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270.4 Reasonable Doubt Standard: General Principles

    270.4.1 Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction
    270.4.2 Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime
    270.4.3 If Jury Has Reasonable Doubt It "Must" Acquit
    270.4.4 Defense Theory Which Negates Intent: Jury Must Acquit If The Theory Raises A Reasonable Doubt
    270.4.5 Reasonable Doubt May Be Based On A Conflict In The Evidence
    270.4.6 Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence
    270.4.7 Reasonable Doubt: Defendant Need Not Prove Probability Of Innocence
    270.4.8 Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses
    270.4.9 Instruction On Reasonable Doubt As To Some Issues And Not Others
    270.4.10 Any Single Fact May Be Sufficient For A Reasonable Doubt
    270.4.11 Erroneous Reasonable Doubt Instruction As Reversible Per Se
    270.4.12 Error To Instruct That All Facts Need Not Be Found Beyond A Reasonable Doubt
    270.4.13 Whether Reasonable Doubt Should Be Defined
    270.4.14 Dilution Of Reasonable Doubt Standard As Due Process Violation

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    270.4.1    Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction

RATIONALE: Without specific instruction the jurors may not understand the individual nature of their decision as to each element of the charge.

POINTS AND AUTHORITIES: It is axiomatic that every juror must be convinced beyond a reasonable doubt that the prosecution has proven every essential fact necessary to convict. (See Wharton’s Criminal Evidence (West, 14th ed. 1986) § 2:3, p. 29; see also FORECITE National™ 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime]; see also FORECITE National™ 270.2.13 [Presumption Of Innocence Applies To Each Material Allegation Of The Charge]; see also FORECITE National™ Chapter 273 [Jury Unanimity As To The Act Or Offense Committed (Duplicity)].)

    See also FORECITE National™ 297.2.20 [Only One Juror Need Be Affected For Instructional Error To Be Prejudicial].

    See also FORECITE National™ 275.3.2 [Lesser Included Offenses: Order Of Deliberations -- Jurors Should Be Permitted To Consider Lesser Offense When At Least One Juror Has A Reasonable Doubt As To The Greater Offense].

    See also FORECITE National™ 270.4.4 [Defense Theory Which Negates Intent: Jury Must Acquit If The Theory Raises A Reasonable Doubt].

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

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    If any member of the jury has a reasonable doubt that the defendant committed one or more elements of the offense charged then it is that juror’s duty to give the defendant the benefit of the doubt and vote for a verdict of not guilty.

[See SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-19-1. [Jury-Findings-Statement Of Element] (State Bar of South Dakota, 2000).]

    It is not necessary that a reasonable doubt be a collective doubt shared by all or a majority of the jurors. If a reasonable doubt is present in the mind of only a single juror, then that juror must vote to acquit.

[Cf. Wharton’s Criminal Evidence (West, 14th ed. 1986) § 2:3, p. 29.]

SAMPLE INSTRUCTION # 3:

    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 US 358 [90 SCt 1068; 25 LEd2d 368]; People v. Carter (CA 1957) 48 C2d 737, 758-59, 760-61 [312 P2d 665]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.01 [Sufficiency Of Circumstantial Evidence – Generally] ¶ 2 (West, 6th Ed. 1996).]

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RATIONALE: Without an explanatory instruction the jury may improperly assume that it need not find essential subordinate facts beyond a reasonable doubt.

POINTS AND AUTHORITIES: 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 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) It requires the state to prove "'every ingredient of the offense beyond a reasonable doubt ....'" (Sandstrom v. Montana (1979) 442 US 510, 524 [99 SCt 2450; 61 LEd2d 39], quoting Patterson v. New York (1977) 432 US 197 [97 SCt 2319; 53 LEd2d 281].) Not only does this requirement apply to the evidence as a whole, but also to each fact from which the defendant's guilt is inferred. (See People v. Carter (CA 1957) 48 C2d 737, 758-59, 760-61 [312 P2d 665].) A conviction violates due process if it is based upon an amalgamation of facts none of which have been proven beyond a reasonable doubt. (See People v. Deletto (CA 1983) 147 CA3d 458, 472 [195 CR 233]; see also FORECITE National™ Chapter 273 [Jury Unanimity As To The Act Or Offense Committed (Duplicity)].)

