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Give Me That Old Time Religion: The Persistence of the Webster Reasonable Doubt Instruction and the Need to Abandon It
HON. RICHARD E. WELCH III*
Give me that old time religion Its good enough for me. -Traditional gospel song.1

INTRODUCTION

his is a simple, practical law review article, as oxymoronic as that may sound. Let me voice what many a Massachusetts judge and lawyer, at least those steeped in the legal history of the Commonwealth, would consider a heresy. Despite the Supreme Judicial Courts reverence for the definition of reasonable doubt as described in the 1850 Commonwealth v. Webster decision,2 courts should use the cut and

* Associate Justice of the Superior Court for the Commonwealth of Massachusetts. Adjunct Professor of Law, New England Law Boston. Dedicated to JBW with absolute certainty.
1 (Give me that) Old Time Religion, CHRIST IN SONG, http://www.christ-in-song.blogspot.com (last visited Oct. 8, 2013). 2 59 Mass. 295 (1850). The model Massachusetts jury instruction on what constitutes the criminal standard of proof of beyond a reasonable doubt is an updated or modernized version of the definition set forth in Commonwealth v. Webster. Compare MASSACHUSETTS SUPERIOR COURT CRIMINAL PRACTICE JURY INSTRUCTIONS 1.1.1 (Patrick F. Brady & Joseph D. Lipchitz, eds., MCLE 2d ed. 2008), with id. 1.1.2. The standard instruction reads:

What is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, though it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt if, after you have compared and considered all the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. I have told you that every person is presumed to be innocent until he is proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a

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paste feature on their word processors, abandon the outmoded portions of that instruction, and define this most important concept in comprehensible, everyday language. Only if this is done will we have confidence that juries are consistently applying a rigorous standard of proof before convicting someone of a crime. Our most basic concept of due process demands no less. I. The Setting and the Problem

In almost every criminal trial, the concept of proof beyond a reasonable doubt is not defined to the jury until the end of the trial during the judges charge to the jury.3 In the midst of jury selection, the judge routinely informs the jury pool about the presumption of innocence and the fact that the burden of proof rests solely upon the government. The judge may well inform the jury pool that this burden of proof is a heavy burden that is called proof beyond a reasonable doubt. A definition of reasonable doubt, however, is routinely left until the very end of the trial.4 This reality is not a bad thing. After all, we want juries to keep an open mind toward the evidence presented and not to reach conclusions

reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendants guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. Id. 1.1.2.
3 CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov/courts/ courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/2180-reasonabledoubt.pdf. 4 See, e.g., id. A few states, such as Idaho and Florida, include a reasonable doubt instruction as a standard pre-proof instruction, i.e. an instruction to be given to the jury before evidence is presented, or as a matter defined during pre-trial voir dire of the jury. See, e.g., IDAHO CRIMINAL JURY INSTRUCTIONS 103 (Supreme Court of Idaho, Criminal Jury Instructions Comm. 2010), available at http://www.isc.idaho.gov/problem-solving/criminaljury-instructions. The wisdom of providing a jury with such preliminary instructions presents an interesting debate which is beyond the scope of this article. The fact remains that in most states, reasonable doubt is only defined, if at all, at the end of the trial. See, e.g., CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov/courts/courtsandjudges/ courts /districtcourt/jury-instructions/criminal/pdf/2180-reasonable-doubt.pdf.

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until their deliberations. Still, the jury is primed by the time of the judge s charge for learning about this most important concept. In many a criminal case, the concept of reasonable doubt is critical. Often, defense strategies do not focus on whether the crime occurred, but rather on whether the Commonwealth has proven its case-in-chief.5 While the presence of the victims mutilated body, the obvious physical injuries, or the bricks of heroin in the cars trunk cannot be denied, the defense may question whether the defendant was the perpetrator or possessed the requisite mental state. Even in those cases where the evidence points toward the unlucky defendant, counsel can still make an argument that even if the jury thinks that the defendant probably committed the crime, that is not enough; the government must prove the defendant s guilt beyond a reasonable doubt. Thus, when the judge reaches the reasonable doubt instruction, many a juror leans forward, pen in hand, ready to take notes.6 With this dramatic backdrop, what does the juror hear? In the federal setting, a juror will be most disappointed because, inexcusably in my view, many federal judges are discouraged from defining this most-important concept.7 If the case is tried in Texas, the judge is prohibited from defining

5 Neil P. Cohen, et al., The Prevalence and Use of Criminal Defenses, 60 TENN. L. REV. 957, 960 63 tbl.1 (1993) (listing and noting the prevalence of defenses based on lack of intent, such as insanity and diminished responsibility).

See Henry A. Diamond, Reasonable Doubt: To Define or Not to Define, 90 COLUM. L. REV. 1716, 1721 (1990) (suggesting that jurors do not understand reasonable doubt without hearing it defined). 7 In federal court, the decision whether to define the term reasonable doubt is discretionary. A federal district court judge is not required to define this all-important term and is often discouraged from doing so. The First Circuit Court of Appeals, for example, has repeatedly noted that reasonable doubt is difficult to define and repeatedly warned against attempts to define reasonable doubt . . . . United States v. Van Anh, 523 F.3d 43, 58 (1st Cir. 2008); see United States v. OShea, 426 F.3d 475, 482 (1st Cir. 2005); United States v. Andujar, 49 F.3d 16, 23 (1st Cir. 1995); United States v. Rodriguez-Cardona, 924 F.2d 1148, 1160 (1st Cir. 1991). The First Circuit is not alone in its reluctance to define reasonable doubt. See United States v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) ([T]he greatest wisdom may lie with the Fourth Circuits and Seventh Circuits instruction to leave to juries the task of deliberating the meaning of reasonable doubt.). The reluctance to define this most -important term because it is difficult to define or better left for juries to determine is particularly troubling. There are plenty of legal concepts that are difficult to define in criminal law, but judges plainly must provide correct and comprehensible definitions in the course of their charges. A few examples should suffice. In a first-degree murder trial, it is never easy to define the requisite malice or specific intent to cause death as compared to the mental state required for second-degree murder or manslaughter; still, the judge must define such a concept and not leave to juries the task. The concepts of self defense or insanity or

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reasonable doubt.8 If the juror resides in the states of California or New York, the juror receives a relatively easy-to-comprehend and updated definition of reasonable doubt.9 If the juror comes from the Bay State, a slightly modernized version of the oft-approved, and time tested Webster instruction is almost always read.10 The Massachusetts juror is first told what proof beyond a reasonable

heat of passion upon reasonable provocation are all difficult for judges to define to jurors, but these concepts must be defined because they are critically important, and an average juror would not be expected to have a standard and accepted knowledge of such terms. The critically important concept of reasonable doubt is no different. Accord Jessica N. Cohen, The Reasonable Doubt Jury Instruction: Giving Meaning to a Critical Concept, 22 AM. J. CRIM. L. 677, 678 (1995) (arguing reasonable doubt should be defined for the jury because it is a term of art); Diamond, supra note 6, at 1721 (stating that instructions on the meaning of reasonable doubt should always be given and are constitutionally required). But see Note, Reasonable Doubt: An Argument Against Definition, 108 HARV. L. REV. 1955, 1956 (1995) (arguing that judges should not define reasonable doubt and instead allow juries to apply the collective wisdom of the community in determining the meaning of the standard).
8 Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (reversing previous case law that required trial judges to define the term, and holding that the better practice is to give no definition of reasonable doubt at all to the jury). 9 See JUDICIAL COUNCIL OF CAL. CRIMINAL JURY INSTRUCTIONS, CALCRIM No. 220 (Advisory Comm. on Criminal Jury Instructions 2013), available at http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf (Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.); CJI 2d[N.Y.] Reasonable Doubt (N.Y. Office of Court Admin. 2002), available at http://www.nycourts.gov/judges/cji/1General/CJI2d.Presumption.Burden.Reasonable_Doubt.pdf (Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced . . . that you have no reasonable doubt of the existence of any element of the crime . . . .).

