Proof Beyond a Reasonable Doubt: Mandatory Jury Instruction In All Massachusetts Criminal Trials

This week, Massachusetts highest court – the Supreme Judicial Court – exercised its power in Commonwealth v. Russell to require a uniform instruction on “proof beyond a reasonable doubt.” In a criminal case, the Constitution requires the government to prove the defendant’s guilt beyond a reasonable doubt. At the end of a trial, before a jury deliberates whether the defendant is “guilty” or “not guilty,” the judge reads to the jury “jury instructions,” which are a set of legal rules the jury must follow when deciding the case. One of the instructions is the explanation of what it means to find an accused guilty beyond a reasonable doubt.

During the past century, there have been two main jury instructions on reasonable doubt given: one is called the “Webster charge” and the other is called “Instruction 21.” There are varying versions of the two instructions, but the instructions usually stem from one or the other or both.

The Webster version originated in 1850, in Commonwealth v. Webster, and informs the jury that reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” For over a hundred and fifty years this has been the “gold standard” of reasonable doubt jury instructions. There has been criticism of this version for being a bit outdated and unclear with its “moral certainty” language. “Instruction 21” originated in 1998 in the Federal Judicial Center’s Pattern Criminal Jury Instructions and informs the jury that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Before Russell, there were no particular words a Massachusetts judge had to use when giving a jury instruction on reasonable doubt – as long as the jury instruction satisfied constitutional due process. The lower trial court judge in Russell used a jury instruction that was closer to Instruction 21 than to the Webster charge, which permitted a conviction if the jury was “firmly convinced” of the Defendant’s guilt. The Defendant appealed, and his criminal defense attorney argued that this instruction was not adequate and violated his Constitutional rights.

The Supreme Judicial Court judge upheld the lower court’s decision and ruled that the jury instruction given at the trial level passed constitutional muster in that it satisfied minimal due process requirements. The judge, however, stated that in areas as important as reasonable doubt, minimal due process requirements should not be the norm, and there should be an approved model for all Massachusetts judges to follow.

“The enduring virtue of the Webster charge has been that it conveys to the jury not only the degree of certitude required, but also “the proper solemn consideration,” in reaching a judgment of conviction,” the judge wrote.

The judge concludes that the court will exercise its inherent supervisory power to require all Massachusetts judges sitting on criminal trials to use one standard jury instruction on proof beyond a reasonable doubt that uses modern language to clarify the phrase “moral certainty” while preserving the power and essence of the Webster charge. The final (and now mandatory) jury instruction is as follows:

“The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charge(s) made against him (her).

What is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, though it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs — based solely on the evidence that has been put before you in this case.

I have told you that every person is presumed to be innocent until he or she is proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted.

It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant’s guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence.

This is what we mean by proof beyond a reasonable doubt.”

If you have been charged with statutory rape or assault and battery on a child under 14 or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

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