    However, this principle is rarely addressed by the standard pattern or model instructions, is whether the proof beyond a reasonable doubt standard applies to subordinate facts. The matter is occasionally addressed in the context of circumstantial evidence, where the jury may be instructed that each essential fact in the chain of inferences must be proven beyond a reasonable doubt. (See e.g., FORECITE National™ 25.12.4 [Equally Reasonable Inferences Must Be Resolved In Favor Of Defendant: Applicability To Direct Evidence]; see also Commonwealth v. Russ (MA 1919) 122 NE 176, 180; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.01 [Sufficiency Of Circumstantial Evidence To Prove Specific Intent Or Mental State] (West, 6th Ed. 1996); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-14-1 [Direct And Circumstantial Evidence] (State Bar of South Dakota, 2000).)

    If each essential fact is not proved beyond a reasonable doubt the conviction will not have been obtained by proof beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also State v. Jones (CT 1995) 662 A2d 1199, 1203-04; CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2-7, comment [Evidence/ Circumstantial Evidence Alternative # 3] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).)  Presumably the jury would not find proof beyond a reasonable doubt if a fact essential to such a finding was not proved. However, the problem occurs when the essential fact has not been proved beyond a reasonable doubt but has some evidence in the record to support it. For example, what if the jury determines that the fact is more likely than not untrue, but it might be true. Could this fact be added to other facts proven to a greater degree of certainty in order to aggregate a finding of proof beyond a reasonable doubt? Or, assume the prosecution presents evidence of three facts, all of which the jury finds to be possibly true but more likely than not untrue. Could the "cumulative impact" of these three "possible truths" be considered by the jury to find proof beyond a reasonable doubt?

    A good illustration comes from uncharged crimes evidence. Assume the defendant is charged with robbery and the prosecution presents evidence of three nearly identical uncharged and unsolved robberies. Could the defendant’s conviction of the charged robbery be predicated upon the presentation of some, but less than convincing, evidence of the defendant’s participation in the three uncharged robberies? To do so would seem to abridge the fundamental principle that the defendant must be convicted based on proof beyond a reasonable doubt as to the charged offense rather than based on an aggregation of various other acts. (See e.g., FORECITE National™ 273.2.1 [General Introduction To Jury Unanimity Doctrine]; see also FORECITE National™ 25.20.5 [Uncharged Acts Offered To Prove Propensity: Constitutional Challenge To Proof Of Propensity By Uncharged Acts].)

    In sum, the above principles should be considered in instructing the jury and in argument to the jury.

    See also FORECITE National™ 270.4.12 [Error To Instruct That All Facts Need Not Be Found Beyond A Reasonable Doubt].

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

PRACTICE NOTE: Instructing The Jury Only As To Certain Selected Essential Facts. Rather than generally telling the jury that each essential fact must be proven beyond a reasonable doubt, another approach would be to identify certain crucial subordinate facts and specifically instruct the jury that these facts must be proven beyond a reasonable doubt. (E.g., eyewitness identification, fingerprint evidence, crucial testimony of informers, police officers, certain scientific evidence such as DNA, defendant’s admissions and confessions, etc.)  Indeed, in a given case, virtually any fact may be essential. The problem is, whether or not a fact is essential will turn on the jury’s evaluation of the other evidence. For example, a fact which does not appear to be essential from the record, could become essential if the jury rejects the other evidence and relies primarily upon that fact to convict. Another source of determining which facts are essential would be the argument of counsel, especially the district attorney. If the district attorney focuses on particular facts, this could be a basis for arguing that those facts are essential and that the jury should be instructed to find those facts beyond a reasonable doubt.

USE NOTE: This issue also brings into play unanimity questions as discussed in FORECITE National™ 273.8 [Jury Unanimity: Preliminary Or Foundational Facts] and FORECITE National™ 273.9 [Juror Unanimity As To Predicate Acts Of Compound Offenses]. Theoretically, not only do essential facts have to be proven beyond a reasonable doubt but the jury must unanimously so find.

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2:

    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 US 358 [90 SCt 1068; 25 LEd2d 368]; People v. Carter (CA 1957) 48 C2d 737, 758-59, 760-61 [312 P2d 665]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.01 [Sufficiency Of Circumstantial Evidence – Generally] ¶ 2 (West, 6th Ed. 1996).]

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PRACTICE NOTE: As a matter of fundamental constitutional jurisprudence, if the jury has a reasonable doubt as to any essential fact or element of the charge it has no option but to acquit. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; see also FORECITE National™ 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime]; see also FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

    Hence, an application instruction implicates the federal constitution if it instructs the jury that it "should" or "may" find that defendant not guilty if guilt is not proven beyond a reasonable doubt.

    If you find from your consideration of all the evidence . . .

[ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 6.02A [Issues in Solicitation of Murder] ¶¶ 4 & 5. (West, 4th ed. 2000) [". . . you should find the defendant not guilty"].]