Compare Commonwealth v. Webster, 59 Mass. 295 (1850), with CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/juryinstructions/criminal/pdf/2180-reasonable-doubt.pdf. Still cited in the Superior Court model jury instructions is the Massachusetts Appeals Court decision of Commonwealth v. Fitzpatrick, which noted that there is an unbroken line of cases which all but command that the definition of reasonable doubt be taken from the Webster case. 16 Mass. App. Ct. 99, 100 (1983). The pattern instructions fail to note that this statement is outdated, particularly in light of the criticism leveled at the Webster charge by the United States Supreme Court in Victor v. Nebraska, 511 U.S. 1, 1314 (1994). See STEPHANIE M. GLENNON & MARY OSULLIVAN SMITH, MASSACHUSETTS SUPERIOR COURT CRIMINAL PRACTICE JURY INSTRUCTIONS 1.1 (Supp. 2003), available at http://www.mcle.org/includes/pdf/1990281B00_S.pdf. The pattern jury instructions for both the Massachusetts District and Superior courts only provide instructions based upon the Webster case and suggest no alternatives. See, e.g., Commonwealth v. Rosa, 661 N.E.2d 56, 6364 (Mass. 1996) (terming the Webster reasonable doubt instruction as entirely correct, time tested, and carrying great weight).

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doubt does not mean: [R]easonable doubt does not mean proof beyond all possible doubt.11 This concept often interests jurors, and a few diligent jurors may take note. The jurors are then informed that a charge is proven beyond a reasonable doubt if, after considering all the evidence, they have an abiding conviction, to a moral certainty, that the charge is true. 12 A few jurors may perk up at the phrases moral certainty and abiding conviction. But, the United States Supreme Court tells us that the troublesome and criticized phrase moral certainty must be defined.13 Thus, a judge explains that it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.14 Hopefully at this point jurors begin to grasp that a strong probability does not equal reasonable doubt. Then the Massachusetts judge may take a breath and plunge into the piece de rsistance of the Webster charge, the portion of the charge that the Supreme Judicial Court believes adequately defines moral certainty.15 The judge instructs the jury that the evidence must convince them to a reasonable and moral certainty.16 This Webster chestnut is particularly confusing to the juror whose attention has not wandered. The term moral certainty, with its religious overtones, was coined in 17th century England and is not a concept discussed, or understood, in contemporary America. 17

11 CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov /courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/2180-reasonabledoubt.pdf.

GLENNON & OSULLIVAN SMITH, supra note 10, at 1.1.2. Victor, 511 U.S. at 15 (explaining that the rest of the instruction, particularly the language that a juror must have an abiding conviction to the truth of the charge, gave content to the phrase moral certainty); Commonwealth v. Pinckney, 644 N.E.2d 973, 976 (Mass. 1995) ([A]lthough the moral certainty language was ambiguous in the abstract, use of the phrase was not reversible error where it was used with an additional instruction which impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused.).
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GLENNON & OSULLIVAN SMITH, supra note 10, at 1.1.2. Id. 16 Id. 17 Victor, 511 U.S. at 1012, 14. The majority opinion, written by Justice OConnor, was joined by four other justices, two justices (Kennedy and Ginsburg) concurred and two dissented (Souter and Blackmun). Id. at 5, 23, 28. The majority of the Court found that the Webster-based charges used by California and Nebraska contained troubling, archaic, and unhelpful language, but concluded that, taken as a whole, the reasonable doubt instructions did not constitute reversible error. Id. at 1314, 1617. The two concurring justices were particularly critical of the Webster reasonable doubt formulation. Id. at 2324. The two dissenting justices found the reasonable doubt instructions to constitute reversible error. Id. at
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The term reasonable certainty appears almost contradictory; does being reasonably sure mean that one is certain? So what does the Websterreading judge say to remedy any confusion and give the term moral certainty some comprehensible content? The judge, who often knows this concluding phrase by heart, raises his or her voice a notch and announces: A certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence.18 By this point the pen wielding juror probably has given up and lets these words, with their comforting and even flow, wash over him or her. When examined even in a most cursory fashion, however, this last triumphant phrase of the Webster instruction tells an intelligent person practically nothing. Taken literally, if a well-meaning juror is satisfied with the evidence, then the case has been proven beyond a reasonable doubt. The problem is that the high standard of beyond a reasonable doubt is not necessarily met when a conscientious juror is satisfied by the evidence. Websters loose and confusing reasonable and moral certainty language provides little guidance to jurors and risks juries returning unjust and inconsistent verdicts.19 We can do better. A. The Persistence of Webster It is easy and tempting for trial judges to take pot shots at overburdened appellate courts. Having had his or her work constantly subjected to appellate oversight, a trial judge may take some pleasure in pointing out the peccadilloes of the Appeals Court or the Supreme Judicial
38. Every single justice found the Webster phrase moral certaintywhen applied to a contemporary jurorto be erroneous in that the phrase is ambiguous in the abstract and its use was not to be condoned. Id. at 14, 2324, 38; see also Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence , 78 NOTRE DAME L. REV. 1165, 117679 (2003) (discussing medieval origins of the concept of moral certainty); Robert Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 TENN. L. REV. 45, 65 (1999) (The concept of moral certainty developed because philosophers after 1600 were more troubled by human or moral evidence than by scientific evidence. They recognized that absolute knowledge based on moral evidence was impossible.). 18 See, e.g., Commonwealth v. Mejia, 973 N.E.2d 657, 66667 & n.12 (Mass. 2012); Commonwealth v. Latimore, 667 N.E.2d 818, 825 & n.9 (Mass. 1996). Arguing that Websters archaic phrasing is incomprehensible to a modern juror is hardly novel. See, e.g., People v. Brigham, 599 P.2d 100, 109 (Cal. 1979) (Mosk, J., concurring). As Justice Mosk of the California Supreme Court stated nearly 35 years ago: The problem is that the 1850 language of Chief Justice Shaw was already obsolete in 1927 [when the California legislature passed a statute requiring a Webster-based charge], and it is hopelessly superannuated in 1979. Id. at 107. Justice Mosk dissected the Webster charge and found it confused, misleading, ambiguous, obscure, and redundant and incomplete. Id. at 10809.
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Court. It takes more than a critic, however, to attack the cherished Webster reasonable doubt instruction in Massachusetts; it takes an outright contrarian. The Webster reasonable doubt instruction narrowly avoided extinction at the hands of the United States Supreme Court in Victor v. Nebraska.20 The challenged reasonable doubt instruction used by the California court in Victor closely resembled the Massachusetts Webster charge.21 The California instruction limped past constitutional review, despite its moral certainty language,22 because additional verbiage impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused.23 The Supreme Court, however, emphasized that it did not condone the use of the moral certainty phrase because [a]s modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction . . . .24 Oddly enough, the Supreme Judicial Court enthusiastically has touted Webster as the preferred state instruction on reasonable doubt despite the Victor decisions condemnation of a very similar instruction. Two years after the unanimous criticism in Victor, the Supreme Judicial Court praised the Webster charge as being entirely correct, time tested, and carrying great weight.25 Then, seven years after the Supreme Court criticized the moral certainty language and held it to be error (albeit not reversible error), the Supreme Judicial Court proudly announced that the Webster charge has always been, and remains today, the preferred and adequate charge on the Commonwealths burden of proof.26 Apparently, the Supreme Judicial Court did not take the Supreme Courts hint to shelve the venerable instruction; a hint made clear in Justice
20 21

511 U.S. at 13. Commonwealth v. Pinckney, 419 Mass. 341, 344 n.2 (1995). The reasonable doubt instruction in Victor had its genesis in the Webster decision: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. Victor, 511 U.S. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)).
22 Of the phrase moral certainty, the Supreme Court wisely noted: A passage generally understood in 1850 may be incomprehensible or confusing to a modern juror. Id. at 13. 23 24 25 26

Pinckney, 419 Mass. at 344. Victor, 511 U.S. at 16. Commonwealth v. Rosa, 661 N.E.2d 56, 6364 (Mass. 1996). Commonwealth v. Watkins, 744 N.E.2d 645, 650 (Mass. 2001).

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Kennedys concurrence:
It was commendable for Chief Justice Shaw to pen an instruction that survived more than a century, but, as the Court makes clear, what once might have made sense to jurors has long since become archaic. In fact, some of the phrases here in question confuse far more than they clarify.27

While the states highest court does not require trial judges to read Webster in every criminal trial,28 it is rather obvious that the appellate courts wish that they would. One can almost hear a school teacher s tone of frustration when the Massachusetts Appeals Court stated: Where issues as important as reasonable doubt are concerned, judges would do well to follow approved models.29 The Appeals Court failed to note, as has the Supreme Judicial Court, that the Webster instruction was not a model whole-heartedly approved by the United States Supreme Court. Instead, it was strongly criticized and every Supreme Court justice in Victor made it clear that more modern, comprehensible definitions were preferred.30 Still, this appellate desire for the status quo is understandable. Webster is a famous home-grown case arising from one of the most celebrated and gruesome murder trials of the 19th century. 31 Its author was the famed Chief Justice Lemuel Shaw, a Massachusetts judicial figure who ranks only behind the incomparable Justice Holmes in the Massachusetts judicial pantheon.32 Webster, so far, has passed constitutional musteralbeit barelyand criminal convictions are rather high-stakes affairs. From the viewpoint of a busy appellate court, there are plenty of other important issues to review other than some trial judge trying to reinvent the reasonable doubt wheel. The case reports are littered with reversals of trial judges making a hash out of reasonable doubt by attempting to provide some homey example to the jury or try out some new turn of

Victor, 511 U.S. at 23 (Kennedy, J., concurring). Commonwealth v. Anderson, 682 N.E.2d 859, 863 (Mass. 1997) (The reasonable doubt standard defies easy explication, and no precise formulation is required to advise the jury of the Commonwealths burden of proof.).
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Commonwealth v. Burke, 687 N.E.2d 1279, 1283 (Mass. App. Ct. 1997). See Victor, 511 U.S. at 17, 21, 23, 28 (referencing Federal Judicial Center instructions with approval); id. at 21 (Ginsburg, J., concurring) (praising Federal Judicial Center Instruction 21 as a model of clarity and contrasting it to Webster); id. at 23 (Kennedy, J., concurring) (suggesting that Webster language be scrapped for a more modern, clear instruction); id. at 28 (Blackmun, J., dissenting) (suggesting that the confusing Webster-based language constituted reversible error in a dissent joined by Justice Souter). 31 See Commonwealth v. Webster, 59 Mass. 295, 295 (1850). 32 See generally, Book Note, Lemuel Shaw: Chief Justice Massachusetts 1830 1860, 32 HARV. L. REV. 183, 18384, 187 (1918) (reviewing FREDERICK HATHAWAY CHASE, LEMUEL SHAW: CHIEF JUSTICE OF MASSACHUSETTS 18301860 (1918)).
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phrase.33 Because the concept of reasonable doubt is difficult to understand and since we have a famous instruction with a local pedigree that, while criticized, passes constitutional muster, there is a strong temptation to let sleeping dogs lie. There is also a certain comfort to Lemuel Shaws wording of reasonable doubt. As a trial judge reads the rather beautiful and archaic wording chosen by the renowned Shaw back in 1850, one is almost reminded of a psalm one knows by heart. I confess that I am prone to such buttery phrases as moral certainty and [jurors] who are bound to act conscientiously upon [the evidence].34 These phrases ring with familiarity and grace; even if the phrases have little literal value, their implications inform the initiated. But then, I much prefer the King James Version to any of the more modern wordings of the Bible. Therein may lie another reason for the appellate preference for, and the near universal trial use of, the Webster instruction in the Commonwealth. Once, during the charge conference of a murder trial, I suggested defining reasonable doubt along the lines of Federal District Judge Robert Keetons instruction, an instruction that avoided the phrase moral certainty and was praised by the First Circuit Court of Appeals.35 Not surprisingly, both prosecutor and

33 See, e.g., Commonwealth v. Kelleher, 482 N.E.2d 804, 807 (Mass. 1985) (finding it reversible error to equate beyond a reasonable doubt with the certainty needed to make important decisions in life, such as the decision whether to marry or not, or whether to undergo surgery); Commonwealth v. Rembiszewski, 461 N.E.2d 201, 206 (Mass. 1984) (finding it reversible error to equate beyond a reasonable doubt with the certainty needed to make such economic decisions as to whether to buy a house or what work to go into); Commonwealth v. Ferreira, 364 N.E.2d 1264, 1272 (Mass. 1977) (finding it reversible error to equate beyond a reasonable doubt with the certainty necessary to make economic or social decisions); Commonwealth v. Robinson, 415 N.E.2d 805, 811 (Mass. 1981) (finding it erroneous to define reasonable doubt as doubt based on reason); Commonwealth v. Sullivan, 482 N.E.2d 1198, 1200 (Mass. App. Ct. 1985) (finding it error to use quantification or statistical probability in defining reasonable doubt).

Webster, 59 Mass. at 320. See United States v. Cleveland, 106 F.3d 1056, 1063 (1st Cir. 1997). The First Circuit quoted Judge Keetons entire charge on reasonable doubt and stated that it correctly conveyed the concept of reasonable doubt to the jury. Id. at 106263. The definition, which teases important concepts out of the Webster charge but avoids the phrase moral certainty, is a good one. The key aspects of the definition include:
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It is a strict and heavy burden, but it does not mean that the defendants guilt must be proved beyond all possible doubt. It does require that the evidence exclude any reasonable doubt concerning a defendants guilt . . . . Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, jurors cannot say that they have a settled conviction of the truth of the charge . . . . It is not

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defense counsel objected. The prosecutor, accustomed to the Webster instruction and aware of its favored status, saw no reason to cloud the trial with an appellate issue. Defense counsel strongly urged me to use the Webster instruction, even if it was difficult to understand, because its old-fashioned wording was like a catechism indicating to the jury the seriousness of the governments burden of proof. A perceptive observer often notices similarities between a trial and a religious service. Some of the ceremony, such as the legal robe, the raised bench, and the old-fashioned court opening cry, lend a seriousness and solemnity to legal proceedings that can be highly beneficial when focusing the audience and trial participants on the serious task at hand. There is a limit, however, to ceremony. Just as the Second Vatican Council did away with the Latin Mass requirement,36 so should Massachusetts courts consider putting aside the beloved Webster wording. B. A State Standard? Massachusetts courts understandably are proud of enhanced criminal due process protections available to the Commonwealths citizens due to the Supreme Judicial Courts generous interpretation of the Massachusetts Declaration of Rights and Massachusetts common law. Since such decisions as Michigan v. Long,37 it is well established that state courts

sufficient for the Government to establish a probability, though a strong one, that a fact charge is more likely to be true than not true. That is not enough to meet the burden of proof beyond a reasonable doubt. On the other hand, there are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. Id. The First Circuit praised this definition again in United States v. Woodward, 149 F.3d 46, 69 n.15 (1st Cir. 1998), cert. denied, 525 U.S. 1138 (1999). The criticism of this fine instruction (and note that any instruction of reasonable doubt is open to some criticism upon close dissection) is that portions are phrased in the negative: Reasonable doubt exists when . . . jurors cannot say that they have a settled conviction . . . . Cleveland, 106 F.3d at 1062. This might permit the claim that the instruction may subtly shift the burden to the defendant to establish the existence of reasonable doubt. It might be better to clearly instruct the jury that the government must prove a settled conviction in the minds of the jurors. The last paragraph of Judge Keetons charge (not quoted here for brevitys sake) is unfortunate because it harks back to the last paragraph of the Webster definition with its confusing reference to proof that satisfies jurors that they can consistently with [their] oath as juror, base [their] verdict upon it. Id. at 1063. 36 Jeff Israely & David Van Biema, The Return of the Latin Mass, TIME (Oct. 12, 2006), available at http://www.time.com/time/world/article/0,8599,1545667,00.html.
37 463 U.S. 1032, 103738 (1983). State courts are entitled to grant greater civil liberties under state constitutions, using the independent-and-adequate-grounds doctrine, as long as

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interpreting state constitutions can provide greater civil liberties and criminal procedural protections than are provided by the Supreme Court s interpretation of the United States Constitution. As all law school students learn, the U.S. Constitution sets the floor for civil rights and liberties, while the laws and constitutions of the various states (as long as they do not undercut or conflict with the federal law) set the ceiling of protection. Thus, search and seizure protections are considerably more generous under Massachusetts law than federal law.38 Other examples include state expanded concepts of automatic standing for possessory crimes,39 a more rigorous probable cause standard for searches,40 the humane practice instruction regarding the voluntariness of statements, 41 and a more stringent standard of review of criminal convictions. 42 Perhaps misconstruing this tradition, a panel of the Massachusetts Appeals Court recently, in an unpublished Rule 1:28 decision, appeared to give some credence to the argument that the proper concept of reasonable doubt [is] defined by Massachusetts, not Federal law and that a state-created reasonable doubt standard, as opposed to the federal constitutional standard, may provide a defendant the benefit of a more favorable State standard of proof.43 The implication of this statement appears to be that the standard of proof beyond a reasonable doubt might be substantively different in Massachusetts courts than federal courts. Following this apparent reasoning, Massachusetts constitutional

the court is clear that it is relying on state and not federal law. Id. 38 Commonwealth v. Upton, 476 N.E.2d 548, 555 56 (Mass. 1985); JOSEPH A. GRASSO JR. & CHRISTINE M. MCEVOY, SUPPRESSION MATTERS UNDER MASSACHUSETTS LAW 1-4[b] (LexisNexis 2012); see also Joseph A. Grasso Jr., John Adams Made Me Do It: Judicial Federalism, Judicial Chauvinism and Article 14 of Massachusetts Declaration of Rights , 77 MISS. L.J. 315, 318 (2007). Commonwealth v. Amendola, 550 N.E.2d 121, 126 (Mass. 1990). Upton, 476 N.E.2d at 556. 41 See GRASSO & MCEVOY, supra note 38, 18-9[c]. 42 Commonwealth v. Anderson, 682 N.E.2d 859, 862 n.8 (Mass. 1997) (quoting Commonwealth v. Rosa, 661 N.E.2d 56, 62 63 (Mass. 1996)) (Federal law finds error in jury instructions only with a reasonable likelihood that the jury did use an inappropriate standard while the state standard is more rigorous and looks for possible misunderstandings by reasonable jurors.) (internal quotation marks omitted).
40 43 Commonwealth v. Bayne, No. 12-P-117, 2013 WL 1103916, at *2 (Mass. App. Ct. Mar. 19, 2013). The trial judge, without objection, gave the reasonable doubt instruction approved by the Appeals Court in Commonwealth v. Hurd. See id. (citing Commonwealth v. Hurd (No. 1), 844 N.E.2d 259, 262 (Mass. App. Ct. 2006)). The panel erroneously stated that the defendant would have been entitled to the Webster charge had a request or an objection been made. Id. The Supreme Judicial Court has preferred, but never required, a trial judge to use the Webster charge. See id. (citing Anderson, 682 N.E.2d at 863 n.8). 39

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law might require a higher burden of proof for reasonable doubt than in a federal court. At the risk of misconstruing an unpublished decision not adopted by the entire Appeals Court,44 this assertionif seriousis nonsense and misconstrues a prior Appeals Court decision. In the context of the troubling federal practice of not defining the concept of reasonable doubt, the Appeals Court in Commonwealth v. Stellberger properly required state judges to give an explanation of the concept to jurors and stated that the necessity for a proper instruction on the meaning of reasonable doubt is a matter of State law, which, in this area, requires more than the First Circuit does.45 Thus, the Appeals Court legitimately held that state courts were required to further define beyond a reasonable doubt, even if the federal due process clause was satisfied by simply informing jurors, without a definition, that the criminal charge must be proven by the government beyond a reasonable doubt. As long as state courts do not water down the reasonable doubt requirement, they are entitled and, in Massachusetts, required to formulate definitions for this important criminal standard.46 As discussed below, trial courts in most states, unlike many federal courts, provide jurors a definition of beyond a reasonable doubt.47 It is important to understand that when the Appeals Court stated that the wording of a reasonable doubt instruction was a matter of State law, it did not mean to imply that the Massachusetts standard was in some way more rigorous or more favorable to a defendant than the federal standard. Theoretically, a state court could interpret its state constitution to require a higher burden of proof than the Winship beyond a reasonable doubt standard.48 Presumably, this would be the requirement

Rule 1:28 decisions issued by the Massachusetts Appeals Court are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. Such a decision may be cited for its persuasive value but . . . not as binding precedent. Chace v. Curran, 881 N.E.2d 792, 79495 (Mass. App. Ct. 2008). 45 515 N.E.2d 1207, 120708 (Mass. App. Ct. 1987) (acknowledging First Circuit affirmance of a federal judge, who in his discretion did not define reasonable doubt, but reversing a state trial judge who gave no instruction whatsoever on the meaning of proof beyond a reasonable doubt). 46 Id. at 1208. 47 Indeed, numerous states, like Massachusetts, require state judges to define the term beyond a reasonable doubt. See, e.g., People v. Vann, 524 P.2d 824, 82829 (Cal. 1974) (noting that courts in California have sua sponte duty to instruct on reasonable doubt before the jury deliberates); State v. Hall, 976 S.W.2d 121, 15859 (Tenn. 1998) (implying that an instruction defining reasonable doubt must be given in every criminal case); State v. Cox, 615 P.2d 465, 468 (Wash. 1980) (holding that reasonable doubt must be defined in the State of Washington).
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In its seminal decision of In re Winship, 397 U.S. 358, 364 (1970), the United States

