Another Tool for Preventing Wrongful Convictions: Texas Needs a Statutory Definition of Reasonable Doubt
Four decades ago in the case of In re Winship the United States Supreme Court firmly established that, as a matter of due process, a person charged with a criminal offense, including a juvenile as in Winship, can be found guilty only after the prosecution has proven every element of the crime “beyond a reasonable doubt.” The Supreme Court dated the term “beyond a reasonable doubt” in American jurisprudence to 1798, some eleven years after our Constitution was adopted. Thus, beyond a reasonable doubt has been the degree of persuasion necessary in criminal cases since the early founding of our nation. It has become the very bedrock of our criminal jurisprudence. As Mr. Justice Frankfurter put it in 1952 in Leland v. Oregon: “ … it is the duty of the Government to establish … guilt beyond a reasonable doubt. This notion – basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historical, procedural content of ‘due process.’”
The Supreme Court in Winship had one basic objective: it wanted to establish then, and for all ages to come, that the standard or proof “guilt beyond a reasonable doubt” as the essence of criminal jurisprudence in our nation. This was evidenced by the court’s unmistakable and quite compelling language in that decision:
“The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we [have] said … ‘there is always in litigation a margin for error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value – as a criminal defendant his liberty – this margin of error is reduced as to him by the process of placing on the other party the burden of … persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue’ …
“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It 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. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold 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.”
The court’s language could not be more clear and convincing: guilt in a criminal trial must be established “beyond a reasonable doubt.”
But exactly what is “reasonable doubt?”
Varying definitions have evolved in different states over the years but Lawyers.com provides this definition of reasonable doubt: “A reasonable doubt exists when a factfinder cannot say with moral certainty that a person is guilty or a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as such doubt as would cause a reasonable person to hesitate before acting in a matter of importance.” The Fifth Circuit Court of Appeals pattern jury instructions, § 1,05, provides this definition in federal cases: “A ‘reasonable doubt’ is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.”
For two decades the Supreme Court was content to let the states define “reasonable doubt” as they deemed appropriate, so long as such jury instructions did not infect the trial with fundamental unfairness. That ended in 1990 with a first degree murder case, Cage v. Louisiana. The court specifically found the following “reasonable doubt” instruction constitutionally defective: “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 doubt 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 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.”
The terms “grave uncertainty,” “actual substantial doubt,” and “moral certainty” triggered the court’s concern. The court’s per curiam decision said “it is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than it 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.”
Three years after Cage the Supreme Court in Sullivan v. Louisiana specifically held that the Winship reasonable doubt standard not only applies in both state and federal criminal proceedings but that a Cage-type jury instruction is not “amendable to harmless-error analysis” and “will always invalidate the conviction.” One year after Cage was decided—and probably in anticipation of Sullivan—the Texas Court of Criminal Appeals (“TCCA”) in Geesa v. State, an en banc decision, ruled for the first time that Texas courts had to define reasonable doubt in their jury charges. Prior to Geesa, there was no requirement that a reasonable doubt instruction be given to the jury. In fact, just two years after Winship—and perhaps in subtle defiance of that high court decision—the TCCA in Whitson v. State said that “the language of the statute on reasonable doubt needs no amplification or on the part of the trial court to explain the term.”
As it turned out, Cage and Sullivan triggered more confusion than clarification over what constituted a constitutionally acceptable jury instruction on reasonable doubt. Thus, in 1994 the Supreme Court handed down Victor v. Nebraska which upheld a Nebraska jury instruction that equated reasonable doubt with “actual and substantial doubt,” adding that the Constitution does not prohibit the states from defining reasonable doubt nor does it require them to so do. That was all the TCCA needed to overturn Geesa and reestablish in Paulson v. State its historical rule that trial courts are not required to give a reasonable doubt instruction unless the prosecution and defense agree to a Geesa-type instruction. As the TCCA put it: “ … It is ill-advised for us to require trial courts to provide the jury with a redundant, confusing, and logically-flawed definition when the Constitution does not require it, no Texas statute mandates it, and over a hundred years of pre-Geesa Texas precedent discourages it.”
In 2009 the TCCA seized an opportunity in Mauricio v. State to expand its Paulson ruling by saying a trial court is not required to give a reasonable doubt definition even if the jury request such a definition. In Mauricio the defendant’s attorney requested a Geesa “reasonable doubt” definition instruction but the request was denied by the trial court. During jury deliberations, jurors sent a note to the judge asking for a definition of reasonable doubt, and over the objections of defense counsel, the judge told the jury it had all the “evidence and law before it” and they should continue to deliberate without the definition. Citing its holding in Paulson, the TCCA brushed aside Mauricio’s claim that the trial court’s failure to define reasonable doubt violated due process of law.
Some Texas trial courts have interpreted Paulson and Mauricio in such a narrow way as to attempt to prohibit any discussion by defense counsel of the meaning of reasonable doubt before the jury, even during the voir dire process. This obviously leads to jurors convicting defendants, in some cases, on the theory of “where there is smoke there is fire,” rather than upon requirement that the Government to prove its case with real proof beyond a reasonable doubt. Therefore, jurors in Texas are being forced to fend for themselves when it comes to understanding reasonable doubt. This is a ridiculous proposition considering great legal minds have difficulty deciding on a proper and uniform definition.
