At the end of a lengthy (or even not-so-lengthy) trial, an exhaustion factor creeps in and the fatigued lawyer sits back as jury instructions are read.  But attention must be paid, especially when a judge extemporanizes.  The failure to do so may allow an unconstitutional jury instruction to slip past.

This is best illustrated in a recent (August, 2017) habeas decision in the Eastern District of Pennsylvania.  A Philadelphia trial judge, after giving the textbook instruction defining the concept of “proof beyond a reasonable doubt,” decided to embellish it with a homespun illustration.  Here it is, verbatim:

It’s helpful to think about reasonable doubt in this manner. Let’s say, and I know that each one of you does have someone that you love very much, a spouse, a significant other, a child, a grandchild. Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.

Brooks v. Gilmore, No. 15-5659, 2017 U.S. Dist. LEXIS 127703, at *7-8 (E.D. Pa. Aug. 11, 2017).

Any lawyer who has observed or participated in a criminal trial has heard (or argued) that proof beyond a reasonable doubt requires the highest degree of certainty, the same amount of certainty one would demand in a matter of high importance in the jurors’ own lives.  A typical illustration of a matter of high importance is the decision of whether to let your child undergo surgery.

But looking deeper into the words, and particularly the words used in this caser, turns the certainty requirement upside down.  As the Federal District Court Judge reviewing the charge explained,

To test the constitutionality of the instruction given here requires consideration of how a reasonable juror would analyze the hypothetical decision presented in the court’s charge. In a case involving a “life threatening” condition affecting someone “absolutely precious” to a juror, where there is only one “known protocol” or “best protocol,” what level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt to deny a loved one their only or best opportunity for cure. But this is problematic because the Supreme Court has held that elevating the level of doubt a juror must have before acquittal is required violates the Due Process Clause…

The Commonwealth is correct that the charge in this case did not use the specific words found objectionable in Cage. But the trial judge communicated the same concepts by means of a powerful and emotionally charged metaphor. Objectively speaking, any person of decency and morals would strive to put aside doubt when faced with a single life-saving option for a loved one.

The takeaways are simple.  Words count, so dive deeper into their meaning.  And listen to jury instructions – a change of a word, an analogy, or the altered placement of a comma may transform what the Constitution allows into what Due Process prohibits.