*1 No. 20766. Sept. 1979.] [Crim. PEOPLE,
THE Plaintiff Respondent, BRIGHAM,
FRED DAVID Defendant and Appellant.
Counsel Defender, the Court of Denvir, under State Public
Quin appointment State Chief Assistant Hendon S. Ezra and Gary Goodpaster, Appeal, Gretchen Defenders, Smith and T. Laurance S. Richard Public Phillips, Defenders, for Defendant Dumas, State Public Appellant. Deputy Amici Curiae on behalf McGlinn and Robert Michael D. Seligson Defendant Appellant. General, Jack R. J. and Evelle Attorneys
George Younger, Deukmejian General, O. Arnold Assistant Winkler, Assistant Chief Overoye, Attorney for Plaintiff General, P. P. Just and Nelson Charles Kempsky Attorney and Respondent.
Opinion BIRD, C. J. This courtmust decide whether has a litigant right oral whether an instruction argument appeal, embodying *3 22 be in former CALJIC No. a trial. (rev.) may properly given
I Code, This from a for two of is conviction counts (Pen. appeal robbeiy Code, count 211) and one of § (Pen. 211). §§ attempted robbery one issue was raised in Court of the in He brief. Only appellant’s Appeal claimed the court had erred in former CALJIC No. 22 (rev.) giving along with the standard instruction a reasonable doubt” defining proof “beyond (former CALJIC No. 2.90 ed. see CALJIC (3d 1970); now No. 2.90 (1979 The rev.).)1 Court of the motion of the General Appeal upon Attorney affirmance of conviction. granted summary appellant’s Appellant request- ed but was denied oral This followed. argument. petition
Does a Court of have the to decide an on its Appeal power appeal merits without for counsel an oral for affording appellant opportunity on the issues The argument to oral on presented? right argument appeal is the in Court, Code, California Rules of the Penal state recognized the Constitution, and decisions this court. prior
Rule 22 of the California Rules Court “Unless otherwise provides: ordered: counsel for each shall be allowed 30 oral minutes for party not more than counsel on argument; one a side be heard may except that different counsel for the or the make appellant moving party may and (3) each and who opening intervener closing arguments; party in counsel; the court below be appeared heard his own separately may by and the or the shall the have and appellant moving party right open close.”2
The drafter rule 22 has oral the recognized right present “The of counsel argument. a cause before right argue orally instructions, 1Tor the text of these see footnotes 8 and 290. page post, 30, 1943, 2Rule 22 was Council on Judicial March adopted by became effective on 1943. July Rule on the rules appeal rules from the provides governing appeals “[t]he court in civil cases shall superior from the court in applicable appeals superior criminal cases where except made to or where the express provision contrary, of a rule or would be application particular clearly impracticable Rule inappropriate.” was new to the as effective on 1943. rules July court Rule Rule 28(f). implicit reviewing Generally or exists which is right any appeal proceeding speaking, original considered on merits decided written . . .” (Witkin, opinion. New on two Rules So.Cal.L.Rev. Appeal, part California 243-244, fn. omitted.) oral the Rules found in right implicit argument appeal Court5 1254. is buttressed Penal Code section provisions “Upon death, if offense is with two appeal, punishable argument side, must be heard on each if it. In other case counsel they require discretion, the Court in its restrict one counsel on may, argument *4 Code, in each the of this side.” statute is (Pen. § wording Implicit the at on each side must be to fact that least one counsel allowed orally her in all his or case argue appeals. noncapital Court, to a is 28(f), 3Rule the Supreme provides hearing applicable only “[w]hen unless the calendar for oral oral argument, the cause shall be on placed granted, XXX, in section 5 1943 former rule waived.” This superseded argument provision of without decide certain kinds causes oral which the Court allowed Supreme 1943, it noted that has been When the were in was rules drafted argument. “[d]oubt (art. in the of the constitutional as to the of rule expressed VI, light provision validity [the old] ” four at the 2) argument.’ ‘the concurrence of justices present § requiring 397, 415.) 28(f) The rule (1942) Bar fact that (Annotations to Rides 17 State J. on Appeal XXX, oral an of drafters ensure argument rule indicates intent on the the part replaced would held in all decided the Court. Supreme be appeals by a 28(f) An in 1943 allowed the Court to submit cause for earlier draft of rule Supreme However, a this decision without oral “unless argument party.” argument requested an of notice to the court of intention to was present argument advance requirement deleted in the final Instead, (See held waived. oral was to be unless argument revision. 360, 381.) (1942) State Tentative Final Rules on Bar J. Appeal Introduction: Draft, of the entitled to 4The views of the drafters rules on are appeal great contemporaneous 476, 205, 573 P.2d (See v. Gaston 20 Cal.3d 482-483 Cal.Rptr. weight. People [143 “[ujnless ordered” 423].) The drafters of 22 did intend that otherwise rule hear of would an court refuse to oral the rule appellate beginning empower Rather, to limit the amount of meant to courts discretion give was argument. appellate time allotted for to be argument. Center for In on the National State Appeal the California Courts report Courts, “No rules . . . authorize can found. court expressly following language Yet, in is generally recognized oral before an court appellate panel. right argument Rule of oral be based in on California may part California. . . . ‘right’ argument Cts., (Nat. for The Cal. Courts of Appeal Court .” Center State 22. . . 125-126.) pp. 1978, 1, “A part: in 22.5(a), pertinent effective September provides 5See also rule has oral argument, when the court heard in a is submitted cause Court pending Appeal all has for briefs filing of oral time passed or has a waiver argument, approved this brief court.” permitted by including supplementary any papers, a fact oral is matter right is an of the argument This new rule acknowledgment on appeal. 484, 630, In v. Medina 6 Cal.3d People Cal.Rptr.
P.2d court 686], stated that oral on was explicitly appeal argument incidents of the from a “right.” “Important right appeal superior are the court’s oral in the judgment right present argument appellate Code, 1254; Court, 22, court Pen. . Cal. Rules rules . .” (see 30). § also, v. (See fn. 106 at People Getty Cal.App.3d 704]; Rosato Court (1975) Cal.Rptr. Superior Cal.App.3d 230-231 Cal.Rptr. rule court which authorized affirmances
Forty years ago, summary V, in civil cases was Former rule section judgments repealed. in 1932 and read “At adopted repealed pertinent part: action, time after the of the brief of an in a civil filing opening appellant notice, due move for a dismissal respondent may, upon appeal or an affirmance of or order that the judgment ground appeal was taken for or on which the decision delay only questions the cause are so unsubstantial as not to need further depends argument.”6 under the it would facilitate the
“[A]dopted supposition weeding-out ... of no substantial appeals alleviate presenting thereby question, *5 the crowded condition of , the court calendars . . the . on appellate whole, the conditions about the rule were brought by unsatisfactory the burden on the courts was increased rather than with no lightened, benefit to the practical (Whitworth, Reasons litigants.” Repeal for of Court Motion 14 State Bar Appellate (1939) J. Explained Dismiss-or-Affirm 334, 335.) found themselves to review briefs Appellate justices having twice, once on motion for affirmance and the of at time summaiy again oral When section 3 of former rule V was it was argument. repealed, noted that “the affirmance of at an summary judgments likely . end. . .” at {Id., 336.) p.
