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270.3 Presumption Of Innocence: Specific Words And Phrases

    270.3.1 Jury's Duty Is To Decide If The Prosecution Has Met Its Burden, Not To Find Or Seek "The Truth"
    270.3.2 "If you find..." Language Improperly Shifts Burden To Defendant
    270.3.3 Requiring Jury To “Find” A Reasonable Doubt To Acquit Improperly Shifts Burden To Defendant
    270.3.4 Improper To State that Defendant Must "Raise" Or "Create" Reasonable Doubt
    270.3.5 Improper To State That Defendant Must Present “Some Evidence” To Create A Reasonable Doubt
    270.3.6 Constitutional Challenge To Instruction That The Defendant Is Presumed Innocent "Until" Contrary Is Proven
    270.3.7 Whether "Defendant Claims . . . " Shifts The Burden

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RATIONALE: If the jurors are told that their sole duty is to seek the truth, they may not correctly apply the reasonable doubt standard. This may mislead the jury because, in a criminal trial, the jury's primary duty is to decide whether the prosecution has met its burden of proving guilt beyond a reasonable doubt.

POINTS AND AUTHORITIES: It is not unusual for standard pattern instructions to define the jury’s duty in terms of seeking the truth. (See e.g., IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 204 [Concluding Remarks (How To Deliberate)] (Idaho Law Foundation, Inc., 1995) ["For you, as for me, there can be no triumph except in the ascertainment and declaration of the truth"]; NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 101.36 [Highest Aim Of Every Legal Contest] (TRCC, 1999) ["Yours is a solemn duty to let your verdict speak the everlasting truth"]; Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 1-7 [Jurors As Sole Judges Of Facts] (South Carolina Bar, 1995) ["Your object is to find the truth"]; IOWA CRIMINAL JURY INSTRUCTIONS 100.18 [ Duties Of Jurors - Selection Of Foreman/Forewoman] (Iowa State Bar Association, 1997) ["Your sole duty is to find the truth and do justice"].) Similarly, many standard pattern instructions define the jury’s duty in terms of their "duty to decide from the evidence what the facts are." (See e.g., 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Duties Of The Jury] ¶ 2 (2002); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 10.01 [Opening Instruction] p. 256 (West, 5th ed. 2000).)

    Such instructions conflict with the fundamental requirement that the jury decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt. (See e.g., U.S. v. Pine (3rd Cir. 1979) 609 F2d 106, 107-08 [and cases collected therein].) "Such instructions improperly invite the jury to simply choose between competing versions of the facts, rather than to decide whether the government has carried its burden of proving guilt beyond a reasonable doubt." (see 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.02 [Jurors Duties] commentary (1991).) An instruction which compromises the prosecution’s burden to prove guilt beyond a reasonable doubt violates fundamental federal constitutional principles. (See NCJIC 300.5 [Misinstruction On Burden Of Proof (Due Process/Trial By Jury)]; see also Sparf v. U.S. (1895) 156 US 51, 102-107 [15 SCt 273; 39 LEd2d 343]; Starr v. U.S. (1894) 153 US 614, 625 [14 SCt 919; 38 LEd2d 841].)

    As an abstract concept, "seeking the truth" suggests determining whose version of events is more likely true, the prosecution's or the defendant's, and thereby indicates a preponderance of evidence standard. Therefore, such an instruction is inconsistent with the prosecution's burden to prove guilt beyond a reasonable doubt. (U.S. v. Gonzalez-Balderas (5th Cir. 1994) 11 F3d 1218, 1223 n 11.) "...[T]he question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant’s individual rights." (Mitchell v. U.S. (1999) 526 US 314, 328 [119 SCt 1307; 143 LEd2d 424].)

    Accordingly, the jury should not be informed that its primary or sole duty is to decide what the facts are or what the truth is.

    See also NCJIC 286.3.5 [Deadlock Instruction Should Not Inform Jury That It Is Their Duty To "Seek The Truth"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See NCJIC 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    Jurors have two main duties. First, they must determine from the evidence what the facts are. Second, they must take the law stated in the court’s, apply it to the facts and decide whether the facts prove the charge beyond a reasonable doubt.

[See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.02 [Juror’s Duties] ¶¶ 1 & 2 (1991).]

    You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.06 [Disagreement Among Jurors] ¶ 4 (1999).]

    Your only interest is to determine whether the government has proved the defendant guilty beyond a reasonable doubt.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 10 [Jury’s Duty To Deliberate] p. 17 (1988).]

