January|February 2004




IN CRIMINAL COURTS ACROSS THIS COUNTRY, juries—aided and abetted by judges—are convicting innocent people. These mistakes have been brought to the public’s attention by the DNA tests that have exonerated more than a hundred prisoners over the past decade. In Illinois, according to former governor George Ryan, juries “were not even 50 percent accurate on our death row convictions.” His assessment of the error rate prompted him to abandon his support for the death penalty as it is currently applied before he left office last year.

My experience as a trial judge overseeing a wide range of cases, criminal and civil, has been that juries arrive at the right outcome much more than half the time. But this does not mean that wrongful convictions are a negligible problem, as some of the system’s apologists contend. The federal judiciary conducts approximately 6,000 criminal jury trials each year, and state courts probably about 90,000. With about 75 percent of defendants convicted, an error rate of 10 percent would translate into more than 7,000 wrongful convictions each year. Even if the actual error rate is lower, tens of thousands out of the 2 million prisoners in the United States are in prison for crimes they did not commit.

Because the science of DNA has brought these problems to light, science has been thrust forward as the cure. Congress, which rarely goes out of its way to help defendants, has followed the example of several states in pressing for the enactment of the Innocence Protection Act. The bipartisan bill would fund DNA tests for convicts claiming that a re-examination of bodily fluids found at the crime scene will demonstrate their innocence. If the legislation is passed, it will be happy news for many prisoners. But it will be of no avail to the approximately 90 percent of the imprisoned population whose convictions had nothing to do with forensic science—and some of whom are innocent.

Any approach to erroneous convictions that relies solely on science misses the centrality in our legal system of a single phrase. As high school civics students and many TV viewers are aware, conviction requires “proof beyond a reasonable doubt.” Yet the familiarity of the phrase may actually detract from its impact, rendering it a cliché rather than a rule with legal force. Unexplained, these words are meaningless. Judges owe it to juries to clearly spell out how the standard limits their deliberations: Jurors may convict only when the evidence has persuaded them to a near certainty of the guilt of the accused.

THE LEGAL MANDATE that the prosecution prove its case beyond a reasonable doubt does not appear in the Constitution. But time, tradition, and the insistence of the U.S. Supreme Court have given the phrase constitutional status and supplied it with a crisp and comprehensible definition. In the 1895 case Coffin v. United States, the Supreme Court tracked the requirement of evidentiary certainty to Sparta, Athens, and Rome. The justices declared that for a guilty verdict to be lawful, “there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty.”

Two 1970s cases, Jackson v. Virginia and In Re Winship, hammered home the point that jurors don’t just have to be certain; they have to be certain because of the persuasive evidence presented at trial. Winship declared that jurors could return a guilty verdict only if they had been persuaded to a level of “utmost certainty,” and Jackson held that the evidence must leave jurors’ minds in a “subjective state near of certitude” to substantiate a conviction. Though the Supreme Court has never retreated from this standard, it has eviscerated the standard’s practical application in criminal trials by refusing to mandate that the government’s burden be explained to jurors in terms of certainty.

The case of Victor v. Nebraska illustrates the problems that the court’s retreat has created. In the course of instructing the jury at the conclusion of Clarence Victor’s trial on first-degree murder charges, a Nebraska judge rumbled to the following conclusion:

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.

This charge uses language that would confuse any courtroom observer, even those who regularly sit on the bench. Four years earlier, the Supreme Court had reversed a murder conviction in which the judge similarly downplayed the rigor of the reasonable doubt standard. The court objected to the way the instruction used words like “substantial” or “grave” as synonyms for “reasonable” because these suggest “a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Faced with almost the same question in Victor, however, the court got cold feet when it came to enforcing the standard. It affirmed the convictions of Clarence Victor and Alfred Sandoval despite strong evidence that their respective trial judges had fumbled in giving instructions to the jury.

Victor held that a judge’s obligation was limited to saying the magic phrase “proof beyond a reasonable doubt.” As to explaining what those words or the rest of the instructions meant, no “particular form of words” was needed. Equally troubling, the Supreme Court said that appellate courts should use a “totality of the charge” approach when they examined a challenged instruction, meaning that misleading words or sentences could be offset by the import of the judge’s instructions as a whole.

With its opinion in Victor, the Supreme Court handed appeals courts the discretion to approve misleading and confusing jury instructions—and an opportunity to lower the bar for convictions. A number of federal and state appellate courts were happy to oblige. “Victor explains that the offending words can be neutralized,” pronounced the Fourth Circuit in 1994. An opinion from the same year by the First Circuit used Victor to rescue a conviction from what it conceded was “a somewhat diluted burden of proof.” Several districts, including the top courts in Texas and Illinois—two states where recent reversals of death sentences show that the capital-punishment machinery is broken beyond repair—went so far as to forbid trial judges in their jurisdictions from giving jurors any explanation of what “proof beyond a reasonable doubt” means.

