by Thomas Lundy

(May2003)

    Because the reasonable doubt standard may be difficult to define, and in some courts no definition is given at all, another possible approach is to compare the proof beyond a reasonable doubt standard with the lesser standards of preponderance of the evidence and 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 e.g., Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 21 [Definition Of Reasonable Doubt] (1988) [comparing burden in civil trial]; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001 [General Instructions-Introduction] ¶ 4. (Oregon State Bar, 1998 )]; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-5-1 [Burden Of Proof] (State Bar of South Dakota, 2000); MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C:1:8 [Burden Of Proof; Evidentiary Matters -- Reasonable Doubt] (West, 2000).) There is no reason why the comparison model shouldn’t also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. (See generally Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 1-2 [Reasonable Doubt] (Lexis, 2nd ed. 1999) ["It is not sufficient for the prosecution to establish a probability, even a strong probability, that the charge against the defendant is more likely to be true than not. That is not enough"]; see FORECITE National™ 6.2.5 ["Probability Of Truth" As Applied To Prosecution Witness Is Improper Instruction] [Footnote 1]; see also FORECITE National™ 270.5.9 [Use Of The Term "Probable" Reduces Prosecution’s Burden To Prove Guilt Beyond A Reasonable Doubt].) Such a comparison provides added perspective and helps assure that there is no dilution of the reasonable doubt standard. Such dilution would be a structural error in violation of the federal constitution. (See Sullivan v. Louisiana (93) 508 US 275, 279-281 [124 LEd2d 182; 113 SCt 2078]; Cage v. Louisiana (90) 498 US 39 [112 LEd2d 339; 111 SCt 328].)

    It is beyond dispute that proof beyond a reasonable doubt is a "significantly higher than the ‘clear and convincing’ standard." (State v. Terrazas (AZ 1997) 944 P2d 1194, 1198; see also People v. Hughes (AZ 1967) 426 P2d 386, 390-91; State v. Kennedy (MN 1998) 585 NW2d 385, 389.) And, the clear and convincing standard is itself "much higher" than the preponderance standard. (See Beardshall v. Minuteman Press Int’l. Inc. (3rd Cir. 1981) 664 F2d 23, 25; Lostutter v. Estate of Larkin (KS 1984) 679 P2d 181,188; In re State v. M,M,J (UT 1995) 908 P2d 345, 349-52.) It follows, a fortiori, that proof beyond a reasonable doubt is a "much higher standard" than preponderance of the evidence. (People v. Allen (CA 1993) 20 CA4th 846, 857 [25 CR2d 26]; see also Brown v. Bowen (7th Cir. 1988) 847 F2d 342, 345-46 ["all burdens of persuasion deal with probabilities. The preponderance standard is a more-likely-than-not rule, under which the trier of fact rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff is in the right. The reasonable doubt standard is much higher, perhaps 0.9 or better"]; Binion v. Chater (7th Cir. 1997) 108 F3d 780, 783 [same]; Lane v. Sullivan (8th Cir. 1990) 900 F2d 1247, 1252 ["much higher"]; U.S. v. Clawson (D. Oregon 1994) 842 FSupp 428, 430; U.S. v. Washington (N.D. Ill. 1993 840 FSupp 562, 573 ["substantially more demanding legal standard"].)

    Without a comparison instruction there is a danger that the jury will unconstitutionally convict under the lesser standard even if proof beyond a reasonable doubt is defined. For example, in South Dakota clear and convincing evidence is defined as follows: "Clear and convincing evidence is produced when the witnesses are found to be credible and their testimony is so clear, direct and weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. It is not required that the proof be voluminous or undisputed before it may be characterized as ‘clear and convincing.’ But the facts must be strong and such that produce in the minds of the jurors a firm belief or conviction. ‘It takes less proof to establish a position by clear and convincing evidence than it takes to establish the same position beyond a reasonable doubt.’" (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-5-4 [Insanity-Burden Of Proof-Clear And Convincing Evidence] (State Bar of South Dakota, 2000); see also State v. Rough Surface (SD 1989) 440 NW2d 746, 757-58.) On the other hand, South Dakota juries are informed that "proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt...if, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find the defendant guilty." (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-6-1 [Reasonable Doubt] ¶ 2 (State Bar of South Dakota, 2000).)