The Constitution of the of State California a to oral recognizes right VI, on 3 Article section that: argument appeal. provides “[concurrence at the a for the judges present argument necessary judgment” by Court in November evolved Appeal. Adopted provision VI, read, from former article section 4a which “the concurrence of two shall be to a justices necessary pronounce judgment.” at the VI, was added in 1966 to ensure that article “present argument” section VI, was with article section which the “parallel” governed xliii; xxxv, 6See Rules for Court and District Supreme Courts 213 Cal. Appeal see also Biennial Judicial Council of California to the Eighth Governor and the Report, (1938-1940), 34. Legislature page Com., Court.7 of arts. Const. Revision Revision (Cal. Supreme Proposed Ill, IV, V, VI, at VII, VIII, and 1966) XXIV Cal. Constitution (Feb. 86.) Cal.2d P.2d
In Water Dist. v. Adams Metropolitan VI, to 2 had this court that article section be 257], complied recognized the to be handed down a valid merits was with if appellate judgment in matters on Court. to oral Supreme right argument “[T]he has accorded and court been calendar sessions always open the court who were for of four members of the concurrence necessity in the cause has at the always present judgment argument pronouncing However, a (Id., to at been adhered and enforced.” scrupulously merits, on the to rehear a case was not be construed as a vote judgment VI, so section 2 was article applicable. court
This
oral
in Philbrook
implicitly recognized
right
argument
case,
Newman
Again, recognition right present argument in Luco v. made De Toro 88 Cal. had 983], P. This court its set aside own in the case was decision because decision concurred in fourth who was not Since justice present argument. for had not he counsel appellant stipulated justice’s participation, VI, had invoke article section right requirement at oral justice present argument. *6 law,
The case the constitutional rules of court provisions, applicable result, and the Penal Code sections all to one the Court of Appeal point criminal oral affirm a conviction without first cannot holding summarily argument. cases are Brown v. Gow 126 (1932) Cal.App.
Respondent’s inapposite. 3 of rule V as 113 P.2d involved the now section former repealed [14 322] time, it to a At did not civil case. the state Constitution applied VI, of 4 at the argument 2 reads in “Concurrence part: judges present 7Article section in was adopted This language for a Court. by Supreme necessary judgment” VI, 2 worded was formerly repealed. when article section as November 1966 VI, VI, with article reworded to make parallel 3 was specifically Since article section VI, in article argument” at the interpret phrase “present all cases which section VI, article section 3. sections in are now to the same section 2 equally applicable
289 of the at oral before a presence justices argument judgment require in v. could be rendered the Courts of Similarly, People Appeal. 262 409 the court dismissed 15], Sumner Cal.App.2d Cal.Rptr. [69 after counsel under the appeal relieving appointed procedures appellant’s outlined Anders v. U.S. L.Ed.2d California 498, 87 S.Ct. v. Cal.2d People Feggans 1396] Sumner, 432 P.2d at v. Cal.Rptr. {People Cal.App.2d 21]. Then, brief, when failed to file he was notified 410.) p. appellant the court his would be dismissed a brief were received unless appeal within 30 He failed to and the court reviewed days. respond appellant’s nobis, for a writ of error coram found his contentions petition wholly frivolous, and then dismissed the at (Id., 415-416.) only appeal. pp.
court drew the line “between a frivolous and one which simply appeal has no merit.” at (Id., It went on to hold that courts should 415.) an dismiss as frivolous “in all but the clearest of cases.” appeal except This rare occurrence would be if and his counsel were present appellant unable to find and the Court of after issue its any arguable Appeal agreed own careful review. case,
In the the Court of found claim present Appeal appellant’s “as a matter “theoretically arguable,” although practical hopeless.” Anders and counsel issue Feggans require appellant’s argue any court had an to hear the arguable. Similarly, appellate obligation counsel never to withdraw from arguable argued. Appellant’s sought case for lack of an issue as was the situation Sumner. arguable is cited
People Browning Cal.App.3d Cal.Rptr. 45] for the the Court of by respondent support procedure employed by In reversal, the Court of did a motion for Appeal. Browning, Appeal grant but after oral was held on the motion at which the merits argument and the motion were debated. (79 appeal Cal.App.3d is not for a oral Obviously, Browning support procedure bypass since oral held in that was case. argument argument the Court of acted outside its when it
Clearly, Appeal authority affirmed conviction without oral summarily appellant’s holding argu- *7 ment.
II a matter of the merits of will As judicial economy, appellant’s appeal that the of be resolved in this contends joining proceeding. Appellant former CALJIC No. 22 with CALJIC (rev.)8 No. 2.909 was prejudicial a reversal of his conviction.10 requires
CALJIC No. 2.90 is the instruction reasonable doubt in defining the CALJIC instructions. It was borrowed from Penal Code section 1096.11 archaic, its is somewhat this court has Although language warned that “most of the instructions of courts on the old repeatedly of reasonable doubt turn out to be erroneous when . . . subject step outside of well-established bounds.” v. Lenon 79 Cal. (People P. see also 967]; v. Cal.2d People Kynette [21 P.2d 794]; v. Paulsell Cal. P. In People People Garcia 63-65 list of 275], Cal.App.3d Cal.Rptr. long cases in which the courts have other instructions on disapproved reasonable doubt has been This close the courts of compiled. scrutiny by deviations from the norm is to the fact that eloquent testimony reasonable doubt instruction more than other is central in preventing the conviction of the innocent.
Former CALJIC 22No. has some serious flaws. It defines “moral (rev.) as “that which conviction in an certainty” degree proof produces The mind.” which is is “that unprejudiced suspect degree proof conviction.” CALJIC No. 2.90 of an produces speaks “abiding conviction;” former CALJIC No. 22 of “conviction.” (rev.) speaks only nature of the connoted conviction is lasting, permanent by “abiding” and the is not informed as to how and how missing juror strongly deeply (rev.), 8Former CALJIC 22No. the court with the of the word given by exception reads as “The law follows. does not demonstration or that “only,” require degree proof which, error, all absolute for such excluding possibility degree produces certainty, is Moral is proof which rarely possible. which is that certainty only required, degree proof conviction an produces mind.” unprejudiced (1979rev.) 9CALJIC No. 2.90 “A defendant in a criminal action is provides: presumed to be innocent until the is and in case a reasonable doubt whether his contrary proved, shown, he is entitled to a verdict of not This guilt satisfactorily guilty. presumption, State burden of him doubt. places upon proving beyond reasonable guilty [H] doubt; Reasonable doubt is defined as not a because follows: It is mere possible affairs, evidence, to human on moral to some everything relating depending open which, or doubt. It is that state of the case after the entire imaginary comparison possible evidence, and consideration of all the condition leaves the minds jurors conviction, cannot feel an to a moral of the truth of the they charge.” say they abiding certainty, brief, his 10Inhis has this court to decide supplemental appeal appellant requested the merits. 11The author of the is correct when he criticizes the concurring opinion standard of reasonable doubt contained in CALJIC definition No. 2.90. The should be Legislature area of the law. encouraged clarify important
291 22 Thus, No. (rev.) former CALJIC must be held. may conviction his verdict he or she could return conclude that allow a guilty juror short of belief which is on a something based convincing strong v. Hall to a near been certainty.” (People “reasonably persuaded having 284, 396 700].)12 Cal.2d 112 P.2d 62 (1964) Cal.Rptr. Penal Code
Since section outlines the definition of reasonable 2.90, contained in doubt as CALJIC No. not be should confused jurors the weaker of former CALJIC No. read with (rev.) having language of CALJIC No. Court of 2.90. As a has stronger language Appeal noted, CALJIC 22 (rev.) former No. better omitted since “might [be] [it not add to the correctness definition of [reasonable does] doubt] but to create a v. Castro controversy (People appeal.” serve[s] P.2d Cal.App.2d instruction from This was removed the list of CALJIC instructions ed. because of some (CALJIC (3d 1970)) well deserved criticism. It was drawn from the of a now originally language repudiated repealed Procedure, of the Code of section Civil which had been criticized as early as 1916 in v. Miller Cal. P. In 468], that People case, this court section as “rather objected language ,”13 drawn . . . In section 1826 was because it carelessly repealed an contained “inaccurate of the normal burden of description proof” civil cases. (Cal. Law Revision Com. Rep.
