3.02 Presumption of Innocence; Proof Beyond a Reasonable Doubt

It is a cardinal principle of our system of justice that every person accused of a crime is presumed to be innocent unless and until his or her guilt is established beyond a reasonable doubt. The presumption is not a mere formality. It is a matter of the most important substance.

The presumption of innocence alone may be sufficient to raise a reasonable doubt and to require the acquittal of a defendant. The defendant before you, [__________], has the benefit of that presumption throughout the trial, and you are not to convict [him/her] of a particular charge unless you are persuaded of [his/her] guilt of that charge beyond a reasonable doubt.

The presumption of innocence until proven guilty means that the burden of proof is always on the government to satisfy you that [defendant] is guilty of the crime with which [he/she] is charged beyond a reasonable doubt. The law does not require that the government prove guilt beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden never shifts to [defendant]. It is always the government’s burden to prove each of the elements of the crime[s] charged beyond a reasonable doubt by the evidence and the reasonable inferences to be drawn from that evidence. [Defendant] has the right to rely upon the failure or inability of the government to establish beyond a reasonable doubt any essential element of a crime charged against [him/her].

If, after fair and impartial consideration of all the evidence, you have a reasonable doubt as to [defendant]’s guilt of a particular crime, it is your duty to acquit [him/her] of that crime. On the other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of [defendant]’s guilt of a particular crime, you should vote to convict [him/her].

Comment(s)

(1) This instruction does not use a “‘guilt or innocence’ comparison” warned against by the First Circuit. United States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998); United States v. Andujar, 49 F.3d 16, 24 (1st Cir. 1995). A “guilt and non-guilt” comparison is “less troublesome,” but still “could risk undercutting the government’s burden by suggesting that the defendant is guilty if they do not think he is not guilty.” United States v. Ranney, Nos. 01-1912, 01-2531, 01-1913, 2002 WL 1751379, at *5 (1st Cir. Aug. 1, 2002).

(2) The First Circuit has repeatedly stated that “[r]easonable doubt is a fundamental concept that does not easily lend itself to refinement or definition.” United States v. Vavlitis, 9 F.3d 206, 212 (1st Cir. 1993); see also United States v. Campbell, 874 F.2d 838, 843 (1st Cir. 1989). For that reason, the First Circuit has joined other circuits in advising that the meaning of “reasonable doubt” be left to the jury to discern. United States v. Cassiere, 4 F.3d 1006, 1024 (1st Cir. 1993) (“[A]n instruction which uses the words reasonable doubt without further definition adequately apprises the jury of the proper burden of proof.” (quoting United States v. Olmstead, 832 F.2d 642, 646 (1st Cir. 1987)); accord United States v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (“[T]he greatest wisdom may lie with the Fourth Circuit’s and Seventh Circuit’s instruction to leave to juries the task of deliberating the meaning of reasonable doubt.”). The constitutionality of this practice was reaffirmed by the Supreme Court in Victor v. Nebraska, 511 U.S. 1, 5-6 (1994). It is not reversible error to refuse further explanation, even when requested by the jury, so long as the reasonable doubt standard was “not ‘buried as an aside’ in the judge’s charge.” United States v. Littlefield, 840 F.2d 143, 146 (1st Cir. 1988) (quoting Olmstead, 832 F.2d at 646).

(3) Those judges who nevertheless undertake to define the term should consider the following. Some circuits have defined reasonable doubt as that which would cause a juror to “hesitate to act in the most important of one’s own affairs.” Federal Judicial Center, Commentary to Instruction 21. The First Circuit has criticized this formulation, see Gilday v. Callahan, 59 F.3d 257, 264 (1st Cir. 1995); Vavlitis, 9 F.3d at 212; Campbell, 874 F.2d at 841, as has the Federal Judicial Center. See Federal Judicial Center, Commentary to Instruction 21 (“[D]ecisions 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 decisions jurors ought to make in criminal cases.”). The First Circuit has also criticized “[e]quating the concept of reasonable doubt to ‘moral certainty,’” Gilday, 59 F.3d at 262, or “fair doubt,” Campbell, 874 F.2d at 843, stating that “[m]ost efforts at clarification result in further obfuscation of the concept.” Campbell, 874 F.2d at 843. The Federal Judicial Center has attempted to clarify the meaning of reasonable doubt by the following language:

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 Instruction 21 (emphasis added). Previously, the First Circuit joined other circuits in criticizing this pattern instruction for “possibly engender[ing] some confusion as to the burden of proof” if used without other clarifying language. United States v. Woodward, 149 F.3d 46, 69 (1st Cir. 1998); United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984); see also Taylor, 997 F.2d at 1556; United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987) (instruction introduces “unnecessary concepts”); United States v. McBride, 786 F.2d 45, 52 (2d Cir. 1986). But later, it approved it. United States v. Rodriguez, 162 F.3d 135, 146 (1st Cir. 1998). Nevertheless, the words “‘reasonable doubt’ do not lend themselves to accurate definition,” and “any attempt to define ‘reasonable doubt’ will probably trigger a constitutional challenge.” Gibson, 726 F.2d at 874.

(4) The First Circuit has approved the following formulation by Judge Keeton:

As I have said, the burden is upon the Government to prove beyond a reasonable doubt that a defendant is guilty of the charge made against the defendant. It is a strict and heavy burden, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. It does require that the evidence exclude any reasonable doubt concerning a defendant’s guilt.

A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. 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.

Of course, a defendant is never to be convicted on suspicion or conjecture. If, for example, you view the evidence in the case as reasonably permitting either of two conclusions—one that a defendant is guilty as charged, the other that the defendant is not guilty— you will find the defendant not guilty.

It is not sufficient for the Government to establish a probability, though a strong one, that a fact charged is more likely to be true than not true. That is not enough to meet the burden of proof beyond 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.

Concluding my instructions on the burden, then, I instruct you that what the Government must do to meet its heavy burden is to establish the truth of each part of each offense charged by proof that convinces you and leaves you with no reasonable doubt, and thus satisfies you that you can, consistently with your oath as jurors, base your verdict upon it. If you so find as to a particular charge against a defendant, you will return a verdict of guilty on that charge. If, on the other hand, you think there is a reasonable doubt about whether the defendant is guilty of a particular offense, you must give the defendant the benefit of the doubt and find the defendant not guilty of that offense.

United States v. Cleveland, 106 F.3d 1056, 1062-63 (1st Cir. 1997), aff’d sub nom. Muscarello v. United States, 524 U.S. 125 (1998), recognized as abrogated on other grounds by Brache v. United States, 165 F.3d 99 (1st Cir. 1999).