CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1993
Syllabus
VICTOR v. NEBRASKA
CERTIORARI TO THE SUPREME COURT OF NEBRASKA
No. 92-8894. Argued January 18, 1994-Decided March 22,1994*
The government must prove beyond a reasonable doubt every
element of a charged offense. In re Winship,
397 U. S. 358. In
upholding the first degree murder convictions and death sentences
of petitioners Sandoval and Victor, the Supreme Courts of
California and Nebraska, respectively, rejected contentions that
due process was violated by the pattern jury instructions defining
"reasonable doubt" that were given in both cases.
Held: Taken as a whole, the instructions in question correctly
conveyed the concept of reasonable doubt, and there is no
reasonable likelihood that the jurors understood the instructions
to allow convictions based on proof insufficient to meet the
Winship standard. Pp. 5-23.
(a) The Constitution does not dictate that any particular form
of words be used in advising the jury of the government's burden of
proof, so long as "taken as a whole, the instructions correctly
conve[y] the concept of reasonable doubt," Holland v. United
States,
348 U. S.
121, 140. In invalidating a charge declaring, among other
things, that a reasonable doubt "must be such ... as would give
rise to a grave uncertainty," "is an actual substantial doubt," and
requires "a moral certainty," the Court, in Cage v. Louisiana,
498 U. S. 39, 40,
observed that
*Together with No. 92-9049, Sandoval v. California, on
certiorari to the Supreme Court of California.
2
Syllabus
a reasonable juror could have interpreted the instruction to
allow a finding of guilt based on a degree of proof below that
which is constitutionally required. However, in Estelle v. McGuire,
502 U. S. 62, 72,
and n. 4, the Court made clear that the proper inquiry is not
whether the instruction "could have" been applied
unconstitutionally, but whether there is a reasonable likelihood
that the jury
did so apply it. pp.5-6.
(b) The instructions given in Sandoval's case defined reasonable
doubt as, among other things, "not a mere possible doubt," but one
"depending on moral evidence," such that the jurors could not say
they felt an abiding conviction, "to a moral certainty," of the
truth of the charge. Pp. 6-9.
(c) Sandoval's objection to the charge's use of the 19th century
phrases "moral evidence" and "moral certainty" is rejected.
Although the former phrase is not a mainstay of the modern lexicon,
its meaning today is consistent with its original meaning: evidence
based on the general observation of people, rather than on what is
demonstrable. Its use here is unproblematic because the
instructions given correctly pointed the jurors' attention to the
facts of the case before them, not (as Sandoval contends) the
ethics or morality of his criminal acts. For example, in the
instruction declaring that "everything relating to human affairs,
and depending on moral evidence, is open to some possible or
imaginary doubt," moral evidence can only mean empirical evidence
offered to prove matters relating to human affairs-the proof
introduced at trial. Similarly, whereas "moral certainty," standing
alone, might not be recognized by modern jurors as a synonym for
"proof beyond a reasonable doubt," its use in conjunction with the
abiding conviction language must be viewed as having impressed upon
the jury the need to reach the subjective state of near certitude
of guilt, see Jackson v. Virginia,
443 U. S. 307, 315, and
thus as not having invited conviction on less than the
constitutionally required proof. Moreover, in contrast to the
situation in Cage, there is no reasonable likelihood that the jury
here would have understood moral certainty to be disassociated from
the evidence in the case, since the instruction explicitly told the
jurors, among other things, that their conclusion had to be based
upon such evidence. Accordingly, although this Court does not
condone the use of the antiquated "moral certainty" phrase, its use
in the context of the instructions as a whole cannot be said to
have rendered those instructions unconstitutional. Pp. 10-17.
(d) Sandoval's objection to the portion of the charge declaring
that a reasonable doubt is "not a mere possible doubt" is also
rejected. That the instruction properly uses "possible" in the
sense of fanciful is made
3
clear by the fact that it also notes that everything "is open to
some possible or imaginary doubt." P. 17.
(e) The instructions given in Victor's case defined reasonable
doubt as, among other things, a doubt that will not permit an
abiding conviction, "to a moral certainty," of the accused's guilt,
and an "actual and substantial doubt" that is not excluded by the
"strong probabilities of the case." Pp. 17-19.
(f) Victor's primary argument-that equating a reasonable doubt
with a "substantial doubt" overstated the degree of doubt necessary
for acquittal-is rejected. Any ambiguity is removed by reading the
phrase in question in context: The Victor charge immediately
distinguished an "actual and substantial doubt" from one "arising
from mere possibility, from bare imagination, or from fanciful
conjecture," and thereby informed the jury that a reasonable doubt
is something more than a speculative one, which is an
unexceptionable proposition. Cage, supra, at 41, distinguished.
Moreover, the instruction defined a reasonable doubt alternatively
as a doubt that would cause a reasonable person to hesitate to act,
a formulation which this Court has repeatedly approved and which
gives a commonsense benchmark for just how substantial a reasonable
doubt must be. Pp. 19-21.
(g) The inclusion of the "moral certainty" phrase in the Victor
charge did not render the instruction unconstitutional. In contrast
to the situation in Cage, a sufficient context to lend meaning to
the phrase was provided by the rest of the Victor charge, which
equated a doubt sufficient to preclude moral certainty with a doubt
that would cause a reasonable person to hesitate to act, and told
the jurors that they must have an abiding conviction of Victor's
guilt, must be convinced of such guilt "after full, fair, and
impartial consideration of all the evidence," should be governed
solely by that evidence in determining factual issues, and should
not indulge in speculation, conjectures, or unsupported inferences.
Pp.21-22.
(h) The reference to "strong probabilities" in the Victor charge
does not unconstitutionally understate the government's burden,
since the charge also informs the jury that the probabilities must
be strong enough to prove guilt beyond a reasonable doubt. See
Dunbar v. United States,
156 U. S. 185, 199. P.
22.
No. 92-8894,242 Neb. 306, 494 N. W. 2d 565, and No. 92-9049,4
Cal. 4th 155, 841 P. 2d 862, affirmed.
O'CONNOR, J., delivered the opinion for a unanimous Court with
respect to Part II, and the opinion of the Court with respect to
Parts I, III, and IV, in which REHNQUIST, C. J., and STEVENS,
SCALIA, KENNEDY, and
4
Syllabus
THOMAS, JJ., joined in full and in which GINSBURG, J., joined as
to Parts III-B and IV. KENNEDY, J., filed a concurring opinion,
post, p. 23. GINSBURG, J., filed an opinion concurring in part and
concurring in the judgment, post, p. 23. BLACKMUN, J., filed an
opinion concurring in part and dissenting in part, in all but Part
II of which SOUTER, J., joined, post, p.28.
Mark A. Weber argued the cause and filed briefs for petitioner
in No. 92-8894. Eric S. Multhaup, by appointment of the Court, 510
U. S. 942, argued the cause for petitioner in No. 92-9049. With him
on the briefs was Kathy M. Chavez.
Don Stenberg, Attorney General of Nebraska, argued the cause for
respondent in No. 92-8894. With him on the brief was
J. Kirk
Brown, Assistant Attorney General. Daniel E. Lungren, Attorney
General of California, argued the cause for respondent in No.
92-9049. With him on the brief were George Williamson, Chief
Assistant Attorney General, Carol Wendelin Pollack, Senior
Assistant Attorney General, and Susan Lee Frierson, Sharlene A.
Honnaka, Donald E. De Nicola, and Sharon Wooden Richard, Deputy
Attorneys General.t
tBriefs of amici curiae urging affirmance in both cases were
filed for the United States by Solicitor General Days, Assistant
Attorney General Harris, Deputy Solicitor General Bryson, and Paul
J. Larkin, Jr.; and for the Criminal Justice Legal
Foundation by Kent S. Scheidegger and Charles L. Hobson.