    If, from all of the evidence in the case, including that relating to traits of defendant's character, you are not convinced beyond a reasonable doubt that the defendant is guilty, you should acquit him (even though you believe he may have been a person of bad character as to those traits). However, if, from all of the evidence in the case, including that relating to traits of defendant's character, you are convinced beyond a reasonable doubt that the defendant is guilty, you should so find even though he may have been a person of good reputation as to those traits of character.

[MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 310.40 [Character: Traits of Character of Defendant Bearing on Guilt or Innocence] para 2 (Missouri Supreme Court Publications, 3rd ed. 1987) [". . . you should acquit . . ."].]

Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 31-12 [Self Defense Burden Of Proof], sent. 2 (South Carolina Bar, 1995) [". . . you may acquit . . ."].

    See FORECITE National™ 270.1.2 [Identifying The Specific Issues To Which The Burden Applies -- Application Language].

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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    See FORECITE National™ 250.4.6 [Defense Theory Which Negates Intent: Jury Must Acquit If It Has A Reasonable Doubt].

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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RATIONALE: A reasonable doubt instruction which focuses only on the "evidence presented" may improperly frame the issues in terms of which side presented the more compelling evidence.

POINTS AND AUTHORITIES: Reasonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two. (See GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES part 2 (D) p. 7 [Instruction D] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).) This is so because two equally probable conflicting inferences do not overcome a burden of proof. (See FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].)

    See also FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].

    See also FORECITE National™ 34.2.6 [Consciousness Of Guilt: Equally Consistent Inferences Must Be Resolved In Favor Of The Defendant].

    See also FORECITE National™ 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].

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

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

    Reasonable doubt may be based upon the evidence, the lack of evidence, a conflict in the evidence, or a combination of these.

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES Part 2 (D), p. 7; para. 5, sent. 5 [Presumption of Innocence; Burden of Proof; Reasonable Doubt] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

    Reasonable doubt is a doubt based upon the evidence, the lack of evidence, a conflict in the evidence, or a combination thereof.

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL I.4 [Burden Of Proof] ¶ 1, sent. 5 (Alabama Bar ICLE, 3rd ed. 1994).]

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    270.4.6    Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence

RATIONALE: A reasonable doubt instruction which focuses only on the "evidence presented" may improperly frame the issues in terms of which side presented the more compelling evidence.

POINTS AND AUTHORITIES: Many standard instructions define the proof beyond a reasonable doubt standard in terms of the "evidence presented." (See e.g. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.90 [Presumption Of Innocence–Reasonable Doubt–Burden Of Proof] (West, 6th Ed. 7/97); FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 2.03 [Plea Of Not Guilty; Reasonable Doubt; And Burden Of Proof] (Florida Bar, 1987); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.09 [Submitting Case To Jury] (Bar Association of the District of Columbia, 4th ed. 1993); VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 2.100 [Reasonable Doubt And Presumption Of Innocence] (Lexis, 2000).) However, reasonable doubt may also be based on a lack of evidence. (See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056, 1062-63; U.S. v. Greer (App. DC 1997) 697 A2d 1207, 1210-11; State v. McFarland (IA 1980) 287 NW2d 162; U.S. v. Holland (10th Cir. 1954) 209 F2d 516, 522-23.)

    For example, in U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354, 360, the 6th Circuit reversed a conviction based on the trial court’s failure to allow defense counsel to comment on the lack of fingerprint evidence. The court held, "In every criminal case, the mosaic of evidence that comprises the record before a jury includes both the evidence and the lack of evidence on material matters." (See also U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, 454 [defendant entitled to argue that the government’s failure to present certain types of evidence (e.g., fingerprints) weakens its case]; FORECITE National™ 88.4.3.10 [Drugs, Controlled Substances: Defendant Permitted To Comment On Lack Of Fingerprint Evidence As Defense Theory].)

    Moreover, reasonable doubt may arise from a conflict in the evidence, lack of evidence or a combination of the two. (GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES part 2 (D) p. 7 [Presumption of Innocence; Burden of Proof; Reasonable Doubt] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).)

    Furthermore, instructions which focus only on the evidence presented may unduly emphasize the evidence which was actually presented and frame the issue in terms of which side presented the more compelling evidence. (See e.g., FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

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

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

    A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, jurors cannot say that they have a settled conviction of the truth of the charge.

[Source: United States v. Cleveland (1st Cir. 1997)106 F3d 1056, 1062-63.]

    A reasonable doubt may arise from the evidence or lack of evidence. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.01 [Advance Oral Instruction-Introductory] ¶ 4 & 5 (West, 2nd ed. 1994).]

    A reasonable doubt may grow out of the evidence or lack of evidence. 

