Adriano Vargas v. John P. Keane, 86 F.3d 1273

Adriano Vargas v. John P. Keane

86 F.3d 1273

2d Cir.

1996

Check Treatment

*1 jury receipt jury question judge assigned will be involved the A new district interest, concerning judge of the district court which he shared with the chief counsel, conducting proceed- responded writing, pur- this purpose limited practice regarding ing. suant to his standard inquiries. such Douglas assigned was Judge Woodloek Judge Tauro of the U.S. District Court Chief carefully We have reviewed the record of proceeding. to conduct of Massachusetts evidentiary hearings by Judge held 2, testimony May Judge took Woodloek On subsidiary and the detailed find- Woodloek foreman, Lavallee, two district from the ings unhesitatingly he made. affirm his We officers, security deputy Mar- U.S. finding underlying ultimate and his subsid- shal, deputy and the courtroom clerk iary findings.4 during trial. Judge Freedman May testimony six was taken from On III. jurors. had left the other One CONCLUSION attempt and no was made to obtain her state testimony. Testimony was also taken on the judgments of the district court in both Lombard, day president of same from Frank trials are affirmed. J, deputy M courtroom clerk for & party. either No costs to proceeding. At the conclusion of this evidentiary hearing; Judge Woodloek in- parties give

formed the of his intention

Judge opportunity Freedman an to state his allegations in

recollection of the the Lavallee

affidavit. Counsel was advised after they

reviewing Judge Freedman’s statement opportunity interrogate would have an VARGAS, Petitioner-Appellant, Adriano him. meantime, In the counsel had advised Judge Judge Woodloek Freedman’s law KEANE, Respondent-Appellee. P. John trial, at clerk the time of the Kenneth B. 877, No. Docket 95-2079. Walton, might have relevant evidence of- May fer. Mr. evidence was On Walton’s Appeals, United States Court hearing taken. At the conclusion of this Second Circuit. parties Judge they informed Woodloek sought testimony they no other and that did Argued Feb. 1996. interrogate Judge not wish to Freedman. May Decided 1996. Judge following Woodloek made the ulti- finding: mate my

Based review of the materials

of record in this case and the evidence evidentiary hearings pursu-

adduced at the my assignment,

ant I find as a matter of begin

fact that after the retired to its

deliberations this case November

1994, and before it returned with its ver-

dict, Judge Freedman had no secret com- pres-

munication with the outside the only

ence of counsel. The communication

Judge deliberating Freedman had affidavit, Judge findings, subsequent securing we need violated the 4. In view of Woodlock’s question Kepreos, not address the of whether the initial mandate of 759 F.2d at 967. Accord- Lavallee, ingly, express opinion question. we on that contacts between Lombard and and the no *2 Hinde, Georgia City, peti- J. New York tioner-appellant. McCullogh, Attorney

Dian Kerr Assistant (Dennis General, City Vacco, New York C. General, Schiff, Attorney Deputy Peter H. General, Nancy Spiegel, Solicitor A. Assis Attorney tant General for the State of New York, counsel), respondent-appellee. CABRANES, Before: McLAUGHLIN and WEINSTEIN, Judges, Circuit District Judge *.

* York, by designation. sitting Jack B. Honorable Weinstein of the United New States District Court for the Eastern District of CABRANES, ty Careys’ Judge: photographic identification A. Circuit JOSÉ petitioner Carey’s and Carlos identifi- Vargas appeals from a Petitioner Adriano petitioner cation of the at the scene of his judgment of the United December arrest. When failed to appear Dis- Court for Southern States District *3 day suppression on the of the second hear- (Michael Mukasey, B. trict New York of him, ing, proceeded the court without but petition for of Judge) dismissing his a writ agreed not suppression to rule on the mo- § 2254. On corpus under U.S.C. habeas until (1) attempted tions both sides had to locate appeal, Vargas contends that the district petitioner. proved the After those efforts concluding in the trial court erred unsuccessful, the court rendered its decision doubt instruction was not court’s reasonable deficient; declining challenged suppress and the district the evidence challenge his improperly proceeded deemed to the and with the trial on November 16 prosecutor’s procedurally summation barred. in petitioner’s and the absence but with present defense participating. counsel and challenged that the instruc-

