*1
STATE Term, Sept. No. 1992. Appeals Maryland.
March 1993. *3 E. Jr., (Stephen Defender Burns, Asst. Public E. George Baltimore, for brief), peti- Harris, Defender, both on Public tioner. Curran, Jr., (J. Joseph Page, Atty. E. Asst. Gen.
Sarah Baltimore, Gen., brief), respondent. for Atty. on McAULIFFE, RODOWSKY, ELDRIDGE, Argued before *4 KARWACKI, BELL and CHASANOW, M. ROBERT Jr., of ORTH, Appeals of the Court Judge E. CHARLES (retired, Assigned), JJ. Specially ORTH, Assigned. Judge, Specially E. Jr.
CHARLES
I recognizes Maryland of justice The administration of the sufficiency to test proof three standards of evidence. The requires lowest standard proof aby “prepon evidence; derance” of highest standard demands proof “beyond doubt;” a reasonable an intermediate stan dard calls for is convincing.” “clear and
We thе trier expect distinguish of the facts subtle distinctions and of a nuances standard when called upon it. apply But the terms “preponderance,” “clear and and convincing” not, “reasonable doubt” are at least in sense, Therefore, their legal street familiar. when the trier of facts is a jury, explanation some authoritative of the applicable term is advisable. To that we adopted end what (c) now Md.Rule 4-325. Section of the rule reads: may, request shall,
The court
and at the
any
party
instruct the
as to the
applicable
law
the extent to
which the
are binding____
instructions
The court need
by
evidence,
1.
proving
preponderance
On the burden of
a
of the
we
said,
case,
criminal,
any
legal
or
sufficiency,
civil
to meet the
test
(if believed)
directly,
support
evidence
must either show
or
a ration-
of,
case,
proved.
al inference
be
fact to
In a civil
the fact must
shown,
supported, by
be
preponderance
inference
probability
opposite preponderance
or an
be
must
overcome.
132, 157-158,
State,
(1951).
v.
Edwards
198 Md.
II
A
of
Supreme Court
the
the
taught by
been
We have
is consti
doubt standard
the reasonable
United
States
of the Four
clause
process
the due
tutionally
mandated
States,
of
the United
Amendment
the Constitution
teenth
every
pro
of
criminal
indispensable component
and is an
361-364,
90 S.Ct.
Winship,
re
ceeding.
U.S.
(1970). The
1071-1073,
2.
being
generally
considered
proof,
reasonable doubt standard
suggestion,
adopted
There
for the benefit of the accused.
however,
actually
prosecutorial
innovation
"was
standard
decreasing
in criminal
burden of
the effect
that had
Morano,
Development
Anthony
A.
A Reexamination
cases."
Review,
Rule,
University
at
Law
Boston
Reasonable Doubt
(1975)
pointed
(emphasis
original).
out:
Professor Morano
expected
acquit
they
juries
adoption,
were
to the rule’s
Priоr
or
the accused’s
any
unreasonable—of
had
doubts—reasonable
guilt.
omitted).
original,
(emphasis in
footnote
Id.
whether the evidence either shows
directly
supports rational inference
proved,
of the facts to be
from which
*6
convinced,
the trier of fact could be
beyond a reasonable
doubt, of
guilt
the defendant’s
of the offense charged.
State,
551, 564,
See
v.
261 Md
(1971);
Wilson
Montgomery
The difficulty with the reasonable doubt standard is its Torcia, nebulous nature. See Charles E. Crimi- Wharton’s Evidence, (14th 1985). nal Courts, ed. legislatures, § scholars, literati, legal and authors academic literature problem have wrestled with the defining the standard. None of them has been able to come up with definition that is generally acceptable. of the courts “[S]ome expressed that the оpinion English language is adequate give specific definition of “reasonable simplify
doubt” its for meaning, the rule requiring that the jury must be satisfied beyond a reason- able is generally simple intelligible as and aas guide for any rule that could be formulated. Lambert, fact,” 193 Md. at “In A.2d 461. the Court continued, made quite frequently rule is recognized definition, to create serve attempts at which by
obscure
confus-
danger
them. This
removing
instead of
doubts
to define
ing
attempting
the minds of the jurors
judges
of the trial
prompted
has
some
“reasonable doubt”
definition.