The California Law Revision Commission implicitly recognized Code of Civil Procedure section was not an by itself, adequate 12“We are first told that in order for reasonable doubt to absent one must feel ‘an conviction,’ i.e., a abiding after belief with staying power. Even absolute positivism, if it wanes Hence, some undetermined and undeterminable time is insufficient. just any kind of ‘conviction’ will . reasonable . dispel. must be kind ‘abiding’ only. But we’re then told all that is is necessary ‘moral And really certainty.’ what is ‘moral unvarnished, it’s certainty’? Why ol’ plain of unmodified (unabiding) (‘in ‘conviction’ an mind,’ course).” (Sinetar, A unprejudiced Belated Look at CALJIC 43 State Bar 546, 555.) J. “The law does not section 1826 require 13Former Code of Civil Procedure provided: error, demonstration; as, is, produces such a proof excluding possibility degree is Moral is certainty only because such rarely possible. required, absolute certainty; proof conviction in an mind.” or that degree proof produces unprejudiced section 1835 defined evidence” as that Code of Civil Procedure “satisfactory Former It or conviction in an mind.” unprejudiced moral ordinarily certainty “which produces that the both language capture meaning to believe same adequate difficult “satisfac- reasonable doubt.” “beyond Certainly, evidence” and also “satisfactory proof doubt.” a reasonable is not with proof “beyond evidence” synonymous tory *9 292
definition of reasonable doubt and that served no useful since purpose had to court make clear that “it means same jury thing reasonable doubt.”
Since former Code of Civil Procedure section 1826 has been and former CALJIC No. 22 has been removed repealed, (rev.) from the instructions, CALJIC list of this instruction should no jury longer It is the last remains of an given. drawn statute which vestigial inartfully has never been a consistent this court.14 given Under interpretation by inherent of this court over the of trial supervisory powers procedures courts, the of instruction based on former CALJIC 22 giving No. (rev.) disapproved.15 when contends that error was committed the trial
Appellant prejudicial court instructed the in the of former CALJIC No. 22 (rev.). jury language However, a close of review the record reveals that it is “reasonably that a result would have more favorable to probable party appealing been reached in Watson 46 the absence the error.” v. (1956) (People 818, 836 on two Cal.2d P.2d was convicted counts [299 Appellant and one count of All three counts involved robbery attempted robbery. the same store with one or more eyewitness employees providing positive facts, identification as the Under it is clear that robber. these appellant the error in former CALJIC No. 22 was harmless. (rev.) giving is affirmed. judgment
Tobriner, J., Mosk, J., Manuel, J., concurred.
Richardson, J., concurred in the judgment. Although I MOSK, criticism with fully agree majority’s J. I it is former CALJIC 22 believe time we also (rev.), No. disapproval deficiencies the definition “reason- acknowledge equally glaring 676, 14(See, (1947) v. People 1]; 30 688 e.g., Cal.2d P.2d v. Boothe Eggers People [185 (1977) 570]; 65 Cal.App.3d v. 18 People Fusaro Cal.Rptr. [135 Cal.App.3d 368]; v. Cal.Rptr. Wade 25-26 People Cal.App.3d [96 Cal.Rptr. 750]; v. People Benjamin 764]; 698-699 v. Cal.App.3d Cal.Rptr. People Miller, Romero 175]; 50-51 Cal.App.2d Cal.Rptr. People Cal. 15That of this case which former part holding disapproves CALJIC giving (rev.) to the No. 22 should be to cases whose applied retroactively only judgments have final date on not become as of the final. becomes opinion *10 able doubt” to the of CALJIC No. 2.90. The need given jurors part do so is herein, more Even before our decision former obviously pressing. CALJIC 22No. (rev.) was withdrawn instruction based on a repealed statute; contrast, CALJIC No. 2.90 is criminal currently given every trial held in Code, this state (see Pen. and is the sole instruction 1096a), § the hears a fundamental issue of federal constitutional dimen- jury sion—the a reasonable doubt. requirement proof beyond (People Vann Cal.3d 225-228 524 P.2d It Cal.Rptr. is therefore essential that the of the instruction be as wording clear to the as is to this difficult meaningful jurors humanly possible: problem “the best solution that can be made is the solution with which the only should be content.” (McBaine, Burden legal profession Degrees of Proof: Cal.L. Rev. (hereinafter McBaine).) As of Belief reads, however, CALJIC No. 2.90 presently falls short of that woefully ideal.
With I also that CALJIC No. 2.90 is a verbatim majority recognize of a statute—Penal Code section 1096—and hence that copy the remedy is not but Yet it is judicial for this legislative. particularly appropriate court to call the to the attention problem even Legislature, an answer. As will propose version of the appear, enacting present statute in 1927 the codified a solution this court had Legislature simply been for some If we are now of the I urging am—that years. opinion—as our earlier solution is no for the it is our longer adequate purpose, duty and to to reconsider explain why its codification urge Legislature accordingly.
I of the matter be told. For the first three- history may briefly of a after statehood California law declared the quarters century statutory basic that a criminal defendant innocent until principle presumed doubt, a reasonable but contained no proved definition guilty beyond whatever of the “reasonable doubt.” Thus the statutes on the early recited “A defendant in a criminal action is subject presumed be innocent until the be and in case of a reasonable contrary proved, doubt whether shown, his be he is entitled to guilt satisfactorily 119, 395, 304; (Stats. ch. 29, 365, Stats. acquitted.” § ch. § In 1872 this was reenacted in identical provision virtually Code, as section 1096 Penal and it remained language unchanged for more years. however, the same the trial of this state often
During period, judges the task of their own definitions of reasonable attempted formulating tried, doubt. A of such formulations were with but mixed success. variety definition, In a number cases intended although help had understand the reasonable beyond principle proof itself, or unintended effect of weakening nullifying principle convictions, hence was erroneous. prejudicially Reversing ensuing or trial from court chose not even to prohibit discourage judges *11 rather, them to the court enlarging upon statutoiy principle; urged that had instruct in terms of a definition reasonable doubt particular i.e., the definition received judicial proposed by widespread approval, Chief Shaw of in the case of Commonwealth v. Justice Massachusetts 295, Mass. 320. Webster v. (1850) (5 Cush.) (See, e.g., People Strong 155; 150, 609, 30 Cal. 72 Cal. P. (1887) v. People Kernaghan 329, P. v. 566]; 1021]; Chun Cal. People People Heong Paulsell 115 Cal. 10-12 P.
In 1927 the Commission the Reform of for Criminal Procedure reviewed this and decided the matter deserved atten- history legislative tion. the numerous reversals that had resulted from Noting erroneous doubt, instructions reasonable the commission that the defining proposed definition of the that would Legislature adopt statutory “remove all and doubts uncertainties on this and assertedly subject, clear statement of the law which can case provide and given every to which need be added. . . . The of this statute will nothing adoption add to much of the of criminal law.” for certainty (Com. operation Proc., Reform of Crim. Rep. Leg. p. motive; the commission’s method was not to its it
Unfortunately equal both and in the definition of reasonable sought certainty clarity but achieved the former at the the latter. The commission only expense failed to recommend that the it follow course would take Legislature two later chs. 875 when 1939) & it enacted (Stats. only years Code, instructions 1127b) and (Pen. § statutoiy expert testimony evidence of the defendant those instructions were (id., 1127c): § flight by written in and continue make sense to. contemporary language, Instead, the recommended that commission juror today. average into 1096 the definition verbatim section Legislature incorporate reasonable doubt Chief Justice earlier Shaw in propounded years Webster, in new and declare section 1096a that “no further instruction on or of innocence doubt reasonable subject presumption defining need be The to the letter with both given.” Legislature complied recommendations, (Stats. 1927, and its amendments ch. ensuing the law ever since. have remained 1039)
II is that the 1850 of Chief Justice Shaw problem was language obsolete in already in 1979. To hopelessly superannuated realize this it is to listen necessary calmly dispassionately definition of reasonable doubt recited in section and CALJIC No. 2.90 how of it much understands. try imagine ordinary juror
A The definition what reasonable doubt is not: begins by juror telling doubt; “It is a mere because human possible everything relating affairs, and evidence, on moral or some depending open possible On *12 doubt.” a the sentence seems but imaginary hasty reading intelligible, confusion lurks beneath its surface.