We conclude whole, tion, taken as a neither over- when jury, In his instructions to the the trial degree necessary of doubt for stated the judge part in defined reasonable doubt as acquittal nor shifted the burden of follows: addition, away In prosecution. from the we A reasonable is a doubt which agree Vargas’s you district court with the consciously your challenge prosecutor’s to the summation is after the of pow- have use that a procedurally barred and denial of re- reasoning ers of out which arises of the lief not result a “fundamental mis- credible evidence or the lack of credible justice.” carriage of We therefore affirm. evidence. you give It is a which can a I. Facts reason called to do so if fellow charged petitioner was with first-de- The juror in the room. The standard of gree burglary second-degree first- and and prevailing. you reason must When robbery February in connection with a you convinced that have no doubt in reason apartment incident at the Manhattan of guilt, of the you that is when defendant[’]s Carey. forcibly Two and Cecilia men Carlos justified rendering will be a verdict ac- apartment, and entered the threatened Mr. cordingly. Consequently, fairly after and knife, Carey gun Mrs. with a and tied the fully considering of the evidence all and cable, pair telephone up with and ransacked using the lack of and the evidence same reporting robbery apartment. the After the power power reasoning thinking of of viewing police police photographs, apply apply that would and do to weigh Careys identify neither of the was able the importance the matters related the of later, however, perpetrators. weeks Two important affairs, if you [sic] business photograph both of petitioner. selected a the then element of the believe that each crime unclear, For petitioner reasons that are the you[] submitted to has been established A apprehended.

was not month after the doubt, beyond you a reasonable would be robbery, Careys allegedly peti- the saw the justified finding guilty the defendant subway Carey tioner on a car. Mr. called that crime. police, drove him to an apartment who Carey saw the building; petitioner Mr. (Emphasis supplied.) deliberating After standing at a third-floor window and identi- hour, petitioner one convicted on fied him of the two as as one robbers and peti- all three indictment. The counts of the person subway. had seen on the The he later, tioner was several weeks re-arrested police arrested outside imposed and the court concurrent sentences apartment building shortly thereafter. eight years imprisonment sixteen on the burglary robbery counts, County first-degree Supreme Court New York hearing years impris- suppression beginning held a on No- and seven-and-a-half to fifteen 7, 1988, robbery second-degree to determine the onment on count. vember admissibili- summation, Vargas challenged petitioner’s his conviction on direct challenge challenge barred; appeal. procedurally He did not his trial those remarks was absentia, primarily that but claimed the trial petitioner’s sentencing challenge did on reasonable doubt were federally cognizable court’s instructions raise claim. On proceedings 19, 1994, erroneous and that the had been Judge Mukasey adopted December by improper prosecutorial comments report magistrate infected judge over the 3, 1990, July Appel- petitioner’s on summation. On objection and issued a certificate Supreme late Court unani- probable Division appeal. appointed cause to We conviction, mously finding affirmed no argue appeal. counsel to brief and error in the reasonable doubt instruction petitioner pursues appeal only his claims concluding petitioner’s challenge that the the trial court’s reasonable doubt in- *4 procedurally prosecutor’s summation was constitutionally struction was deficient and light barred in of his counsel’s failure to that treating the district court erred in his (in trial, objection interpose an at challenge prosecutor’s to the summation as event) prosecutor’s remarks were procedurally barred. improper. People Vargas,

