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VOLUME 13 - CHAPTER 270
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270.7 Reasonable Doubt Standard: Strategic Considerations

    270.7.1 Definition Of Reasonable Doubt: Strategy Considerations

    270.7.1.1 Does "Firmly Convinced" Language Better Focus The Jury On The Lack Of Evidence?
    270.7.1.2 Does "Hesitate-To-Act" Language Offer A Strategic Benefit To The Defense?
    270.7.1.3 Should A Definition Of "Beyond A Reasonable Doubt" Be Given?

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STRATEGY NOTE: "Without question, the Court's charge on reasonable doubt is the single most important instruction given in a criminal trial. It allocates the burden of proof to the state, and sets out, in mandatory terms the rule of decision on the sufficiency of the state's evidence." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) vol. 13, No. 1, 1-13-99 p. 3 [The Reasonable Doubt Instruction: Significance of the Instruction].) However, while instruction on the requirement of proof beyond a reasonable doubt is required by due process (see Cage v. Louisiana (1990) 498 US 39, 39-40 [111 SCt 328; 112 LEd2d 339]), definition of the term is neither required nor forbidden by the federal constitution. (See FORECITE National™ 270.2.5 [Definition Of The Term "Burden"]; see also FORECITE National™ 270.7.1.3 [Should A Definition Of "Beyond A Reasonable Doubt" Be Given?].) Hence, there are differing views on how, if at all, the term should be defined. Some of these are discussed below.

    Professor Lawrence M. Solan of Brooklyn Law School, Brooklyn, N.Y., has suggested that there is a danger that jurors will typically apply the beyond a reasonable doubt concept based on whether the defendant has rebutted the prosecution’s case. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 11 (6/2/99) p. 215.) Accordingly, Solan suggests that the instruction on reasonable doubt should not focus on the definition of that term but rather on the prosecution’s burden. (Ibid.) Hence, Solan advocates "adoption of the Federal Judicial Center’s recommendation that the jury instructions on the burden of proof in criminal cases be changed to speak in terms of whether the government has left the juror "firmly convinced of each element of the defendant’s guilt." (Ibid.)

CAVEAT: However, People v. Malave UNPUBLISHED (CA 1996) 49 CA4th 1425 [57 CR2d 383] disapproved the use of the phrase "firmly convinced" and suggested that it was possible that the phrase was closer to the "clear and convincing evidence" burden of proof used in civil proceedings. The court concluded that modification of CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.90 [Presumption Of Innocence --  Reasonable Doubt -- Burden Of Proof] (West, 6th Ed. 1996) 2.90 to include such language, "besides being unnecessary, is too close to the civil burden to properly be added to CALJIC No. 2.90." (Malave, at 1429.)

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

See 6th Circuit Pattern Jury Instructions - Criminal 1.03. See Paragraph 5.

See also 9th Circuit Pattern Jury Instructions - Criminal 3.5. 

See also Federal Judicial Center - Criminal 21.

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STRATEGY NOTE: It has been suggested that defining reasonable doubt in terms of whether the jurors would "hesitate-to-act" in their own affairs is improper because even important personal decisions are "wholly unlike the decisions jurors ought to make in a criminal case." (See FORECITE National™ 270.5.6 [Propriety Of Defining Reasonable Doubt In Terms Of "Hesitation"].)

    However, from a strategic standpoint, the "hesitate-to-act" language may be beneficial. This is so because the American cultural mindset that "decisiveness is a virtue" is at odds with the reasonable doubt standard. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 1, p. 3 (1999) [discussing comments by Attorney James H. McComas of Alaska]; see also Victor v. Nebraska (1994) 511 US 1, 20-21 [114 SCt 1239; 127 LEd2d 583] [hesitation language "gives a common sense benchmark for just how substantial such a [reasonable] doubt is"].) Therefore, according to McComas, a properly "educated" and instructed jury should understand that the law requires them to acquit if after considering all the evidence they are still hesitating. (Pike, supra.) "The hesitation concept--alone among reasonable doubt/beyond a reasonable doubt formulations--offers jurors an analytic means of understanding the abstract legal requirements, and a practical method for applying them. It addresses the level of certainty aspect of reasonable doubt, not just the importance of the decision aspect." (Ibid.)