The most serious is the “moral evidence.” pitfall phrase Upon hearing a himself, this well ask “What in the world is contemporary juror might moral Is it evidence? different from direct evidence and circumstantial so, evidence? If how? Different in In Are there three quality? quantity? kinds of Moral, direct, evidence: What kind circumstantial? is ‘moral’? The are The are dictionary synonyms ‘pure, righteous, antonyms upright.’ ‘immoral, vicious, sinful, It no makes sense to depraved.’ simply speak evidence’ or evidence’ or or ‘non- ‘pure evidence’ ‘righteous ‘upright sinful evidence.’ Is an ancient with error phrase just typographical evidence,’ intended term ‘mortal evidence that man being meaning (transient fallible) (Fns. omitted.) A Belated (Sinetar, provides?” at Look CALJIC State Bar J. 553-554 (hereinafter arise; Other also Sinetar).) as the but writer questions might correctly concludes at “A (id., 554), ‘moral p. juror listening phrase evidence’ is certain be confused.”
He confused, course, because the “moral evidence” has no phrase in Indeed, 20th while its currency last century. quarter have been in known scholars it does meaning may legal to have been understood even at that We time. by appear laypersons may so infer from the fact that in the in same instructions which Chief Justice Shaw his definition of reasonable he also found it propounded to the at what he meant necessary explain jurors great length “moral evidence.”1 to this “moral was evidence” According explanation, be evidence”; from the latter served to distinguished “physical prove external facts such as cause of death or criminal, and could identity doubt; be “so as decisive leave no to. as where human are footprints snow, certain, found on the . . . the conclusion has person passed there; know, we because that that is the mode by experience, Mass, such are contrast, made.” (59 314.) at “moral footprints By evidence” said was to be evidence internal facts such as person’s motive, intent or his conduct. The latter evidence could not implied by furnish absolute for heart, “this intent is a secret of the which can proof, known to the searcher of all hearts. . . .” (Id., 316.) directly Yet from his acts state of mind could often be person’s “safely inferred” of their of human nature. jurors light knowledge (Ibid.) however,
The knows none of all The this. contemporary juror, “moral idiom,2 evidence” has out of the common and neither the passed Penal Code nor CALJIC our courts to instruct in terms of the requires Chief Justice Nor Shaw. would it be foregoing explanation by appro- to do so. If this elaborate distinction between “moral” and priate evidence California, was ever of the law of nois “physical” part longer. code, Under the includes all material “testimony, “evidence” writings, or other senses” that are objects, offered as things presented proof. Code, (Evid. § of belief... in the mind of “requisite degree *13 the trier of fact” (id, 115) does not § to the kind of vary according offered, evidence but to the be issues to When according sought proved. as here the crime, issue is the of a defendant with Penal guilt charged Code section 1096 to that fact be established a requires beyond reasonable doubt whether the evidence offered to it be “moral” or prove “physical.”
The instruction is in another out “moral misleading respect. By singling evidence” as the of to or some particular species proof “open possible doubt,” it that evidence” is somehow not imaginary implies “physical But is not it true that of susceptible uncertainty. piece every demonstrative evidence the fact for which it is conclusively proves introduced; often it direction, is clue in that simply pointing ambiguous itself but in when in viewed case. persuasive totality People’s Mass, (59 314-316) 1The at explanation pp. times than the approximately longer entire definition of reasonable doubt in section quoted 1096. defined, instance, of New International 2It for in the third edition Webster’s is not a standard American reference work. Dictionary, of rises to the level or evidence Not even scientific always experimental forms—from Such evidence comes today many fingerprints certainty. to “lie from and blood tests detectors” alcohol “voiceprints,” to each serum,” from to “radar “truth medical X-rays speedmeters”—and A forms a different these reliability. principal corresponds degree tests our caution evidence of new reason for techniques admitting to ‘scientific’ evidence is that tend considerable “Lay jurors weight give credentials.” when with Kelly by ‘experts’ impressive (People presented not 17 Cal.3d 549 P.2d We should Cal.Rptr. that risk to the that an instruction compound jurors suggesting draw be free of doubt. inferences from such evidence will necessarily to an If be ascribed that was Chief Justice Shaw’s intent it can only in the belief in the mid-19th ingenuous centuiy potential prevalent all science for human dilemmas. solving omitted, if the “moral evidence” were even archaic
Finally, doubt remain first definition reasonable would sentence doubt is Its reasonable message essentially ambiguous. hinders, not a Whether this statement or doubt. helps “possible” however, on how each word understands entirely juror key depends has the word and the instruc- meanings, “possible.” Unfortunately many it tion not define If the were to take in the sense does it. juror to “actual”— the statement would “potential”—as opposed perhaps But that much is not the primary meaning “possible”; intelligible. more it can be or can denotes become—as commonly simply understood, it is so Yet if instruction opposed “impossible.” again he must vote to if him mystifies juror: begins by acquit informing he has reasonable then it him that such a doubt is tells “Thus, not is it not doubt’ possible. helpful distinguish ‘possible doubt,’ from ‘reasonable it is (Sinetar, downright confusing.”
B in section definition of reasonable doubt The second sentence of the to define the No. more It and CALJIC 2.90 is still obscure. attempts case, which, the after i.e., the “It is state of affirmatively, concept evidence, minds leaves the entire of all the consideration comparison an not feel of in that condition that can abiding say they they jurors The conviction, to a moral truth creaky charge.” certainty, of close structure of this sentence will not analysis. weight support with, To it makes no sense to that reasonable doubt is a instruct begin himself, of the case.” ask can “state well “How Again juror might doubt, has, kind of a even a be a a lawsuit be an reasonable quality ” attribute of a ‘case’? (Sinetar, doubts are states mind. Surely 554.) This court an identical but rejected complaint years ago, unanswered, without and the remains wholly analysis.3 objection continued use of this loose causes confusion. needless language
The definition next directs the to make what it calls jurors “the entire and consideration comparison of all the evidence” in order to determine if have a reasonable doubt. This stilted to be at once phrase manages redundant and It is redundant because in incomplete. context present there is no difference between essentially and “considera- “comparison” tion,” or between “entire” and “all.” The distracts, but does repetition On the other hand clarify. contains several significant It omissions. has been criticized for to instruct the that their failing jurors review of the evidence must be “fair and (Claussen v. State impartial.” P. Wyo. more Perhaps importantly, by review to limiting “the jury’s evidence” it that a doubt not implies from that source cannot arising as reasonable. Yet there qualify are at least three other possible sources of legitimate doubt in juror every trial.
First, a reasonable doubt can arise not from the presence evidence in the defendant’s alibi case—e.g., persuasive testimony—but also from the absence of evidence from case—i.e., some prosecution’s link in the chain of that the deems to be from the guilt missing Second, on the People’s presentation. by instructing presumption innocence section the court in effect—and required by doubt the accused properly—directs even before jurors guilt their consideration of the evidence. that initial they begin “Suppose doubt the evidence. Will it arise out of the evidence? persists, despite Must the because still doubt his is a mere say juror guilty, present continuation of the doubt with which he (Trickett, began?” Preponder- Evidence, L. ance and Reasonable Doubt 10 The Forum (Dick. 3The court’s entire discussion of the was the curt remark that “The term ‘case’ point used used in instruction was Chief Justice Shaw in his definition of reasonable Webster, 295, 320, (5 Cush.) doubt case Commonwealth v. 59 Mass. and this has instruction been so often this court that defendant’s does not approved by objection call seem to for further comment.” 143 Cal. P. Lewandowski (People however, 467].) In that case on stare as it reliance decisis seems to have been improper, *15 does not that the court addressed the of its decisions appear precise objection prior the instruction. approving to the Third, each Trickett).) brings School) (hereinafter juror store of judgment; deliberations his knowledge, experience, personal of the the “the he tests are the tools which probability these credibility, by from circum- to be drawn witnesses, or of the inferences testimony has been mind, after the evidence The doubt in his stances. lingering of these concluded, subjective may by application produced not, even to it. such a doubt {Ibid.) criteria Is Surely though illegitimate?” before him. of the evidence its source is his individual put perception however, definition, The defect in the second sentence of the principal doubt if are told have a reasonable is even more serious: they jurors conviction, truth feel “an to a moral of the do not certainty, abiding formula, will raises far more of the The appear, charge.” quoted than it answers. questions the word has an
First, what is an conviction? Again antique “abiding” 1850, it fallen into have been current in has since while long may ring: our As with the is no disuse and daily speech. longer part from the trial court evidence,” are left without “moral guidance jurors courts have as to its intended occasionally meaning. appellate that the word was definitions, their efforts show but poor suggested choice in the first place. 25], P.2d v. Castro Thus Cal.App.2d People “ conviction’ is stated that Court equivalent ‘Abiding Appeal ” bar, at conviction,’ case.4 In the case an New ‘settled Jersey citing early conviction nature of the refer to “lasting, permanent majority ” the duration of Yet this
connoted 290). {ante, emphasis by ‘abiding’ because It is and misdirected. belief is both confusing confusing jury’s “What convic- to ask further it leads the embarrassing questions: juror abode, But, is that? One has what It is an conviction. tion? abiding How before time, that is to abide? or one for a considerable long going it have been must the conviction the verdict expressed rendering week, hour, five minutes? If A an abidingness formed? day, to abide? know that it is future, what does By going juror faculty its he its conviction does By what recognize longevity? quality Who in the its defiance of jury-room? argument By past strength? (Trickett, knows?” ” added, (Ibid.) ‘convince.’ A “convincing used in the sense “It is 4The court however,
conviction,” nothing. tautology explains is an obvious *16 the duration of a belief in The is misdirected because juror’s emphasis convict, In order to he must believe the is irrelevant. essentially guilt at the time the verdict is defendant a reasonable doubt guilty beyond reached, court, if that is declared in verified the step open by polling that his belief and But there is no recorded. requirement requested, thereafter. for of time discharge, any Following juror’s persist period events raise a for further reflection or may example, subsequent him of the defendant’s reasonable doubt in his mind or even persuade an In it cannot be said he had innocence. such circumstances “abiding” above, in even when the conviction sense defined guilt temporal verdict was rendered. Nevertheless the verdict stands: in its concern for the law not his does finality judgments permit juror impeach verdict on nor an a motion for this will such occurrence ground, support trial or new reversal on appeal. when
It is true the an additional of “abiding” majority imply meaning assert that if the word the instruction is omitted from (ante, 290) is not told “how and how he must believe juror strongly deeply” I of the belief in in order to convict. intensity juror’s guilt agree relevant; but the word is to its duration—is “abiding” guilt—as opposed current To the extent has any convey thought. singularly inapt all, or duration: modem the word suggests persistence meaning Webster’s New define it in those terms. (See, dictionaries e.g., exclusively that in We cannot 1961) Intemat. Dict. ed. (3d guess expect juries in a trial is this obsolete CALJIC No. 2.90 the court adjective using giving different sense.5 substantially of the instruction: crucial the most hears
At last the juror in the believe not if he does doubt a reasonable him he has tells court a moral regrettably, “to expression, of the certainty.” truth charge of the than preceding venireman no more average intelligible he will for if he is enlightenment, of the definition: waiting elements Justice of Chief Indeed, one tunnel. aspect of the at the end find it criticism over and most judicial has drawn scholarly Shaw’s charge deserved. it is well view my years, 5Even the in the conviction” instruction’s use of word “conviction” phrase “abiding trial, course, In a criminal “conviction” has another unnecessarily confusing. distinct formal of the defendant’s meaning—the finding guilt. By using adjudication sense—i.e., the same word in a different the individual belief in that wholly juror’s conviction” instruction “the guilt—the produces absurdity predicating [defendant’s] “the conviction.” [jury’s]
301 Shaw himself intended At the outset it is fair ask what Chief Justice in Webster “moral From the tone of the phrase certainty.” opinion he as he that is certain” when is meant a it “morally appears person “moral evidence.”6 But as as he can be of a fact certain proved by is, no evidence” above, have idea what “moral today’s jurors explained it it would the distinction and be to revive originally improper Furthermore, uninformative: is referred. essentially explanation evidence” that definition is because “moral incapable proof a in this sense is said be certain” “morally resulting certainty, person he he he be certain. when certain as can be of a fact of which cannot Chief Justice Shaw attempted realizing deficiency, Perhaps of “moral in his instructions to it is definition certainty” jury: specific that convinces directs the and satisfies the “a and certainty understanding, are act and who bound to reason those conscientiously judgment, upon Mass, at this definition were 320.) Instructions (59 it.” embodying it “a decisions without often because was analysis, merely early upheld the famous Chief Justice Shaw in Webster from charge quotation v. case, has if not Lew been (People uniformly universally approved.” 141 cases suit Cal. Later followed Fook (1904) (e.g., 30 688 P.2d v. Herrera 1]; v. Cal.2d People People Eggers [185 and the instruction 409]), Cal.Rptr. Cal.App.2d collection. of CALJIC as No. of that was sanctified in the first edition however, critical voices were the same occasional During period, Chief an instruction heard. Thus in a refusal containing give approving the Court “moral Justice Shaw’s definition of certainty,” Appeal observed: “It illuminating interesting candidly might quite to the be of no benefit but it is believed that it would average philologist, uncertain to us somewhat Indeed, as a whole seems the instruction juror. harm, if it had obscure, done no it have and while would probably no it would have done been it is fair to good.” (People say given, P. In an article 1046].) McDonnell Cal.App. with Evidence (9 (3d obvious Wigmore Wigmore approval by quoted deflated the author 322-323 (hereinafter 1940) briskly ed. Wigmore)), pp. and showed the definition words of actually the high-sounding “ an ‘Moral is that stating certainty’ court instruction similarly 6This has approved law of moral evidence.” v. Lew Fook which the (People proof requires degree 141 Cal. P. contained certain- understand the “moral nothing help jurors ty.”7 1967 instruction 22No. had been withdrawn from CALJIC. It was
By *18 instruction No. 22 which defined “moral (rev.) replaced by certainty” “that conviction in an degree proof produces unprejudiced mind.” The was taken verbatim from Code of Civil Procedure wording section which had so declared since its codification in 1872. original But No. 22 has fared no (rev.) better than its as the predecessor: majority herein {ante, section came under 292), opinion emphasizes pp. attack and was effective and No. 22 was (rev.) thereafter repealed withdrawn from CALJIC. As the de the now coup grace, majority No. 22 because its “serious flaws” have the (rev.) 290) {ante, disapprove as to the of the standard of potential confusing jurors meaning a reasonable doubt. proof beyond this,
The in all course, is that the of both irony these purpose hapless instructions was not to undermine a requirement proof beyond reasonable but to define “moral thankless simply certainty”—a task made because in 1927 the wrote the necessary only Legislature obsolete of Chief Justice Shaw into our code. And because no language other statute or task, instruction the effect of attempts withdrawing CALJIC Nos. and (rev.) is the law now instructs the plain: jurors that reasonable doubt is a lack of “moral but refuses to tell certainty,” them what “moral is! Yet if cannot certainty” legislators judges define the what do satisfactorily and we have to phrase, right demand more of the and women who sit on our laymen juries? convict, told, 7 “Inorder to we are further the evidence must a moral produce certainty But ‘convinces, guilt.’ has some certainty very peculiar It and it powers. directs it ‘satisfies the understanding,’ reason and judgment.’ state of Certainty being convinced, but, of, in Shaw’s from, is the cause philosophy, and therefore different A conviction. moment there was ‘an ago, conviction ato moral abiding but now certainty’ a it is a state, actor, conviction! certainty generating (which This is not a but an certainty, cause) a has three seemingly, on which to subjects There is an operate. understanding; there are a reason and a Or But, are these three judgment! names for one that only thing? be, cannot for the are different. The operations convinces and certainty directs the is, It no does such for the understanding. reason or the Its thing function judgment. these, humbler shall we or more respecting exalted? It ‘satisfies’ say, the reason and A The satisfies! that one