That’s why we believe there is a definite link between Texas leading the nation in wrongful convictions—41 DNA exonerations since 2001—and jurors not understanding the standard of proof beyond a reasonable doubt. The end result of this confusion, we believe, is that too many jurors are opting for guilt over innocence when there is reasonable doubt. This “convict mentality” runs against the time-honored principle Justice Harlan expressed in Winship that “it is far worse to convict an innocent man than to let a guilty man go free.”
The mindset of “frontier justice” rooted in the Texas criminal justice system has always possessed the tendency to convict swiftly, and even when in doubt “get a rope” anyway. The Paulson court evidenced this mindset when it referred to an 1896 decision, Abram v. State, which held that “it is not proper for a court to discuss what reasonable doubt is.” 1/ That point of view is the opposite extreme of the judicial mindset condemned in Cage where a reasonable doubt definition was given which actually encouraged a guilty verdict. But, at the end of the day, both extremes produce the same result: an increased likelihood of wrongful convictions.
The lay person may ask: why is there any need to discuss the “reasonable doubt” standard of proof in a criminal case? Once again Mr. Justice Harlan in Winship provides us with the most insightful answer:
“ … we have before us a case where the choice of the standard of proof has made a difference: the juvenile court below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complainant’s pocketbook. Moreover, even though the labels used for alternative standards of proof are vague and not a very sure guide to decision making, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.
“To explain why I think this is so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in 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. The intensity of this belief – the degree to which a factfinder is convinced that a given act actually occurred – can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do not communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
“A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff’s favor. The criminal analogue would be the acquittal of a guilty man …
“The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.”
The increased likelihood of “erroneous outcomes” is precisely why all Texas trial courts should allow criminal defense attorneys to discuss, and explain, the differences involved in the various standards of proof. Even some legal scholars have a difficult time trying to define, much less comprehend, the “beyond a reasonable doubt” standard. We didn’t know the origins of “reasonable doubt” until it was explained to us by Yale Law Professor James Q. Whitman in his 2005 article, “The Origins of Reasonable Doubt”:
“The ‘reasonable doubt’ rule is notoriously difficult to define, and many judges and scholars have deplored the confusion it creates in the minds of jurors. Yet ‘reasonable doubt’ is regarded as a fundamental part of our law. How can a rule of such fundamental importance be so difficult to define and understand?
“The answer … lies in history. The ‘reasonable doubt’ rule was not originally designed to serve the purpose it is asked to serve today. It was not originally designed to protect the accused. Instead, it was designed to protect the souls of jurors against damnation. Convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The purpose of the ‘reasonable doubt’ instruction was to address this frightening possibility, assuming jurors that they could convict the defendant without risking their own salvation, as long as their doubts about guilt were not ‘reasonable.’ In its original form, the rule thus had nothing to do with maintaining the rule of law in the sense that we use the phrase, and nothing like the relationship we imagine to the values of liberty. This helps explain why our law is in a state of such disquieting confusion today. We’re asking the ‘reasonable doubt’ standard to serve a function it was not originally designed to serve, and it does its work predictably badly.”
Against this historical backdrop, it is difficult for us to fathom why the TCCA is so adamant in its position that a reasonable doubt definition has no place in a Texas criminal trial. It inevitably forces jurors into an unholy relationship with the two other traditional standards of proof in our legal system: “preponderance of the evidence” and “clear and convincing evidence.” The “preponderance of the evidence” standard is used in civil case while the “clear and convincing evidence” standard, which is higher than “preponderance” but lower than “reasonable doubt,” is used in post-conviction proceedings to determine such matters as claims of “actual innocence.” Today criminal defense attorneys in Texas have no way of knowing which standard of proof jurors are utilizing in their decision-making process, or even if they are utilizing an incestuous mixture of all three. And it apparently does not concern the TCCA that jurors may be engaging in this kind of erroneous decision-making because the court remains steadfast in its position that jurors can use their own “common sense” to figure it all out.
The bottom line is this: Paulson, and its progeny Mauricio, is bad case law. It is just impracticable to instruct jurors that they can convict a criminal defendant only if the State proves his/her guilt “beyond a reasonable doubt” without providing them with a life-jacket definition. Jurors should not be cast into a desperate “sink or swim” situation as they were in the Mauricio case. If legal scholars cannot define, and do not even know the origins of “reasonable doubt,” how can one expect every day citizens called to jury duty to rely upon their own common sense to “get it right” in their decision-making.
Paulson has never worked and will never work in the spirit of Winship. Lacking guidance from the court, Texas juries will continue to “convict” when in doubt because in their everyday life experiences teaches them that it would be “unreasonable” to do otherwise.
1/ 36 Tex. Crim. 44, 45, 35 S.W. 389, 390 (1896)
By: Board Certified Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair