CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1993

VICTOR v. NEBRASKA

CERTIORARI TO THE SUPREME COURT OF NEBRASKA

No. 92-8894. Argued January 18, 1994-Decided March 22, 1994* The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U. S. 358. In upholding the first degree murder convictions and death sentences of petitioners Sandoval and Victor, the Supreme Courts of California and Nebraska, respectively, rejected contentions that due process was violated by the pattern jury instructions defining "reasonable doubt" that were given in both

cases.

Held: Taken as a whole, the instructions in question correctly conveyed the concept of reasonable doubt, and there is no reasonable likelihood that the jurors understood the instructions to allow convictions based on proof insufficient to meet the Winship standard. Pp. 5-23.

(a) The Constitution does not dictate that any particular form of words be used in advising the jury of the government's burden of proof, so long as "taken as a whole, the instructions correctly conve[y] the concept of reasonable doubt," Holland v. United States, 348 U. S. 121, 140. In invalidating a charge declaring, among other things, that a reasonable doubt "must be such . . . as would give rise to a grave uncertainty," "is an actual substantial doubt," and requires "a moral certainty," the Court, in Cage v. Louisiana, 498 U. S. 39, 40, observed that

*Together with No. 92-9049, Sandoval v. California, on certiorari to the Supreme Court of California.

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a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that which is constitutionally required. However, in Estelle v. McGuire, 502 U. S. 62, 72, and n. 4, the Court made clear that the proper inquiry is not whether the instruction "could have" been applied unconstitutionally, but whether there is a reasonable likelihood that the jury did so apply it. Pp. 5-6.

(b) The instructions given in Sandoval's case defined reasonable doubt as, among other things, "not a mere possible doubt," but one ❝depending on moral evidence," such that the jurors could not say they felt an abiding conviction, "to a moral certainty," of the truth of the charge. Pp. 6-9.

For

(c) Sandoval's objection to the charge's use of the 19th century phrases "moral evidence" and "moral certainty" is rejected. Although the former phrase is not a mainstay of the modern lexicon, its meaning today is consistent with its original meaning: evidence based on the general observation of people, rather than on what is demonstrable. Its use here is unproblematic because the instructions given correctly pointed the jurors' attention to the facts of the case before them, not (as Sandoval contends) the ethics or morality of his criminal acts. example, in the instruction declaring that "everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt," moral evidence can only mean empirical evidence offered to prove matters relating to human affairs-the proof introduced at trial. Similarly, whereas "moral certainty," standing alone, might not be recognized by modern jurors as a synonym for "proof beyond a reasonable doubt," its use in conjunction with the abiding conviction language must be viewed as having impressed upon the jury the need to reach the subjective state of near certitude of guilt, see Jackson v. Virginia, 443 U. S. 307, 315, and thus as not having invited conviction on less than the constitutionally required proof. Moreover, in contrast to the situation in Cage, there is no reasonable likelihood that the jury here would have understood moral certainty to be disassociated from the evidence in the case, since the instruction explicitly told the jurors, among other things, that their conclusion had to be based upon such evidence. Accordingly, although this Court does not condone the use of the antiquated "moral certainty" phrase, its use in the context of the instructions as a whole cannot be said to have rendered those instructions unconstitutional. Pp. 10-17.

(d) Sandoval's objection to the portion of the charge declaring that a reasonable doubt is "not a mere possible doubt" is also rejected. That the instruction properly uses "possible" in the sense of fanciful is made

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clear by the fact that it also notes that everything "is open to some possible or imaginary doubt." P. 17.

(e) The instructions given in Victor's case defined reasonable doubt as, among other things, a doubt that will not permit an abiding conviction, "to a moral certainty," of the accused's guilt, and an "actual and substantial doubt" that is not excluded by the "strong probabilities of the case." Pp. 17-19.