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of absolute certainty. Needless to say, such a holding would be rather shocking in that it would overturn large areas of evidentiary law and reverse Webster itself. As Chief Justice Shaw explained in Webster, if the law . . . should go further than [reasonable doubt] and require absolute certainty, it would exclude circumstantial evidence altogether. 49 To put it simply, the reasonable doubt standard is the same standard in Massachusetts courts as in the courts of Iowa, California, or a United States district court. State courts, however, are entitled to define the standard in words of their own choosing as long as that wording passes federal constitutional muster.50 While the criticized Webster wording passes federal constitutional muster, its lack of clarity and ambiguity leaves much to be desired. C. A Stroll Through the States The refusal of Massachusetts courts to abandon or significantly revise the Webster instruction is even more remarkable when one looks at the practice of other state courts. For years, California courts parroted the Webster instruction.51 The Supreme Courts harsh criticism of the instruction in Victor helped end that practice. Following the Supreme Courts reasoning that the term abiding conviction as to guilt . . . correctly states the governments burden of proof,52 California jettisoned the archaic Webster wording and the criticized term moral certainty.53 The heart of Californias model jury instruction on reasonable doubt now simply states: Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.54 States such as Florida55 and North

Supreme Court held that the due process clause of the Fifth and Fourteenth Amendments required states to prove a criminal defendants guilt as to each element of the charge beyond a reasonable doubt before entering a conviction. 49 Commonwealth v. Webster, 59 Mass. 295, 320 (1850). 50 See In re Winship, 379 U.S. at 38586 (Black, J., dissenting). 51 See Power, supra note 17, at 64 (describing the wide adoption of the Webster moral certainty language in the early 1900s, and its eventual demise). In 1927, a California statute mandated the use of a pattern reasonable doubt charge based on Webster. Id. Victor v. Nebraska, 511 U.S. 1, 1415 (1994). See JUDICIAL COUNCIL OF CAL. CRIMINAL JURY INSTRUCTIONS, CALCRIM No. 220 (Advisory Comm. on Criminal Jury Instructions 2013), available at http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf.
53 54 Id.; See also Peter M. Tiersma, Toward More Understandable Jury Instructions: The California Experience, CRIM. JUST., Spring 2006, at 5, 9 (criticizing earlier Webster-inspired instruction as stilted and sounding like it came from a nineteenth-century hymn while praising a new pattern instruction that stresses abiding conviction because it expressed reasonable doubt positively). 52

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Dakota56 used similar language when they amended their pattern jury instructions in the wake of the Victor decision. Likewise, Rhode Island long used a Webster-based moral certainty instruction until the Rhode Island Supreme Court, in 1994, rejected the instruction as misleading at best and violative of constitutional requirements at worst.57 A slim majority of states, and a few federal circuit courts of appeal, have adopted the standard of being firmly convinced as the equivalent of beyond a reasonable doubt.58 This standard is based on the Federal Judicial Center pattern instruction 21 which was praised by Justice Ginsburg in her Victor concurrence.59 For example, in New York State, proof beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendants guilt that you have no reasonable doubt of the existence of any element of the crime . . . .60 New Jersey,61 Delaware,62

55 See STANDARD JURY INSTRUCTIONS FOR CRIMINAL CASES 3.7 (Fla. Supreme Court Comm. on Standard Jury Instructions in Criminal Cases 1997), available at http://www.floridasupremecourt.org/jury_instructions/instructions.shtml# (A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt.). 56 See PATTERN JURY INSTRUCTIONS K-1.10 (State Bar Assoc. of N.D. 2004), available at http://www.sband.org/PatternJuryInstruction/Details.aspx?InstructionId=8&CivilCriminal=Tr ue (You should find the Defendant guilty only if you have a firm and abiding conviction of the Defendants guilt . . . .). 57 See State v. Kozak, 637 A.2d 782, 782 (R.I. 1994). See also Power, supra note 17, at 6772. Prior to the United States Supreme Courts criticism in Victor, Michigan changed its pattern jury instructions to eliminate moral certainty language. People v. Sammons, 478 N.W.2d 901, 912 (Mich. Ct. App. 1991). 58 See Thomas V. Mulrine, Note, Reasonable Doubt: How in the World Is it Defined? , 12 AM. U. INTL L. REV. 195, 205 & n.96 (1997). 59 PATTERN CRIMINAL JURY INSTRUCTIONS No. 21 (Fed. Judicial Ctr. 1987), available at http://federalevidence.com/pdf/JuryInst/FJC_Crim_1987.pdf; Victor v. Nebraska, 511 U.S. 1, 2627 (1994) (Ginsburg, J., concurring). 60 CJI 2D[N.Y.] Reasonable Doubt (Office of Court Admin. 2002), available at http://www.nycourts.gov/judges/cji/1General/CJI2d.Presumption.Burden.Reasonable_Doubt.pdf. 61 State v. Medina, 685 A.2d 1242, 1251 (N.J. 1996) (adding additional language to FJC Instruction 21 emphasizing that proof must be more powerful than the civil standard of more likely true than not true); See MODEL JURY CHARGE (CRIMINAL), REASONABLE DOUBT (N.J. 2013), available at http://www.judiciary.state.nj.us/criminal/juryindx.pdf (then follow Reasonable Doubt link to open Word document). 62 See PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SUPERIOR COURT OF THE STATE OF DELAWARE 2.6 (2012), available at http://courts.delaware.gov/Superior /pattern/pattern_criminal.stm (then follow PDF link for Pattern Criminal Jury Instructions).

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Utah,63 Arizona,64 Iowa,65 Vermont,66 Indiana,67 Ohio,68 Maryland,69 as well as the federal Ninth70 and Fifth71 Circuit Courts of Appeals recommend similar language. By emphasizing that the prosecution must produce evidence that leaves the jurors firmly convinced of the defendants guilt, these instructions have the advantage of emphasizing the governments taskand not the defendants[and, thus, go] a long way toward ensuring that the burden of proof in criminal cases remains where it belongs: on the government.72 In addition, these instructions, phrased in modern, everyday English, are a far cry from the confusing Webster language. Some states, such as Alaska, Colorado, and West Virginia, take a somewhat different approach and define proof beyond a reasonable doubt as that having a convincing character which a reasonable person

63 See State v. Austin, 165 P.3d 1191, 1194 95 (Utah 2007); MODEL UTAH JURY INSTRUCTIONS, SECOND EDITION, at CR 103 (Advisory Comm. on Criminal Jury Instructions 2010), available at http://www.utcourts.gov/resources/muji/. 64 See State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995); REVISED ARIZONA JURY INSTRUCTIONS CRIMINAL 3D, at 5b(2) (Criminal Jury Instructions Comm. 2013), available at http://www.azbar.org/media/58832/2-standard_criminal_revised_2013.pdf (adding introductory language to FJC Instruction 21 similar to the New Jersey instruction).