not v. 163 A.D.2d (1st 1990) 39, 39, 631, Dep’t 559 N.Y.S.2d II. Discussion (mem.). petitioner’s application for appeal leave to to the New York Court of A. Reasonable Doubt Instruction 945, Appeals was denied. N.Y.2d trial, In a state criminal the Due (1990). 74, N.Y.S.2d 564 N.E.2d 684 Process Clause of the Fourteenth Amend 1992, Vargas In June moved under protects ment the accused from conviction §§ 440.10 and 440.20 of the New York Crimi- prosecution “persuade[s] unless the fact- nal for a Procedure Law new trial or to set ‘beyond finder a reasonable doubt’ of the aside his sentence. He claimed that necessary facts to establish” each element of improperly proceeded court had to trial Louisiana, charged. the offense Sullivan v. challenged sentencing his absence and his on 275, 278, 2078, 2080-81, 508 U.S. 113 S.Ct. ground the Probation Department (1993) (citations omitted); 124 L.Ed.2d 182 had presen- omitted his statement from the 358, 364, In Winship, re 90 S.Ct. 13, report. July tence On the New 1068, 1072-73, (1970). jury 25 L.Ed.2d 368 A Supreme York petitioner’s Court denied the permits instruction that conviction on a less motion, Appellate and the Division denied his by shifting er proof the burden of standard — application appeal. for leave prosecution defendant, from to the Vargas petition filed the instant federal suggesting higher on degree a of doubt 15, 1993, November claiming that the trial than necessary “reasonable” doubt is for ac court’s quittal reasonable doubt instruction was con- constitutionally Any deficient. —is deficient, stitutionally prosecutor’s deficiency im- such per ground would be a se proper proceedings, summation tainted the reversal of a criminal conviction: because the and the omission of his statement from the Sixth Amendment and the Fourteenth presentence report sentencing rendered his together Amendment’s Due Process Clause proceeding By invalid. require jury order Novem- a guilty “beyond verdict of a 26, 1993, Judge Mukasey doubt,” ber referred guilty a verdict rendered petition Magistrate Judge jury applying Michael H. Dol- demanding a less stan inger. In a Report and proof Recommendation dard of is not a verdict at all 21, 1994, September filed magistrate meaning within the of the Sixth Amendment. judge Sullivan, petition 278, 280, concluded that the should be at U.S. 113 S.Ct. at denied, 2080-81, because: circumstances, the trial court’s reason- In 2082. such harm able doubt instruction not analysis permits was constitutional- less error a review —which ly deficient, closely and in fact ap- ing tracked court to determine whether a would proved pattern jury instructions; New York guilty have rendered the same verdict light of defense counsel’s failure to occurring absent the constitutional error at object Id.; prosecutor’s during simply apply. remarks cannot see Chal- trial — (2d Mitchell, power same to their deliberations “the v. mers Cir.1996). thinking” they reasoning power weigh importance of apply would “to infirmity in Although a constitutional important ... business matters related to per instruction is se a reasonable affairs,” conveyed to the trial court conviction, a criminal for reversal of ground they required impression that would be unwise, every unhelpful, or even errone they given the to vote for conviction once had concept of reasonable ous formulation they than no more consideration evidence jury charge the instruc in a renders give to their “business affairs.” reviewing deficient. tion analyze the asserted defects turn. We whole, charge as a must examine the 146-47, Cupp Naughten, 414 U.S. see as “a doubt 1. Reasonable doubt (1973), 400-01, 38 L.Ed.2d 368 you give can a reason called which a reasonable “whether there is and assess if juror.” to do so the in that the understood likelihood fellow proof to allow conviction based structions report magistrate judge As the the standard of to meet” insufficient noted, trial characterization of court’s doubt, Victor v. Nebras