    Hence, the lesser, clear and convincing evidence standard requires "firm belief or conviction" while the greater, beyond a reasonable doubt standard, requires "proof that leaves you firmly convinced...." Regardless of whether a principled distinction may be made between these two standards, at a minimum, the defendant should have the option of instructing the jury on the clear and convincing evidence standard and further informing them that it takes "more proof" to meet the proof beyond a reasonable doubt standard.

    Moreover, since the proof beyond a reasonable doubt standard is for the benefit of the accused, he or she should have the right to waive definition of that standard and utilize a comparative instruction based on the lesser standard. (See e.g., FORECITE National™ 4.3.2.3 [Accused May Waive Benefits Of Cautionary Instruction].)

    Finally, even if such a comparison instruction is not allowed, counsel should be able to read the clear and convincing evidence standard to the jury for purposes of establishing that proof beyond a reasonable doubt requires more. (See FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

USE NOTE: One definition of clear and convincing evidence is that it "requires that the existence of a disputed fact be highly probable." (American Cyanamid Co. v. Electrical Indus., Inc. (5th Cir. 1980) 630 F2d 1123, 1127; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.4, comment [Insanity] (2000).) However, Stone v. New England Ins. Co. (CA 1995) 33 CA4th 1175, 1211, fn 29 [39 CR2d 714] held that the "high probability" language, although legally correct, "does not go far enough." (Stone, 33 CA4th at 1212; see also DuBarry Int’l. Inc. v. Southwest Forest Industries, Inc. (CA 1991) 231 CA3d 552, 566, fn 19 [282 CR 181]; In re Marriage of Weaver (CA 1990) 224 CA3d 478, 487, fn 8 [273 CR 696].) 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 Cristella C. (CA 1992) 6 CA4th 1363, 1369 [8 CR2d 342]; In re M. (CA 1969) 70 C2d 444, 458 [75 CR 1].)

    See also generally, FORECITE National™ 305.2.5 [Burden Of Proof/Presumptions].

    Clear and convincing evidence requires that the existence of the disputed fact be highly probable. The proof beyond a reasonable doubt standard requires a significantly greater degree of certainty than that required to meet the clear and convincing evidence standard. Proof beyond a reasonable doubt is the highest level of certainty recognized in the law.

    Proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a significantly 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 facts 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 significantly greater degree of certainty than that required to meet the clear and convincing evidence standard.

    Some of you may have served as jurors in civil cases where lesser standards of proof apply; for example, proof by a preponderance of the evidence or proof by clear and convincing evidence. In criminal cases, however, the State’s proof must be more convincing. It must be beyond a reasonable doubt.

[Source: UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, [General Instructions-Introduction] ¶ 4. (Oregon State Bar, 1998).]

    The State has the burden of proving every element of the offense charged beyond a reasonable doubt. The burden of proof never shifts* to the defendant, but rests upon the State throughout the trial. A mere preponderance of the evidence is not enough.

* But see FORECITE National™ 270.2.10 [Avoiding Language That Burden Never "Shifts" To Defendant].

[Source: SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-5-1 [Burden Of Proof] (State Bar of South Dakota, 2000).]

    It is not sufficient that [the defendant’s] guilt is probable only, or even more probable than his innocence. Nor can the defendant be convicted upon mere suspicion. No amount of suspicion however strong, will warrant his conviction.

[Source: Whaley v. Commonwealth (VA 1973) 200 SE2d 556, 558.]

    There is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty. Mere probability of guilt will never warrant you to convict the defendant.

[Source: MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C:1:8 [Burden of Proof; Evidentiary Matters--Reasonable Doubt] (West, 2000).]

A standard of proof used in civil cases is proof by a preponderance of the evidence. This standard is met if the plaintiff proves its case as a matter of probability. That is that the matters required to be proven probably occurred. In a criminal case by contrast, the prosecution has the burden of proving guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a much higher standard than the preponderance of evidence standard.

It is not sufficient for the prosecution to establish a probability of guilt. Even a strong probability that the charge against the defendant is more likely to be true than not is not proof beyond a reasonable doubt.

[Cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 1-2 [Reasonable Doubt] (Lexis, 2nd ed. 1999).]

Footnotes:

Footnote 1:  To subscribe to FORECITE National™ click here.

RETURN TO TABLE OF CONTENTS