See IOWA CRIMINAL JURY INSTRUCTIONS 100.10 (Iowa State Bar Assoc. 2004), available at http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CDYQFjAB&ur l=http%3A%2F%2Fwww.lb8.uscourts.gov%2Fresearchdirectory%2Fstateresources%2Fdocum ents%2Fiowa-crim-jury-instr.doc&ei=GOoUUpOxA4-WyAHQt4GYAQ&usg=AFQjCNFG3p2jXEK9I7AAN1_OMcYB5S3_A&sig2=dTWBZSM5tzUlz8OT5Uxz8A&bvm=bv.50952593,d.aWc. 66 See VERMONT CRIMINAL JURY INSTRUCTIONS, at CR04-101 (Vt. State Bar Assoc. 2005), available at http://www.vtjuryinstructions.org/criminal/MS04-101.htm. See Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996). See State v. Van Gundy, 504 N.E.2d 604, 606 (Ohio 1992). 69 See Joyner-Pitts v. State, 647 A.2d 116, 12223 (Md. Ct. Spec. App. 1994). 70 See MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE NINTH CIRCUIT 3.5 (Ninth Circuit Jury Instructions Comm. 2010), available at http://www.akd.uscourts.gov/docs/general/model_jury_criminal.pdf. 71 See PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) 1.05 (Fifth Circuit Dist. Judges Assoc., Pattern Criminal Jury Instructions Comm. 2012), available at http://www.lb5.uscourts.gov/juryinstructions/fifth/crim2012.pdf.
68 72 Lawrence M. Sloan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 TEX. L. REV. 105, 106 (1999) (emphasizing that the firmly convinced language particularly when enhanced by additional language such as used by the New Jersey Supreme Court, MODEL JURY CHARGE (CRIMINAL), REASONABLE DOUBT (N.J. 2013), available at http://www.judiciary.state.nj.us/criminal/juryindx.pdf (then follow Reasonable Doubt link to open Word document), is the preferable wording, is in accord with the United States Constitution, and also reflects how English and French courts define reasonable doubt). 67

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would not hesitate to rely and act upon.73 Unlike the firmly convinced language used in the majority of states, the convincing character phrase is usually linked with language concerning a lack of hesitation to act upon the evidence in ones important affairs. This important affairs language is troubling because it has been criticized, albeit in a somewhat different context, by the Massachusetts courts.74 The First Circuit has criticized this formulation harshly75 as has the Federal Judicial Center.76 Although comprehensible to a modern juror, this formulation is best avoided. In states such as Pennsylvania, judges are encouraged to instruct that reasonable doubt does not mean the government must prove its case beyond all doubt and to a mathematical certainty although the judge does not attempt to specifically define what beyond a reasonable doubt actually means.77 Instead, the model instruction simply tells jurors that the state must prove the defendant guilty beyond a reasonable doubt [with respect to each of these charges]. If it meets that burden, then the defendant is no longer presumed innocent, and you should find him guilty. 78 Similarly, states such as Georgia and New Hampshire tell jurors that a reasonable doubt means just what it says . . . . A reasonable doubt is a doubt based upon common-sense and reason.79 Likewise, Idaho informs

73 ALASKA CRIMINAL PATTERN JURY INSTRUCTIONS 1.06 (Criminal Pattern Jury Instructions Comm. 2013), available at http://www.courts.alaska.gov/crimins.htm (convincing character . . . you would be willing to rely and act upon it without hesitation in your important affairs); COLJI-CRIM. No. E:03 (Supreme Court of Colo. Comm. on Criminal Jury Instructions 2008), available at http://www.courts.state.co.us/Courts/ Supreme_Court/Committees/Committee.cfm?Committee_ID=9 ([S]uch a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.); WEST VIRGINIA CRIMINAL JURY INSTRUCTIONS, SIXTH EDITION 2.04 (W. Va. Criminal Law Research Ctr. 2003), available at http://www.pds.wv.gov/Criminal-Law-ResearchCenter/publications/Documents/Jury%20Instructions,%206th.pdf. 74 See, e.g., Commonwealth v. Rembiszewski, 461 N.E.2d 201, 207 (Mass. 1984). 75 Gilday v. Callahan, 59 F.3d 257, 264 (1st Cir. 1995); United States v. Vavlitis, 9 F.3d 206, 212 (1st Cir. 1993).

PATTERN CRIMINAL JURY INSTRUCTIONS 21 cmt. (Fed. Judicial Ctr. 1987), available at http://www.fjc.gov/public/pdf.nsf/lookup/crimjury.pdf/$file/crimjury.pdf ([D]ecisions we make in most important affairs of our liveschoosing a spouse, a job, a place to live, and the likegenerally involve a very heavy element of uncertainty and risk-taking. They are wholly unlike decisions jurors ought to make in criminal cases.). PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, 2ND EDITION 7.01 (Criminal Jury Instruction Comm. 2010), available at http://edocs.legalspan.com /PBI/crim_juryinstr_entirecontents3470.toc.pdf. Id. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS, VOLUME II: CRIMINAL CASES 1.20.10 (Council of Superior Court Judges of Ga. 2009), available at https://1.next.westlaw.com/
79 78 77

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its jurors merely that: A reasonable doubt is not a mere possible or imaginary doubt. It is a doubt based on reason and common sense. 80 While Illinois appears to make no effort at providing a definition for this critically important concept and simply instructs jurors: The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.81 The Texas Supreme Court goes a step further and finds that the better practice is to give no definition of reasonable doubt at all to the jury.82 The approach taken by these states is not particularly helpful to a conscientious juror who needs to understand, in a clear and consistent manner, the most important concept of a criminal trial. While certain of these states do a service by explaining what is not proof beyond a reasonable doubt,83 they appear to throw up their collective hands when asked to actually define the concept in an affirmative manner. To use an analogy, several of these states have a good windup, but no pitch. As the courts of California, New York, Florida, New Jersey, and the majority of other states demonstrate, it is both important and practical to craft a comprehensible jury instruction as to what constitutes proof beyond a reasonable doubt. By this point, it may come as no surprise that Massachusetts is the only state that retains the full Webster reasonable doubt instruction.84 Since the Victor decision, the vast majority of states that once followed the Massachusetts definition have abandoned it.85 Every state that followed
Document/I31ba6add15fe11dd86d5f687b7443f19/View/FullText.html?originationContext=doc umenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29; see also State v. Wentworth, 395 A.2d 858, 86263 (N.H. 1978) (The New Hampshire Supreme Court used its supervisory powers to craft a preferred instruction that reasonable doubt is doubt based on reason and is just what the words would ordinarily imply.).
80 IDAHO CRIMINAL JURY INSTRUCTIONS 103 (Supreme Court of Idaho, Criminal Jury Instructions Comm. 2010), available at http://www.isc.idaho.gov/problem-solving/criminaljury-instructions.

ILLINOIS PATTERN JURY INSTRUCTIONS CRIMINAL 2.03 (Supreme Court Comm. on Jury Instructions in Criminal Cases 2002), available at www.state.il.us/court /circuitcourt/CriminalJuryInstructions/CRIM%2002.00.pdf. 82 Paulson v. State, 28 S.W.3d 570, 573 (Tex. 2000). 83 See, e.g., TEX. PENAL CODE ANN. 2.01 (West 2011, current through the end of the 2013 Third Called Session of the 83rd Legislature) (The fact that [the defendant] has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at [the defendants] trial.). 84 See Shelagh Kenney, Commentary, Fifth AmendmentUpholding the Constitutional Merit of Misleading Reasonable Doubt Jury Instructions, 85 J. CRIM. L. & CRIMINOLOGY 989, 111920 (1995).
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Id.; see also Power, supra note 17, at 64, 6769 (indicating that Victor was the catalyst for

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Webster has replaced its former Webster-like instruction with a more modern, comprehensible definition. Only two states, other than Massachusetts, even still utter the phrase moral certainty when attempting to define beyond a reasonable doubt. Tennessee defines beyond a reasonable doubt as that which lets the mind rest easily as to the certainty of guilt . . . . Absolute certainty of guilt [is] not demanded . . . but moral certainty is required . . . .86 Because of the numerous collateral attacks on this moral certainty language, Tennessee compromised by providing an alternative pattern instruction that omits moral certainty.87 Oregon has abandoned the Webster language completely but appears to have a schizophrenic approach to the phrase moral certainty. After abandoning Webster-like language in 1993 (after following it for one hundred years), the Oregon courts avoided the phrase moral certainty until 2009, at which point the uniform criminal instruction was revised to read, in part: Reasonable doubt means an honest uncertainty as to the guilt of the defendant. Reasonable doubt exists when, after careful and impartial consideration of all the evidence in the case, you are not convinced to a moral certainty that the defendant is guilty. 88 The only justification given in the pattern jury instruction commentary for reintroducing this troublesome phrase is that it has generally not been held to be reversible error.89 This is a rather weak justification; after all, the phrase is considered to be error, is not condoned by the Supreme Court, andin some stateshas been ruled to be reversible error.90 Only time will tell whether Oregon continues to use this language. But even in Oregon, the confusing explanations contained in the Webster definition are a thing of history. Massachusetts courts have a proud tradition of sailing against the wind. The Massachusetts courts are not hesitant to break new ground and create new civil liberties.91 There is a lot to be said for Justice Brandeiss

the decline in the use of the phrase moral certainty).

86 TENNESSEE CRIMINAL PATTERN JURY INSTRUCTIONS 2.03 (Tenn. Judicial Conference 2013), available at http://www.tncrimlaw.com/TPI_Crim/. 87 Power, supra note 17, at 70. 88 OREGON UNIFORM CRIMINAL JURY INSTRUCTIONS 1009 (Or. State Bar Comm. on Uniform Criminal Jury Instructions 2009), available at http://pdxfaculty.files.wordpress.com/2010/07/uniform-criminal-jury-instructions.pdf.

Id. at 1009 cmt. See, e.g., State v. Kozak, 637 A.2d 782, 782 (R.I. 1994) (striking down the phrase abiding conviction, amounting to a moral certainty). 91 See, e.g., Goodridge v. Dept. of Pub. Health 798 N.E.2d 941, 972-74 (Mass. 2003) (holding that the Massachusetts Declaration of Rights prohibits limiting marriage and related benefits to heterosexual couples).
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vision of each of the fifty states being a laboratory of experiment. 92 A review of the attempts by various state courts to arrive at a satisfactory instruction on reasonable doubt demonstrates that the states are busily engaged in creating a better, more understandable definition of the concept. Massachusetts, however, far from being on the forefront in this area is stuck drifting in a murky, nineteenth century backwater. II. What Should the Wording Be? Such a critically important concept as reasonable doubt should be defined in words easily understood by an intelligent juror and express the heavy, albeit not impossible, burden placed upon the government. Although Massachusetts practitioners are familiar with and fond of the term moral certainty, that archaic and confusing phrase should be avoided.93 To quote Justice Kennedys concurrence in Victor v. Nebraska: I cannot understand, however, why such an unruly term should be used at all when jurors are asked to perform a task that can be of great difficulty even when instructions are altogether clear.94 According to the Supreme Judicial Court, moral certainty does not mean certainty, but instead near certainty.95 Moral certainty is a phrase from another place and time and does not comfortably coexist with reasonable doubt.96 Nor does the phrase a subjective state of near certitude, used by the Supreme Judicial Court in Pinckney, truly aid the jury.97 Without disparaging the intelligence of an average juror who is sincerely trying to understand a
92 Brandeis famously said in a Lochner era dissent: It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 93 Victor v. Nebraska, 511 U.S. 1, 16 (1994) (noting that [the Court] do[es] not condone the use of the phrase moral certainty).

Id. at 23. Commonwealth v. Pinckney, 644 N.E.2d 973, 976 (Mass. 1995) (citing Victor, 511 U.S. at 1247) (noting that reasonable doubt means the need to reach a subjective state of near certitude of the guilt of the accused). 96 See Sheppard, supra note 17, at 117677 (stating that the concept of moral certainty grew out of a medieval desire in England and elsewhere to answer medieval skeptical concerns by dividing theology from worldly doubt). The author of this exhaustive article traces the evolution of moral certainty and contrasts it to theological certainty and mathematical certainty. Professor Sheppard explains: Matters fit for moral certainty were less perfectly provable than physical and mathematical certainty. Id. at 1179. Most significantly, matters of moral certainty were not subject to universal agreement. See id. at 1182. While this scholarship is impressive, it proves that the concept of moral certainty is best left back in the 17th century. See id. at 117678
95 97

94

Pinckney, 644 N.E.2d at 976.

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difficult concept, the Pinckney words are simply too complex and the concept of near certainty is too amorphous. Identifying what should not be included in the definition of reasonable doubt is easier than specifying what words should be used in such a common sense definition. The Webster instruction does do a good job at describing what is not proof beyond a reasonable doubt.98 Jurors are plainly able to understand that the standard is neither proof beyond all possible doubt nor, on the other hand, a strong probability.99 That portion of the Webster instruction should survive into the 21st century because it provides, in understandable language, valuable instruction to the jury. As to what constitutes beyond a reasonable doubt, the Supreme Judicial Court in Commonwealth v. Therrien wisely approved of the Federal Judicial Centers Model Instruction 21, which defines proof beyond a reasonable doubt as proof that leaves you firmly convinced of the defendants guilt.100 To an average, modern juror being firmly convinced is the equivalent of near certitude or a reasonable and moral certainty.101 For this reason, Supreme Court Justice Ruth Bader Ginsberg cited this model instruction and the phrase firmly convinced as the correct reasonable doubt standard and praised it for being clear, straightforward, and accurate.102 Proving that it is difficult to satisfy all judges, the First Circuit has expressed some doubt as to whether Instruction 21 alone sufficiently defines the heavy burden of proof that the government must meet for a criminal conviction. 103 The First Circuit would prefer that Instruction 21 be used with other clarifying language.104 The clarifying language might well be the prefatory language used by several

See Commonwealth v. Webster, 59 Mass. 295, 296 (1850). See id. 100 Commonwealth v. Therrien, 428 Mass. 607, 611 n.5 (1998) (quoting PATTERN CRIMINAL JURY INSTRUCTIONS 21 (Fed. Judicial Ctr. 1987), available at http://federalevidence.com /pdf/JuryInst/FJC_Crim_1987.pdf). 101 Miller W. Shealy, Jr., A Reasonable Doubt About Reasonable Doubt, 65 OKLA. L. REV. 225, 24248 (2013).
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98

Victor v. Nebraska, 51 U.S. 1, 27 (1994). Emphasizing the firmly convinced language, Justice Ginsburg added: [t]his model instruction surpasses others I have seen in stating the reasonable doubt standard succinctly and comprehensibly. Id. 103 United States v. Woodward, 149 F.3d 46, 69 n.15 (1998) (terming Instruction 21, despite its praise from Justice Ginsberg, as questionable; the trial judge in Woodward did not preface Instruction 21 with any of the helpful Webster language that placed reasonable doubt somewhere between proof beyond all possible doubt and a strong probability). 104 PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT 3.02 cmt. 3 (Pattern Criminal Jury Instructions Drafting Comm. 1997), available at http://www.rid.uscourts.gov/menu/judges/jurycharges/PJI.pdf.