Briefs of amici curiae urging affirmance in No. 92-9049 were
filed for the Commonwealth of Massachusetts et al. by Scott
Harshbarger, Attorney General of Massachusetts, and Pamela L. Hunt
and Gregory I. Massing, Assistant Attorneys General, and by the
Attorneys General for their respective jurisdictions as follows:
James H. Evans of Alabama, Larry EchoHawk of Idaho, Pamela Carter
of Indiana, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek
of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of
North Carolina, Lee Fisher of Ohio, Theodore R. Kulongoski of
Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock
of South Carolina, Charles W Burson of Tennessee, and Elizabeth
Barrett-Anderson of Guam; and for the California District
Attorneys' Association by Gil Garcetti and Brent Riggs.
5
JUSTICE O'CONNOR delivered the opinion of the Court.* The
government must prove beyond a reasonable doubt every element of a
charged offense. In re Winship,
397 U. S. 358 (1970).
Although this standard is an ancient and honored aspect of our
criminal justice system, it defies easy explication. In these
cases, we consider the constitutionality of two attempts to define
"reasonable doubt."
I
The beyond a reasonable doubt standard is a requirement of due
process, but the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter of
course. Cf. Hopt v. Utah,
120 U. S. 430, 440-441
(1887). Indeed, so long as the court instructs the jury on the
necessity that the defendant's guilt be proved beyond a reasonable
doubt, see Jackson v. Virginia,
443 U. S. 307, 320, n. 14
(1979), the Constitution does not require that any particular form
of words be used in advising the jury of the government's burden of
proof. Cf. Tay lor v. Kentucky,
436 U. S. 478, 485-486
(1978). Rather, "taken as a whole, the instructions [must]
correctly conve[y] the concept of reasonable doubt to the jury."
Holland v. United States,
348 U. S. 121, 140
(1954).
In only one case have we held that a definition of reasonable
doubt violated the Due Process Clause. Cage v. Louisiana,
498 U. S. 39 (1990) (per
curiam). There, the jurors were told:
"'[A reasonable doubt] is one that is founded upon a real
tangible substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise to a grave
uncertainty, raised in your mind by reasons of the unsatisfactory
character of the evidence or lack thereof. A reasonable doubt is
not a mere possible
*JUSTICES BLACKMUN and SOUTER join only Part II of this
opinion.
JUSTICE GINSBURG joins only Parts II, III-B, and IV.
6
doubt. It is an actual substantial doubt. It is a doubt that a
reasonable man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty.'" Id.,
at 40 (emphasis added by this Court in Cage).
We held that the highlighted portions of the instruction
rendered it unconstitutional:
"It is plain to us that the words 'substantial' and 'grave,' as
they are commonly understood, suggest a higher degree of doubt than
is required for acquittal under the reasonable doubt standard. When
those statements are then considered with the reference to 'moral
certainty,' rather than evidentiary certainty, it becomes clear
that a reasonable juror could have interpreted the instruction to
allow a finding of guilt based on a degree of proof below that
required by the Due Process Clause." Id., at 41.
In a subsequent case, we made clear that the proper inquiry is
not whether the instruction "could have" been applied in an
unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it. Estelle v. McGuire,
502 U. S. 62, 72,
and n. 4 (1991). The constitutional question in the present cases,
therefore, is whether there is a reasonable likelihood that the
jury understood the instructions to allow conviction based on proof
insufficient to meet the Winship standard. Although other courts
have held that instructions similar to those given at petitioners'
trials violate the Due Process Clause, see State v. Bryant, 334 N.
C. 333, 432 S. E. 2d 291 (1993), cert. pending, No. 93-753; Morley
v. Stenberg, 828 F. Supp. 1413 (Neb. 1993), both the Nebraska and
the California Supreme Courts held that the instructions were
constitutional. We granted certiorari, 509 U. S. 954 (1993), and
now affirm both judgments.
7
II
On October 14, 1984, petitioner Sandoval shot three men, two of
them fatally, in a gang-related incident in Los Angeles. About two
weeks later, he entered the home of a man who had given information
to the police about the murders and shot him dead; Sandoval then
killed the man's wife because she had seen him murder her husband.
Sandoval was convicted on four counts of first degree murder. The
jury found that Sandoval personally used a firearm in the
commission of each offense, and found the special circumstance of
multiple murder. Cal. Penal Code Ann. § 12022.5 (West 1992) and
Cal. Penal Code Ann. § 190.2(a)(3) (West 1988). He was sentenced to
death for murdering the woman and to life in prison without
possibility of parole for the other three murders. The California
Supreme Court affirmed the convictions and sentences. 4 Cal. 4th
155, 841 P. 2d 862 (1992).
The jury in Sandoval's case was given the following instruction
on the government's burden of proof:
"A defendant in a criminal action is presumed to be innocent
until the contrary is proved, and in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to a
verdict of not guilty. This presumption places upon the State the
burden of proving him guilty beyond a reasonable doubt.
"Reasonable doubt is defined as follows: 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." App. in No. 92-9049, p. 49 (emphasis added) (Sandoval
App.).
8
The California Supreme Court rejected Sandoval's claim that the
instruction, particularly the highlighted passages, violated the
Due Process Clause. 4 Cal. 4th, at 185-186, 841
The instruction given in Sandoval's case has its genesis in a
charge given by Chief Justice Shaw of the Massachusetts Supreme
Judicial Court more than a century ago:
"[W]hat is reasonable doubt? It is a term often used, probably
pretty well understood, but not easily defined. It is not mere
possible doubt; because every thing 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 jurors in that condition that they cannot say they feel an
abiding conviction, to a moral certainty, of the truth of the
charge. The burden of proof is upon the prosecutor. All the
presumptions of law independent of evidence are in favor of
innocence; and every person is presumed to be innocent until he is
proved guilty. If upon such proof there is reasonable doubt
remaining, the accused is entitled to the benefit of it by an
acquittal. For it is not sufficient to establish a probability,
though a strong one arising from the doctrine of chances, that the
fact charged is more likely to be true than the contrary; but the
evidence must establish the truth of the fact to a reasonable and
moral certainty; a certainty that convinces and directs the
understanding, and satisfies the reason and judgment, of those who
are bound to act conscientiously upon it. This we take to be proof
beyond reasonable doubt." Commonwealth v. Webster, 59 Mass. 295,
320 (1850).
The Webster charge is representative of the time when "American
courts began applying [the beyond a reasonable doubt standard] in
its modern form in criminal cases."
Apo-
9
daca v. Oregon,
406 U. S. 404, 412, n. 6
(1972) (plurality opinion). See also Perovich v. United States,
205 U. S. 86, 92
(1907) (approving Webster charge). In People v. Strong, 30 Cal.
151, 155 (1866), the California Supreme Court characterized the
Webster instruction as "probably the most satisfactory definition
ever given to the words 'reasonable doubt' in any case known to
criminal jurisprudence." In People v. Paulsell, 115 Cal. 6, 12, 46
P. 734 (1896), the court cautioned state trial judges against
departing from that formulation. And in 1927, the state legislature
adopted the bulk of the Webster instruction as a statutory
definition of reasonable doubt. Cal. Penal Code Ann. § 1096 (West
1985); see California Jury Instructions, Criminal, No. 2.90 (4th
ed. 1979). Indeed, the California Legislature has directed that
"the court may read to the jury section 1096 of this code, and no
further instruction on the subject of the presumption of innocence
or defining reasonable doubt need be given." § 1096a. The statutory
instruction was given in Sandoval's case.
The California instruction was criticized in People v.
Brig
ham, 25 Cal. 3d 283, 292-316, 599 P. 2d 100, 106-121
(1979) (Mosk, J., concurring). Justice Mosk apparently did not
think the instruction was unconstitutional, but he "urge[d] the
Legislature to reconsider its codification." Id., at 293, 599 P.
2d, at 106. The California Assembly and Senate responded by
requesting the committee on jury instructions of the Los Angeles
Superior Court "to study alternatives to the definition of
'reasonable doubt' set forth in Section 1096 of the Penal Code, and
to report its findings and recommendations to the Legislature."
Cal. Assem. Con. Res. No. 148, 1986 Cal. Stats. 5634. The committee
recommended that the legislature retain the statutory definition
unmodified, see Alternative Definitions of Reasonable Doubt: A
Report of the Committee on Standard Jury Instructions-Criminal to
the California Legislature (May 22, 1987), and § 1096 has not been
changed.
