By LINDA GREENHOUSE, Special to The New York Times
WASHINGTON, March 22
Examining the way judges instruct juries on finding guilt beyond a
reasonable doubt, the Supreme Court today warned states that a common
definition of reasonable doubt that refers to jurors' "moral
certainty" of guilt is outdated and potentially confusing.
Nonetheless, the Court upheld the use of that instruction in two
death penalty cases on the ground that there was no "reasonable
likelihood" that the jurors in those cases were actually confused by
the disputed phrase in the context of the jury instructions as a
There has been a long-running debate in criminal law over the "moral
certainty" language in reasonable-doubt instructions. As the
defendants argued in these cases, critics have maintained that the
phrase invited jurors to substitute their own moral judgment for the
actual evidence. Several states, including New York and New Jersey,
have deleted the phrase from their standard jury instructions.
Justice Sandra Day O'Connor's majority opinion, in two consolidated
appeals of murder convictions in California and Nebraska, was a
painstaking dissection of language that has been heard in American
courtrooms for nearly 150 years. It is likely to stand as the Court's
last word on the adequacy of reasonable-doubt instructions for some
Although the Court rejected the particular challenges at issue, the
decision will probably hasten the demise of standard instructions
that equate guilt beyond a reasonable doubt with a juror's need to be
convinced "to a moral certainty" of the defendant's guilt. In a
unanimous portion of the opinion, Justice O'Connor said "we do not
condone" the use of the phrase although it was not unconstitutional
under the circumstances.
California defended the use of the moral-certainty language as a
"commonsense and natural" phrase that conveys an "extraordinarily
high degree of certainty." The Court's vote today was unanimous in
the California portion of the decision, Sandoval v. California, No.
92-9049, which upheld a man's conviction for four murders over two
weeks in 1984.
The Court was divided in the Nebraska case, voting 7 to 2 to uphold
the conviction of a gardener for killing the 82-year-old woman who
employed him. The challenged instruction in that case, Victor v.
Nebraska, No. 92-8894, included not only the moral-certainty language
but also a definition of reasonable doubt as "an actual and
substantial doubt." The jurors were instructed that "you may find an
accused guilty upon the strong probabilities of the case, provided
such probabilities are strong enough to exclude any doubt of his
guilt that is reasonable."
While Justice O'Connor said that the instruction, in context, was not
confusing, Justice Harry A. Blackmun disagreed in a dissenting
opinion that Justice David H. Souter joined. They said the jury was
likely to have interpreted the phrase "substantial doubt" to mean
that "a large as opposed to a merely reasonable doubt is required to
acquit a defendant."
An 1850 Massachusetts Decision
Justices Blackmun and Souter said that taken as a whole, "it seems
that a central purpose of the instruction is to minimize the jury's
sense of responsibility for the conviction of those who may be
Jury instructions equating guilt beyond a reasonable doubt with moral
certainty stem from an 1850 decision of the Massachusetts Supreme
Judicial Court, written by its chief justice, Lemuel Shaw. The
decision, Commonwealth v. Webster, defined reasonable doubt as a
mental state in which jurors "cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge."
Other states borrowed liberally from the Webster decision, many
adopting its precise language. Justice O'Connor's decision today
traced the surprising evolution of the meaning of moral certainty
from the mid-19th century, when it meant a high degree of certainty,
until today, when the phrase conveys the sense of something that is
probable but not based on strong proof.
The Oxford English Dictionary, reflecting historical usage, defines
the phrase as "a degree of probability so great as to admit of no
reasonable doubt," a meaning essentially synonymous with "proof
beyond a reasonable doubt." But the 1992 edition of the American
Heritage Dictionary of the English Language gives moral certainty a
much different definition: "based on strong likelihood or firm
conviction, rather than on the actual evidence."
Meaning Changes Over Time
Citing these definitions in her opinion, Justice O'Connor said that
the meaning of moral certainty had changed over time and that today
"a jury might understand the phrase to mean something less than the
very high level of probability required by the Constitution in
criminal cases." But she said the jury in the Sandoval case was
explicitly instructed to base its decision on the evidence, and
"there is no reasonable likelihood that the jury would have
understood moral certainty to be disassociated from the evidence in
While joining the opinion, Justice Anthony M. Kennedy appeared even
more concerned than Justice O'Connor about continued use of the
instruction. "It was commendable for Chief Justice Shaw to pen an
instruction that survived more than a century," he said, "but as the
Court makes clear, what once might have made sense to jurors has long
since become archaic."
Several Federal appellate circuits have dealt with the problem of
defining reasonable doubt by instructing trial judges not to provide
any definition at all, a trend Justice Ruth Bader Ginsburg noted in a
concurring opinion. She said that a preferable course would be to
arrive at a better definition, and she cited one suggested in 1987 by
the Federal Judicial Center, a research arm of the Federal judiciary.
Making no reference to moral certainty, that definition says in part,
"Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt." Justice Ginsburg said that this
instruction "surpasses others I have seen in stating the reasonable
doubt standard succinctly and comprehensibly."
While the Government must prove a criminal defendant's guilt beyond a
reasonable doubt, it is easier for judges and lawyers to invoke the
concept of "reasonable doubt" than to define it. The Supreme Court,
which has grappled with the issue over the years, today rejected
constitutional challenges to two varieties of reasonable doubt
instructions in an opinion by Justice Sandra Day O'Connor that traced
the history and growing ambiguity of some long-used phrases. These
instructions, given to juries in California and Nebraska, differed
somewhat from instructions the Court found unconstitutional in a 1990
case from Louisiana. What follows are excerpts from the instructions
the Court upheld today, along with the instructions the Court
declared unconstitutional in 1990 and a proposed set of instructions,
published by the Federal Judicial Center, that Justice Ruth Bader
Ginsburg cited with approval in her concurring opinion. Italics are
the Court's, indicating phrases on which the Court focused.
INSTRUCTIONS UPHELD TODAY Sandoval v. California (1994):
"Reasonable doubt is defined as follows: It is not a mere possible
doubt; because everything relating to human affairs, and depending on
moral evidence, is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and
consideration of all the evidence,leaves the minds of the jurors in
that condition that they cannot say they feel an abiding conviction,
to a moral certainty, of the truth of the charge."
FOUND UNCONSTITUTIONAL: 1990 Cage v. Louisiana (1990):
"Even where the evidence demonstrates a probability of guilt, if it
does not establish such guilt beyond a reasonable doubt, you must
acquit the accused.
This doubt, however, must be a reasonable one; that is one that is
founded upon a real tangible substantial basis and not upon mere
caprice or conjuncture. It must be such doubt as would give rise to a
grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence orlack thereof. A reasonable
doubt is not a mere possible doubt. It is an actual substantial
doubt. It is a doubt that a reasonable man can seriously entertain.
What is required is not an absolute or mathematical certainty, but a
A DIFFERENT APPROACH Proposed by the Federal Judicial Center, the
research arm of the Federal judiciary:
"Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt. There are very few things in this
world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If,
based on your consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime charged, you must find him
guilty. If on the other hand, you think there is a real possibility
that he is not guilty, you must give him the benefit of the doubt and
find him not guilty."
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