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states stressing that a strong probability is not sufficient and an absolute certainty is not required. The First Circuit has praised Judge Robert Keetons definition, which avoided the phrase moral certainty, and equated beyond a reasonable doubt with a settled conviction of the truth of the charge.105 This settled conviction language is a rephrasing of Websters abiding conviction . . . of the truth of the charge. As almost any linguist would agree, having a settled conviction is the same as being firmly convinced.106 In order to please all sides, it may be best to include both phrases in a reasonable doubt instruction and maybe even spice the language up with abiding conviction to emphasize the heavy burden upon the government. As a majority of the Supreme Court agreed: an instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof . . . .107 Using both the phrase firmly convinced and abiding conviction removes any doubt regarding the heavy burden faced by the government and combines the best contemporary reasonable doubt definitions. With these thoughts in mind, the Appeals Court, in Commonwealth v. Hurd, enthusiastically affirmed the use of Instruction 21 when tempered and preceded by the Webster language contrasting absolute certainty and substantial probability.108 The Supreme Judicial Court would do well to adopt the Hurd instruction, with some additional abiding conviction language. Picture the following instruction being read to the eager and curious juror with pen in hand:
As I have already told you, the defendant is presumed to be innocent of the charge, unless and until the Commonwealth proves him guilty of each element of the charge.109 The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charge or charges made against him [or her].

Id. cmt. 4 (quoting United States v. Cleveland, 106 F.3d 1056, 106263 (1st Cir. 1997)). See Tiersma, supra note 54, at 9 (preferring the term firmly convinced in Californias pattern instructions, but accepting the phrase abiding conviction as probably about the best that a committee of judges and lawyers can accomplish). 107 Victor, 511 U.S. at 1415. In upholding the Nebraska definition of reasonable doubt, the Supreme Court again praised the term abiding conviction: Instructing the jurors that they must have an abiding conviction of the defendants guilt does much to alleviate any concerns that the phrase moral certainty might be misunderstood in the abstract. Id. at 21. 108 844 N.E.2d 259, 261 (Mass. App. Ct. 2006). 109 This reiteration of the presumption of innocence is not part of the modern Webster charge, but is worth repeating to jurors. See Commonwealth v. Drayton, 434 N.E.2d 997, 1003 04 (Mass. App. Ct. 1982) (quoting Commonwealth v. De Francesco, 142 N.E. 749, 750 (1924)).
106

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What is proof beyond a reasonable doubt? The term is often used and is probably pretty well understood by jurors, but it is not easy for judges to define it to jurors. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. On the other hand, it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough.110 So what do we mean by proof beyond a reasonable doubt? Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendants guilt.111 In other words, you have an abiding conviction that the charge is true.112 There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced and have an abiding conviction that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. This is what we mean by proof beyond a reasonable doubt.

With a bit of luck, and a good delivery by the judge, the juror might note the most important aspects of this definition and actually understand what the judge is saying. If so, criminal defendants, the prosecution, and society in general would be better off.
110 These three paragraphs are taken nearly verbatim from the modern version of the Webster charge and serve the important purpose of orienting a juror to the fact that beyond a reasonable doubt is a higher standard or burden than a strong probability. CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov/courts/courtsandjudges/courts/ districtcourt/jury-instructions/criminal/pdf/2180-reasonable-doubt.pdf. This language instructs the jury that beyond a reasonable doubt resides between absolute certainty and a strong probability. Modern jurors should have no difficulty understanding this concept. This is the type of clarifying language that the First Circuit requested w hen discussing Instruction 21. See id.; see also United States v. Rodriguez, 162 F.3d 135, 14446 (1st Cir. 1998). 111 This paragraph, with the exception of the abiding conviction language, is the Federal Judicial Center Instruction 21 language that was cited with approval by the United States Supreme Court and the Supreme Judicial Court. See Victor, 511 U.S. at 1617; see also Commonwealth v. Therrien, 703 N.E.2d 1175, 1178 & n.5 (Mass. 1998). Justice Ginsburg praised this instruction effusively in Victor. 511 U.S. at 27 (Ginsburg, J., concurring). 112 The term abiding conviction is not found in Instruction 21, but appears a wise addition given the emphasis that the United States Supreme Court and the Supreme Judicial Court give to the abiding conviction language. Although Judge Keeton preferred settled conviction, the adjective abiding may carry more force and inform the jury of the high standard of proof necessary in a criminal case. See, e.g., Hopt v. Utah, 120 U.S. 430, 439 (1887); Commonwealth v. Riley, 741 N.E.2d 821, 826 (Mass. 2001).

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CONCLUSION
The ceremony of a criminal trial is important because it impresses upon the jury, as well as others, the importance of the trial process and the ultimate decision. Massachusetts is a jurisdiction rich in history and ceremony. I often sit in the Newburyport Superior Courthouse, the oldest regularly operating courthouse in America. At the beginning of a criminal trial, the clerk stands in the beautiful courtroom, designed by Charles Bulfinch and reads the indictment, and then informs the jury: To this indictment the defendant has pled not guilty and placed himself upon his country, which country you are. If he is guilty, you shall say so. If he is not guilty, you shall say so and no more. Ladies and gentlemen, harken to your evidence.113 There is a certain comfort in these ancient words because they alert the jury to the importance of its task and place the proceeding in a solemn and historical setting. Does the average juror understand the medieval reference to the accused [placing] himself upon his country?114 Of course not. Nor is it likely that any juror has recently used the word harken. No harm, however, is done by replaying this time-worn script, and perhaps some juror or member of the audience is impressed by this pageantry and gives a bit more respect and attention to the important process. The same cannot be said of the time-tested, confusing, and outworn wording of the Webster reasonable doubt instruction. Informing a juror that the evidence must convince him or her to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence literally tells that juror very little.115 If the juror believes this wording to mean that the government must prove the case to a complete certainty, then the juror would be wrong. If the juror interprets the

113 See CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 1.100 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov /courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/1100-impanelingthe-jury.pdf (This is a slight, but often used, variation on the language recommended by the Model Instructions.). 114 The term trial by country harkens from the 1600s and was used to describe our current method of criminal prosecution by a government as opposed to trial by ordeal or trial by battle. See Tom C. Clark, The American Jury: A Justification, 1 VAL. U. L. REV. 1, 2 (1966).

See CRIMINAL MODEL JURY INSTRUCTIONS FOR USE IN THE DISTRICT COURT 2.180 (Mass. Admin. Office of the Dist. Court 1995), available at http://www.mass.gov /courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/2180-reasonabledoubt.pdf.

115

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wording as meaning only that he or she must be satisfied of guilt after reviewing the evidence, the standard is too broad and amorphous. Thus, the Webster reasonable doubt wording provides a high and unnecessary risk of acquitting defendants who should be convicted and convicting defendants who should be acquitted. Asking citizens to judge a criminal case and asking them to consistently apply a standard of proof beyond a reasonable doubt is hard work. The least the courts can do is to provide jurors with a modern, comprehensible, consistent description of what constitutes proof beyond a reasonable doubt. Change rarely comes easily. Twenty years after the the Supreme Court harshly criticized the Webster charge, Massachusetts appellate courts continue to encourage its use and treat Justice Shaw s words from 1850 as though they were a gospel. Usually when a higher court firmly criticizes a lower court on appeal, the lower court gets the message and reforms its behavior. Not so with the Webster reasonable doubt language. It is time to discard much of the confusing and unhelpful wording of the Webster reasonable doubt instruction. The Hurd charge, set forth above with its slight improvements, is much more likely to correctly inform jurors of the high burden of proof the Commonwealth must meet before a person can be criminally convicted. Let us give Chief Justice Shaws words a rest and allow the Webster case to reside in history. We should not be afraid to define a critically important concept in modern, comprehensible language.