When Reasonable Doubt Changed – Colorado Criminal Law Update

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction – The Burden of Proof In Colorado Criminal Cases

In December of 2022, in a move that shocked many in the Colorado criminal justice system, the Colorado Supreme Court Model Criminal Jury Instructions Committee (the Committee), notwithstanding decades of approval of the previous definition, changed one of the most critical jury instructions read to Colorado juries in criminal case – the definition of beyond a reasonable doubt.

This article explores that change.

Why Is The Definition Of Beyond A Reasonable Doubt A Critical Change In Colorado’s Criminal Law?

The concept of “reasonable doubt” is the critical legal standard that is the very foundation of the Colorado criminal justice system –  it is intended to prevent innocent people from being convicted for crimes they did not commit.

The State, not the accused, must prove every criminal charge it dares to file – beyond a reasonable doubt.

The “beyond a reasonable doubt” legal standard of proof based is founded on the Due Process Clause of the Fifth Amendment to the United States Constitution as explained in the following words:

A person charged with a crime is innocent until found guilty in a court of law. In order to get a conviction, prosecutors must submit sufficient evidence to convince a jury that they are justified, to the exclusion of all reasonable doubt, in finding the defendant guilty of the crimes against which they’ve been charged.

Beyond a reasonable doubt is the highest burden of proof used in any court of law in the world.

Because the consequences of a criminal conviction are lifelong and can be severe – the loss of liberty or even life, it has evolved as the primary measure of protection against wrongful conviction even though the standard “ beyond a reasonable doubt” is not explicitly found in the United States Constitution.

The Former “Hesitate to Act” Instruction E:03 – (Presumption of Innocence, Burden of Proof, and Reasonable Doubt)

What follows below is the former jury instruction read to Colorado juries for decades:

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 of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.

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.

If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime.

If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime.

The New “Firmly Convinced” Instruction E:03 – Presumption of Innocence, Burden of Proof, and Reasonable Doubt

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.

This Change In the Instruction Of The Definition of Beyond A Reasonable Doubt Runs Contrary To Previous Colorado Courts of Appeal Decisions

In the past, the Colorado Supreme Court, as discussed below, has been harshly critical of Colorado Trial Judges who tried to alter, in any way – by removing, adding, or changing – the definition of reasonable doubt or by making analogies or hypotheticals in an attempt to “assist” juries understand the legal definition.

As discussed below, there are persuasive historical reasons for adhering to the original language in the jury instruction.

For example, in the recent case of  Tibbels v. People, 2022 CO 1, 501 P.3d 792, the Colorado Supreme Court said this about  “helpful” analogies” to the beyond a reasonable doubt standard such as the “cracks in a foundation wall” story – that try to explore and further explain the nature of the standard.

…where the trial court “equated the concept of reasonable doubt to the doubt that a prospective home buyer 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.”

[This Court] “strongly discourage[s]” trial courts from using “everyday illustrations” to explain the concept of reasonable doubt, because such illustrations “run the risk of confusing jurors, lowering the prosecution’s burden of proof, and diminishing the presumption of innocence….”

Indeed, the majority noted that divisions of the court of appeals had repeatedly discouraged trial courts from using such illustrations to explain reasonable doubt, the presumption of innocence, and other legal concepts.

The reason? – tampering with the definition of reasonable doubt creates a real danger of either increasing or lessening the State’s burden of proof or confusing the jury as to the burden of proof on the State.

The Model Rules Committee Supports Their Change – Three Reasons

In the footnotes following the new definition of beyond a reasonable doubt, the Committee provided the following reasoning for this historical change:

The First: The original definition was “phrased in the negative” – a doubt which is not a vague, speculative or imaginary doubt” thus making juror comprehension more challenging. The “double negative” diminishes juror comprehension even further.

The new 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.”

The Second: The “hesitate to act” language, “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.”

And, the Third (in Two Parts)

Two “overarching principles” support the change:

(Part 1) – 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.

(Part 2) – a “reasonable doubt” instruction which “juxtaposes” the words “firmly convinced” and “real possibility” used by trial courts in the past, has never been reversed. 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.”

Why The Change To The Definition Of Reasonable Will Almost Certainly Be Challenged

The change in wording, in my opinion, will result in effectively lowering the State’s burden of proof in criminal trials. Jurors well understood that reasonable doubt is something common to their lives – a doubt that would “cause reasonable people to hesitate to act in matters of importance to themselves.”

To be “firmly convinced” of a Defendant’s guilt, with no “real possibility” that he or she is innocent, lowers that standard to a kind of vague notion of persuasion NOT well analogized to a juror’s world outside the artificial and confusing construct of a criminal trial.

