. (69) 70 C2d 444, 458 [75 CR 1]; In re Christella C. (CA 1992) 6 CA4th 1363, 1369 [8 CR2d 342]; see also, 1 Witkin, Cal. Evidence (3d ed. 1986) § 160, p. 137.)

    Proof beyond a reasonable doubt imposes a significantly heavier burden than does the lesser standard of clear and convincing evidence. Clear and convincing evidence requires a finding of high probability. Such a standard requires that the evidence be so clear as to leave no substantial doubt.

    However, when read in context, this dicta does not authorize use of "abiding conviction" as a definition of proof beyond a reasonable doubt without any specification of the required degree of persuasion. Indeed, after the above quoted language, Victor stated that Hence, when read as a whole, Victor approved definition of a proof beyond a reasonable doubt" in terms of abiding conviction provided that it is combined with language that conveys the standard of "near certitude." Nowhere did Victor directly state that the term "abiding conviction," standing alone, conveys such a degree of persuasion.

    More importantly, regardless of whether or not Freeman misread Victor, the new CALJIC (California) 2.90 must withstand independent constitutional scrutiny. When subjected to such scrutiny, the instruction fails because it does not convey the "need to reach a subjective state of new certitude."

    Moreover, without any measure of how strongly convinced one must be, CALJIC (California) 2.90 (1994 Revision) is inherently ambiguous and will promote wide disparities in the degree of proof required from juror to juror and from jury to jury. The jury will be free to find guilt after being convinced to a degree no greater than that required under other lesser standards. Certainly a "strong belief" may be based on a degree of persuasion which is "so clear as to leave no substantial doubt." (Clear and convincing standard: In re Angelia P. (81) 28 C3d 908, 919 [171 CR 637].) In fact, there is no reason why a juror could not hold a "strong belief" based on evidence which merely has "more convincing force." (Preponderance standard: BAJI 2.60.)

    Nor does the term "abiding" require that the belief be held to a near certainty. "Abiding" means "lasting" or "permanent" (Brigham, 25 C3d at 291-92) and thus goes more to the duration, than the strength, of the conviction. If a conviction is a "strong belief," then an abiding conviction is a strong, lasting belief. But just because a "strong belief" is "lasting" doesn't mean that it may be equated with near certainty. Again, the clear and convincing standard requiring proof that "leaves no substantial doubt" will certainly produce a "strong" and "lasting" belief.

    In sum, by eliminating any standard describing the necessary degree of proof, CALJIC (California) 2.90 (1994 Revision) has "thrown out the baby with the bath." The terms "abiding conviction" are insufficient, standing alone, to convey the necessary standard of near certainty because an "abiding conviction" may be formed under the lesser clear and convincing standard or even under the preponderance standard.

    Therefore, CALJIC (California) 2.90 (1994 Revision) should be modified or replaced with an instruction which conveys the requisite standard of near certainty or near certitude. Two possible options come to mind. The "near certitude" or "near certainty" language could be added to CALJIC (California) 2.90 (see sample 1 below) or to some other pattern instruction such as the Federal Judicial Center instruction quoted in Justice Ginsburg's concurring opinion in Victor. (511 US 1, 27.) (See sample 2 below.) Or, some other description such as the concept of "no reasonable possibility" could be used. (See last sentence of sample 2, below.) The U.S. Supreme Court has used interchangeably the phrases "beyond a reasonable doubt" and "no reasonable possibility" of a different conclusion. (See U.S. v. Bagley (85) 473 US 667, 679, fn 9 [87 LEd2d 481; 105 SCt 3375].)

    Regardless of what alternative instruction is proposed, the important point is to consider the constitutional shortcomings of CALJIC (California) 2.90 (1994 Revision).

Sample Instructions:

CAVEAT: These samples do not necessarily portray the best or only way of dealing with these issues. Depending on the practitioner's individual preferences and/or other factors, other alternatives may be more desirable or successful.

Modify CALJIC (California) 2.90 paragraph 2 to provide as follows [added language is underlined and capitalized]:

    Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge TO A NEAR [CERTAINTY] [CERTITUDE].

OR

*Modify Federal Judicial Center Inst #21 (1988) to provide as follows [added language is capitalized; deleted language is between <<>>]:

    Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt TO A NEAR [CERTAINTY] [CERTITUDE]. 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. If, based on your consideration of the evidence, you are firmly convinced TO A NEAR [CERTAINTY] [CERTITUDE] that the defendant is guilty of the crime charged, you must find [him] [her] guilty. If, on the other hand, you think there is a <<real>> REASONABLE possibility that he is not guilty, you must give [him] [her] the benefit of the doubt and find [him] [her] not guilty.

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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