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 3.2, [Presumption Of Innocence, Burden Of Proof, And Reasonable Doubt] ¶ 3 (ICLE, 2nd ed. 2000/01).]

    Reasonable doubt is a doubt based on the evidence, the lack of evidence, a conflict in the evidence, or a combination of these.

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES part 2 (D), p. 7; para. 5, sent. 5 [Presumption of Innocence; Burden of Proof; reasonable Doubt] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

    A reasonable doubt may arise from some or all of the evidence that has been presented, or from a lack of evidence presented by the prosecution.

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 101.10 ¶ 2 [Burden Of Proof And Reasonable Doubt] (TRCC, 1999).]

    A reasonable doubt may be based on the evidence or lack of evidence produced by the prosecution.

[Source: FORECITE National™.]

    Reasonable doubt is a doubt that exists in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.

[Source: FORECITE National™.]

    Reasonable doubt is a doubt based upon the evidence, the lack of evidence, a conflict in the evidence, or a combination thereof. 

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL I.4 [Burden Of Proof] (Alabama Bar ICLE, 3rd ed. 1994).]

    You must give the defendant the benefit of any reasonable doubt of the defendant’s guilt that you have based on the evidence or lack of evidence in this case. 

[See U.S. v. Cleveland (1st Cir. 1997) 106 F3d 1056; U.S. v. Poindexter (6th Cir. 1991) 942 F2d 354; cf. MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C:1:8 [Burden Of Proof; Evidentiary Matters--Reasonable Doubt] (West, 2000).]

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PRACTICE NOTE: The defense does not need to show that the defendant is probably innocent.  There is a distinction between a probability of innocence and a reasonable doubt of guilt. The evidence may leave in the minds of the jurors a reasonable doubt, even though it is not sufficient to show a probability of innocence. (Wharton’s Criminal Evidence (West, 14th ed. 1986) § 2:4, p. 39; see also People v. Hatch (IL 1964) 199 NE2d 81, 86 [jury not required to seek potential explanations compatible with defendant’s innocence in resolving issue of reasonable doubt]; see also FORECITE National™ 270.6.1 [Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard]; see also  FORECITE National™ 270.6.2 [Comparison Of Reasonable Doubt With Preponderance Standard].)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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    270.4.8    Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses

RATIONALE: Many standard instructions require reading all the elements of the charged crime and also all the elements for any lesser included. This may result in substantial repetition without clearly identifying the difference between the two offenses.

POINTS AND AUTHORITIES: It has been suggested that the trial court should define "the difference between the greater and lesser offenses." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.03 [Order Of Presenting Evidence] and commentary (1991); see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 48 [Lesser Included Offenses] (1988); Potuto, Saltzburg, Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS Inst. 3.64. [Inconsistent Crimes] (Lexis, 2nd ed. 1993).)

    An instruction which highlights the difference between the greater and lesser offenses rather than repeating the full listing of elements for the lesser included crime may more clearly identify the issues for the jury and is especially suitable for cases where a single element distinguishes the greater from the lesser offense. (E.g., possession of a controlled substance with intent to sell and simple possession of a controlled substance.) (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 112A [Lesser Included Offense: Alternative Style] comment p. 3 (University of Wisconsin Law School, 2000).)

    "[T]here are persuasive reasons for this approach, despite the added burden it places on the [trial court]. Lay jurors are ill-equipped to define the difference between a greater and lesser offense without explicit guidance from the court. They are not lawyers. The definitions they are given, usually orally, are unfamiliar. And the amount of time devoted to ‘teaching’ them the elements is brief. Without explicit guidance, the odds that they will accurately discern the difference between a greater and lesser offense are poor, and the risk of a mistaken verdict is increased. For these reasons, [the trial court should] explicitly define the difference between the greater and lesser offense." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.03 [Definition Of Lesser Offense], commentary (1991).)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

    The difference between these two crimes is that to convict the defendant of the lesser charge of _______, the government does not have to prove _______. This is an element of the greater charge, but not the lesser charge.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.03 [Definition Of Lesser Offense] ¶ 2 (1991).]

    The offense of _____________ (state lesser included offense) is included in the offense of _______________ (state greater offense).

    The difference between the two offenses is that the offense of ______________ (state greater offense) includes the additional element of: _______________ (identify element that distinguishes included and greater offenses).

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 112A [Lesser Included Offense: Alternative Style] (University of Wisconsin Law School, 2000).]

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PRACTICE NOTE: When reasonable doubt is specifically related to some issues and not others there is a danger the jury will imply that the reasonable doubt principles do not apply to an omitted issue. That is how the Supreme Court reasoned in People v. Dewberry (CA 1959) 51 C2d 548, 557 [334 P2d 852]:

    "The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder."