In the words of a well respected Colorado criminal defense lawyer colleague – Scott Jurdem of Boulder:

“To prove something so well that you would rely on the evidence without hesitation is very difficult and it makes the state’s burden very hard, and it’s appropriate,”

“We all know what it’s like to hesitate in a matter of importance. We almost never make an important decision in our lives without hesitation. You’re going to have a lot less protection from the power of the state now.”

Sidebar: Some Relevant History – The Origins of the Reasonable Doubt Standard

When researching the origins of the reasonable doubt standard, I was astonished to learn the phrase had emerged from theological doctrine. Essentially, the use of the term was the result of the very real circumstance that jurors were afraid that if they found an innocent person guilty of the crimes charged, they would be severely punished in the afterlife. Reasonable doubt originally was derived from a concern with protecting the souls of the jurors against eternal damnation.

The fear of convicting an innocent defendant in the Christian tradition was viewed as a potential mortal sin. Jurors could provide for their salvation, so long as their doubts about guilt were not ‘reasonable.'”

Over time the reasoning underlying the “beyond a reasonable doubt” standard evolved further to the standard used in our criminal justice system. It was no longer used to prevent the damnation of the juror’s soul and became a powerful method intended to lessen the risk that an innocent person would be convicted of a crime the State could not prove to the satisfaction of the American jury.

Understanding The Origins Of The Hesitate To Act Language

The “hesitate to act” formulation, used for decades by the State of Colorado, was originally approved by the United States Supreme Court in Victor v. Nebraska:

“‘[r]easonable doubt’ is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon.

“ When the State’s evidence leaves the jury with a doubt comparable to the doubt that would cause them to hesitate before deciding some important matter, then they must vote “not guilty.”

The instruction above requires caution commensurate with the seriousness of the decision the jury is about to make – if a jury concludes that the evidence has created a doubt comparable to the doubt that would cause them to hesitate before making an important personal decision, they should take a careful look at all the evidence and vote to find the defendant guilty only if the evidence is so overwhelming that the jury is certain the accused is guilty.

Many Federal Criminal Justice Circuits Use Of The Firmly Convinced Standard – Some Don’t

In the Federal criminal justice system the Manual of Model Criminal Jury Instructions provides the following definition of reasonable doubt:

3.5 Reasonable Doubt (Majority Federal System Instruction)

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.

A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.

If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.

On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

Still other federal courts have used a variation of the “hesitate to act” instruction:

‘It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act.

Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.’

United States v. Savulj, 700 F.2d 51, 69 (2nd Cir. 1983)

The 5th Circuit: “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 making the most important decisions of your own affairs.”

The 4th Circuit “‘Proof beyond a reasonable doubt’ is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs.”

Summary and Conclusion – When Reasonable Doubt Changed – Colorado Criminal Law Update

The Foundation Of The Criminal Justice System – The Presumption of Innocence And Proof Beyond a Reasonable Doubt

The two foundational principles of our American system of criminal justice are that: every person accused of a crime is presumed to be innocent unless his or her guilt is established beyond a reasonable doubt.

The presumption of innocence means that the burden of proof is ALWAYS on the government and never on the Defendant. It means the State must PROVE their case with proof beyond a reasonable doubt – to prove each of the elements of the crimes charged beyond a reasonable doubt by the evidence and the reasonable inferences to be drawn from that evidence.

This burden OF PROOF never lessens and never shifts to the Defendant.

A person accused of ANY CRIME has the right to defend themselves without the requirement of presenting any independent evidence but to rest upon the failure or inability of the Government to establish beyond a reasonable doubt each and every essential element of the crime or crimes charged.

Colorado criminal defense lawyers argue the critical concept of reasonable doubt every day in the courtrooms of our state. Every experienced Colorado criminal defense lawyer knows that their duty is attack the Government’s case and to establish that the evidence, or lack of evidence, has created reasonable doubt … even if is in the mind of a single juror.

If reasonable doubt of even one element of any crime charged resides in the mind a single juror, the accused must walk free from the courtroom.

Raising reasonable doubt means aggressively and effectively challenging the evidence sought to be admitted by the prosecution.

ANY change to these foundational legal concepts bears extreme scrutiny.

The changes addressed in this article – altering the definition of reasonable doubt by replacing the time honored and well reasoned “hesitate to act” language with the “firmly convinced” test, clearly lowers the burden of proof and should be immediately challenged as described above.

In the words of a famous jurist:

“I find it rather unsettling that we are using a formulation that we believe will become less clear the more we explain it.”

Jon Newman, Chief Judge of the U.S. Court of Appeals for the 2nd CircuitJon. O. Newman, Beyond “Reasonable Doubt,” N.Y.U. L. REV. 979, 984 (1993).

Colorado Criminal Law – When Reasonable Doubt Changed – Colorado Criminal Law Update

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Colorado Criminal Law – When Reasonable Doubt Changed – Colorado Criminal Law Update