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RATIONALE: Use of the phrase "if you find..." with respect to a defense theory that negates an element of the charge may improperly shift the burden to the defendant by requiring the defendant to prove that the element was negated.

POINTS AND AUTHORITIES: It is not uncommon for standard pattern instructions to use the phrase "if you find..." in describing the jury’s deliberation duties. (See e.g., MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 4-102(a) [Issues In Conspiracy] (State Bar of Montana, 1990) ["If you find from your consideration of the evidence..."]; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-6-2 [Intoxication (Alternate)] (State Bar of South Dakota, 2000) ["If you find the defendant ... was [too intoxicated to form specific intent] ..."].) This language may undermine the prosecution’s burden of proof, when applied to a defense theory which negates an element of the charge. That is, by suggesting that the jury must "find" something before returning a verdict of not guilty is misleading since, even if they find nothing at all, the jurors are obligated to acquit. (See NCJIC 270.2.15 [Presumption Of Innocence Alone Sufficient To Acquit].)

    For example, instructions may be improper if they require the jury to "find" or "be satisfied" that the evidence supported the defense theory (e.g., self defense). (See Commonwealth v. Rodriguez (MA 1976) 352 NE2d 203, 207; see also Connolly v. Commonwealth, 387 NE2d 519, 524 et seq. [reversing for charge repeatedly using "finding" language]; Commonwealth v. Stokes (MA 1978) 374 NE2d 87, 93-94 [reversing for charge asking whether evidence was "enough to justify" provocation]; Commonwealth v. Collins (MA 1978) 373 NE2d 969, 972 [holding insufficient instructions that defendant "seeks to establish" self-defense].)

    Similarly, in People v. Thompson (MI 1982) 324 NW2d 22, the trial judge instructed the jury:

    "Consent is a complete defense to the crime of kidnapping provided that you find the following:

    "First, that the victim's consent to go with the defendant was not obtained by fraud, duress or threats; and, secondly, that the victim's consent was present throughout the commission of the alleged offense. If you find both of those elements present, then you must return a verdict of not guilty to the charge of kidnapping."

    The court held that this instruction erroneously suggested that the burden of proof on the issue of consent had shifted to the defendant." [Emphasis added.] (Id. at 24; see also Bush v. U.S. (DC 1986) 516 A2d 186, 194-95.)

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See NCJIC 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    The defendant is not required to prove that ____________ (name of alleged victim) consented. The prosecution must prove beyond a reasonable doubt that __________________ (name of alleged victim) did not consent. If, after consideration of all the evidence, you cannot find that the prosecution has proven beyond a reasonable doubt that the movement was without _________________ (name of alleged victim)'s consent, you must vote to find the defendant not guilty.

[See Bush v. U.S. (DC 1986) 516 A2d 186, 194-95; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 519 [Defense Of A Third Person] ¶ 5 (Bar Association of the District of Columbia, 4th ed. 1993).]

    Unless you find and believe from the evidence beyond a reasonable doubt that ______________ (required element or fact) you may not vote to convict. 

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.02, [Defendant’s Converse] 7/1/97 (Missouri Supreme Court Publications, 3rd ed. 1987).]

SAMPLE INSTRUCTION # 3:

    If you have a reasonable doubt as to whether ______________ (required element or fact) you may not vote to convict. 

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.02, [Defendant’s Converse] 7/1/97 (Missouri Supreme Court Publications, 3rd ed. 1987).]

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PRACTICE NOTE: A. "If You Find" Language Shifting The Burden. It is axiomatic that the defendant has no burden to convince the jury of anything. (See NCJIC 270.2.3 [Duty To Presume Defendant Innocent: Defendant Not Required To Testify Or Produce Any Evidence].) The prosecution must prove every essential fact beyond a reasonable doubt and its failure to do so requires that the defendant be acquitted. (See NCJIC 270.2 [Presumption Of Innocence - Prosecution Burden To Prove Guilt]; see also NCJIC 270.4 [Reasonable Doubt Standard: General Principles].)

    Hence, it is misleading to inform the jury that, in order to acquit, it must "find" that the prosecution has not proven the defendant guilty. Use of the word "find" in this context could erroneously suggest to the jury that the defendant must produce evidence from which it can be inferred that that defendant is not guilty. (See e.g., Cutshall v. U.S. (6th Cir. 1958) 252 F2d 677, 679 [potentially burden shifting to instruct that the jurors must be "convinced" that a reasonable doubt exists in order to acquit].)

