The Ghost of a Moral Certainty Continues to Plague Criminal Courts

It has been nearly 160 years since the 1850 Massachusetts Supreme Judicial Court decided the criminal case of Commonwealth vs. Webster, wherein the court stated in its jury instruction that “beyond a reasonable doubt” meant when the jury “cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge” (emphasis added).  The U.S. Supreme Court analyzed that the phrase used in U.S. criminal case jury instructions, “beyond a reasonable doubt and to a moral certainty,” in the appeal of Sandoval vs. California(1994).  Despite Justice Sandra Day O’Connor’s warming, in albeit dicta, that the High Court “does not condone” the use of “to a moral certainty,” the use of that phrase continues to be used by judges in jury instructions in our criminal cases.   This writer maintains that it causes confusion among jurors, at the very least, invites jurors to inject their own “moral” or even religious beliefs into deciding an accused’s fate, and, worst of all, use of the instruction clearly violates the mandates of the 5th, 14th, and 6th Amendments of the U.S. Constitutiion.  This issue must and will be revisited by the U.S. Supreme Court, and, once and for all, deem any use of the phrase in a jury instruction unconstitutional in all criminal cases.

The 5th Amendment initially did not apply to individual states because, of course, it is federal law.  In 1868 that circumstance changed when the 14th Amendment was enacted to enable the Due Process Clause, and other provisions, of the 5th Amendment to apply to the states as a matter of constitutional law, in general, and criminal procedural law, in particular.  The 5th and 14th Amendment Due Process Clauses require that a person accused of a crime be afforded a fair trial, by mandating that the accused not be deprived of life, liberty, or property without due process of law.  It is a matter of mandated criminal procedural law by way of those constitutional provisions.  The 6th Amendment mandates, in relevant part, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury.  Even at this juncture, it becomes conspicuously questionable as to whether a criminal defendant can have a fair trial by an impartial jury, where the phrase “and to a moral certainty” is equated with “beyond a reasonable doubt.”  In Sandoval, the High Court did not hold the use of phrase in jury instructions unconstitutional, stating that the use of “beyond a reasonable doubt and to a moral certainty” was not condoned but neither confusing nor unconstitutional “under the circumstances” of the case before the Court.  Justice O’Connor stated that the trial court gave sufficient explanation to the jury as to what was meant by reasonable doubt and “moral certainty.”  That pronouncement begs the central question here.  If it merely depends on the “circumstances” of how the jury instruction is worded and given in order to hold it constitutionally inoffensive or defective, then doesn’t the dependence on such “circumstances,” in and of itself, constitute vagueness, create lack of uniformity in all criminal trials, foster expensive appeals, and jeopardize the Due Process rights constitutionally guaranteed to a criminal defendant?  A brief examination of the Due Process standards, that now exist as good and hard constitutional law, may serve to answer that question and shed light on how to rid American criminal courts of the ghost of “moral certainty” that continues to plaque jury instructions.