(f) Victor's primary argument-that equating a reasonable doubt with a "substantial doubt" overstated the degree of doubt necessary for acquittal-is rejected. Any ambiguity is removed by reading the phrase in question in context: The Victor charge immediately distinguished an "actual and substantial doubt" from one "arising from mere possibility, from bare imagination, or from fanciful conjecture," and thereby informed the jury that a reasonable doubt is something more than a speculative one, which is an unexceptionable proposition. Cage, supra, at 41, distinguished. Moreover, the instruction defined a reasonable doubt alternatively as a doubt that would cause a reasonable person to hesitate to act, a formulation which this Court has repeatedly approved and which gives a commonsense benchmark for just how substantial a reasonable doubt must be. Pp. 19-21.

(g) The inclusion of the "moral certainty" phrase in the Victor charge did not render the instruction unconstitutional. In contrast to the situation in Cage, a sufficient context to lend meaning to the phrase was provided by the rest of the Victor charge, which equated a doubt sufficient to preclude moral certainty with a doubt that would cause a reasonable person to hesitate to act, and told the jurors that they must have an abiding conviction of Victor's guilt, must be convinced of such guilt "after full, fair, and impartial consideration of all the evidence," should be governed solely by that evidence in determining factual issues, and should not indulge in speculation, conjectures, or unsupported inferences. Pp. 21-22.

(h) The reference to "strong probabilities" in the Victor charge does not unconstitutionally understate the government's burden, since the charge also informs the jury that the probabilities must be strong enough to prove guilt beyond a reasonable doubt. See Dunbar v. United States, 156 U. S. 185, 199. P. 22.

No. 92-8894, 242 Neb. 306, 494 N. W. 2d 565, and No. 92-9049, 4 Cal. 4th 155, 841 P. 2d 862, affirmed.

O'CONNOR, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which REHNQUIST, C. J., and STEVENS, SCALIA, KENNEDY, and

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THOMAS, JJ., joined in full and in which GINSBURG, J., joined as to Parts III-B and IV. KENNEDY, J., filed a concurring opinion, post, p. 23. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, post, p. 23. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in all but Part II of which SOUTER, J., joined, post, p. 28.

Mark A. Weber argued the cause and filed briefs for petitioner in No. 92-8894. Eric S. Multhaup, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner in No. 92-9049. With him on the briefs was Kathy M. Chavez.

Don Stenberg, Attorney General of Nebraska, argued the cause for respondent in No. 92-8894. With him on the brief was J. Kirk Brown, Assistant Attorney General. Daniel E. Lungren, Attorney General of California, argued the cause for respondent in No. 92-9049. With him on the brief were George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, and Susan Lee Frierson, Sharlene A. Honnaka, Donald E. De Nicola, and Sharon Wooden Richard, Deputy Attorneys General.†

†Briefs of amici curiae urging affirmance in both cases were filed for the United States by Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr.; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

Briefs of amici curiae urging affirmance in No. 92-9049 were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Pamela L. Hunt and Gregory I. Massing, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: James H. Evans of Alabama, Larry Echo Hawk of Idaho, Pamela Carter of Indiana, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Charles W. Burson of Tennessee, and Elizabeth Barrett-Anderson of Guam; and for the California District Attorneys' Association by Gil Garcetti and Brent Riggs.

Opinion of the Court

JUSTICE O'CONNOR delivered the opinion of the Court.* The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U. S. 358 (1970). Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy explication. In these cases, we consider the constitutionality of two attempts to define "reasonable doubt."

I

The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U. S. 430, 440-441 (1887). Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U. S. 478, 485-486 (1978). Rather, "taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." Holland v. United States, 348 U. S. 121, 140 (1954).

In only one case have we held that a definition of reasonable doubt violated the Due Process Clause. Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam). There, the jurors were told:

"[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible

*JUSTICES BLACKMUN and SOUTER join only Part II of this opinion. JUSTICE GINSBURG joins only Parts II, III-B, and IV.