10
A
Sandoval's primary objection is to the use of the phrases "moral
evidence" and "moral certainty" in the instruction. As noted, this
part of the charge was lifted verbatim from Chief Justice Shaw's
Webster decision; some understanding of the historical context in
which that instruction was written is accordingly helpful in
evaluating its continuing validity.
By the beginning of the Republic, lawyers had borrowed the
concept of "moral evidence" from the philosophers and historians of
the 17th and 18th centuries. See generally B. Shapiro, "Beyond
Reasonable Doubt" and "Probable Cause":
Historical Perspectives on the Anglo-American Law of Evidence,
ch. 1 (1991). James Wilson, who was instrumental in framing the
Constitution and who served as one of the original Members of this
Court, explained in a 1790 lecture on law that "evidence ... is
divided into two species-demonstrative and moral." 1 Works of James
Wilson 518 (J. Andrews ed. 1896). Wilson went on to explain the
distinction thus:
"Demonstrative evidence has for its subject abstract and
necessary truths, or the unchangeable relations of ideas. Moral
evidence has for its subject the real but contingent truths and
connections, which take place among things actually existing
....
"In moral evidence, there not only may be, but there generally
is, contrariety of proofs: in demonstrative evidence, no such
contrariety can take place .... [T]o suppose that two contrary
demonstrations can exist, is to suppose that the same proposition
is both true and false: which is manifestly absurd. With regard to
moral evidence, there is, for the most part, real evidence on both
sides. On both sides, contrary presumptions, contrary
11
testimonies, contrary experiences must be balanced." Id., at
518-519.
A leading 19th century treatise observed that "[m]atters of fact
are proved by moral evidence alone; ... [i]n the ordinary affairs
of life, we do not require demonstrative evidence, ... and to
insist upon it would be unreasonable and absurd." 1
The phrase "moral certainty" shares an epistemological pedigree
with moral evidence. See generally Shapiro, "To A Moral Certainty":
Theories of Knowledge and AngloAmerican Juries 1600-1850, 38
Hastings L. J. 153 (1986). Moral certainty was the highest degree
of certitude based on such evidence. In his 1790 lecture, James
Wilson observed:
"In a series of moral evidence, the inference drawn in the
several steps is not necessary; nor is it impossible that the
premises should be true, while the conclusion drawn from them is
false.
" ... In moral evidence, we rise, by an insensible gradation,
from possibility to probability, and from probability to the
highest degree of moral certainty." 1 Works of James Wilson, supra,
at 519.
At least one early treatise explicitly equated moral certainty
with proof beyond a reasonable doubt:
"Evidence which satisfies the minds of the jury of the truth of
the fact in dispute, to the entire exclusion of every reasonable
doubt, constitutes full proof of the fact ....
"Even the most direct evidence can produce nothing more than
such a high degree of probability as amounts to moral certainty.
From the highest degree it may decline, by an infinite number of
gradations, until it produce in the mind nothing more than a mere
preponderance of assent in favour of the particular fact." T.
Starkie, Law of Evidence 478 (2d ed. 1833).
12
See also Greenleaf, supra, at 4 ("The most that can be affirmed
of [things proved by moral evidence] is, that there is no
reasonable doubt concerning them").
Thus, when Chief Justice Shaw penned the Webster instruction in
1850, moral certainty meant a state of subjective certitude about
some event or occurrence. As the Massachusetts Supreme Judicial
Court subsequently explained:
"Proof 'beyond a reasonable doubt' ... is proof 'to a moral
certainty,' as distinguished from an absolute certainty. As applied
to a judicial trial for crime, the two phrases are synonymous and
equivalent; each has been used by eminent judges to explain the
other; and each signifies such proof as satisfies the judgment and
consciences of the jury, as reasonable men, and applying their
reason to the evidence before them, that the crime charged has been
committed by the defendant, and so satisfies them as to leave no
other reasonable conclusion possible." Commonwealth v. Costley, 118
Mass. 1, 24 (1875).
Indeed, we have said that "[p]roof to a 'moral certainty' is an
equivalent phrase with 'beyond a reasonable doubt.'" Fidelity Mut.
Life Assn. v. Mettler,
185 U. S. 308, 317
(1902), citing Commonwealth v. Costley, supra. See also Wilson v.
United States,
232 U.
S. 563, 570 (1914) (approving reasonable doubt instruction cast
in terms of moral certainty); Miles v. United States,
103 U. S. 304, 309, 312
(1881).
We recognize that the phrase "moral evidence" is not a mainstay
of the modern lexicon, though we do not think it means anything
different today than it did in the 19th century. The few
contemporary dictionaries that define moral evidence do so
consistently with its original meaning. See, e.
g.,
Webster's New Twentieth Century Dictionary 1168 (2d ed. 1979)
("based on general observation of people, etc. rather than on what
is demonstrable"); Collins English Dic-
13
tionary 1014 (3d ed. 1991) (similar); 9 Oxford English
Dictionary 1070 (2d ed. 1989) (similar).
Moreover, the instruction itself gives a definition of the
phrase. The jury was told that "everything relating to human
affairs, and depending on moral evidence, is open to some possible
or imaginary doubt"-in other words, that absolute certainty is
unattainable in matters relating to human affairs. Moral evidence,
in this sentence, can only mean empirical evidence offered to prove
such matters-the proof introduced at trial.
This conclusion is reinforced by other instructions given in
Sandoval's case. The judge informed the jurors that their duty was
"to determine the facts of the case from the evidence received in
the trial and not from any other source." Sandoval App. 38. The
judge continued: "Evidence consists of testimony of witnesses,
writings, material objects, or anything presented to the senses and
offered to prove the existence or non-existence of a fact." Id., at
40. The judge also told the jurors that "you must not be influenced
by pity for a defendant or by prejudice against him," and that
"[y]ou must not be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling." Id., at 39.
These instructions correctly pointed the jurors' attention to the
facts of the case before them, not (as Sandoval contends) the
ethics or morality of Sandoval's criminal acts. Accordingly, we
find the reference to moral evidence unproblematic.
We are somewhat more concerned with Sandoval's argument that the
phrase "moral certainty" has lost its historical meaning, and that
a modern jury would understand it to allow conviction on proof that
does not meet the beyond a reasonable doubt standard. Words and
phrases can change meaning over time: A passage generally
understood in 1850 may be incomprehensible or confusing to a modern
juror. And although some contemporary dictionaries contain
definitions of moral certainty similar to the 19th century
under-
14
standing of the phrase, see Webster's Third New International
Dictionary 1468 (1981) ("virtual rather than actual, immediate, or
completely demonstrable"); 9 Oxford English Dictionary, supra, at
1070 ("a degree of probability so great as to admit of no
reasonable doubt"), we are willing to accept Sandoval's premise
that "moral certainty," standing alone, might not be recognized by
modern jurors as a synonym for "proof beyond a reasonable doubt."
But it does not necessarily follow that the California instruction
is unconstitutional.
Sandoval first argues that moral certainty would be understood
by modern jurors to mean a standard of proof lower than beyond a
reasonable doubt. In support of this proposition, Sandoval points
to contemporary dictionaries that define moral certainty in terms
of probability.
E. g., Webster's New Twentieth Century
Dictionary, supra, at 1168 ("based on strong probability"); Random
House Dictionary of the English Language 1249 (2d ed. 1983)
("resting upon convincing grounds of probability"). But the beyond
a reasonable doubt standard is itself probabilistic. "[I]n a
judicial proceeding in which there is a dispute about the facts of
some earlier event, the factfinder cannot acquire unassailably
accurate knowledge of what happened. Instead, all the factfinder
can acquire is a belief of what probably happened." In re Winship,
397 U. S., at 370 (Harlan, J., concurring) (emphasis in original).
The problem is not that moral certainty may be understood in terms
of probability, but that a jury might understand the phrase to mean
something less than the very high level of probability required by
the Constitution in criminal cases.