give any
to refuse to attempt
however,
Lansdowne,
at
opined,
Id. We
In our the tеrm meaning is self- that its simple, and clear commonplace, “professional who have jury. judges, evident to a Even who, “legal their and “experience,” expertise” very problems, training, approach traditional perceive, learn to profession of the art of ... state [their] *7 of the law which interpret the nuances distinguish and ” woof,’ Hutchinson, 260 Md. v. ‘warp are its State 641, (1970), 227, 233, difficulty have constru- 271 A.2d Indeed, in myri- of “reasonable doubt.” ing meaning incor- cases, by committed error judges of trial ads unskilled “reasonable doubt.” Some rectly explaining as some lay likely are at least jurors and untutored meaning of “reasоnable to misconstrue judges doubt.” concluded, cor-
(Footnote omitted). “a “Consequently,” we of useful function well serve the explanation may rect But we confusing a Id.3 enlightening jury.” rather than have made clear that of reason- “satisfactory explanation one just
there an that prescribe instruction able doubt and we decline in every case.” apply will (1983), State, 295 Md. 453 A.2d
Poole
95,
Md.
Lansdowne,
241-242,
88,
case]
upon
focusing
reasоn
attention
grave
without
their
on the
on
importance
their decision based
the evidence and
their
commitment
be bound
result
is a circular
attempt
explanation
at
nothing
which does
more than
term by
define the
the term.
using
Id. Such an
Id.
explanation
proper
was not a
instruction.
Poole,
453 A.2d
com-
*8
mented on
though
the trial court’s instruction even
not
point
preserved
was
for
appeal.
Court noted:
defining
doubt,
stated,
In
reasonable
court
in
[trial]
pertinent part, “It
such a doubt
that would cause
hesitate to act
person
reasonable
to
in
graver
or more
important
transactions of life.”
(Emphasis supplied).
4,
Id. at
186
n.
379 654, 95, A.2d 84, 292 Md. Montgomery here. (1981), of the instructions was left out “However,” 186, found A.2d 1218. Id. at “that the factor from of the records clear its review “Moreover,” given by judge.” the trial Id. hesitation was out,” observed, pointed has aptly “as the State the Court one just is not “satisfac- recently held there this Court to we decline tory explanation reasonable doubt every case.” apply that will prescribe an instruction quoting Montgomery, at 453 A.2d A.2d 654. Md. at (1983), State, 298 468 A.2d Md. Bowers v. doubt as
trial court defined hesi- person to as would cause a reasonable “such doubt important more transactions graver to in the tate act of his life.” court A.2d 101. The trial continued:
Id. at persuade to “Thus, of a character as if the evidence is Defendant, charges against you of the truth persuade be sufficient the same force that would with life your important more transactions to act in the you proven aggrava- has the State you then would conclude doubt. beyond circumstances a reasonable ting hand, on that “If, could not act based you on the other life, important your transactions evidence in the more had met conclude that State you then would aggra- proven and therefore had not burden vating circumstances.” objected: Defense counsel
Id. find suffi- Honor, evidence you they Your said that they in the more on which important, cient to act to find in the their life important act more transactions I the words guilty, would ask insert the Defendant they and if find evidence “without hesitation were to sufficient act without hesitation the more transactions.”