    This formulation of reasonable doubt was approved in U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728] and has since been endorsed by a number of state and federal courts. (See e.g., Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51.) The federal circuits that provide for definition of reasonable doubt and many states use the Wilson/Holland hesitation concept.

PRACTICE NOTE: Even if an instruction on hesitation is not permitted, discussion of the concept on voir dire and in argument to the jury may be permitted. (Pike, supra [McComas has encountered no objection in courts in the District of Columbia, Wisconsin and Alaska to such argument].) The voir dire and argument should seek to explain to the jurors that in life people make important decisions despite their hesitations, i.e., they make decisions on less than proof beyond a reasonable doubt. While this is human nature, and not necessarily wrong in only life, when a person serves on a jury the law does not permit a juror to convict despite their hesitations. (Ibid.) In other words, when you make a decision for yourself, you can decide to assume the risk of ignoring one's hesitations. But when deciding another person's criminal liability, hesitations cannot be ignored and the law dictates a vote for acquittal. (Many of the samples below seem to address this issue by focusing on a "reasonable person" or a "reasonably careful and sensible person" rather than "you" or "a juror."

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

See 5th Circuit Pattern Jury Instructions - Criminal 1.05.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.03. See Paragraph 5.

See also 8th Circuit Pattern Jury Instructions - Criminal 3.11.

See also 11th Circuit Pattern Jury Instructions - Criminal BI3. 

    Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.03 [Presumption Of Innocence, Burden Of Proof, Reasonable Doubt] ¶ 5 (1991).]

    A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.11 [Reasonable Doubt] ¶ 1 (2000).]

    A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 7.01, [Presumption Of Innocence: Burden Of Proof; Reasonable Doubt] ¶ 3, sent. 2 (Pennsylvania Bar Institute, PBI Press, 06/75).]

    The prosecution has the burden of proving beyond a reasonable doubt each and every essential element of the offenses for which the defendant is charged.

    A reasonable doubt is a doubt that would cause a reasonable person to hesitate to act.

[See State v. Manning (SC 1991) 409 SE2d 372, 375; see also Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 1-14 [Reasonable Doubt Charge] (South Carolina Bar, 1995).]

    A "reasonable doubt" is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is a doubt that would make a reasonable person hesitate to act in the most important of his own affairs.

    Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1 (II)(B)(2) [proper.chg] ¶ 4 (James Publishing, 1999).]

    A reasonable doubt is a doubt that would cause a reasonable person to hesitate or pause in the graver or more important transactions of life. However, it is not a fanciful doubt, nor a whimsical doubt, nor a doubt based on conjecture.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.09, [Reasonable Doubt] sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]

    The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense -- a doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. 

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-6-3 [Reasonable Doubt (Alternate 2)] (State Bar of South Dakota, 2000).]

    Proof beyond a reasonable doubt must be proof of such a convincing character, that consideration, you would be willing to rely and act upon it without hesitation in your important affairs. A criminal defendant may never be convicted on mere suspicion or conjecture.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.52 [Presumption Of Innocence, Burden Of Proof Beyond A Reasonable Doubt] para. 2 (Alaska Bar Association, 1987).]

    Reasonable doubt is a doubt that would cause a careful person to pause and hesitate in the graver transactions of life. 

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 110 [Introductory Instructions-Reasonable Doubt] (Lexis, 2nd ed. 1997).]

    Reasonable doubt means a doubt which would cause reasonable people to hesitate to act in matters of importance to themselves.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also COLORADO JURY INSTRUCTIONS, COLJI - Crim 3:04 [Presumption Of Innocence-Burden Of Proof Generally-Reasonable Doubt] para. 3 (West, 1983).]

    Reasonable doubt is such a doubt as would cause reasonable men and women to hesitate to act upon it in matter of importance. 