(See also United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius "is a product of logic and common sense"]; People v. Castillo (CA 1997) 16 C4th 1009, 1210 [68 CR2d 648]; People v. Salas (CA 1976) 58 CA3d 460, 474 [129 CR 871] [when a generally applicable instruction, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error]; cf. People v. Drake (CA 1977) 19 C3d 749, 755 [139 CR 720] [in statutory construction, omission of provision from similar statute shows different intent].)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

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VOLUME 13 - CHAPTER 270

PRACTICE NOTE: Given the prosecution's burden, the jury may rely on any evidentiary inference, or the lack of evidence, to conclude that the prosecution did not prove guilt beyond a reasonable doubt. (See FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].) Hence, when appropriate, language may be added to a pinpoint instruction which informs the jury that the evidentiary theory or inference relied upon by the defendant, "by itself, may be sufficient to raise a reasonable doubt as to the guilt of a defendant." (This language is taken verbatim from CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.40 [Traits Of Character Of Defendant] (West, 6th Ed. 1996).)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

VOLUME 13 - CHAPTER 270

APPELLATE PRACTICE NOTE: In Sullivan v. Louisiana (1993) 508 US 275 [113 SCt 2078; 124 LEd2d 182], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment) and is reversible per se. The court's reasoning was as follows: Because it is the prosecution's burden to show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v. California (1967) 386 US 18, 24 [87 SCt 8241; 17 LEd2d 705]), certain errors, "whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function [citation]" (Sullivan, 508 US at 281) are reversible per se. Thus, an instructional error which misdescribes the burden of proof, and thus "vitiates all the jury's findings," can never be shown to be harmless. In short, the consequences of such an error "are necessarily unquantifiable and indeterminate" (Sullivan, 508 US at 281-82) and thus the prosecution can never meet its burden of proving that such an error is harmless.

    See also FORECITE National™ 297.2.10 [Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error].

    See also FORECITE National™ 297.2.11 [Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction].

    See also FORECITE National™ 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].

    See also FORECITE National™ 270.2.9 [Failure To Instruct On Burden Of Proof: Reference To Burden In Other Instructions Or Argument Does Not Cure The Error].

    See also FORECITE National™ 270.2.18 [Instruction Defining Reasonable Doubt May Not Cure Failure To Instruct On Presumption Of Innocence].

RETROACTIVITY NOTE: Cage v. Louisiana (1990) 498 US 39 is not retroactive to cases on collateral (habeas corpus) review.  (See Tyler v. Cain (2001) 533 US 656 [121 SCt 2478, 2483; 150 LEd2d 632].)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

See also Capital Punishment Handbook [3.5.2.1 a. Not Subject To Harmless Error Analysis: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 13 - CHAPTER 270

PRACTICE NOTE: It is confusing and unnecessary to instruct the jury that it "need not find every fact beyond a reasonable doubt." (U.S. v. Birbal (2nd Cir. 1995) 62 F3d 456, 460; see also U.S. v. Buffa (6th Cir. 1975) 527 F2d 1164, 1165 [instructing jury that each "subsidiary fact" need not be proven beyond a reasonable doubt "open[ed] up the possibility that the jury [would be] misled or confused"].)

    See also FORECITE National™ 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities].

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

See FORECITE National™ 270.2.19 [Presumption Of Innocence: Federal Model Instructions And Notes].

    270.4.14    Dilution Of Reasonable Doubt Standard As Due Process Violation

PRACTICE NOTE: District courts are allowed considerable latitude in selecting the language in jury instructions. (State v. Gray (MN 1990) 456 NW2d 251, 258; see also State v. Cole (MN 1996) 542 NW2d 43, 50 [decision to give a particular jury instruction lies within the district court’s discretion "and no error results if no abuse of discretion is shown"].) An accused is entitled to a new trial, however, if the beyond-a-reasonable-doubt standard is diluted, because the standard triggers constitutional due-process rights. (State v. Tibbetts (MN 1979) 281 NW2d 499, 500 [if the district court dilutes or obscures the reasonable doubt standard, appellant is entitled to a new trial].) An erroneous jury instruction does not always require a new trial, but proof beyond a reasonable doubt is constitutionally required to convict. (In re Winship (1970) 397 US 358, 362 [90 SCt 1068, 1071; 25 LEd 2d 368].) Conviction of a defendant under a less stringent standard is a violation of due process. (Id. at 364.)

    See also FORECITE National™ 270.4.11 [Erroneous Reasonable Doubt Instruction As Reversible Per Se].