The Ghost of a Moral Certainty Continues to Plague Criminal Courts

CONCLUSION

The U.S. Supreme Court in In re Winship clearly defined the constitutional standard and burden on the government to prove all elements of the crime charged “beyond a reasonable doubt,” in accordance with the mandates of Due Process.  That standard continues to be good and hard constitutional law in every criminal case across the land.  Why not require that all judges in every criminal case simply follow that constitutional standard when instructing or “charging” the jury on the law?  Why not require that the phrase “and to a moral certainty” simply be removed or not included in any criminal court jury instruction as unconstitutional?  Is it justice or judicial politics?

The phrase “and to a moral certainty” is antiquated and dangerously jeopardizes a criminal defendant’s guaranteed constitutional rights.  Continued use of the phrase also calls into question, and seriously so, whether the government is being permitted to lower its burden of proof from “beyond a reasonable doubt” to a mere “preponderance of the evidence.”  Leaving the matter to “circumstances” of how the phrase was used and given prolongs the appellate agony and facilitates lack of uniformity in our American criminal justice system.  The ghost of “moral certainty” continues to plague the criminal justice system.  U.S. Supreme Court Justices, exocise this ghost once and for all.

Why doesn’t the Federal Judiciary create a “beyond a reasonable doubt” standardized jury instruction for use in all criminal cases?   Mandated and approved, of course, by the U.S. Supreme Court.  Well, the reader may find this shocking, but about 15 years ago, in 1994, the Federal Judicial Center, which works with the federal judiciary, proposed the following jury instruction for all criminal cases, with a deliberate purpose to get rid of the “moral certainty” language:

“Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.  There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt.  If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.  If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.”

The proposed instruction is straightforward presents no “circumstances” over which to quibble pedantically, and constitutionally sound within the law ofWinship.

The plague of “moral certainty,” however, haunts us apace.