Although in this respect moral certainty is ambiguous in the
abstract, the rest of the instruction given in Sandoval's case
lends content to the phrase. The jurors were told that they must
have "an abiding conviction, to a moral certainty, of the truth of
the charge." Sandoval App. 49. An instruction cast in terms of an
abiding conviction as to guilt, without
15
reference to moral certainty, correctly states the government's
burden of proof. Hopt v. Utah, 120 U. S., at 439 ("The word
'abiding' here has the signification of settled and fixed, a
conviction which may follow a careful examination and comparison of
the whole evidence"); see Criminal Jury Instructions: District of
Columbia 46 (3d H. Greene & T. Guidoboni ed. 1978). And the
judge had already informed the jury that matters relating to human
affairs are proved by moral evidence, see supra, at 13; giving the
same meaning to the word moral in this part of the instruction,
moral certainty can only mean certainty with respect to human
affairs. As used in this instruction, therefore, we are satisfied
that the reference to moral certainty, in conjunction with the
abiding conviction language, "impress[ed] upon the factfinder the
need to reach a subjective state of near certitude of the guilt of
the accused." Jackson v. Virginia, 443 U. S., at 315. Accordingly,
we reject Sandoval's contention that the moral certainty element of
the California instruction invited the jury to convict him on proof
below that required by the Due Process Clause.
Sandoval's second argument is a variant of the first. Accepting
that the instruction requires a high level of confidence in the
defendant's guilt, Sandoval argues that a juror might be convinced
to a moral certainty that the defendant is guilty even though the
government has failed to prove his guilt beyond a reasonable doubt.
A definition of moral certainty in a widely used modern dictionary
lends support to this argument, see American Heritage Dictionary
1173 (3d ed. 1992) ("Based on strong likelihood or firm conviction,
rather than on the actual evidence"), and we do not gainsay its
force. As we have noted, "[t]he constitutional standard recognized
in the Winship case was expressly phrased as one that protects an
accused against a conviction except on 'proof beyond a reasonable
doubt.'" Jackson v. Virginia, supra, at 315 (emphasis in original).
Indeed, in Cage we contrasted
16
"moral certainty" with "evidentiary certainty." 498 U. S., at
41.
But the moral certainty language cannot be sequestered from its
surroundings. In the Cage instruction, the jurors were simply told
that they had to be morally certain of the defendant's guilt; there
was nothing else in the instruction to lend meaning to the phrase.
Not so here. The jury in Sandoval's case was told that a reasonable
doubt 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."
Sandoval App. 49 (emphasis added). The instruction thus explicitly
told the jurors that their conclusion had to be based on the
evidence in the case. Other instructions reinforced this message.
The jury was told "to determine the facts of the case from the
evidence received in the trial and not from any other source." Id.,
at 38. The judge continued that "you must not be influenced by pity
for a defendant or by prejudice against him .... You must not be
swayed by mere sentiment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling." Id., at 39. Accordingly, there
is no reasonable likelihood that the jury would have understood
moral certainty to be disassociated from the evidence in the
case.
We do not think it reasonably likely that the jury understood
the words "moral certainty" either as suggesting a standard of
proof lower than due process requires or as allowing conviction on
factors other than the government's proof. At the same time,
however, we do not condone the use of the phrase. As modern
dictionary definitions of moral certainty attest, the common
meaning of the phrase has changed since it was used in the Webster
instruction, and it may continue to do so to the point that it
conflicts with the Winship standard. Indeed, the definitions of
reasonable doubt most widely used in the federal courts do not
contain
17
any reference to moral certainty. See Federal Judicial Center,
Pattern Criminal Jury Instructions 28 (1988); 1 E. Devitt & C.
Blackmar, Federal Jury Practice and Instructions § 11.14 (3d ed.
1977). But we have no supervisory power over the state courts, and
in the context of the instructions as a whole we cannot say that
the use of the phrase rendered the instruction given in Sandoval's
case unconstitutional.
B
Finally, Sandoval objects to the portion of the charge in which
the judge instructed the jury that a reasonable doubt is "not a
mere possible doubt." The Cage instruction included an almost
identical reference to "not a mere possible doubt," but we did not
intimate that there was anything wrong with that part of the
charge. See 498 U. S., at 40. That is because "[a] 'reasonable
doubt,' at a minimum, is one based upon 'reason.'" Jackson v.
Virginia, supra, at 317. A fanciful doubt is not a reasonable
doubt. As Sandoval's defense attorney told the jury: "Anything can
be possible .... [A] planet could be made out of blue cheese. But
that's really not in the realm of what we're talking about."
Sandoval App. 79 (excerpt from closing argument). That this is the
sense in which the instruction uses "possible" is made clear from
the final phrase of the sentence, which notes that everything "is
open to some possible or imaginary doubt." We therefore reject
Sandoval's challenge to this portion of the instruction as
well.
III
On December 26, 1987, petitioner Victor went to the Omaha home
of an 82-year-old woman for whom he occasionally did gardening
work. Once inside, he beat her with a pipe and cut her throat with
a knife, killing her. Victor was convicted of first degree murder.
A three-judge panel found the statutory aggravating circumstances
that Victor had previously been convicted of murder, Neb. Rev.
Stat. § 292523(1)(a) (1989), and that the murder in this case was
espe-
18
cially heinous, atrocious, and cruel, § 29-2523(1)(d). Finding
none of the statutory mitigating circumstances, the panel sentenced
Victor to death. The Nebraska Supreme Court affirmed the conviction
and sentence. State v. Victor, 235 Neb. 770, 457 N. W. 2d 431
(1990), cert. denied, 498 U. S. 1127 (1991).
At Victor's trial, the judge instructed the jury that "[t]he
burden is always on the State to prove beyond a reasonable doubt
all of the material elements of the crime charged, and this burden
never shifts." App. in No. 92-8894, p. 8 (Victor App.). The charge
continued:
"'Reasonable doubt' is such a doubt as would cause a reasonable
and prudent person, in one of the graver and more important
transactions of life, to pause and hesitate before taking the
represented facts as true and relying and acting thereon. It is
such a doubt as will not permit you, after full, fair, and
impartial consideration of all the evidence, to have an abiding
conviction, to a moral certainty, of the guilt of the accused. At
the same time, absolute or mathematical certainty is not required.
You may be convinced of the truth of a fact beyond a reasonable
doubt and yet be fully aware that possibly you may be mistaken. You
may find an accused guilty upon the strong probabilities of the
case, provided such probabilities are strong enough to exclude any
doubt of his guilt that is reasonable. A reasonable doubt is an
actual and substantial doubt reasonably arising from the evidence,
from the facts or circumstances shown by the evidence, or from the
lack of evidence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagination, or from
fanciful conjecture." Id., at 11 (emphasis added).
On state postconviction review, the Nebraska Supreme Court
rejected Victor's contention that the instruction, par-
19
ticularly the emphasized phrases, violated the Due Process
Clause. 242 Neb. 306, 310-311, 494 N. W. 2d 565, 569 (1993).
Because the last state court in which review could be had
considered Victor's constitutional claim on the merits, it is
properly presented for our review despite Victor's failure to
object to the instruction at trial or raise the issue on direct
appeal. See, e.
g., Ylst v. Nunnemaker,
501 U. S. 797, 801
(1991).
The instruction given in Victor's case can be traced to two
separate lines of cases. Much of the charge is taken from Chief
Justice Shaw's Webster instruction. See Carr v. State, 23 Neb. 749,
752-753, 37 N. W. 630, 631-632 (1888) (approving the use of
Webster). The rest derives from a series of decisions approving
instructions cast in terms of an "actual doubt" that would cause a
reasonable person to hesitate to act. See, e.
g., Whitney v.
State, 53 Neb. 287, 298, 73 N. W. 696, 699 (1898); Willis v. State,
43 Neb. 102, 110-111, 61 N. W. 254, 256 (1894); Polin v. State, 14
Neb. 540, 546-547, 16 N. W. 898, 900-901 (1883). In 1968, a
committee appointed by the Nebraska Supreme Court developed model
jury instructions; a court rule in effect at the time Victor was
tried directed that those instructions were to be used where
applicable. Nebraska Jury Instructions IX (1969) (N. J. 1.). The
model instruction on reasonable doubt, N. J. 1. 14.08, is the one
given at Victor's trial. (Since Victor was tried, a revised
reasonable doubt instruction, N. J. 1. 2d Crim. 2.0 (1992), has
been adopted, although the prior version may still be used.)