    In sum, use of the "if you find" language in describing what is necessary to acquit (see samples below) may subtly but effectively dilute the prosecution's burden of proof by implying that some sort of evidentiary showing must be made by the defendant. (See NCJIC 6.2.22 ["If you find..." Language Improperly Shifts Burden To Defendant].)

    If you find that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

    If you find that any one of these propositions has not been proved beyond a reasonable doubt, you must vote to find the defendant not guilty.

[See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 6.02A [Issues in Solicitation of Murder] ¶¶ 4 & 5. (West, 4th ed. 2000).]

    If each of these elements has been proved beyond a reasonable doubt, the defendant is guilty. If any element has not been proved beyond a reasonable doubt, the defendant is not guilty.

[See MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 5.02. [Attempt - Element] para. 3 (West, 4th ed. 1999).]

    If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty [of that charge].

    If, on the other hand, you find from your consideration of all of the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty [of that charge].

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 4.01 [Elements of Offense - Single Offense Cases] ¶¶ 6 & 7 (1999).]

    In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.06 [Aiding And Abetting (Agency)] (2001).]

    So, if you find beyond a reasonable doubt that the acts constituting the crime charged were committed by the Defendant voluntarily as an intentional violation of a known legal duty - - that is, with specific intent to do something the law forbids - - then the element of "willfulness" as defined in these instructions has been satisfied even though the Defendant may have believed that the conduct was [religiously, politically or morally] required, or that ultimate good would result from such conduct.

    On the other hand, if you have a reasonable doubt as to whether the Defendant acted in good faith, sincerely believing [himself] [herself] to be exempt by the law [from the withholding of income taxes], then the Defendant did not intentionally violate a known legal duty - - that is, the Defendant did not act "willfully" - - and that essential part of the offense would not be established.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL SI 9 [Intentional Violation of A Known Legal Duty (As Proof of Willfulness under the Internal Revenue Code)] ¶¶ 2 & 3. (1997).]

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See NCJIC 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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PRACTICE NOTE: The presumption of innocence relieves the defendant of the obligation to present any evidence at all. (See NCJIC 270.2.3 [Duty To Presume Defendant Innocent: Defendant Not Required To Testify Or Produce Any Evidence].) Hence, instruction language that implies the defendant must "raise" or "create" a reasonable doubt undermines the prosecution's burden of proof in violation of the federal constitution. (See NCJIC 270.3.3 [Requiring Jury To "Find" A Reasonable Doubt To Acquit Improperly Shifts Burden To Defendant].)

    "We agree with defendant that the court erred in denying defendant's request that it charge that the People bore the burden of disproving the alibi defense beyond a reasonable doubt [citation] and further erred in charging that, 'if the alibi testimony presented creates a reasonable doubt in your mind as to whether defendant is the person who committed the crimes alleged, you must find him not guilty.' [Citations.] That language can be interpreted as shifting the burden to defendant to prove that he did not commit the crime, and we conclude that the charge as a whole failed to convey the proper standard to the jury. [Citation.]" (People v. Branch (NY 1996) 637 NYS2d 892; see also People v. Victor (NY 1984) 465 NE2d 817.)

    See also NCJIC 250.5.4 [Defenses: Burden Of Proof -- Federal Rule].

    See also NCJIC 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

    See also NCJIC 270.3 [Presumption Of Innocence: Specific Words And Phrases].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See NCJIC 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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VOLUME 13 - CHAPTER 270

PRACTICE NOTE: The presumption of innocence relieves the defendant of the obligation to present any evidence at all. (See NCJIC 270.2.2 [Duty To Presume Defendant Innocent: Defendant's Attempt To Refute Prosecution Evidence Does Not Shift Burden].) Hence, instruction language that implies the defendant must produce "some evidence" undermines the prosecution's burden of proof in violation of the federal constitution.

    See e.g., NCJIC 250.5.4 [Defenses: Burden Of Proof -- Federal Rule].

    See also NCJIC 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant].

    See also NCJIC 270.3.4 [Improper To State That Defendant Must "Raise" Or "Create" Reasonable Doubt].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See NCJIC 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

    270.3.6    Constitutional Challenge To Instruction That The Defendant Is Presumed Innocent "Until" Contrary Is Proven

PRACTICE NOTE:  "Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the fact finder of his guilt." [Emphasis added; internal citation and quotation marks omitted.] (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].)

    The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and during during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.