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VOLUME 13 - CHAPTER 270
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270.6 Reasonable Doubt Standard: Comparison With Lesser Standards

    270.6.1 Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard
    270.6.2 Comparison Of Reasonable Doubt With Preponderance Standard

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VOLUME 13 - CHAPTER 270

RATIONALE: Because the reasonable doubt standard may be difficult to define, and in some courts no definition is given at all, the jury may be aided by comparing proof beyond a reasonable doubt with the lesser standard of clear and convincing evidence.

POINTS AND AUTHORITIES: A comparison of burdens is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. (See e.g., 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 it shouldn't also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. Such a comparison provides added perspective and protects against the jurors use of the lesser standard. (See also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 21 [Definition Of Reasonable Doubt] (1988) [comparing burden in civil trial]; 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 also FORECITE National™ 270.6.2 [Comparison Of Reasonable Doubt With Preponderance Standard].)

    Moreover, without a comparison instruction there is a danger that the jury will 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, in 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.

    Certainly, since the proof beyond a reasonable doubt standard is for the benefit of the defendant, the defendant should have the right to waive definition of that standard and utilize definition on the lesser standard. Additionally, even if such 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.

    It 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"].)

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) This definition is included in Sample Instruction # 1. below. The definition of clear and convincing evidence in Sample Instruction # 2, below, was taken from Stone v. New England Ins. Co (CA 1995) 33 CA4th 1175, 1211, fn 29 [39 CR2d 714], which 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].)

STRATEGY NOTE: Voir dire of prospective jurors, if properly done, may offer the best opportunity in the entire trial to educate the jury on the meaning of reasonable doubt. The jurors may be questioned about the terminology of the anticipated reasonable doubt instruction so they understand how high the reasonable doubt standard is. For example, the jurors should understand that proof beyond a reasonable doubt is not: "maybe," "probably," "more likely than not," "a preponderance" (contrasting it with the civil standard, which can dispose of millions of dollars), "very likely," or "clear and convincing" (contrasting it with the standard for involuntary commitment of the mentally ill). (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 1, 1/13/99, p. 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 1st Circuit Pattern Jury Instructions - Criminal 3.02.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.05.

    Proof beyond a reasonable doubt is the highest level of certainty recognized in the law. 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.

[Source: FORECITE National™.]

    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.

[Source: FORECITE National™.]

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

    The prosecution must prove every element of the offense charged beyond a reasonable doubt. A mere preponderance of the evidence is not enough.

[See 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 merely makes it probable that the defendant is guilty it is, by definition, legally insufficient to prove guilt beyond a reasonable doubt. Mere probability of guilt will never justify conviction of a criminal defendant.

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

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

RATIONALE: Because the reasonable doubt standard may be difficult to define, and in some courts no definition is given at all, the jury may be aided by comparing proof beyond a reasonable doubt with the lesser standard of preponderance of the evidence.

POINTS AND AUTHORITIES: A comparison of burdens is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. (See e.g., 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 it shouldn't also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. Such a comparison provides added perspective and protects against the jurors use of the lesser standard. (See also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 21 [Definition Of Reasonable Doubt] (1988) [comparing burden in civil trial]; 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™  270.6.1 [Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard]; see also FORECITE National™ 6.2.5 ["Probability Of Truth" As Applied To Prosecution Witness Is Improper Instruction]; see also FORECITE National™ 270.5.9 [Use Of The Term "Probable" Reduces Prosecution's Burden To Prove Guilt Beyond A Reasonable Doubt].)

    Indeed, proof beyond a reasonable doubt is a "much higher standard." In fact, the reasonable doubt standard is "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. RNJ (UT 1995) 908 P2d 345, 349-52.)

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 1st Circuit Pattern Jury Instructions - Criminal 3.02.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.05.

    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.

[Source: FORECITE National™.]

     To convict a criminal defendant the prosecution must present proof which is more convincing than the civil standards of clear and convincing evidence. 

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

    The prosecution must prove every element of the offense charged beyond a reasonable doubt. A mere preponderance of the evidence is not enough.

[See 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, 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 merely makes it probable that the defendant is guilty it is, by definition, legally insufficient to prove guilt beyond a reasonable doubt. Mere probability of guilt will never justify conviction of a criminal defendant.

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

    It is not sufficient for the prosecution to merely establish a strong probability of guilt.  Even a strong probability that the defendant is guilty is not proof beyond a reasonable doubt.

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