judgment! certainty has fallen heir to a million certainty dollars reason; ‘satisfies’ but it does satisfy the desire for cupidity, happiness; Y, that X the defendant killed certainty satisfies the reason! What is this strange reason, elusive called satisfaction of the And thing reason? what that it singular thing be;satisfied should that the defendant has committed an by certainty atrocious crime? it, is, what is satisfied is the Perhaps desire to find out who committed the official for which curiosity (Trickett, ‘reason and are odd jurors names.” judgment’ supra, 85-86.) atpp. had a The situation would be tolerable if “moral conceivably certainty” but common meaning hope quickly proves everyday speech, vain. The court that us the same problem subsequently very bequeathed our that “The introduced into ‘moral has been explained phrase certainty’ from (Commonwealth jurisprudence publicists!8] metaphysicians” 1, C. Neither of these J.)). Mass. Costley (per Gray, venireman, sources, course, arcane is familiar to the average without their he In will knowledge inevitably go astray. specialized notes, as McBaine “The word moral distinction ordinary usage, suggests between and evil in relation to the dr character actions good we saw in fn. But as (McBaine, responsible beings.” evidence,” connection with the no sense whatever “moral it makes *19 of a or if or Its speak certainty. meaning, “pure” “righteous” “upright” must lie elsewhere.9 any, is
How the understood seems to in phrase large depend part whether the listener its “moral” or element its reference to emphasizes former, If the is deemed to be a “certainty.” phrase merely synonym that for a reasonable doubt but short of absolute proof beyond court in Thus the defined “moral “a as certainty. Costley certainty” very Mass, at and (118 asserted that 23), high degree probability” flatly a reasonable doubt” is a moral ‘to beyond proof proof certainty,’ from an absolute As to a trial for distinguished certainty. applied judicial crime, the two are each has been phrases synonymous equivalent; (Id., used eminent the other . . .” . at This 24.) judges explain California, to be the view taken in our are in decisions appears although some as to disaccord whether these are one terms with synonymous, even that to a “moral than less opinion stating proof certainty” may a reasonable doubt. (Drown v. New Amsterdam beyond proof Casualty Co. 175 Cal. P. 5].) [165 view,
Yet element opposite stressing “certainty,” may be one that are more to hold. McBaine observes that actually jurors likely moral a “sometimes means so as not certainty degree probability great to admit of reasonable doubt. To use ... moral phrase certainty may which, idea absolute that he convey certainty required,” out, is not the added; of belief to convict. points (Italics degree necessary McBaine, 258-259, concern, fn. 35.) this same pp. Voicing time,
8At the
was a scholar of
“publicist”
international
law.
‘moral,’
connection,
9One court
and ruled
gave up early,
that “The
simply
word
that
‘mental,’
than
more
or
‘intellectual’
meaning nothing
is therefore the same as ‘reason
”
v.
Nor, can a this dilemma finally, juror escape phrase taking rather than either of its elements. As a federal court literally, stressing observed, “moral is a soundly “involves a certainty” contradiction for truth fact approaching absurdity; ‘certainty’ imports doubt or while ‘moral’ proven beyond like question, imports That is to taken proven only probability. say, literally use, forced construction to sanction its the term a truth of judicial imports fact doubt or (Italics probably proven added.) beyond any question.” (United States v. 11 F.2d (W.D.Wash. 1926) Thompson Again the result can be confusion.
For the reasons, courts have criticized foregoing many distinguished the “moral it not be used when phrase certainty” urged the on reasonable doubt. Thus the United States instructing jury Supreme warned, Court definition, after Chief Justice Shaw’s long ago quoting is, “The with this instruction that the words ‘to a reasonable and difficulty doubt;’ moral add to the words a reasonable certainty’ nothing ‘beyond one as much as the other.” v. Utah (1887) may require explanation (Hopt 430, 708, 711, 120 U.S. L.Ed. S.Ct. More the recently, Second Circuit criticized the use federal district of “the courts term ‘moral in its variations.” States (United ambiguous certainty’ many v. Hart Cir. 407 F.2d thereafter the (2d 1969) same 1091.) Shortly court said that “While we do not see the ‘moral why phrase certainty’ all,” should continue to be at use its there was not employed “plain error,” i.e., error reversal even grave enough require though defendant failed to at trial. States v. Acarino Cir. (United (2d 1969) object 517; 408 F.2d see also United States v. (9th 1972) Cir. Scarbrough F.2d 169.)
Far more forceful was federal court above. States v. (United quoted F.2d one (W.D.Wash. 1926) Thompson Writing only definition of the Webster before our Legislature incorporated year “Chief Justice into the court remarked: reasonable doubt section used, that the term ‘reasonable doubt’ is ‘often Shaw stated probably understood, defined,’ and, but not well essaying easily thereupon pretty that reasonable doubt task, he delivered of the musical himself of the truth ‘an conviction to a moral absence of certainty abiding of difficult he admitted it was At the same time comprehen- charge.’ the shades of sion, drawn from within he addressed it to jurors though rather a it, too much to it is learned Harvard. Of it is not sing-song say incantation, than would its little more original conveys meaning it was Gothic and Latin to the obviously Bishop’s average juror; of reasonable Proc. when he wrote that definition 1094) mind (Crim. § the classes from which our are doubt ‘will darken more minds of jurors drawn, than it will That therein well Bishop might mainly enlighten.’ trial, included as well is evidenced have judges, appellate innumerable cases in the books.”10 courts of a number of our sister have been states appellate equally
critical.
Thus
Commonwealth v. Holt
trial court struck the “to a moral and instructed phrase certainty” is, course, 10The (1 court’s reference to to a treatise of the “Bishop” leading period 683), New Criminal Procedure in which the author concludes § Bishop’s that “we have not one definition reasonable which can be safely [affirmative doubt] both and accurate.” pronounced helpful reasonable doubt. The error, court found no that appellate reasoning not, “The addition the words ‘to a think, moral would we certainty’ add to the instruction. The words themselves would anything require . .” court. . in (Fn. omitted.) Norman v. explanation by Conversely, State (1912) Ga. the trial 429], S.E. court failed to instruct in terms of reasonable but advised the that the defendant’s jury must be established “to the exclusion of other reasonable guilt and “to a moral and reasonable hypothesis”11 certainty.” Holding error, instruction to be reversible the court reasoned: “It may conceded that these are expressions logically legally equivalents doubt,’ and, a reasonable if the was erudite ‘beyond composed men, familiar with or be used to either legal logical terminology, might of mental conviction to convict crime. But express degree necessary we venture to ‘reasonable would say expression hypothesis’ no definite idea to the mind of those selected convey very ordinarily and the words ‘moral and reasonable jurors, would be little certainty’ more The words a reasonable doubt’ are illuminating. ‘beyond easily understood man.” by every
Indeed, it is not who find the “moral only jurors may phrase certainty” In State Mo. unintelligible. S.W. Sykes 1132], “ the trial court refused to an instruction in ‘The give stating part defendant’s must be established a reasonable doubt. Proof guilt beyond a reasonable doubt is such as will an beyond conviction produce abiding the mind a moral that the fact exists that is claimed to certainty ” . exist. . .’ The Missouri Court held the instruction was Supreme refused, that “We can understand the first properly declaring clearly it, ‘The sentence viz.: defendant’s must be established guilt beyond reasonable The remainder doubt.’ of the instruction is unintelligible us.” criticisms the courts have echoed In been scholars. legal
another article with evident quoted approval Wigmore (Wigmore, the author 321), attributes Starkie on Evidence introduction of the “moral and asks certainty,” rhetorically: “Now, the administration of this new why perplex justice by interjecting element of not leave the courts and alone Why uncertainty? juries *22 as best with the without they may grapple difficulty determining, test, a what reasonable constitutes without to that difficulty adding the what a constitutes moral certainly equal difficulty determing (See 11This test to have in also Massachusetts. appears originated Commonwealth v. 1, 23.) 118 Mass. Costley supra, end such a of indefinable terms What can up certainty? possible heaping serve, than and aid the but confuse and baffle rather enlighten average Doubt and Some Rules Evidence: Reasonable in Civil (May, juror?” “No Criminal Cases Am.L.Rev. 658.)12 Admonishing understand; neither can man can measure with a rule he does not juries themselves, obscure determine rules obscure in and made more by yet definition,” “unsuccess- Chief Justice Shaw’s attempted May deprecates ful, unfortunate, define what constitutes say attempt ” omitted; id., ‘reasonable doubt.’ at 663.) (Fn. p. terms, of “the
In similar denounces continued use highsound- Morgan case.” (Fn. omitted.) but Webster ing meaningless phraseology and Burden (Morgan, Instructing Jury Upon Presumptions of Proof And McBaine strikes Harv.L.Rev. (hereinafter Morgan).) heart of the matter that “the rhetorical and flowery by urging in reasonable instructions doubt language commonly employed upon should be Words with doubtful or obscure should eliminated. meanings be avoided. Plain and be used which define the words should phrases exist; of belief which must words and do not degree phrases a test of a The nebulous or nature. ‘moral suggest mysterious phrases from Shaw’s conviction’ borrowed Chief Justice certainty’ ‘abiding in the famous Webster case should charge replaced by omitted; McBaine, . . .” at (Fn. 258.)13 simpler language.