A
Victor's primary argument is that equating a reasonable doubt
with a "substantial doubt" overstated the degree of doubt necessary
for acquittal. We agree that this construction is somewhat
problematic. On the one hand, "substantial" means "not seeming or
imaginary"; on the other, it means "that specified to a large
degree." Webster's Third New International Dictionary, at 2280. The
former is un-
20
exceptionable, as it informs the jury only that a reasonable
doubt is something more than a speculative one; but the latter
could imply a doubt greater than required for acquittal under
Winship. Any ambiguity, however, is removed by reading the phrase
in the context of the sentence in which it appears: "A reasonable
doubt is an actual and substantial doubt ... as distinguished from
a doubt arising from mere possibility, from bare imagination, or
from fanciful conjecture." Victor App. 11 (emphasis added).
This explicit distinction between a substantial doubt and a
fanciful conjecture was not present in the Cage instruction. We did
say in that case that "the words 'substantial' and 'grave,' as they
are commonly understood, suggest a higher degree of doubt than is
required for acquittal under the reasonable doubt standard." 498 U.
S., at 41. But we did not hold that the reference to substantial
doubt alone was sufficient to render the instruction
unconstitutional. Cf. Taylor v. Kentucky, 436 U. S., at 488
(defining reasonable doubt as a substantial doubt, "though perhaps
not in itself reversible error, often has been criticized as
confusing") (emphasis added). Rather, we were concerned that the
jury would interpret the term "substantial doubt" in parallel with
the preceding reference to "grave uncertainty," leading to an
overstatement of the doubt necessary to acquit. In the instruction
given in Victor's case, the context makes clear that "substantial"
is used in the sense of existence rather than magnitude of the
doubt, so the same concern is not present.
In any event, the instruction provided an alternative definition
of reasonable doubt: a doubt that would cause a reasonable person
to hesitate to act. This is a formulation we have repeatedly
approved, Holland v. United States, 348 U. S., at 140; cf. Hopt v.
Utah, 120 U. S., at 439-441, and to the extent the word
"substantial" denotes the quantum of doubt necessary for acquittal,
the hesitate to act standard gives a commonsense benchmark for just
how substantial
21
such a doubt must be. We therefore do not think it reasonably
likely that the jury would have interpreted this instruction to
indicate that the doubt must be anything other than a reasonable
one.
B
Victor also challenges the "moral certainty" portion of the
instruction. In another case involving an identical instruction,
the Nebraska Supreme Court distinguished Cage as follows: "[U]nder
the Cage instruction a juror is to vote for conviction unless
convinced to a moral certainty that there exists a reasonable
doubt, whereas under the questioned instruction a juror is to vote
for acquittal unless convinced to a moral certainty that no
reasonable doubt exists." State v. Morley, 239 Neb. 141, 155, 474
N. W. 2d 660, 670 (1991); see also 242 Neb., at 310-311, 494 N. W.
2d, at 569 (relying on Morley). We disagree with this reading of
Cage. The moral certainty to which the Cage instruction referred
was clearly related to the defendant's guilt; the problem in Cage
was that the rest of the instruction provided insufficient context
to lend meaning to the phrase. But the Nebraska instruction is not
similarly deficient.
Instructing the jurors that they must have an abiding conviction
of the defendant's guilt does much to alleviate any concerns that
the phrase "moral certainty" might be misunderstood in the
abstract. See supra, at 14-15. The instruction also equated a doubt
sufficient to preclude moral certainty with a doubt that would
cause a reasonable person to hesitate to act. In other words, a
juror morally certain of a fact would not hesitate to rely on it;
and such a fact can fairly be said to have been proved beyond a
reasonable doubt. Cf. Hopt v. Utah, supra, at 439-440. The jurors
were told that they must be convinced of Victor's guilt "after
full, fair, and impartial consideration of all the evidence."
Victor App. 11. The judge also told them: "In determining any
questions of fact presented in this case, you should be governed
solely by the evidence introduced before you. You should not
indulge
22
in speculation, conjectures, or inferences not supported by the
evidence." Id., at 2. There is accordingly no reasonable likelihood
that the jurors understood the reference to moral certainty to
allow conviction on a standard insufficient to satisy Winship, or
to allow conviction on factors other than the government's proof.
Though we reiterate that we do not countenance its use, the
inclusion of the "moral certainty" phrase did not render the
instruction given in Victor's case unconstitutional.
C
Finally, Victor argues that the reference to "strong
probabilities" in the instruction unconstitutionally understated
the government's burden. But in the same sentence, the instruction
informs the jury that the probabilities must be strong enough to
prove the defendant's guilt beyond a reasonable doubt. We upheld a
nearly identical instruction in Dunbar v. United States,
156 U. S. 185, 199
(1895): "While it is true that [the challenged instruction] used
the words 'probabilities' and 'strong probabilities,' yet it
emphasized the fact that those probabilities must be so strong as
to exclude any reasonable doubt, and that is unquestionably the
law" (citing Hopt v. Utah, supra, at 439). That conclusion has lost
no force in the course of a century, and we therefore consider
Dunbar controlling on this point.
IV
The Due Process Clause requires the government to prove a
criminal defendant's guilt beyond a reasonable doubt, and trial
courts must avoid defining reasonable doubt so as to lead the jury
to convict on a lesser showing than due process requires. In these
cases, however, we conclude that "taken as a whole, the
instructions correctly conveyed the concept of reasonable doubt to
the jury." Holland v. United States, supra, at 140. There is no
reasonable likelihood that the jurors who determined petitioners'
guilt applied the instruc-
23
tions in a way that violated the Constitution. The judgments in
both cases are accordingly
Affirmed.
JUSTICE KENNEDY, concurring.
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.
Though the reference to "moral certainty" is not much better,
California's use of "moral evidence" is the most troubling, and to
me seems quite indefensible. The derivation of the phrase is
explained in the Court's opinion, but even with this help the term
is a puzzle. And for jurors who have not had the benefit of the
Court's research, the words will do nothing but baffle.
I agree that use of "moral evidence" in the California
formulation is not fatal to the instruction here. 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. The
inclusion of words so malleable, because so obscure, might in other
circumstances have put the whole instruction at risk.
With this observation, I concur in full in the opinion of the
Court.
JUSTICE GINSBURG, concurring in part and concurring in the
judgment.
I agree with the Court that the reasonable doubt instructions
given in these cases, read as a whole, satisfy the Constitution's
due process requirement. As the Court observes, the instructions
adequately conveyed to the jurors that they should focus
exclusively upon the evidence, see ante, at 13, 16, 21-22, and that
they should convict only if they had an
24
Opinion of GINSBURG, J.
"abiding conviction" of the defendant's guilt, see ante, at 14,
21. I agree, further, with the Court's suggestion that the term
"moral certainty," while not in itself so misleading as to render
the instructions unconstitutional, should be avoided as an
unhelpful way of explaining what reasonable doubt means. See ante,
at 16, 22.
Similarly unhelpful, in my view, are two other features of the
instruction given in Victor's case. That instruction begins by
defining reasonable doubt as "such a doubt as would cause a
reasonable and prudent person, in one of the graver and more
important transactions of life, to pause and hesitate before taking
the represented facts as true and relying and acting thereon." App.
in No. 92-8894, p. 11. A committee of distinguished federal judges,
reporting to the Judicial Conference of the United States, has
criticized this "hesitate to act" formulation
"because the analogy it uses seems misplaced. In the decisions
people make in the most important of their own affairs, resolution
of conflicts about past events does not usually play a major role.
Indeed, decisions we make in the most important affairs of our
lives-choosing a spouse, a job, a place to live, and the
like-generally involve a very heavy element of uncertainty and
risk-taking. They are wholly unlike the decisions jurors ought to
make in criminal cases." Federal Judicial Center, Pattern Criminal
Jury Instructions 18-19 (1987) (commentary on instruction 21).