beyond a reasonable you can reasonable doubt as “doubt for which *5 1239, 1243, 127 1,-, ka, 511 U.S. upon by if do a give a reason called to so Chalmers, (1994). 73 F.3d 583 See L.Ed.2d juror” York’s fellow is a variation on New (“Sometimes, portions of erroneous at 1267 instructions, pattern jury which define rea consid- jury are offset when instructions the part doubt in as “a doubt for which sonable by the trial explained in or ered context given.” 1 some reason can be Jury Criminal of the instruction. in later sections (New York) 3.07, § at 92 Instructions times, seemingly innocuous a [At] [o]ther see, (1983); Malloy, e.g., People v. 55 N.Y.2d extremely dam- statement becomes incorrect 168, 170, 171, 296, 300, 303, 449 434 N.Y.S.2d other sections of coupled when aging 237, 238-39, (charge defining 239-40 N.E.2d improper con- jury or with the instructions you which reasonable doubt as “a doubt for (citations during the trial.” duct counsel conscientiously express can a reason” was omitted)). in Accordingly, an asserted error inaccurate”), confusing nor cert. de “neither may be innoc- doubt instruction a reasonable nied, 847, 103 74 L.Ed.2d S.Ct. in inconsequential viewed the or when uous (1982); Lopes, Leecan v. 893 F.2d see also whole; charge as a surrounded context of the Cir.) (2d (rejecting habeas chal charge, language in a different by different lenge trial court’s definition of to Connecticut however, language may create a the same for which a as “a doubt infirmity. constitutional reason”), give valid reasonable man can a denied, 929, 110 2627, 110 case, S.Ct. identifies cert. U.S. petitioner instant the In the (1990). previously that, As we have separately or L.Ed.2d 647 alleged errors taken two noted, tying doubt” trial instructions “reasonable to the state together, are said render you give “for can a rea to a doubt which deficient. court’s instruction formulation, or, passive in the more First, that it is reason- petitioner the claims son” — given” may a reason can be well jurors understood “for which ably likely that would have — unwise, possibility that a be because “reasonable the court’s characterization juror by will “intimidate a you give a such an instruction “for which can doubt” as a doubt may upon called to suggesting that he be upon to so a fellow if called do reason Davis, (1) explain his doubts.” United States require, for juror in the room”: Cir.1964) (2d (rejecting only that seems “rea- acquittal, a doubt mind, challenge defining reasonable that to instruction juror’s in but a doubt sonable” the you give which can juror; doubt as “a doubt for articulable to a fellow is reason”). recently, have had occa jurors More we fellow the defendant or to shift the constitutionality of a the sion to consider supply a that is both reason- burden to defining Second, court instruction reason state trial the and articulable. able good some jurors “a doubt for which that, instructing apply able doubt as claims Chalmers, given.” 73 F.3d at stance of the reason can be instruction sustained in cases (emphasis supplied). While we noted such as Davis and Leecan constitu- language “good reason” constituted tionally significant way. challenged lan- of law which an “incorrect statement should guage suggest any does not more than the — made,” id. at we concluded never given” “for which a reason can be formula- whole, that, light charge as a viewed standing juror tion alone —that a will be challenged language did not raise the doubts, upon called to articulate his or that necessary quantum acquittal for or of doubt upon. he must articulate if them so called away from the shift the burden Moreover, language surrounding the chal- prosecution, Vargas argues id. at 1268-69. lenged language unlikely ju- it renders in this that the trial court’s instruction case is interpret passage require rors would dangerous more than the instruction Chal- higher degree of doubt than “reasonable” pattern jury charge, mers or the New York acquittal. challenged doubt for lan- assertedly sugges- because of its more direct guage immediately preceded was and fol- juror prepared must be tion that ex- by language giving lowed additional content room, pound, upon his reasons for doubt,” phrase to the emphasiz- “reasonable is, doubting guilt. the defendant’s That ing jurors’ engage task was to in a petitioner claims that even if the “doubt for careful, analysis reasoned of the evidence— given” which a reason can be formulation is or lack of presented. According- evidence — appropriate, language added here —“if ly, unlikely was to have understood juror” upon called to do so a fellow —in challenged language upon to bear conveyed they substance degree quantum necessary of doubt might upon to indeed be called articulate the rather, acquittal, but appropriate basis for their doubts. Two constitutional basis the formulation of a doubt sufficient to follow: in- deficiencies are said *6 acquittal: stated, charge properly as the reasonably likely to struction is have con- “just any a “reasonable” doubt is not kind of veyed the idea that a doubt doubt, guess a mere whim or a feeling, or a justify acquittal only sufficient to must not be may a surmise that the accused not be “reasonable,” must also be but “articulable” guilty,” but a doubt that “arises out of the (2) jurors; to one’s fellow and the instruction credible evidence or the lack of credible evi- reasonably likely compelled is to have the context, dence.” challenged Viewed the jurors petitioner to look to the or to one language simply suggest does not that a doubt, supply another to an articulable thus doubt formulated within one’s own mind— shifting away proof the burden of from the reasonable, but not articulable —is insuffi- prosecution. Rather, acquittal. cient for it serves to em- Placing challenged language the in the phasize, conjunction surrounding lan- charge, context of full the we find no reason- guage, any acquittal doubt sufficient for jurors able likelihood that the would have must be based aon reasoned evaluation of understood the instruction to increase the evidence, the evidence or lack of rather than degree necessary acquittal. of doubt The speculation, emotion, on or whim. premise petitioner’s challenge and, of the — As to indeed, danger the second asserted challenges to instructions such as language jurors relevant Leecan, the those in would Davis and which do not —that look to the defendant or to one language another to upon include the “if called to do so supply an articulable by juror” juror a reason for doubt before may fellow that a hold a —is voting acquit that, to guilt, viewing reasonable doubt of a conclude defendant’s —we charge whole, the as a there no based the evidence or lack of is reasonable evidence jurors likelihood that prosecution, yet interpreted offered the the in- be the unable shifting proof to articulate that if struction as doubt. Even assume the burden of we category away that there prosecution. Language pre- exists of “reasonable” from the yet doubt, ceding challenged passage “articulable” we do not the see makes clear phrase upon how the addition of the “if called the burden of “remains the juror” to do so a fellow prosecution throughout alters the sub- the trial and never