Ill I underestimate so. do not less solution plain, problem section reasonable doubt the definition of redrafting difficulty of Chief Because syntax to modem make it juries. intelligible as his would be almost as little Shaw is vocabulary, Justice antiquated words for key substituting synonyms by merely contemporary gained would of the definition aYet his formula. reworking complete original new well introduce unsuspected risks. It significant might present Boston, 12The writer is Chief described Justice John W. McBaine May (supra, 256) (See “author of the treatise on criminal law.” Criminal Law May’s as well known 1905).) (3d ed. former not even Massachusetts follows the its Chief Justice 13Ironically, language as we do: Massachusetts Court recently recognized slavishly Supreme Webster, instructions on this are based on but “as modified approves topic some from the exact Webster variations improved by unquestionably language_of - - 1273], N.E.2d fn. Yet (Commonwealth v. Ferreira Mass. case.” amber, is still found an of Webster language like ancient insect the original trapped intact in California law. *23 308 that would come to our trial after courts had relied
ambiguities light only version, on the revised in due course the reversal numerous requiring convictions; and if in sufficient drafted detail minimize that it danger would far be more than it is rise to the certainly wordy today,14 giving instructions we have often censured. v. prolixity (See, e.g., Ritchey 387, Watson 204 Cal. (1928) 390-391 P. 345]; People [268 Bickerstaff 764, 46 775 P. on (1920) den. of Cal.App. (opn. hg. by Supreme [190 656] Ct.).) alternative, there another a solution half of
Happily by adopted fully states the Union and advocated scholars. These long by leading authorities that all to define the a recognize attempts phrase “beyond reasonable doubt” are at futile once are futile They unnecessary. because, seen, as we have the definition is more than the complicated itself and results in rather than phrase confusing enlightening jury; are because a doubt” a reasonable is not unnecessary “beyond technical term learned but a legal requiring explanation, phrase common that is known and understood meaning usage From these both courts and have juror. average premises Legislatures concluded that in criminal cases should be instructed simply innocence and burden of presumption prosecution’s proving a reasonable with no effort made define the guilt beyond being latter phrase.
Some
be
The United States
examples
reasoning may
helpful.
Court has observed on several occasions that
Supreme
“Attempts
the term ‘reasonable doubt’ do not
result in
explain
usually
making
clearer
the minds of the
(Miles v. United States
U.S.
jury.”
304,
481,
accord,
L.Ed.
Dunbar v.
484];
United States
[26
395,
U.S.
L.Ed.
Many dangers attempting a reasonable “It is said doubt.” that scholastic to “beyond attempts words, of such which are more understood explain meaning easily than are liable lead such to men as make our explained, commonly up to think that the which are juries ordinary processes reasoning, by they life, to accustomed come to conclusions in the affairs of are not ordinary to the case, suitable a criminal some room in but that other jury process is to be are to from the reasoning adopted they gather language trial of the and that are weakened in their judge, they really thereby conclusion; to come to a better to that it would be leave them ability just to their in exercise own to so that it is intelligence regard plain language not make it State v. Wis. (1899) (Buel easy plainer explanation.” 132 N.W. [80 85] cited most often is confusion “It has
Perhaps
'i--;
danger
jury.
,
been stated
this court and other authorities that
frequently
any
'
on the
definition
of the courts of
doubt
reasonable
tends to
part
which,
confuse
and renders uncertain an
.
jury
expression
standing
alone, is
well understood as certain and
v.
ordinarily
intelligible.” (People
accord,
Ill.
N.E.
v.
769],
Gormach
Ahrling
People
[116
By
phrase “beyond
doubt” is
“The term ‘reasonable doubt’ has no other or
self-explanatory.
different
in law than it has when
used
meaning
any
ordinary
transactions or affairs of life. It is doubtful
better definition
whether any
of the term can be found than the
themselves.”
v. Barkas
words
(People
698,
accord,
255
516
(1912)
Ill.
N.E.
v.
702-703];
(1941)
People
Flynn
[99
49,
Thus in v. Claussen State 133 P. trial 1913) (Wyo. supra, court no instruction reasonable and refused gave defining defendant’s to in instruct terms definition Chief Justice request Shaw in Webster. The Court held was not error to Wyoming Supreme refuse this instruction: “In our no there is definition of judgment ‘reasonable doubt’ which would ato mind clearer idea convey juror’s any than the knows, term itself. . . . or know, to awhat Every juror ought doubt is of the word ‘reasonable’ as such to meaning applied doubt. Is it clearer in that, any if he be meaning say juror convinced from the evidence to a moral of defendant’s certainty guilt, then he has no reasonable doubt? What does moral mean more certainty than reasonable or a reasonable doubt?... We think the certainty beyond definition doubt,’ to define failed ‘reasonable or its requested make clearer to the than itself, meaning and for that reason jury the court did not err in it.” State (Accord, v. refusing give Eldredge 545, 45 488 (1933) P.2d 547-548]; State v. Velsir 61 Wyo. (1945) [21 Wyo. 371, 476 P.2d 377-378].)16 [159 are accord. stated
Once
scholars
in
Bishop
again
legal
general
doubt,’
“There are no words
than ‘reasonable
succinctly:
plainer
point
Mitchell, J.,
15The writer is
called
“one of the
by
minds
his
Wigmore
great judicial
323,
6.)
fn.
generation.” (Wigmore, supra,
p.
16The
than
courts of more
a dozen additional
appellate
states have
similar
expressed
78,82;
(See,
(1872)
views.
(1963)
v. State
47
e.g., McAlpine
Ala.
State v. Freeman
85 Idaho
632,
598;
635];
593,
(1873)
P.2d
72
v. Commonwealth
De Lea
Mickey
State v.
Ky.
[379
814,
903,
(1908)
817];
A recent author equally Permissive Reasonable Doubt and reason. (Nesson, compelling Inferences: The author Harv.L.Rev. Value Complexity of of an section 1096 as an example Penal Code cite California 17 Thedraftsmen then definition of this sort. “attempted” of observes that central the standard of purpose proof beyond reasonable doubt is to enhance the moral force of the criminal law confidence in the of correctness verdicts. (Id., public promoting jury 1195; also In see re L.Ed.2d U.S. Winship 375, 90 He S.Ct. that “The of doubt reasonable explains concept to the need to forestall continued about the speaks psychological worry of verdicts. As is left validity guilty long concept ambiguous, of members assume share with observing public may members common of notions the kinds and of doubt that are degree ... To extent that the of exists a shared unacceptable. assumption of standard concept necessary proof, acceptance general rendered under that standard will be judgments guilt by jurors facilitated.