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.8 [General Jury Instructions-Reasonable Doubt] para. 1 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

    The prosecution  must prove the alleged crime beyond a reasonable doubt. A reasonable doubt is the kind of doubt which would make an ordinary person hesitate to act in the most important affairs of his or her own life. If after considering all the evidence you have a reasonable doubt about the defendants guilt, you must find the defendant not guilty.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 103A [Reasonable Doubt (Alternative)] para. 3 (Idaho Law Foundation, Inc., 1995).]

    Reasonable doubt is a doubt that would cause a reasonable person to hesitate to act in the graver or more important transactions of life.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 1.04 [Reasonable Doubt] para. 3 (Micpel, 1999).]

    The burden is always on the prosecution to prove guilt beyond a reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense - the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5060 [Presumption Of Innocense; Reasonable Doubt; Burden Of Proof] para. 2 (Lexis, 1998).]

    A reasonable doubt is one which would ordinarily impress the judgment of a prudent person so as to cause the person to pause or hesitate to act in the more important affairs of life. It after a consideration of the whole case any juror entertains a reasonable doubt of the guilt of the defendant, it is the duty of that juror to vote for a verdict of not guilty. 

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-6-2 [Reasonable Doubt (Alternate 1)] para. 1 (State Bar of South Dakota, 2000).]

    The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense - the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. 

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-6-3 [Reasonable Doubt (Alternate 2)] (State Bar of South Dakota, 2000).]

    A reasonable doubt is such a doubt as exists, or would exist, in the mind of an ordinary prudent person as to cause him or her to hesitate to act in his or her own most important affairs.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also INSTRUCTIONS FOR VIRGINIA & WEST VIRGINIA 24-401 [Reasonable Doubt Defined Generally] para. 1 (Lexis, 4th ed. 1996).]

    The term "reasonable doubt" means a doubt based upon reason and common sense. It is a doubt for which a reason can be given, arising from a fair and rational consideration of the evidence or lack of evidence. It means such a doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 140 [Burden Of Poof And Presumption Of Innocence] para. 5 (University of Wisconsin Law School, 2000).]

    A reasonable doubt is a doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.

[See generally Holland v. U.S. (1954) 348 US 121, 140 [75 SCt 127; 99 LEd 150]; U.S. v. Wilson (1914) 232 US 563, 570 [34 SCt 347; 58 LEd 728]; Hilbish v. State (AK 1995) 891 P2d 841, 850-51; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 12:10 [Presumption Of Innocence, Burden Of Proof, And Reasonable Doubt] para. 3 (West, 5th ed. 2000).]

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STRATEGY NOTE: In U.S. v. Nolasco (9th Cir. 1991) 926 F2d 869, 871-72, the 9th Circuit held en banc, that it does not violate federal due process principles to fail to define the term "beyond a reasonable doubt" in the jury instructions. Rather, the district judge's decision not to define reasonable doubt will be reviewed under an abuse of discretion standard. In so holding, the 9th Circuit noted that several circuits have held that the phrase "reasonable doubt" is one of common usage and acceptance requiring no definition beyond the language itself. (See also HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 1.01, fn 1 [Preliminary Instruction Before Trial] (TRCC 1999) ["Defining 'reasonable doubt' is disfavored by the 4th Circuit, particularly where no definition is requested by the jury"]; see also U.S. v. Abbas (4th Cir. 1996) 74 F3d 506, 514; U.S. v. Adkins (4th Cir. 1991) 937 F2d 947, 950); Cannon v. State (MS 1966) 190 So2d 848, 851.)

    Hence, the Nolasco analysis provides a basis for objecting to any definition of reasonable doubt where the definition used is viewed as unhelpful. While defense counsel may prefer to have reasonable doubt defined should counsel feel that the language used is not helpful, consideration could be given to objecting to any definition of beyond a reasonable doubt and addressing the matter of the definition in argument.

    See also FORECITE National™ 270.4.13 [Whether Reasonable Doubt Should Be Defined].

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

See 1st Circuit Pattern Jury Instructions - Criminal 3.02.

See also 7th Circuit Pattern Jury Instructions - Criminal 2.04.