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By LINDA GREENHOUSE, Special to The New York Times

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today warned states that a common definition of reasonable doubt that refers to jurors' "moral certainty" of guilt is outdated and potentially confusing.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 whole.

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.

Dissecting Language

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 time.

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 innocent."

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 the case."

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 moral certainty."

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."

Copyright 1994 The New York Times Company

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