More recently, Second Circuit Chief Judge Jon O. Newman
observed:
"Although, as a district judge, I dutifully repeated [the
'hesitate to act' standard] to juries in scores of criminal trials,
I was always bemused by its ambiguity. If the jurors encounter a
doubt that would cause them to 'hesitate to act in a matter of
importance,' what are they to do then? Should they decline to
convict because they
25
have reached a point of hesitation, or should they simply
hesitate, then ask themselves whether, in their own private
matters, they would resolve the doubt in favor of action, and, if
so, continue on to convict?" Beyond "Reasonable Doubt," 68 N. Y. U.
L. Rev. 201, 204 (1994) (James Madison Lecture, delivered at New
York University Law School, Nov. 9, 1993).
Even less enlightening than the "hesitate to act" formulation is
the passage of the Victor instruction counseling: "[The jury] may
find an accused guilty upon the strong probabilities of the case,
provided such probabilities are strong enough to exclude any doubt
of his guilt that is reasonable." App. in No. 92-8894, p. 11. If
the italicized words save this part of the instruction from
understating the prosecution's burden of proof, see ante, at 22,
they do so with uninstructive circularity. Jury comprehension is
scarcely advanced when a court "defines" reasonable doubt as "doubt
... that is reasonable."
These and similar difficulties have led some courts to question
the efficacy of any reasonable doubt instruction. At least two of
the Federal Courts of Appeals have admonished their District Judges
not to attempt a definition. * This Court, too, has suggested on
occasion that prevailing definitions of "reasonable doubt" afford
no real aid. See, e.
g., Holland v. United States,
348 U. S. 121, 140 (1954)
(" '[a]ttempts to explain the term "reasonable doubt" do not
usually result in making it any clearer to the minds of the jury'
"),
*See, e.
g., United States v. Adkins,
937 F.2d
947, 950 (CA4 1991) ("This circuit has repeatedly warned
against giving the jury definitions of reasonable doubt, because
definitions tend to impermissibly lessen the burden of proof ....
The only exception to our categorical disdain for definition is
when the jury specifically requests it."); United States v. Hall,
854 F.2d
1036, 1039
(CA7 1988) (upholding District Court's
refusal to provide definition, despite jury's request, because "at
best, definitions of reasonable doubt are unhelpful to a jury ....
An attempt to define reasonable doubt presents a risk without any
real benefit.").
26
Opinion of GINSBURG, J.
quoting Miles v. United States,
103 U. S. 304, 312
(1881); Hopt v. Utah,
120 U. S. 430, 440-441
(1887) ("The rule may be, and often is, rendered obscure by
attempts at definition, which serve to create doubts instead of
removing them."). But we have never held that the concept of
reasonable doubt is undefinable, or that trial courts should not,
as a matter of course, provide a definition. Nor, contrary to the
Court's suggestion, see ante, at 5, have we ever held that the
Constitution does not require trial courts to define reasonable
doubt.
Because the trial judges in fact defined reasonable doubt in
both jury charges we review, we need not decide whether the
Constitution required them to do so. Whether or not the
Constitution so requires, however, the argument for defining the
concept is strong. While judges and lawyers are familiar with the
reasonable doubt standard, the words "beyond a reasonable doubt"
are not self-defining for jurors. Several studies of jury behavior
have concluded that "jurors are often confused about the meaning of
reasonable doubt" when that term is left undefined. See Note,
Defining Reasonable Doubt, 90 Colum. L. Rev. 1716, 1723 (1990)
(citing studies). Thus, even if definitions of reasonable doubt are
necessarily imperfect, the alternative-refusing to define the
concept at all-is not obviously preferable. Cf. Newman, supra, at
205-206 ("I find it rather unsettling that we are using a
formulation that we believe will become less clear the more we
explain it.").
Fortunately, the choice need not be one between two kinds of
potential juror confusion-on one hand, the confusion that may be
caused by leaving "reasonable doubt" undefined, and on the other,
the confusion that might be induced by the anachronism of "moral
certainty," the misplaced analogy of "hesitation to act," or the
circularity of "doubt that is reasonable." The Federal Judicial
Center has proposed a definition of reasonable doubt that is clear,
straightforward, and accurate. That instruction reads:
27
"[T]he government has the burden of proving the defendant guilty
beyond a reasonable doubt. Some of you may have served as jurors in
civil cases, where you were told that it is only necessary to prove
that a fact is more likely true than not true. In criminal cases,
the government's proof must be more powerful than that. It must be
beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt. 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 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." Federal Judicial
Center, Pattern Criminal Jury Instructions, at 17-18 (instruction
21).
This instruction plainly informs the jurors that the prosecution
must prove its case by more than a mere preponderance of the
evidence, yet not necessarily to an absolute certainty. The "firmly
convinced" standard for conviction, repeated for emphasis, is
further enhanced by the juxtaposed prescription that the jury must
acquit if there is a "real possibility" that the defendant is
innocent. This model instruction surpasses others I have seen in
stating the reasonable doubt standard succinctly and
comprehensibly.
I recognize, however, that this Court has no supervisory powers
over the state courts, see ante, at 17, and that the test we
properly apply in evaluating the constitutionality of a reasonable
doubt instruction is not whether we find it exemplary; instead, we
inquire only whether there is a "reasonable likelihood that the
jury understood the instructio[n] to allow conviction based on
proof insufficient to meet" the rea-
28
Opinion of BLACKMUN, J.
sonable doubt standard. See ante, at 6. On that understanding, I
join Parts II, III-B, and IV of the Court's opinion and concur in
its judgment.
JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins in all but Part
II, concurring in part and dissenting in part.
In Cage v. Louisiana,
498 U. S. 39 (1990), this
Court, by a per curiam opinion, found a jury instruction defining
reasonable doubt so obviously flawed that the resulting state-court
judgment deserved summary reversal. The majority today purports to
uphold and follow Cage, but plainly falters in its application of
that case. There is no meaningful difference between the jury
instruction delivered at Victor's trial and the jury instruction
issued in Cage, save the fact that the jury instruction in Victor's
case did not contain the two words "grave uncertainty." But the
mere absence of these two words can be of no help to the State,
since there is other language in the instruction that is equally
offensive to due process. I therefore dissent from the Court's
opinion and judgment in No. 92-8894, Victor v. Nebraska.
I
Our democracy rests in no small part on our faith in the ability
of the criminal justice system to separate those who are guilty
from those who are not. This is a faith which springs fundamentally
from the requirement that unless guilt is established beyond all
reasonable doubt, the accused shall go free. It was not until 1970,
however, in In re Winship,
397 U. S. 358, that the
Court finally and explicitly held that "the Due Process Clause
protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged." Id., at 364. In Winship, the Court
recounted the long history of the reasonable-doubt standard, noting
that it "dates at least from our early years as a Na-
29
tion." Id., at 361. The Court explained that any "society that
values the good name and freedom of every individual should not
condemn a man for commission of a crime when there is a reasonable
doubt about his guilt." Id., at 363-364.
Despite the inherent appeal of the reasonable-doubt standard, it
provides protection to the innocent only to the extent that the
standard, in reality, is an enforceable rule of law. To be a
meaningful safeguard, the reasonable-doubt standard must have a
tangible meaning that is capable of being understood by those who
are required to apply it. It must be stated accurately and with the
precision owed to those whose liberty or life is at risk. Because
of the extraordinarily high stakes in criminal trials, "[i]t is
critical that the moral force of the criminal law not be diluted by
a standard of proof that leaves people in doubt whether innocent
men are being condemned." Id., at 364.
When reviewing a jury instruction that defines "reasonable
doubt," it is necessary to consider the instruction as a whole and
to give the words their common and ordinary meaning. Estelle v.
McGuire,
502 U. S.
62, 72 (1991). It is not sufficient for the jury instruction
merely to be susceptible to an interpretation that is technically
correct. The important question is whether there is a "reasonable
likelihood" that the jury was misled or confused by the
instruction, and therefore applied it in a way that violated the
Constitution. Boyde v. California,
494 U. S. 370, 380
(1990). Any jury instruction defining "reasonable doubt" that
suggests an improperly high degree of doubt for acquittal or an
improperly low degree of certainty for conviction offends due
process. Either misstatement of the reasonable-doubt standard is
prejudicial to the defendant, as it "vitiates all the jury's
findings," see Sullivan v. Louisiana,
508 U. S. 275, 281 (1993)
(emphasis deleted), and removes the only constitutionally
appropriate predicate for the jury's verdict.
