Reasonable Doubt, The Virginia Version

A couple days back Mark was writing about the ways that different State courts handle jury instructions as to the definition of reasonable doubt. Looking at this, I thought I'd post the usual instruction given in Virginia jury trials.

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The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt. You shall not speculate or go outside of the evidence to consider what you think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defense and unless you believe, upon a consideration of all the evidence before you, that guilt of the defendant has been proved beyond a reasonable doubt as to every material and necessary element of the offense charged against him, then you shall find the defendant not guilty.

The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt. You must limit your consideration to the evidence introduced, and you are not to go outside the evidence to hunt up doubts, nor must you entertain doubts that are speculative or conjectural. If, upon a consideration of all the evidence, you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you shall find him guilty.

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If you read through the instruction, you won't find a definition of "reasonable doubt." It bounces all around it, bracketing it on one side by stating it isn't a lower level of proof and on the other by stating that it isn't absolute, God given, unshakable certitude. It's something of a definition in the negative.

To my knowledge, the Virginia appellate courts haven't banned positive definitions of reasonable doubt. However, they have strongly discouraged them:

It should be remembered, however, that on numerous occasions we have stated that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be less illuminating than the expression itself.

Strawderman v. Commonwealth, 1959 Va. (no. 4928)

In that case the court was refusing to overturn based upon a jury instruction defining beyond a reasonable doubt as "an abiding conviction of the truth of the charge" (appellant claimed it should have been "an abiding conviction to a moral certainty of the guilt of the accused"). This case is cited in more modern times as standing for the proposition that

We expect jurors to understand the meaning of "reasonable doubt."

Shaik v. Commonwealth, 2005 Va. App. (no. 2614-03-4)

So, I guess that technically I could offer an instruction that positively defined reasonable doubt and if I got it past the trial judge it would stand on appeal. However, I suspect the older judges would shoot me down because they remember the case law and the younger judges would shoot me down because they are all lectured half to death when they go to "judge school" about the evils of departing from the instructions given in the model book, no matter how many authorities a party can cite for an instruction (which is clearly wrong and I wish they would stop telling judges that - even the model jury instructions decry themselves as stand alone authority).

However, in the end I'm not sure anything is gained if the positive instruction is offered rather than the negative one. Perforce, both are vague and neither will ever be entirely satisfactory. I didn't like the current instruction as a defense attorney and I don't like it as a prosecutor either; yet, I don't see myself as being happy if I had to use the instruction give in the case above either. In the end, with the vagueness involved in either instruction, it is the jurors who must go back in the back room and decide for themselves where they will draw the line as to reasonable doubt.