1279 concurring part concurring and that “each and the to defendant” shifts judgment) (noting report crime to observation of every element of submitted 1987 [the] beyond a proved reasonable to Judicial you ... must Conference United States Indeed, prosecution.” underlying trial analogy “hesitate to act” court, tradition of cau- misplaced: in the time-honored formulation is decisions “‘[The] courts, prosecu- emphasized important trial we make in the most affairs of tious elements of the prove very heavy to generally tion’s burden our lives ... involve a charged beyond a reasonable doubt uncertainty risk-taking.’”). crimes element of than fifteen times fewer ad nauseam —no petitioner The claims the instruction charge. throughout the course of the considerably in fact in the instant case is more than different from and harmful Applying power reason- 2. “the same formulation, ordinary to act” “hesitate two “important ing” applied as is to busi- First, respects. was told to analo- ness affairs.” decisions, personal gize important not to but challenges por also The decisions, potentially which business jurors instructing the charge tion of Second, speculative more and risk-laden. reasoning power pow “use the same act, was not told to hesitate but to thinking” they apply in “mat as er of “weighting] convict after no evidence important business af [their] ters related carefully more than when one makes ‘busi- language challenged bears some fairs.” ” Appellant’s ness 27. decision.’ Br. at defining reason instructions resemblance petitioner thus contends that the instruction: as a that would cause a able doubt the deliberative process trivialized person to act” in im to “hesitate undertake; jurors were diluted the personal The “hesitate to portant affairs. concept by conveying of “reasonable doubt” consistently ap formulation been act” has required long that conviction was as as U.S.-, Victor, proved, see S.Ct. doubts the harbored were not of a States, 1250; at Holland v. United prevent going kind that would them from 137-38, L.Ed. forward with a business transaction. Irwin, (1954); F.2d Perez v. Considering language in this the context of (2d Cir.1992), although ques- courts have full charge, we find no reasonable likeli- analogizing propriety the deli- tioned *7 hood that understood the the instruction jurors must process that undertake berative permit anything conviction after but a thought process criminal the in a trial to process upon of deliberation or less careful they weighing important per- undertake in proof beyond than doubt. reasonable Reese, decisions, v. States sonal see United Leaving general propriety of in- aside the Cir.1994) 166, (2d (noting “ongo- 172 33 F.3d jury’s analogizing structions a criminal deli- of ing propriety debate” about instruction process process the in berative with involved “a defining doubt as doubt which making or important personal business deci- in you make each of hesitate to act sions, the inclusion of the to “im- reference important more and affairs of the serious — portant affairs” here not have business could denied, lives”), U.S.-, your own cert. suggested jurors they to the that were to 756, (1995); L.Ed.2d 655 Unit 115 S.Ct. 130 speculative inqui- or haphazard undertake a 20, (1st Noone, v. F.2d 28-29 ed States 913 ry. contrary, On the trial court’s refer- Cir.1990) (“The the decision to ac momentous reasoning power power ence “the quit or convict criminal defendant cannot thinking” important with business associated compared ordinary decision-making deliberations served to reinforce its earlier risking trivialization constitu without “coolly, calmly instruction to decide the facts Perrin, Dunn v. 570 (citing standard.” tional (1st denied, deliberately,” “indulge specula- not to 21, Cir.), 24 cert. F.2d “conjecture,” (1978))), guesswork” 910, 3102, tion or or and to L.Ed.2d 1141 98 S.Ct. 57 denied, 1686, 906, “fairly full[y] all consider[ ] 111 the evidence 500 S.Ct. cert. U.S. Victor, (1991); Similarly, instruc- also 511 and lack of evidence.” 114 L.Ed.2d 81 see at-, J., (Ginsburg, suggest tion did that the doubts assoeiat- at 1252 not U.S. S.Ct. factfinding process instance, however, in a ed with the criminal doubt. In this we are anything trial like doubts that challenge tend mindful that the to the trial court’s during review, arise consideration business deci- instruction arises on habeas and our sions, required let alone that were inquiry is whether the instruction is constitu- they held the sort of tional, convict unless doubts exemplary. not whether it is prevent acting in that would them from im-

