Applying The Proof Beyond A Reasonable Doubt Standard To Individual Facts

by Thomas Lundy

The prosecution’s burden of proof is often stated as a burden to prove "every element of the charge." For example, the Ninth Circuit Instruction (3.2) provides as follows:

The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.

(See also Fifth Circuit Instruction 2.06; Sixth Circuit Instruction 1.03.)

However, more often than not the determination of whether an element has been proved requires the jurors to decide whether other subordinate facts have been proved. For example, in an attempted murder case now pending before the California Supreme Court, the prosecution sought to prove the actus reus element of the crime by two discrete subordinate facts: (1) an identification of the defendant by the victim and (2) other crimes evidence allegedly showing a common modus operandi. The defense challenged each of these subordinate facts individually with (1) evidence that the identification was unreliable due to a suggestive lineup procedure and (2) evidence that the defendant did not commit the alleged other offense. Under these circumstances, the jurors could have had a reasonable doubt that neither of the subordinate facts were proved beyond a reasonable doubt. However, under the instructions–which applied the burden of proof to the elements but not the subordinate facts–the jurors could still have found the defendant guilty by combining or amalgamating the subordinate fact evidence.

However, such a result would be unconstitutional to the extent that either of the subordinate facts was essential to the jury’s verdict of guilt. This is so because due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." [Emphasis added.] (In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068; 25 L.Ed.2d 368].)

There are two ways in which the jury instructions can address this issue.

First, the instruction defining the prosecution’s burden of proof can be modified to make it clear that the burden applies to both the elements of the charge as well as any essential fact upon which proof of that element depends. (See General Essential Fact Sample Instructions, below.)

Second, the pinpoint or defense theory instruction may properly relate the defense theory to the prosecution’s burden of proof. "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63 [108 S.Ct. 883; 99 L.Ed.2d 54] [citing Stevenson v. United States (1896) 162 U.S. 313, 332 [16 S.Ct. 839; 40 L.Ed. 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 U.S. 205, 208 [93 S.Ct. 1993; 36 L.Ed.2d 844].) Thus, the defendant has a right to pinpoint instructions upon his/her theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (CA 1991) 54 Cal.3d 1103, 1120 [2 Cal.Rptr.2d 264] [defendant has the right to a pinpoint instruction which relates "his [evidentiary theory] to an element of the offense"]; People v. Wright (CA 1985) 45 Cal.3d 1126, 1136-37 [248 Cal.Rptr. 6000]; People v. Adrian (CA 1982) 135 Cal.App.3d 335, 342 [185 Cal.Rptr. 506].) Such an instruction should be appropriate whenever the defense specifically contests essential subordinate facts such as eyewitness identification, out-of-court statements by the defendant, credibility of informers, scientific evidence such as DNA, prosecution testing of evidence, chain of custody, etc. (See Template and Miscellaneous Samples, below.)

Every fact which is essential to prove an element of the offense must be proved beyond a reasonable doubt.

[In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068; 25 L.Ed.2d 368]; Fiore v. White (2001) 531 U.S. 225 [121 S.Ct. 712; 148 L.Ed.2d 629]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348; 147 L.Ed.2d 435].]

The presumption of innocence requires the prosecution to prove beyond a reasonable doubt each element and every essential fact necessary to prove the charged crime.

[In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068; 25 L.Ed.2d 368]; Fiore v. White (2001) 531 U.S. 225 [121 S.Ct. 712; 148 L.Ed.2d 629]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348; 147 L.Ed.2d 435].]

Each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

[See generally In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068; 25 L.Ed.2d 368]; People v. Carter (CA 1957) 48 Cal.2d 737, 758-59, 760-61 [312 P.2d 665]; see also California Jury Instructions - Criminal, CALJIC 2.01 [Sufficiency Of Circumstantial Evidence – Generally] ¶ 2 (West, 6th Ed. 1996).]

The prosecution has alleged that _____________<insert subordinate fact>. The defense contends that this allegation is not true because ______________<insert defense theory>. You may not rely on the prosecution’s allegation to find any element of the charged crime unless you have first found that the prosecution has proved that allegation true beyond a reasonable doubt.

Remember that you may not convict the defendant of any crime unless every element and each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.

Before possession of stolen property creates even a presumption that the person is a thief, the Commonwealth must prove by the evidence, beyond all reasonable doubt, that the possession was personal; that it was exclusive; that it was recent; that it was unexplained, and that it involved a distinct and conscious assertion of property by the defendant.

[Jolly v. Commonwealth (VA 1923) 118 SE 109, 113.]

If the prosecution did not prove beyond a reasonable doubt that, one, the property was stolen, two, the defendant recently, exclusively and consciously possessed it, and three, the defendant was without a truthful explanation as to how he obtained it, you cannot infer guilt from possession of the property.

[Adapted from People v. Dobbins (NY 1983) 459 NYS2d 484, 485.]