30
Opinion of BLACKMUN, J.
A
In a Louisiana trial court, Tommy Cage was convicted of
first-degree murder and sentenced to death. On appeal to the
Supreme Court of Louisiana, he argued, among other things, that the
reasonable-doubt instruction used in the guilt phase of his trial
violated the Due Process Clause of the Fourteenth Amendment. See
State v. Cage, 554 So. 2d 39 (1989). The instruction in relevant
part provided:
"If you entertain a reasonable doubt as to any fact or element
necessary to constitute the defendant's guilt, it is your duty to
give him the benefit of that doubt and return a verdict of not
guilty. Even where the evidence demonstrates a probability of
guilt, if it does not establish such guilt beyond a reasonable
doubt, you must acquit the accused. This doubt, however, must be a
reasonable one; that is one that is founded upon a real tangible
substantial basis and not upon mere caprice and conjecture. It must
be such a doubt as would give rise to a grave uncertainty, raised
in your mind by reasons of the unsatisfactory character of the
evidence or lack thereof. A reasonable doubt is not a mere possible
doubt. It is an actual substantial doubt. It is a doubt that a
reasonable man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty." Id., at
41 (second emphasis added; first and third emphases in
original).
The Louisiana Supreme Court affirmed Cage's conviction,
reasoning that, although some of the language "might overstate the
requisite degree of uncertainty and confuse the jury," the charge
as a whole was understandable to "reasonable persons of ordinary
intelligence," and therefore constitutional. Ibid.
We granted certiorari and summarily reversed. Cage v.
Louisiana,
498 U.
S. 39 (1990). The Court noted that some of the language in the
instruction was adequate, but ruled
31
that the phrases "actual substantial doubt" and "grave
uncertainty" suggested a "higher degree of doubt than is required
for acquittal under the reasonable-doubt standard," and that those
phrases taken together with the reference to "moral certainty,"
rather than "evidentiary certainty," rendered the instruction as a
whole constitutionally defective. Id., at 41.
Clarence Victor, petitioner in No. 92-8894, also was convicted
of first-degree murder and sentenced to death. The instruction in
his case reads as follows:
"'Reasonable doubt' is such a doubt as would cause a reasonable
and prudent person, in one of the graver and more important
transactions of life, to pause and hesitate before taking the
represented facts as true and relying and acting thereon. It is
such a doubt as will not permit you, after full, fair, and
impartial consideration of all the evidence, to have an abiding
conviction, to a moral certainty, of the guilt of the accused. At
the same time absolute or mathematical certainty is not required.
You may be convinced of the truth of a fact beyond a reasonable
doubt and yet be fully aware that possibly you may be mistaken. You
may find an accused guilty upon the strong probabilities of the
case, provided such probabilities are strong enough to exclude any
doubt of his guilt that is reasonable. A reasonable doubt is an
actual and substantial doubt reasonably arising from the evidence,
from the facts or circumstances shown by the evidence, or from the
lack of evidence on the part of the State, as distinguished from a
doubt arising from mere possibility, from bare imagination, or from
fanciful conjecture." App. in No. 92-8894, p. 11 (emphases
added).
The majority's attempt to distinguish this instruction from the
one employed in Cage is wholly unpersuasive. Both instructions
equate "substantial doubt" with reasonable doubt,
32
Opinion of BLACKMUN, J.
and refer to "moral certainty" rather than "evidentiary
certainty." And although Victor's instruction does not contain the
phrase "grave uncertainty," the instruction contains language that
has an equal potential to mislead, including the invitation to the
jury to convict based on the "strong probabilities" of the case and
the overt effort to dissuade jurors from acquitting when they are
"fully aware that possibly they may be mistaken." Nonetheless, the
majority argues that "substantial doubt" has a meaning in Victor's
instruction different from that in Cage's instruction, and that the
"moral certainty" language is sanitized by its context. The
majority's approach seems to me to fail under its own logic.
B
First, the majority concedes, as it must, that equating
reasonable doubt with substantial doubt is "somewhat problematic"
since one of the common definitions of "substantial" is "'that
specified to a large degree.'" Ante, at 19. But the majority
insists that the jury did not likely interpret the word
"substantial" in this manner because Victor's instruction, unlike
Cage's instruction, used the phrase "substantial doubt" as a means
of distinguishing reasonable doubt from mere conjecture. According
to the majority, "[t]his explicit distinction between a substantial
doubt and a fanciful conjecture was not present in the Cage
instruction," and thus, read in context, the use of "substantial
doubt" in Victor's instruction is less problematic. Ante, at
20.
A casual reading of the Cage instruction reveals the majority's
false premise. The Cage instruction plainly states that a
reasonable doubt is a doubt "founded upon a real tangible
substantial basis and not upon mere caprice and conjecture." See
498 U. S., at 40. The Cage instruction also used the "substantial
doubt" language to distinguish a reasonable doubt from "a mere
possible doubt." Ibid. (" 'A reasonable doubt is not a mere
possible doubt. It is an actual substantial doubt' "). Thus, the
reason the Court condemned the
33
"substantial doubt" language in Cage had nothing to do with the
absence of appropriate contrasting language; rather, the Court
condemned the language for precisely the reason it gave: "[T]he
words 'substantial' and 'grave,' as they are commonly understood,
suggest a higher degree of doubt than is required for acquittal
under the reasonable doubt standard." Id., at 41. In short, the
majority's speculation that the jury in Victor's case interpreted
"substantial" to mean something other than "that specified to a
large degree" simply because the word "substantial" is used at one
point to distinguish mere conjecture is unfounded and is foreclosed
by Cage itself.
The majority further attempts to minimize the obvious hazards of
equating "substantial doubt" with reasonable doubt by suggesting
that, in Cage, it was the combined use of "substantial doubt" and
"grave uncertainty," "in parallel," that rendered the use of the
phrase "substantial doubt" unconstitutional. Ante, at 20. This
claim does not withstand scrutiny. The Court in Cage explained that
both "substantial doubt" and "grave uncertainty" overstated the
degree of doubt necessary to acquit, and found that it was the use
of those words in conjunction with the misleading phrase "moral
certainty" that violated due process. The Court's exact words
were:
"It is plain to us that the words 'substantial' and 'grave,' as
they are commonly understood, suggest a higher degree of doubt than
is required for acquittal under the reasonable doubt standard. When
those statements are then considered with the reference to 'moral
certainty,' rather than evidentiary certainty, it becomes clear
that a reasonable juror could have interpreted the instruction to
allow a finding of guilt based on a degree of proof below that
required by the Due Process Clause." 498 U. S., at 41.
Clearly, the Court was not preoccupied with the relationship
between "substantial doubt" and "grave uncertainty." The
34
Opinion of BLACKMUN, J.
Court instead endorsed the universal opinion of the Courts of
Appeals that equating reasonable doubt with "substantial doubt" is
improper and potentially misleading in that it overstates the
degree of doubt required for acquittal under the reasonable-doubt
standard. See, e.
g., Smith v. Bordenkircher,
718 F.2d
1273, 1276 (CA4 1983) (noting agreement with the "uniformly
disapproving" view of the appellate courts regarding the use of the
"substantial doubt" language), cert. denied, 466 U. S. 976 (1984);
see also Taylor v. Kentucky,
436 U. S. 478, 488 (1978)
("[Equating 'substantial doubt' with reasonable doubt], though
perhaps not in itself reversible error, often has been criticized
as confusing"). *
In a final effort to distinguish the use of the phrase
"substantial doubt" in this case from its use in Cage, the majority
states: "In any event, the instruction provided an alternative
definition of reasonable doubt: a doubt that would cause a
reasonable person to hesitate to act." Ante, at 20. The Court
reasons that since this formulation has been upheld in other
contexts, see Holland v. United States,
348 U. S. 121, 140
(1954), this "alternative" statement makes it unlikely that the
jury would interpret "substantial" to mean "to a large degree."
