Every day somewhere several juries are given instructions on reasonable doubt. Most of these instructions are given in language that few of us think about: “That is a form jig.” But, perhaps thinking about the language we use is worthwhile. 

Michael D. Cicchini (Independent) has posted Instructing Jurors on Reasonable Doubt: It’s All Relative (8 Calif. L. Rev. Online 72 (October 2017)) on SSRN.

Here is the abstract:

The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, this high burden is only as formidable as the words used to describe it to the jury. And many courts describe it in ways that lower, and sometimes even shift, the burden of proof.

This Article identifies four common jury-instruction flaws — the important-affairs-of-life analogy, the alternative-hypothesis test, the unreasonable-doubts warning, and the search-for-the-truth mandate — and then explains, both logically and empirically, how each one violates our due process rights.

After discussing the reasonable-doubt standard and common jury instruction flaws in Parts I and II, Part III discusses my attempt to win a very modest reform of Wisconsin’s jury instruction — a disastrous piece of work that incorporates all four of these burden-lowering defects. However, because my reform effort achieved only limited success, this Article advocates for a more aggressive approach: rewriting the burden of proof jury instruction from scratch.

This new jury instruction, presented in Part IV, is rooted both in logic and empirical evidence. Specifically, it avoids the four defects discussed in this Article. More generally, it focuses the jury’s attention on the level of proof the government must present, rather than on the kind of doubt the defense must create. This ensures that the burden remains with the government and is not shifted to the defendant.

Finally, and most importantly, to avoid the problems associated with nearly every attempt to define “proof beyond a reasonable doubt,” the proposed instruction describes the burden on a relative basis by comparing it to lower burdens of proof. Because these lower burdens — especially the “more likely than not” standard — are far more intuitive, they offer the best framework for explaining the high level of proof the government must satisfy to win a criminal conviction.