“Viewed in it becomes clear that to define light, precise attémpts us, reasonable doubt undercut Each its function. concept effect, has his own sense when a chance of innocence can be subjective minimis, as de but our senses are different. disregarded respective surely verdicts, If rendered, once continued to guilty because of questioned about the de minimis notion to disagreement precise apply, acceptability undermined, would be extent, to that process adjudication, would have failed to one its Reasonable accomplish major objectives. doubt defies exact definition because is a meant to precisely concept different, individual views howof must encompass many probable guilt *28 be how (or innocence must to warrant be) conviction.” (Fn. unlikely omitted; 92 Harv.L.Rev. 1196-1197.) at pp.
Most also that the commentators best solution is the agree simplest. that “Where reasonable doubt is Morgan explains proof beyond required, the should not be difficult to ... It frame. is to be charge coming that all to define reasonable doubt or recognized attempts by paraphrase circumlocution tend to obfuscate than rather the con only clarify . . . Where the the facts cept. specifies by judge particular proved the state and then in tells the state does not plain language jury its burden of them unless the evidence convinces the satisfy proving jury facts, reasonable doubt of the existence of each these there is beyond no that the will fail to understand. If he is danger average juror intelligent sit he is so enough upon jury, intelligent enough comprehend omitted; an (Fn. instruction.” 63-64.) simple Morgan, supra, at pp. itself to be concludes that “Where a conceives 64) court (at
Morgan bound to insist helplessly by repetition incompre precedent upon formulae, hensible relief lies in (Fn. omitted.) legislation.” in California our trial courts are bound” to Ironically, “helplessly repeat such formulae” “incomprehensible very legislation supposed relief, the 1927 amendment to section 1096—a statute that provide as a safe but “not method Morgan disparages very acceptable” trial from courts reversal. fn. McBaine (Id., 13.) protecting at p. joins criticism, in section 1096 because it “the disapproving incorporates evidence,’ ‘moral and ‘moral conviction’ inept expressions ‘abiding ” contrast, cites fn. he (McBaine, certainty.’ By statutes from a number of other states that declare the simply presump tion of innocence and a reasonable requirement proof beyond without to define the latter (Ibid.) making any attempt phrase. I our It is consistent
That is the solution Legislature adopt. fully urge section 502 with both and former California law. Evidence Code present bears the directs the trial court to instruct the “as to which jury party burden of on each issue” and as to whether that burden proof requires to “establish the existence or nonexistence of a fact... party by proof I instructed, I but a reasonable doubt.” must be so beyond agree jury see no need for trial court to undertake a definition of “proof beyond above, I a reasonable doubt.” For the reasons stated believe that all understood commonly persons ordinary intelligence It settled in California that are “Since experience. jurors presumed and to be possess ordinary understanding intelligence capable and use of words in their common and meaning ordinary application, trial is not to define words phrases employed judge required simple 55 Cal.2d in an instruction.” v. Western Pac. R.R. Co. (Pobor to a wide 359 P.2d This rule has been applied Cal.Rptr. trials;18 in criminal of terms used juiy “proof instructing variety doubt,” submit, I to the is no less familiar a reasonable average beyond “a it can be said that Of all such terms juror today. virtually of them.” them would not understand an did not understand explanation *29 598, this is Certainly 78 Halbert (1926) v. Cal.App. (People supra, 656, 18See, 668 P.2d (1951) (“perpetrate”); v. 37 Cal.2d Chavez e.g., People 632] [234 699, and (1917) (“aiding abetting”); People v. 176 Cal. 706 P. People Wong Hing [169 357] 458, (“criminal v. (1959) People 176 503 Cal.Rptr. agency”); v. Scott Cal.App.2d [1 600] 300, (1956) 147 P.2d (“impeach”); People Taylor Shannon Cal.App.2d 101] [305 “artifice,” “trick,” 802, and (“fraud,” (1953) 806-807 P.2d Cal.App.2d [254 179] 389, and “device”); v. Bill 396-397 P.2d (“possession” People Cal.App. [35 645] 592, 606 P.2d narcotic”); “habit v. Roth 137 Cal.App. forming People 813] “insolvent"); (1926) 78 P. (“solvent” and v. Halbert Cal.App. People 969] “wanton,” “wantonness”); Cal.App. v. Anderson (“wilful,” People (“due caution and circumspection”). 269-271 P. 324] true of reasonable doubt embodied “explanation” currently section 1096 and in the other definitions over the many years.19 proposed
In the definition of reasonable doubt from section 1096 the deleting would be our law to the state it was in from Legislature simply returning 1850 to 1927.20 The that arose same problem during period resulted in the 1927 amendment—excessive reversals on the of ground erroneous definitions of reasonable doubt—could be avoided easily by instruction this solution prohibiting giving defining phrase; is followed a above, number the courts cited and could be achieved by a minor modification of section 1096a.21 by
Unless the matter, takes action in the in all Legislature California juries criminal trials will continue to be at best and misled at worst mystified by of reasonable doubt defined in the hearing archaic idiom of concept CALJIC this, No. 2.90. hallowed, “But now the same language produces like as the New sheep Clothes.’ acceptance ‘Emperor’s Judges awesomely intone the into ponderous gibberish, lawyers hypnotized believing they understand listen while His fatuity respectfully, jurors, noticing Honor’s serious mien and the mimic the lawyers’ sage expression, air of Thus, exampled grave comprehension. linguistic parade begun in 1850 continues without so much aas smile from the through today omitted; marchers.” (Fn. Sinetar, 551-552.) supra, at pp.
Whether charade, or it is time the parade was ended and pretense plain restored to the courtroom. for the conscientious men Respect speaking 19I that in recognize v. Vann People Cal.3d this court stated somewhat obliquely that a defendant is entitled to an instruction on the requirement beyond proof reasonable doubt “buttressed additional instructions on the meaning (fn. of that omitted). dicta, however, phrase” The words were quoted cannot believe the court plainly unsupported either or I analysis authority. would reiterate the statement after mature consideration of the body judicial set forth herein. scholarly opinion amendment, however, 20The 1927 added one clause to the first sentence section retained, 1096that should be because instructs the that the correctly effect of jury only of innocence (See is to the burden of presumption on the Evid. put proof People. Code, (a) § subd. evidence.”].) is not presumption rewritten for Slightly [“A section 1096 could purposes clarity, therefore be made to as follows: “A the provide defendant in a criminal prosecution is to be innocent until presumed contrary effect of this proved. is to on the state the presumption burden of place proving the defendant a reasonable doubt. If guilty beyond there is a reasonable doubt whether has been the defendant is entitled to an guilt proved, acquittal.” 21For section 1096acould example, rather than simply put mandatory permissive i.e., code, form: and no further instruction on the “In the court shall read to the section charging jury, 1096 this *30 of innocence or subject presumption defining italicized.) reasonable doubt shall be amendments given.” (Proposed demands on our to the best of their who serve ability and women juries
. no less.
>, Tobriner, J., concurred.
NEWMAN, I do not traditional J. I dissent because believe oral are the boundaries same as the boundaries right argument that the California Constitution prescribes. Council we
From II of the 1979 Annual the Judicial part Report 6,411 1967-1968, in the in learn that “total Courts were Appeal filings” 2,959 13,018 3,881. In this court the totals were 1977-1978. parallel . ., (See pp. 47 state the work of that in this Do not those and related statistics suggest
X? of a overload? because serious Many judges may suffering appellate essential, if I It would be unfortunate needed will be think. improvements how, as to reforms were blocked archaic assumptions experiments fact, oral most efficiently helps promote argument justice. was October 1979. denied for rehearing petition Appellant’s J., that the should be Newman, were of the Clark, J., and petition . opinion .granted.