portant business matters.1 B. Prosecution’s Summation sum, simply In it cannot be said that petitioner also claims that certain errors, separately togeth- taken or asserted by prosecutor remarks made during her er, challenged render reasonable doubt deprived summation him Spe- of a fair trial. instruction deficient. We cifically, petitioner contends that pause only holding to make clear that so (1) prosecutor improperly invited the suggest wé do not mean to that the elabora- convict purported based on the defendant’s concept tion of the of reasonable doubt cho- “arrogance”; misstated the evidence particularly, sen the trial court —and claiming “thought that the defendant he reference to reasonable doubt as a doubt “for bully could apartment gun,” into an with a you give which could a reason if called undisputed only when it was one of the juror” prudent to do so a fellow —was perpetrators defendant —had —not long recognized desirable. have Courts gun; suggested brandished to the concept of “reasonable is not doubt” sus- jury that the evidence the case showed the See, easy ceptible e.g., definition. Hol- guilt clearly defendant’s so the trial land, (“At- 140, 348 U.S. at 75 S.Ct. at 138 superfluous. trial, itself was At defense tempts explain the term ‘reasonable doubt’ object counsel failed to prosecutor’s usually making any do result it clearer appeal, remarks. Appellate On direct jury.” (quotation to the minds of the marks Vargas’s Division concluded that challenge to omitted)); Birbal, United States v. 62 F.3d review, preserved those remarks was not (2d Cir.1995) 456, (noting require- and, event, was without merit. Var- proof beyond ment of a reasonable doubt is gas, 163 A.D.2d at 559 N.Y.S.2d at 632. “one of susceptible the least to verbal formu- lation”). Indeed, at least Ap- two Courts of correctly noted, As the district court peals have instructed district courts petitioner’s procedural within default constitutes concept their circuits that is best left an adequate independent state law unexplained. Adkins, See United ground rejection States v. of his According claim. (4th Cir.1991) (“This ly, circuit federal review of the claim is barred repeatedly has against warned giving the unless the can demonstrate cause doubt, definitions of reasonable procedural because for the prejudice default and flow definitions impermissibly therefrom, tend to ing lessen the Wainwright Sykes, see proof____”); burden of 87-91, United States v. U.S. 2506-2509, *8 Hall, (7th Cir.1988) (1977), 1039 L.Ed.2d 594 or that “failure to consid (“[A]t best, definitions of reasonable doubt er the will in claim[] result a fundamental unhelpful jury____ are attempt to a An miscarriage justice,” of Thomp Coleman v. son, presents define reasonable 722, 750, doubt a risk 2546, 2565, with- benefit.”); (1991). out real see also id. at 1043- 115 L.Ed.2d 640 The does (Posner, J., concurring). attempt There is some prejudice, show cause or admonitions, by merit exercising agree courts we with the district court the supervisory authority, direct regarding support the record does not a conclusion that the danger straying of from grant tried and tested failure to relief will result a “funda pattern instructions miscarriage justice.” reasonable mental of Leaving charge (and 1. necessarily aside the fact that the in this connotes trade or commerce case underscored the need decision-making process for careful delibera- associated that is inher- tion, premise underlying we ently risky speculative). note the dubious the The term "business” broad, petitioner's argument namely, phrase surely encompasses per- is matters of — "business affairs” as used in such instructions sonal as well as commercial concern. of applies a different standard sometimes Conclusion mind, judge than the has reasonable doubt To summarize: willing to tolerate possibly because trial court’s Examining the state 1. Harry guilt judge. than a See less doubt of whole, reasonable we find no charge as a Kalven, Zeisel, The American and Hans Jr. in- understood likelihood (1966). authority Jury, 182-190 Another degree of to overstate struction jurors] realm of there is the “[for *9 Results, inquiry suggests that of infra. Instructions, 17 Jury Law & Soc. Criminal nuances of not as sensitive (1982); Steele, and W. Jr. Rev. 153 Walter doubt as charges on reasonable various Jury Thornburg, Instructions: Elizabeth G. lawyers seem to be. judges and Communicate, Failure to 67 A Persistent (1988); 77 David U. Strawn and jury N.C.L.Rev. on how the Much has been written Buchanan, Jury A judicial Raymond applies W. interprets, understands Confusion: Justice, (1976); 59 478 Threat to Judicature Kalven on the law. Professors instructions Note, Diamond, Reasonable Doubt: jury Henry A. suggested that and Zeisel have 1282 Define, Jury 90 comprehension To or Not Colum.L.Rev. of instructions is esti- Define Note, (a (1990); Reasonable Doubt: An mated

