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New Jury Instruction Changes Definition of Reasonable Doubt, Among Other Changes

On behalf of Dolan + Zimmerman LLP November 27, 2023

In the American justice system, the concept of “reasonable doubt” plays a crucial role in determining the outcomes of criminal trials. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty of the charges brought against them. But what exactly does “reasonable doubt” mean? Recently, the form Colorado jury instructions have been amended in an attempt to provide a clearer definition.

The Old Instruction For Reasonable Doubt

Before the recent update, the applicable jury instruction in Colorado defined reasonable doubt:

“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.”

The New Jury Instruction For Reasonable Doubt 

Following an extensive discussion among the Committee responsible for the jury instructions, the definition has been updated in the applicable form instruction. The term “Proof beyond a reasonable doubt” is now defined as: “proof that leaves you firmly convinced of the defendant’s guilt.”

In addition, the updated definition provides some guidance on what the prosecution’s burden entails:

“…it requires more than proof that something is highly probable,” though “it does not require proof with absolute certainty.”

This language outlines the prosecution’s burden of proof, clarifying that they must provide evidence strong enough to convince jurors, but not requiring them to prove absolute certainty, which would be an impossible standard. 

Thus, jurors are now instructed that:

If they “are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt,” but if they “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.”

Three Reasons The Committee Gave For Updating Reasonable Doubt Definition

The committee listed three reasons for changing the jury instructions for reasonable doubt:

Reason 1: The Negative Phrasing 

First, the original jury instruction on reasonable doubt was phrased negatively, stating that reasonable doubt is “a doubt which is not a vague, speculative or imaginary doubt.” The committee posits that this can be confusing:

(“[T]he reasonable-doubt instruction is necessarily an attempt to define a negative concept. When court instructions proceed to define this concept by stating what it is not, the resulting double negative concept diminishes juror comprehension even further.”

Reason 2: Criticism Over “Hesitate to Act” Language

The previous jury instruction contained language that instructed jurors to consider whether they would hesitate to act: “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.”  

However, this approach has faced criticism, with commentators noting that: “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.”

Reason 3: Circuit Court Rulings

Finally, the Committee noted that no “reasonable doubt” instruction which juxtaposes the terms “firmly convinced” and “real possibility” – which is what the updated instructions use – has ever been reversed. 

Objections and Appeals Expected 

Many Boulder defense attorneys have expressed their displeasure with the new instructions, particularly regarding the removal of the “hesitate to act” clause. Some argue that this phrase acted as a safeguard against wrongful convictions by compelling jurors to consider the gravity of their decision, especially in serious cases.

Without this phrase, they believe the threshold for reasonable doubt has been lowered, potentially leading to unjust convictions. As a result, some defense attorneys are likely to bring forward objections and appeals in cases where they believe the new instructions prevented their clients from receiving a fair outcome.