One of the nation’s most distinguished federal judges, Chief Judge Jon O. Newman of the Second Circuit, has bluntly criticized federal trial judges for their failure to give jurors a coherent and accurate definition of reasonable doubt. The former trial judge and federal prosecutor took issue with appellate courts that forbid or discourage definition in a speech to the students and faculty of New York University School of Law (later adapted into an article in the NYU Law Review). Putting aside the cloying collegiality that often marks judges’ critiques of their colleagues, he castigated the federal judiciary for having “failed to take the [reasonable doubt] standard seriously as a rule of law against which the validity of conviction is to be judged.”

Courts defend their actions by saying that the phrase is self-defining and that ad hoc endeavors to explain it will only cause more confusion. This is a sham proposition. Nothing about the words conveys the idea of near certitude. As a judge, I shudder at the thought of 12 laypeople deconstructing the standard for themselves as they decide whether to vote “guilty” or “not guilty.” Studies on mock juries conducted here and in Britain suggest that the language of the instruction has a significant effect on outcomes. In one British study, when reasonable doubt was left undefined, jurors asked to quantify the government’s burden responded on average that they would need to be only 55 percent sure of guilt, suspiciously close to the more-likely-than-not burden facing plaintiffs in civil cases. This is nowhere near the intended rigor of “reasonable doubt,” which the Seventh Circuit has put at 90 percent or better.

WHY SO MANY TRIAL AND APPELLATE JUDGES ignore this evidence is hard to understand, though the limited (or nonexistent) experience of most judges in the field of criminal law presents one explanation. No current Supreme Court justice has ever defended a person in a felony trial, even though one-quarter of the decisions that result in a full opinion by the court involve matters of criminal law. Approximately two-fifths of the trial judges serving in the federal judiciary have been drawn from the ranks of U.S. attorneys. Democratic and Republican presidents have been equally likely to appoint former prosecutors: They made up 41 percent of President Clinton’s 305 district court appointees and 40 percent of the 187 trial judges appointed by the first President Bush.

Many other appointees have significant personal wealth, often from fortunes made in the corporate sector. Forty-three percent of the appeals judges appointed by Bush had a net worth of more than a million dollars. Clinton fished in the same well-off pool; half of his appointments to the appeals courts belonged to the million-dollar club. State judges often come from similar backgrounds. What this means for daily life in the trenches of our courtrooms is that most judges have little firsthand understanding of the dynamics of a criminal trial—and even less of the criminal defendants brought before them.

THERE IS ONLY ONE WAY for judges to convey to jurors the meaning of reasonable doubt: by explaining it in plain language, using words and notions of certainty that resonate with jurors’ lives outside the courtroom. I am certain I took my daughter to the movies yesterday, but I am not so certain about the year the New York Giants won their last Super Bowl. I’m “certain” that the United Nations was created in 1948—or was it 1945?

It is imperative that trial judges give their instructions in “pure and generous words,” to borrow a phrase from the poet Czeslaw Milosz. Appeals courts, including the Supreme Court, should not make explaining the reasonable doubt phrase optional, but rather should require trial judges to define the prosecution’s burden with an express reference to certainty. If the courts refuse to act, then the state legislatures and Congress should intervene with statutes requiring that reasonable doubt be explained to jurors in terms of near certainty. This will not make the results of criminal trials infallible, but it will surely provide jurors with a comprehensible definition of the burden of proof the evidence must satisfy for them to convict.

Here is a sample instruction:

You may find the defendant guilty only if, after reviewing all of the evidence and discussing the evidence with your fellow jurors, you are convinced in your mind that it is just about certain—or nearly certain—that the defendant committed the crime. If, after reviewing the evidence, your mind is in such a state that you are not just about certain—or nearly certain—that the defendant committed the crime, you must return a verdict of not guilty.

This instruction can be developed further by explaining to jurors what proof beyond a reasonable doubt is not:

Obviously, you may not convict simply because you have a hunch the defendant committed the crime or you think it is more likely than not that he committed the crime. In fact, even if the evidence persuades you that he probably did it, then you still must find the defendant not guilty. Only if you are nearly certain that the defendant committed the crime can you find him guilty.

Does this charge make it harder for the government to convict? Of course it does. Will more people who are actually guilty dodge conviction if this charge is used? Undoubtedly yes. But keeping jurors ignorant about their legal obligation is not an acceptable alternative. That I can say with certainty.