BILL ANALYSIS
AB 1131
Date of Hearing:April 25, 1995
Counsel: Martin Gonzalez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
AB 1131 (Caldera) - As Amended: April 17, 1995
ISSUE: SHOULD REASONABLE DOUBT BE REDEFINED BY DELETING THE
SURPLUS PHRASES "DEPENDING ON MORAL EVIDENCE" AND "TO A MORAL
CERTAINTY"?
DIGEST
Under current law:
1) A defendant in a criminal action is presumed to be innocent
until the contrary is proved, and in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to an
acquittal, but the effect of this presumption is only to place
upon the state the burden of proving him guilty beyond a
reasonable doubt. Reasonable doubt is defined as follows: "It
is not a mere possible doubt; because everything relating to
human affairs, and depending on moral evidence, is open to some
possible or imaginary doubt. It is that state of the case,
which, after entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that
they can not say they feel an abiding conviction, to a moral
certainty, of the truth of the charge." (Penal Code section
1096.)
2) When it appears that the defendant has committed a public
offense, or attempted to commit a public offense, and there is
reasonable ground of doubt in which of two or more degrees of
the crime or attempted crime he is guilty, he can be convicted
of the lowest of such degrees only. (Penal Code section 1097.)
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This bill deletes the phrases "depending on moral evidence" and
"to a moral certainty" from the definition of reasonable doubt.
COMMENTS
1) Purpose. According to the author:
Both the California and United States Supreme Courts have
criticized inclusion of the phrase "moral certainty" in
California's definition of reasonable doubt, finding it to
add nothing of value at best, and to be misleading or
troubling at worst. Doubts have been cast on its
constitutionality, which could jeopardize many convictions in this
state. Removal of this phrase would solve problem.
2) Presumption of Innocence. The presumption of innocence, and
the burden of proving the defendant guilty beyond a reasonable
doubt, are fundamental to the Anglo-American system of law.
They are state in Penal Code sections 1096 and 1097. Penal
Code sections 1096 and 1097 were enacted in 1872. Both have
only been amended once since their enactment.
3) Chief Justice Shaw. In 1927, the explanation of reasonable
doubt given by Chief Justice Shaw in the Massachusetts case of
Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295, was
incorporated into Penal Code section 1096. Moreover, CALJIC
No. 2.90, the standard reasonable doubt instruction in
California, is drawn verbatim from Penal Code section 1096.
4) History. The California instruction was criticized in People
v. Brigham (1979) 25 Cal.3d 283. Justice Mosk apparently did
not think the instruction was unconstitutional, but he "urged
the Legislature to reconsider its codification." The
California Assembly and Senate responded by requesting the
committee on jury instructions of the Los Angeles Superior
Court "to study alternatives to the definition of "reasonable
doubt" set forth in Section 1096 of the Penal Code, and to
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report its findings and recommendations to the Legislature."
The committee recommended that the legislature retain the
statutory definition unmodified, and Penal Code section 1096
has not been changed since.
5) Victor v. Nebraska. In Victor v. Nebraska, the defendant
challenged the constitutionality of CALJIC No. 2.90. His
"primary objections [was] to the use of the phrases "moral
evidence" and "moral certainty" in the instruction." Although
expressing concern that, in isolation, the challenged phrases
do not contain the meaning today that they had in the 19th
century, the Supreme Court, viewing the instruction in its
entirety, rejected the challenge. It held, "Moral evidence, in
this sentence [in CALJIC No. 2.90], can only mean empirical
evidence offered to prove such matters--the proof introduced at
trial." The court was "more concerned" with the phrase "moral
certainty." It found the the term "ambiguous in the
abstract," but saved by its context. "An instruction cast in
terms of an abiding conviction as to guilt, without reference
to moral certainty, correctly states the government's burden of
proof." The court concluded that although the questioned terms
add nothing of value to the instruction, they do not render it
unconstitutional. (See also People v. Freeman (1994) 8 Cal.4th
450.)
6) Criticism of the Word Moral. The US Supreme Court criticized
the use of the word moral, this criticism was echoed in the
separate opinions by individual justices. The California
Supreme Court justices also would not condone the use of the
phrase "moral certainty." As noted in People v. Freeman, the
common meaning of the phrase has changed since it was used in
the Webster instruction (144 years ago), and it may continue to
do so to the point that it conflicts with the In re Winship
(1970) 397 U.S. 358, standard of reasonable doubt.
7) California Jury Instructions, Criminal. CALJIC No. 2.90 was
revised on December 16, 1994, to read as follows:
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A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case
of a reasonable doubt whether [his/her] guilt is
satisfactorily shown, [he/she] is entitled to a
verdict of not guilty. This presumption places upon
the People the burden of proving [him/her] guilty
beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a
mere possible doubt because everything relating to
human affairs is open to some possible or imaginary
doubt. It is the state of the case which, after the
entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an abiding
conviction of the truth of the charge.
As evident from the above, the phrases "moral evidence" and
"moral certainty" have been exorcised from the California Jury
Instruction for reasonable doubt. This bill would conform the
Penal Code accordingly.
8) Other Legislation. SB 331 (Campbell) redefines reasonable doubt
to read as follows: "Reasonable doubt is not a mere possible
doubt. Few things may be known with absolute certainty, so the
law does not require proof that overcomes every possible or
imaginary doubt. Proof beyond a reasonable doubt is that which
leaves in the minds of jurors an abiding conviction of the truth
of the charge." Though this language has not been tested in the
courts, given the recent past California and US Supreme Court
decisions it would appear to pass constitutional muster.
9) Potential Effect. Helps clarify the reasonable doubt instruction
given in criminal cases.
SOURCE: Author
SUPPORT: Judicial Council of California
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California District Attorneys Association
OPPOSITION: California Attorneys For Criminal Justice
ACLU
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