Beyond Some Reasonable Doubt

Norm Pattis at Crime & Federalism posts about Connecticut’s revised standard of proof in criminal trials, “firmly convinced.”  Not being a CT lawyer, this one fell well below my radar, but this is a critical change for all criminal defense lawyers and should not go unnoticed.

For a long time, judges, bar associations and revision committees have complained of, and attempted to change, the jury charge language for “beyond a reasonable doubt.”  Not only has it been the source of substantial appellate litigation, but it has long been recognized as defying meaningful definition.  In other words, it sounds nice but nobody has a clue what it really means.  Even then Chief Judge Ralph K. Winter of the Second Circuit observed that the standard was paid lip service but little more.

The typical instruction states the burden of proof, and then goes on to explain what it’s not.  As Norm writes, the best we can hope for is what he calls the two construction rule:   The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence.

Connecticut’s quest for “plain English” instructions is no different than many before it, except that in State v. Jackson, the Supreme Court took the step of approving the following language:

“Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law 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, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.”
Proof that leaves you firmly convinced is now all it takes.  Mind you, firmly convinced does not mean that you don’t have a reasonable doubt, or many for that matter.  Apparently, it’s good enough if each juror’s personal level of satisfaction and confidence in a guilty verdict is met.  Or, to put it even more bluntly, if the juror can live with it, then that’s good enough.

Having served on a committee to construct a new pattern jury instruction for beyond a reasonable doubt some years ago, I recall the very real struggle to come up with some words that were both comprehensible to an ordinary juror and convey the essence of beyond a reasonable doubt.  We failed.  We never came up with anything that was even close to satisfactory. 

But the desire to change the instruction is pervasive, with courts nationwide recognizing that the current instructions fail to hold a juror’s attention long enough to serve their purpose, no less inform the juror of what the hell we’re talking about.  And so, Connecticut’s leap into the abyss becomes critically important. 

Now that a state Supreme Court has taken the chance of approving new, severely watered down language, will other states ride its coattails?  Will the case go SCOTUS where the Roberts Court can mandate it for all?  Or perhaps tweak it a bit, like leaving out the word “firmly”?  Once the genie is out of the bottle, it’s almost impossible to get him back in.  The Connecticut Supreme Court has chosen to lead the way with this monumental alteration of the explanation of beyond a reasonable doubt.  I just wish they did a much better job.

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