How Should An Acquittal Be Described To The Jury ?

(February 1996)

    The Simpson trial underscored the distinction between a lack of proof beyond a reasonable doubt as opposed to an affirmative finding of factual innocence and the public's misapprehension of this distinction. However, several standard pattern instructions still include inappropriate references to the defendant's "guilt" or "innocence." Those instructions should be corrected so that the jury's duty is described in terms of deciding "whether the evidence proves the defendant guilty beyond a reasonable doubt" or "whether the defendant's guilt has been proven beyond a reasonable doubt."

    It is one of the most fundamental principles of criminal law that the prosecution prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (75) 421 US 684, 699 [44 LEd 508].) And, an essential rule which emanates from this burden is that the defendant need not prove his or her innocence, but need only raise a reasonable doubt as to guilt. (See People v. Hall (CA 1980) 28 C3d 143, 159 [167 CR 844]; see also People v. Adrian (CA 1982) 135 CA3d 335, 342 [185 CR 506].) Hence, jury instructions which suggest that the jury must decide between guilt or innocence implicate the defendant's federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, "Not Guilty and Innocent -- The Problem Children Of Reasonable Doubt", 4 Crim. Justice J. 349 (1981).) Indeed, the CALJIC (California) committee appears to have recognized this problem in their 1990 revision of CALJIC (California) 17.47 which deleted the "guilt or innocence" language of the former instruction. (See also, CALJIC (California) 16.835 (1989 Revision), lines 10-11; but see People v. Wade (CA 1995) 39 CA4th 1487, 1491-92 [46 CR2d 645] [holding that it was not error to give the "guilty/innocent" language, but failing to address whether the language should be changed on request].)

    Additionally, even use of the term "not guilty" may confuse the jury. The California Penal Code requires that the jury must render a general verdict of either "guilty" or "not guilty" (Penal Code § 1150; Penal Code § 1151) and CALJIC (California) 2.90 relates the prosecution's burden to the not guilty verdict. However, no instruction specifically informs the jury of the distinction between a finding of not guilty as opposed to a finding of factual innocence. Hence, to assure that the verdict of "not guilty" accurately conveys the prosecution's burden of proof to the jury as required by the California (Art. I, § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury (see In re Winship(70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068]; see also, Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182; 113 SCt 2078]; People v. Hall(80) 28 C3d 143, 159 [167 CR 844]; People v. Griffin (CA 1963) 60 C2d 182, 191 [32 CR 24]), an instruction such as the following could be added to the standard pattern instruction:

    You will note that [as to each count] there are two possible verdicts: "not guilty" or "guilty." These verdicts should reflect your decision as to whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt. The "guilty" verdict is for use when the prosecution has proven guilt beyond a reasonable doubt and the "not guilty" verdict is for use when the prosecution has not proven guilt beyond a reasonable doubt. It is not necessary for you to conclude that the defendant is factually innocent in order to return a "not guilty" verdict. Such a verdict only means that the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt.

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