1716 researchers as low view not Definition, concurring shared Argument Against judge). 108 Harv. See Walter (1995). Steele, W. Thornburg, L.Rev.1955 Jr. and Elizabeth G. Jury Instructions: A Persistent Failure to definition is not The form of without some Communicate, (1988). 77, 67 N.C.L.Rev. 78 colleagues compared effect. Kerr and his particularly Reasonable doubt seems difficult given three different instructions to mock attempts to define. Most fall short of im- juries. instruction did not One define rea- proving juror understanding. As noted doubt, definition, gave one a lax sonable Buchanan, Strawn and provided stringent while the third a defini- (for in some example, eases instructions only tion. The firm conclusion was that the doubt”) about “demeanor” and “reasonable yielded highest lax definition con- mock understanding there was a loss of after Kerr, viction L. rate. Norbert Robert S. hearing instructions, indicating al., Beyond Atkin et Guilt a Reasonable some producing instructions were confu- Concept Doubt: Effects of Definition sion, comprehension. Assigned Judgements Decision Rule on the Raymond David U. Strawn and Buchan- W. Jurors, Soc.Psych. 282, Mock 34 J.Pers. & an, Jury Justice, A Threat to 59 (1976). Confusion: 286 478, (emphasis Judicature 482 origi- attempted Severance and Loftus with lim- nal). “unsettling It is using that we are improve ited comprehension success to formulation that we believe will become less legal concepts such as reasonable explain clear the more we it.” Jon 0. New- by changing pattern jury intent instructions man, Doubt”, Beyond “Reasonable 68 according psycholinguistic principles. The 979, (1994). N.Y.U.L.Rev. authors concluded: Experience suggests that the unvarnished findings While our demonstrate the value sufficient minimum using psycholinguistic principles to re- charge may be best. Winship, See In re instructions, pattern jury write the mea- 358, 364, 1068, 1072, U.S. 90 S.Ct. 25 L.Ed.2d sures reveal considerable numbers of (1970); see also letter I in Table of comprehension errors in application Results, Under this standard the infra. remain even with the revised instructions. only government is told prove must each beyond element of its case a reasonable Laurence J. Severance and Elizabeth F. Lof- may provide doubt. This form well close to tus, Improving Ability Jurors to Com- protection maximum Any the defendant. prehend Apply Jury Criminal Instruc- modifying language may have dilutive ef tions, 153, (1982). 17 Law & Soc.Rev. fect. Most of utility. these studies have limited This charge already bare bones has been summary As one indicated: approved by the Ap United States Court of Many of the studies do not specifically deal peals Fourth, Fifth, for the and Seventh with reasonable doubt instructions. Other Circuits. All have held that instructions compare studies fail comprehension defining required reasonable doubt are not application subjects errors of who re- See, and should be e.g., avoided. United ceive a reasonable doubt instruction that Oriakhi, (4th States v. 57 F.3d subjects includes a definition with those of — Cir.), denied, U.S.-, cert. 116 S.Ct. who receive instruction that does not 400, 133 (1995) (court L.Ed.2d 319 should not include a definition. Some research even attempt to define reasonable doubt absent a may indicates that impair definitions specific request for a definition from the jury’s understanding of the reasonable jury); Thompson Lynaugh, concept. (5th Cir.), denied, 1060-61 cert. Note, Reasonable Argument Doubt: An 97 L.Ed.2d 794 (failure Against Definition, Harv.L.Rev.1955, to define reasonable doubt does not *10 (1995). 1964-65 deprive a of process); Henry defendant due (re- [Portland, 19, 1996, Diamond, Note, Oregon], at 2 Doubt: To Feb. Reasonable A Dlugozima, Define, viewing Hope 90 Colum.L.Rev. “Six Months Not to Off” Define (1990). (1996)) (“Always every having planned The Federal Criminal out Circuit, Instructions Jury great thought, of the Seventh move of her life with a deal of (1980), 2.07 Commentary at Instruction No. spontaneously, this time she acted immedi- job ately deciding,” foreign reads: in a take life). country, radically changing refused her Although Circuit has thus the Seventh against defining adopt per se rule Although relatively unsophisticated did, doubt, con- it in another survey reveals that most summarized below text, the “use of an instruction describe wording charges in the of do not differences playing defining equivalent to [it as] jurors substantially suggest to different lev- fire.” convict, proof necessary it should be els of Jury Instructions 1 Federal Criminal of recognized sample size is too small (1980) (citation § 2.07 the Seventh Circuit permit any finding. conclusive The re- omitted). Circuit Committee The Seventh however, suggest, do that with the ex- sults Jury Instructions recommends Federal charge improperly ception of one uses given defining reasonable be no instruction (see certainty language M in the moral letter declare: doubt. The Committee’s Comments Results, infra.), range proba- of Table doubt” is self-ex- phrase “reasonable The bility juror, survey, average in this would its own best definition. planatory and is relatively need to convict is close under misleading “tends to Further elaboration proposed average ranges definition. The im- which weaken and make refinements” from 79.4% to 93.9%. United States v. Cf. existing phrase. precise the (E.D.N.Y.1978) Fatico, F.Supp. omitted). (citation See, e.g., United Id. probability (judges’ required estimates of un- (7th Blackburn, 666, 668 States range der the reasonable doubt standard denied, Cir.), cert. S.Ct. 95%). from 76% to (1993) (reasonable 393, 126 L.Ed.2d 341 even re not be defined doubt should no to conclude that There is sound reason Fourth, Fifth and quest by jury). charge given appreci- case the instant adopted, be approach should Seventh Circuit ably decreased the burden of on the respectfully suggested, for federal courts it is petitioner’s state. Thus it did not violate the in the Second Circuit. process rights. due is, charge “a approved Second Circuit objection procedural might A be raised to person that would make a reasonable survey in this concurrence. the use of the important of his or hesitate to act the most Generally, appellate court must limit itself Question- letter B her own affairs.” See record, precedents, published materi- Results, Although naire and Table infra. See, als, judicial e.g., and matters notice. serviceable, usefully explain- it falls short of (“[a] judicial may Fed.R.Evid. 201 take jurors’ It could be misunder- ing the task. notice, requested or not ... [of] whether many recognize that in the since of us stood subject dispute ... fact to reasonable important affairs of our lives—such as most (1) generally that it is either within known mate, conception choice of careers —we jurisdiction trial court or the territorial largely emotional. Were we tend to be ready capable of accurate and determina- beyond require proof a reasonable doubt accuracy to sources whose tion resort correct, few of us important our decisions also, reasonably questioned.”); see cannot be or have marry, choose law as a career al., Evidence, Berger Margaret A. et probably comforta- Most of us are children. (1995); Essay, ft Limits on 201[04][05][06] making im- risk-taking when ble with more Acting— Judges Learning, Speaking and than we would be portant personal decisions Thoughts: First How may Part I—Tentative people who declaring as criminals Learn?, Stone, See, May Judges 36 UAriz.L.Rev. Portlander’s e.g., Lisa innocent. (1994). Sabbaticals, 557-60 Power Ourtown Book Affirms *11 (51% published might once Articles and studies of.” One that be classified as a 1 is, They certainty) can place the market of ideas. “A reasonable doubt un- exists government proves likely criticized others as well as cited and used less the it more Private, arguments. unpub- than in briefs and not that the defendant did what he is usually should not be cited in accused of.” lished research parties opinions except where the have been object point a chance to out

afforded See, Mansfield, H. e.g.,

errors. John Nor- al., Margaret Berger A.

man Abrams and et

Cases and Materials on Evidence 1303-1304 (8th 1988) (criticizing Judge

n. 5 ed. Jerome relying private

Frank for on a letter from a

sociologist request to him at his -written while appeal in the case was still under consid-

eration). study further research Where court, appellate

seems useful to an mat- normally

ter should be remanded to the trial adversary hearing appro-

court where

priate finding techniques fact can be used.

See, e.g., United States v. Shonubi (E.D.N.Y.1995) F.Supp. (techniques used

by the trial court after remand included a

panel experts appointed pursuant to rule Evidence, oppos- of the Federal Rules of

ing expert by government studies funded

defendant, evidentiary hearings, argument reargument, publication of a draft court).

opinion the trial In the instant

case, study seriously objectiona- was not concurring

ble since the judge had at hand laboratory of his own courtroom and the

survey did not affect the decision of the

panel. questionnaire distributed to the

jury is set out below: QUESTIONNAIRE

JURY survey designed

This is to assist the court in effectively instructing juries