380 Id. The that he had thought previously covered that when he said to “if jury your the doubt is such as would cause in you to hesitate the more transactions your you life then would conсlude the of burden had not Id. acknowledged been met.” Defense counsel that, that the judge “but,” had indeed said counsel claimed I think Iway asking the am it is say different and it conveys thought. different Id. The judge replied, argue “You the hesitation but point, I think I it in have covered the instruction.” Id. On appeal Bowers claimed “conveys that the instruction not rea- the sonable doubt standard but rather the ‘preponderance 158, evidence’ Id. at 468 standard.” A.2d 101. This Court referred to which the phrase Lambert “act without used, hesitation” was States, and to Holland v. United (1954) U.S. 75 S.Ct. jury L.Ed 150 in which the willing instruction used the words “would be act.” 298 Md. at 101. Supreme A.2d We quoted Court: “We think this chаrge section should have been terms of the kind of doubt that would make a person act, hesitate to rather on ... than kind which he willing would be to act.... at U.S. at S.Ct. [75 138]....” out, however,
298 Md. A.2d pointed at 101. We that the Supreme explained,
“we believe the instruction as
not of
type
was
could mislead the
into
no reasonable
finding
doubt when
fact there was
A
some.
definition of
doubt as
something
jury would act
upon
seem
to create confusion rather
‘At
misapprehension.
than
tempts
explain
the term
“reasonable doubt” do
making
result in
usually
any clearer to the
minds of
jury,’
States,
v.Miles United
103 U.S.
L.Ed.
[26
481 (1881),]
that,
feel
taken
a whole,
we
convеyed
instructions
correctly
concept
doubt to
jury.
an is raised court’s objection lifted portion out of particular focused on a should not be a whole. the instruction as context, rather on but in the instruction here as “perceived The no error Court Id. Id. a whole.” 1, denied, A.2d Md. cert.
In Collins v. (1990), L.Ed.2d 805 1032, 110 497 U.S. S.Ct on reasonable doubt of his instruction judge, part trial as said: beyond prove guilt that
All
is
is
the State
necessary
that
reason.
In
doubt,
based on
beyond doubt
a reasonable
of the guilt
certain
words, you
reasonably
must be
other
You
can have some
order to convict.
of the accused
proof
The
guilt.
finding
still
doubt and
upоn
important
that
would act
which
necessary
your
personal
own
involving
affairs
matters
lives or businesses.
to
objected
counsel
283,
Id. at the jury: The then reinstructed instruction. court must meet ... the State Also in the burden of and a moral cer- to proof beyond reasonable doubt as to each satisfied to that extent tainty. You must be charges. element of various phrase us, attorney maintained that Before Collins’ misleading significantly and low- certain” was “reasonably “a confus- proof. conveyed it Allegedly, ered burden every criminal component as a vital ing message trial.” Id. Poole, Lambert, Lansdowne and
This Court referred to the instruction indicated Montgomery. erroneous: entirety its was not considered in the instructions a whole reviewing the reinstruction, find case, we that the including instant focused on term repeatedly properly trial of proof standard appropriate doubt” as the “reasonable emphasized that the The court’s reinstruction required. State must prove each and element of every the case beyond a reasonable doubt. But,
Id. at
Id. at
Our from adopting have refrained a boil plate explanation er of doubt, an but when explanation is to jury, whether at the instance or at of a request party, it must be such confuse, does not tend to mislead prejudice the accused. is explanation It better that the begin with a statement of places which of innocence presumption principle throughout where remains on the burden all prove guilt beyond not required is the trial. The State certainty, but it is to a mathematical doubt or possible proba- the defendant shows that enough the evidеnce is it sufficient reasonable doubt bly guilty. Nor explanation should its own terms. only by defined doubt,” home bring so as to on the “reasonable focus term the crime and corpus that the delicti of clearly the jury proved beyond must agency of the accused be the criminal a reasonable doubt. seen, century, almost half a we
As we have for the phrase which contained maintained that an instruction seems, It howev was not erroneous. “without hesitation” trial, at a the words “with er, practical application act” tend confuse may out hesitation” or “hesitate to explanation them an understandаble more than afford mem standard. The fourteen of the true reasonable doubt Pat Maryland which fashioned the Committee bers (MPJI-CR) consisted Jury tern Instructions—Criminal level, appellate prosecutors at trial and judges prosecutors, attorneys, professors defense law former bar. The distinguished Maryland other members of en instruction on reasonable doubt which the Committee *12 dorsed, 2:02, a instruction begins suggested with MPJI-CR Then, that pointing on of innocence. after out presumption guilt is all required prove beyond possible “the State not to certainty,” or to mathematical it states: doubt a It upon A is reason. reasonable doubt a doubt founded doubt, a capricious a fanciful a whimsical doubt or is not requires such beyond doubt. Proof a reasonable doubt a the convince of the truth of fact to you willing upon to act such belief you extent that would be your in in without reservation an matter own However, if are not or affairs. personal business extent, guilt that then satisfied of the defendant’s to reasonable doubt exists and the defendant must be found guilty. not added).