To begin with, I note my general agreement with JUSTICE
GINSBURG'S observation that the "hesitate to act" language is far
from helpful, and may in fact make matters worse by analogizing the
decision whether to convict or acquit a defendant to the frequently
high-risk personal decisions people must make in their daily lives.
See ante, at 24 (opinion
*Despite the overwhelming disapproval of the use of the phrase
"substantial doubt" by appellate courts, some state trial courts
continue to employ the language when instructing jurors. See
Bordenkircher, 718 F. 2d, at 1279 (dissenting opinion) ("As the
majority has forthrightly pointed out, a 'good and substantial
doubt' instruction has evoked a 'uniformly disapproving' response
from appellate courts .... Evidently the slight slaps on the wrist
followed by affirmance of the convictions have not served the hoped
for end of correction of the error in futuro").
35
concurring in part and concurring in judgment). But even
assuming this "hesitate to act" language is in some way helpful to
a jury in understanding the meaning of reasonable doubt, the
existence of an "alternative" and accurate definition of reasonable
doubt somewhere in the instruction does not render the instruction
lawful if it is "reasonably likely" that the jury would rely on the
faulty definition during its deliberations. Boyde, 494 U. S., at
380. Cage itself contained proper statements of the law with
respect to what is required to convict or acquit a defendant, but
this language could not salvage the instruction since it remained
reasonably likely that, despite the proper statements of law, the
jury understood the instruction to require "a higher degree of
doubt than is required for acquittal under the reasonable doubt
standard." 498 U. S., at 41.
In my view, the predominance of potentially misleading language
in Victor's instruction made it likely that the jury interpreted
the phrase "substantial doubt" to mean that a "large" doubt, as
opposed to a merely reasonable doubt, is required to acquit a
defendant. It seems that a central purpose of the instruction is to
minimize the jury's sense of responsibility for the conviction of
those who may be innocent. The instruction goes out of its way to
assure jurors that "[y]ou may be convinced of the truth of a fact
beyond a reasonable doubt and yet be fully aware that possibly you
may be mistaken"; and then, after acquainting jurors with the
possibility that their consciences will be unsettled after
convicting the defendant, the instruction states that the jurors
should feel free to convict based on the "strong probabilities of
the case." Viewed as a whole, the instruction is geared toward
assuring jurors that although they may be mistaken, they are to
make their decision on those "strong probabilities," and only a
"substantial doubt" of a defendant's guilt should deter them from
convicting.
The majority dismisses the potentially harmful effects of the
"strong probabilities" language on the ground that a
36
Opinion of BLACKMUN, J.
"nearly identical instruction" was upheld by the Court a century
ago. See ante, at 22, citing Dunbar v. United States,
156 U. S. 185, 199
(1895). But the instruction in Dunbar did not equate reasonable
doubt with "substantial doubt," nor did it contain the phrase
"moral certainty." As the majority appreciates elsewhere in its
opinion, challenged jury instructions must be considered in their
entirety. Ante, at 5, quoting Holland, 348 U. S., at 140 ("
'[T]aken as a whole, the instructions [must] correctly conve[y] the
concept of reasonable doubt to the jury' "). Rather than examining
the jury instruction as a whole, the majority parses it, ignoring
the relationship between the challenged phrases as well as their
cumulative effect.
Considering the instruction in its entirety, it seems fairly
obvious to me that the "strong probabilities" language increased
the likelihood that the jury understood "substantial doubt" to mean
"to a large degree." Indeed, the jury could have a reasonable doubt
about a defendant's guilt but still find that the "strong
probabilities" are in favor of conviction. Only when a reasonable
doubt is understood to be a doubt "to a large degree" does the
"strong probabilities" language begin to make sense. A Nebraska
Federal District Court recently observed: "The word 'probability'
brings to mind terms such as 'chance,' 'possibility,' 'likelihood'
and 'plausibility' -none of which appear to suggest the high level
of certainty which is required to be convinced of a defendant's
guilt 'beyond a reasonable doubt.' " Morley v. Stenberg, 828 F.
Supp. 1413, 1422 (1993). All of these terms, however, are
consistent with the interpretation of "substantial doubt" as a
doubt "to a large degree." A jury could have a large and reasonable
doubt about a defendant's guilt but still find the defendant guilty
on "the strong probabilities of the case," believing it "likely"
that the defendant committed the crime for which he was
charged.
To be sure, the instruction does qualify the "strong
probabilities" language by noting that "the strong probabilities
of
37
the case" should be "strong enough to exclude any doubt of his
guilt that is reasonable." But this qualification is useless since
a "doubt of his guilt that is reasonable" is immediately defined,
in the very next sentence, as a "substantial doubt." Thus, the
supposed clarification only compounds the confusion by referring
the jury to the "substantial doubt" phrase as a means of defining
the "strong probabilities" language.
Finally, the instruction issued in Victor's case states that a
reasonable doubt "is such a doubt as will not permit you, after
full, fair, and impartial consideration of all the evidence, to
have an abiding conviction, to a moral certainty, of the guilt of
the accused." In Cage, the Court disapproved of the use of the
phrase "moral certainty," because of the real possibility that such
language would lead jurors reasonably to believe that they could
base their decision to convict upon moral standards or emotion in
addition to or instead of evidentiary standards. The risk that
jurors would understand "moral certainty" to authorize convictions
based in part on value judgments regarding the defendant's behavior
is particularly high in cases where the defendant is alleged to
have committed a repugnant or brutal crime. In Cage, we therefore
contrasted "moral certainty" with "evidentiary certainty," and held
that where "moral certainty" is used in conjunction with
"substantial doubt" and "grave uncertainty," the Due Process Clause
is violated. 498 U. S., at 41.
Just as in Cage, the "moral certainty" phrase in Victor's
instruction is particularly dangerous because it is used in
conjunction with language that overstates the degree of doubt
necessary to convict. This relationship between the "moral
certainty" language, which potentially understates the degree of
certainty required to convict, and the "substantial doubt," "strong
probabilities," and "possibly you may be mistaken" language which,
especially when taken together, overstates the degree of doubt
necessary to acquit, also distinguishes Victor's instruction from
the one challenged in No. 92-9049, Sandoval v. California. See
ante, at 7. The
38
Opinion of BLACKMUN, J.
jury instruction defining reasonable doubt in Sandoval used the
phrases "moral certainty" and "moral evidence," but the phrases
were not used in conjunction with language of the type at issue
here-language that easily may be interpreted as overstating the
degree of doubt required to acquit. In other words, in Victor's
instruction, unlike Sandoval's, all of the misleading language is
mutually reinforcing, both overstating the degree of doubt
necessary to acquit and understating the degree of certainty
required to convict.
This confusing and misleading state of affairs leads me
ineluctably to the conclusion that, in Victor's case, there exists
a reasonable likelihood that the jury believed that a lesser burden
of proof rested with the prosecution; and, moreover, it prevents me
from distinguishing the jury instruction challenged in Victor's
case from the one issued in Cage. As with the Cage instruction, it
simply cannot be said that Victor's instruction accurately informed
the jury as to the degree of certainty required for conviction and
the degree of doubt required for acquittal. Where, as here, a jury
instruction attempts but fails to convey with clarity and accuracy
the meaning of reasonable doubt, the reviewing court should reverse
the conviction and remand for a new trial. See Sullivan v.
Louisiana, 508 U. S., at 277-288. I would vacate the judgment of
the Supreme Court of Nebraska and remand the case.
II
Although I concur in the Court's opinion in No. 92-9049,
Sandoval v. California, I dissent from the Court's affirmance of
the judgment in that case. Adhering to my view that the death
penalty cannot be imposed fairly within the constraints of our
Constitution, see my dissent in Callins v. Collins, 510 U. S. 1141,
1143 (1994), I would vacate the sentence of death in Sandoval. And,
in view of my dissent in Callins, I also would vacate the sentence
of death in No. 92-8894, Victor v. Nebraska, even if I believed
that the underlying conviction withstood constitutional
scrutiny.
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