CO E:03 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, AND REASONABLE DOUBT

Colorado Jury Instructions, Criminal (2023)
CHAPTER E: FINAL CHARGE TO JURY, GENERAL INSTRUCTIONS, AND VERDICT FORMS

E:03: PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, AND REASONABLE DOUBT

+ Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COMMENT

1. + Previously, this instruction defined “reasonable doubt” as follows:

Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

In 2022, the Committee decided to update this definition. The Committee notes that this update in no way casts aspersions on the validity of the prior version of this instruction, which the U.S. Supreme Court has explicitly approved. See Victor v. Nebraska, 511 U.S. 1, 20 (1994) (stating that the Court has “repeatedly approved” instructions defining reasonable doubt as “a doubt that would cause a reasonable person to hesitate to act”).

Nevertheless, the Committee updated the instruction for three reasons. First, it was phrased in the negative (“a doubt which is not a vague, speculative or imaginary doubt”), and such phrasing arguably makes juror comprehension more challenging. See Winegeart v. State, 665 N.E.2d 893, 901 (Ind. 1996) (“[T]he reasonable-doubt instruction is necessarily an attempt to define a negative concept. When court instructions proceed to define this concept by stating what it is not, the resulting double negative concept diminishes juror comprehension even further.”). Second, commentators have criticized the “hesitate to act” language, noting that “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” and are thus “wholly unlike the decisions jurors ought to make in criminal cases.” See Victor, 511 U.S. at 24 (Ginsburg, J., concurring in part and concurring in the judgment) (quoting Federal Judicial Center, Pattern Criminal Jury Instructions 18-19 (1987)). Third, the prior instruction provided less context regarding the reasonable doubt standard. Cf. id. at 27 (quoting a model instruction approved by the Federal Judicial Center, which told jurors that “[s]ome 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,” but that in a criminal case “the government’s proof must be more powerful than that”).

Accordingly, in 2022, the Committee reformulated this instruction with two overarching principles in mind. First, the instruction now articulates that proof beyond a reasonable doubt requires more than proof that something is highly probable, without requiring proof of absolute certainty. See People ex rel. A.J.L., 243 P.3d 244, 251 (Colo. 2010) (“Clear and convincing evidence is evidence persuading the fact finder that the contention is highly probable. The clear and convincing evidence standard requires proof by more than a ‘preponderance of the evidence,’ but it is more easily met than the ‘beyond a reasonable doubt’ standard used in criminal proceedings.” (citation omitted)). Second, the instruction defines proof beyond a reasonable doubt in a positive rather than negative manner, explaining that jurors must be “firmly convinced of the defendant’s guilt.” See Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and concurring in the judgment) (citing with approval this language from the Federal Judicial Center’s instruction because it “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”).

Finally, the Committee notes that no circuit court has found that a “reasonable doubt” instruction which juxtaposes the terms “firmly convinced” and “real possibility” constitutes reversible error. See United States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (holding that the district court didn’t err in using the Federal Judicial Center’s instruction, and stating that no circuit court “has found its use reversible error”).

2. + The instruction states that “if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt” (emphasis added). The Committee encourages trial courts to guard against arguments that equate the term “real possibility” with “possibility,” “any possibility,” or “remote possibility.” Not only does the instruction use the term “real possibility,” it does so in concert with the term “firmly convinced”; the two terms go hand in hand. See Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and concurring in the judgment) (noting that the “firmly convinced” standard “is further enhanced by the juxtaposed prescription that the jury must acquit if there is a ‘real possibility’ that the defendant is innocent”); see also United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994) (“When read in the context of the charge as a whole, the instruction’s ‘real possibility’ formulation explains that the beyond a reasonable doubt standard does not require ‘proof that overcomes every possible doubt.’ In other words, the modifier ‘real’ merely indicates that the jury is not to acquit a defendant if it can conceive of any possibility that the defendant is not guilty.”).

3. + Previously, the Committee had cited cases admonishing trial courts from attempting to further explain the definition of “beyond a reasonable doubt” through analogies. The Committee notes that its update of this model instruction in no way vitiates the authority of these cases. See Johnson v. People, 2019 CO 17, PP 4, 13, 18, 436 P.3d 529, 530, 532, 534 (noting that “[t]he U.S. Supreme Court has cautioned that further attempts by courts or parties to define ‘reasonable doubt’ do not provide clarity”; holding that, when the trial court defined the phrase “hesitate to act” in the reasonable doubt instruction as “what it means is that after you evaluate all the evidence and you evaluate whether or not any doubts are reasonable or not . . . you would find Ms. Johnson guilty only if, after hearing all of that evidence, you just can’t bring yourself to do it,” the instruction was extraneous and nonsensical); see also People v. Flynn, 2019 COA 105, PP 36-38, 42, 49, 456 P.3d 75, 83-85 (holding that, where the court used several hypotheticals to explain the concept of reasonable doubt to the jury, the court’s comments did not lower the burden of proof because they were made only once and the court “repeatedly referred back to the appropriate standard definition of reasonable doubt”; nevertheless noting that “such instructions run the risk of confusing the jurors and may even lower the burden of proof or diminish the presumption of innocence”); Tibbels v. People, 2022 CO 1, P 3, 501 P.3d 792 (holding that, where the trial court “equated the concept of reasonable doubt to the doubt that a prospective homebuyer would have upon observing a structurally significant, floor-to-ceiling crack in the home’s foundation,” it was “reasonably likely that the jury understood the court’s statements to allow a conviction on a standard lower than beyond a reasonable doubt,” meaning the court committed structural error).

4. In 2019, the Committee added Comment 3.

5. In 2020, the Committee added the citation to Flynn in Comment 3.

6. In 2021, the Committee added the citation to Tibbels in Comment 3.

7. + In 2022, the Committee heavily modified this instruction, as explained in the new Comment 1; it also added Comment 2 and renumbered the subsequent comments, and it updated Comment 3.

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