(Emphasis Committee made this comment: replaces This instruction the traditional “without hesi- phrase tation” the phrase with “without reservation” so the jury that not confuse the of dеgree will certainty immediacy acting upon needed with an of certainty. accept We are content to the wisdom such learned and women, arena, men experienced and active the sitting on table, the and opposite bench on sides of the trial that the inclusion “without hesitation” or “hesitate act” in to may jury reasonable doubt standard tend confuse and justice is better served by substituting phrase verbiage. “without reservation” for the “hesitant” We can visualize, did, as the apparently Committee that the jury, given phrase instruction, may “hesitate” well think that if they did not find the evidence sufficient a verdict of support guilty “immediately” they did debate, not reach conviction without some a reasonable must exist or did they because “hesitated to act” not act not face of say, “without hesitation.” We do our an prior opinions, instruction the words including to act” per “without hesitation” “hesitate is erroneous however, are strong belief, se. We that “without reservation,” pattern as the instruction is the suggests, much term. better appeal appellate
On court an ex considers whole; planation reasonable doubt as does not determine the of an from an propriety explanation isolated suspect statement. It the effect of a on views statement If light explanation. the entire an not explanation respect given with reasonable doubt is duly and the requested, fairly when matter covered given, refusal actually instructions is never harmless compels But if reversal. the instruction actually erroneous, way is in some the appellate but court *13 to call is so as prejudicial the error must determine whether as harmless. may for be excused reversal Ill A in the jury convicted aby Nathaniel was Andrew Wills and con- distributing County for Charles Circuit Court the judg- He from appealed spiring to distribute cocaine. hе of the claims on the convictions. One ments entered trial appellate intermediate court was made on doubt. instructed the reasonable erroneously court thorough “a convinced on Special Appeals was was “the instruction of the instruction” that reading unreport- It affirmed the an judgments not erroneous.” certiorari. The by way ed The case is us opinion. before of the trial propriety to us is the only question presented on the reasonable doubt standard. court’s instruction
B delivered exactly out the instruction We set After of innocence stating presumption it to the jury. the court said: principle, a reason- prove guilty beyond has to that he is
The State Okay. able doubt. that, beyond means a just doubt
Beyond reasonable eyes I our okay, doubt. let’s close always say, reasonable words, a reasonable beyond let’s visualize those are It is Okay. Those the words used. doubt. laws, made the the framers people know that who Constitution, beyond They all doubt. say didn’t that, that, beyond they say have said didn’t
could but doubt, certainty. They of a to a mathematical shadow words, doubt, a reasonable so the State’s beyond used case, case, in a this criminal burden criminal one or prove is to that Mr. Wills сommitted particular, A beyond these crimes a reasonable doubt. both of type doubt that cause *14 you to hesitate in and not act an important decision in your own life.
Okay. going clear, law is to I explain be once to you, going law it is to pretty Okay. be clear. There is going to any dispute, think, be I don’t in minds your this is the got law. You have to determine in your deliberations what the facts are and plug then that into the law. When do you you that have to persuaded be beyond a reasonable doubt those facts would be same nature and that quality you rely would on in making important an in your Now, decision picture own life. making one of those decisions. Picture you got when married or bought changed new home or jobs or decided to have an operation, get divorced, decided to it might be anything, decision that has a major impact on life. your I doubt that any you have made one of those decisions having question without some as to whether or not this is right thing decision, to do. When make a you major you generally nagging doubt, have a if you weigh but all factors, of the if you weigh things that I should say, it, do and things it, that I say, shouldn’t do and you forward, decide to go then don’t you have a reasonable doubt. The State’s burden in this persuade case is to you to that same extent that in you rely on an making important your life, decision own that the defendant is guilty of one or charges both these pending against him.
Defense counsel to the objected instruction: gave example an in the reasonable instruc- doubt
[Y]ou tion, doubt, that if you nagging had a but made the anyway, divorced, decision such as the get decision to married, etc., decision to get that that you is what have to case, do in you doubt, this then no but, I judge, believe that is completely misleading because could, fact, that kind of nagging doubt be a reasonable doubt, case, and in a criminal divorce, unlike any mar- riage having an if operation, you nagging have a doubt, that, like that on based reason and common sense, that is what reasonable is all doubt about. So I important decision analogy that to your don’t believe should have been. of life was be- “using examples for those commended the court He examples ought that I think are the kinds of cause those Defense counsel gravity____” their be used terms of court used them was however that “the thought, way on reason- He the court “to reinstruct wrong____” asked do so. that.” The court refused to clarify able first on the assertion judge’s We focus decision, weigh “if all making you an it, I do factors, things say, should you weigh it, go I do decide things shouldn’t say, *15 This forward, have a reasonable doubt.” you then don’t misleading it leans confusing is because explanation reason rather than the preponderance the standard towards the It supra. plants standard. See note able doubt weighing in minds of the the possibility jury the Moreover, it they is convict. process evenly may balanced notion, enter jury not contest a which could well does said, all evidence tain from what was when more if the adduced the State has weighed, evidence minds of convincing force and in the produces not, it is than the reasonable likely belief that more true may prepon standard met. That meet the has been standard, clearly comport with derance but it does in the even when considered reasonable doubt standard confusing expla of the entire instruction. When light the statement: nation viewed with of doubt that cause type A reasonable doubt is in important not act in an decision you to hesitate and life, own your
and with observation: have made any you I doubt whether [an question some as to your having decision without life] thing do, right not this is whether averment: with decision, have a major you generally make a when doubt, nagging ...
it is obvious that thе instruction as a whole did not measure up to an acceptable explanation of the reasonable doubt standard. We do not believe that a “nagging doubt” is the equivalent of acting (the “without reservation” better phrase) or even with the “hesitation” phrases accepted the past. holdWe that the explanation of reasonable doubt given by the this case was erroneous.
The fate of Wills turned on whom the jury believed. The State adduced evidence tending to show that an under cover officer asked Wills whether Wills could procure three bags of crack for the officer. cоuld, Wills said he walked over to another man and was three bags of what proved to be crack. Wills disputed this account. He testi fied that he was framed and that the police account was a fabrication. A longtime acquaintance and distant relative of Wills testified that he had been told by a nark that the police were out get to Wills for selling drugs. circumstances, we say, cannot reservation, without the erroneous instruction did not contribute to the
jury’s guilty
Therefore,
verdicts.
under
the test we
adopted
Dorsey
Md.
JUDGMENT OF THE COURT OF SPECIAL APPEALS *16 REVERSED;
CASE REMANDED TO THAT COURT DI- WITH RECTION TO REMAND TO THE CIRCUIT COURT FOR CHARLES COUNTY WITH DIRECTION TO VACATE THE JUDGMENTS ENTERED AND GRANT A NEW TRI- AL;
COSTS IN THIS COURT AND IN THE COURT OF SPECIAL BE APPEALS TO PAID BY CHARLES COUN- TY.
McAULIFFE, Judge, concurring.
I join opinion. Court’s I write to ex- separately рress my strongly held view that trial in- judges should struct on the the form suggest- issue of reasonable doubt in by Maryland 2:02, ed Criminal Pattern Jury Instruction and from, temptation stray upon, resist or embellish instruction.
I particularly including am not fond of in a reasonable doubt instruction to important reference decisions the ju- may upon rors be in their called make business or affairs, personal significant potential because for misunderstanding inherent this the concept reference not stated precision. with This Court the Court of Special Appeals seeing increasing are numbers of chal- lenges instructions, to reasonable doubt largely bеcause attempts to upon embellish the suggested instruction often suggest to the that if jurors decision they make a concern- ing business, their affairs life or the evidence upon which act they necessarily constitutes beyond reasonable doubt. That is wrong. Important decisions in often, life one’s are and of made on a mere necessity, preponderance of evidence. Zelez, Monk v. (10th Cir.1990), F.2d 889-92
the United States Appeals for Tenth Circuit found defective1 of a constitutionally portion reason- able doubt instruction which stated:
If you abiding have an conviction of [the defendant’s] such guilt as you willing upon would bе act the more weighty and important your affairs, matters relating to own then have no reasonable doubt.
The court said:
The “willingness to act” language
by
identified Monk
has also been repeatedly criticized
this court
See,
others.
e.g.,
Leaphart,
United States v.
513 F.2d
(10th Cir.1975);
United
v. Baptiste,
States
denied,
(5th
F.2d
Cir.1979),
cert.
U.S.
S.Ct.
United States v.
(1981);
Robinson, 546 F.2d
309,
313
(1977).
1333,
597
As the
918,
430
97
51 L.Ed.2d
U.S.
S.Ct.
noted,
is a
difference
has
“there
substantial
D.C. Circuit
a reasonable
guilt beyond
a
verdict of
juror’s
between
in a matter of
making
judgment
and a
a
person
doubt
States,
v. United
Scurry
to him.”
personal
importance
denied, 389
cert.
(D.C.Cir.1965),
F.2d
U.S.
(1967).
883, 88
Id. at 890. Model Instructions for the Ninth Jury
The Committee on from its instruction on reasonable doubt Circuit deleted in the of jurors. decisions” lives “important reference explained: The Committee instructed the to find
The former model instruction find the evidence so guilty only “you the defendant willing to convincing ordinary person that an would be in his or her life decisions own important make the most The has of such evidence.” Committee on the basis most deci- rejected analogy this because house, borrow- life—choosing spouse, buying sions heavy involve a element ing money, like—may and the unlike the risk-taking wholly and are uncertainty and in criminal cases. ought to make jurors decisions (1992). 3.03 comment Cir.Crim.Jury 9th Inst. Supreme ago, the United States century
More than a the term ‘reasonable explain “[a]ttempts Court said clearer to the making any result usually doubt’ do States, 103 U.S. Miles v. United jury.” minds of the Holland v. (1880). recently, More see 26 L.Ed. States, 348 U.S. 121, 140, 75 99 L.Ed. United S.Ct. (1954). Louisiana, 498 U.S. 39, S.Ct. Cage (1990), reversed a conviction Supreme L.Ed.2d to an equated the trial because uncertainty.” or a “grave doubt” “actual substantial Court said:
391 It is to us that plain “grave,” the words “substantial” and understood, are they commonly suggest higher a de- gree required of doubt than is for acquittal under the reasonable doubt standard. When those statements are then considered to certainty,” with reference “moral evidentiary rather than that certainty, it becomes clear a juror reasonable could have interpreted instruction to finding guilt degree allow a based on a below proof that Due required by the Process Clause. 41,
498 111 U.S. at at In a S.Ct. 329-30. footnote above passage, Court noted that: attempts
Similar
to define
doubt
been
reasonable
See,
criticized
widely
by
Appeals.
Federal Courts of
Zelez,
Monk v.
e.g.,
885,
(CA10 1990);
901 F.2d
889-890
Moss,
United States v.
329,
(CA4 1985);
756
333
F.2d
Indorato,
United States v.
(CA1
628 F.2d
720-721
1980);
United States v.
(CA2
Byrd,
352 F.2d
575
1965);
v.
also
Taylor Kentucky,
478, 488,
see
436
U.S.
98
1930, 1936,
S.Ct.
(1978).
Judge ELDRIDGE in the stated herein. joins views
620 A.2d Baginski HORSEY Leonilla Elmer E. HORSEY. Term, 118, Sept. 1990. No. *19 Appeals Maryland.
Court of 8, 1993. March