Before Wagner, Chief Judge, and Terry, Steadman, Schwelb,
Farrell, King, Ruiz and Reid, Associate Judges.
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The opinion of the court was delivered by: Wagner, Chief Judge:
Appellant, Darius Smith, was convicted after a jury trial of second degree murder while armed and related weapons offenses. *fn1 Over Smith's objection, the trial court instructed the jury on the meaning of reasonable doubt using portions of FEDERAL JUDICIAL CENTER, PATTERN CRIMINAL JURY INSTRUCTIONS, No. 21 (1988) (FJC instruction) instead of the standard instruction generally used in Superior Court, i.e., CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.09 (4th ed. 1993) ("Redbook" instruction), for which Smith expressed a preference. See Smith v. United States, 687 A.2d 1356, 1359-60 & n. 1 (D.C. 1996). In affirming the judgment of conviction, a division of this court held that "the [trial] court's instruction, taken as a whole, correctly conveyed the government's burden of proof under the reasonable doubt standard and did not shift or lessen that burden of proof." Id. at 1358. We granted rehearing en banc to decide whether to adopt or approve a new instruction on reasonable doubt to replace Redbook instruction 2.09. *fn1 After consideration of the comprehensive briefs from the parties and amicus curiae, we conclude that the standard Redbook instruction should be modified in the manner set forth in this opinion. Our reconsideration does not alter the division's conclusion that the instruction which the trial court gave in this case did not deprive Smith of due process of law. Therefore, we affirm the judgment of conviction.
The standard of proof beyond a reasonable doubt "is an ancient and honored aspect of our criminal justice system," although one which "defies easy explication." Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1242, 127 L.Ed.2d 583 (1994). In a criminal trial, application of that standard of proof is a requirement of due process. See id.; Cage v. Louisiana, 498 U.S. 39, 39-40, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970)(other citations omitted)). The Supreme Court has held that the Constitution neither requires nor prohibits trial courts from defining proof beyond a reasonable doubt. See Victor, 511 U.S. at 5, 114 S.Ct. at 1242. However, when a definition of the standard of proof is given to the jury, the instructions, taken as a whole, must convey the concept properly. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).
This court en banc has never considered the issue, but a division has held that the trial court must instruct the jury on reasonable doubt. See Butler v. United States, 646 A.2d 331, 337 (D.C. 1994), cert. denied, 514 U.S. 1009, 115 S.Ct. 1326, 131 L.Ed.2d 206 (1995). Although some courts have held that no attempt should be made to define the concept of reasonable doubt to the jury, we reaffirm the requirement that reasonable doubt be explained to the juries in Superior Court. *fn2 The elimination of the requirement of an explanatory instruction would be a marked departure from the long-standing practice in this jurisdiction. Moreover, it would relegate the most fundamental, and perhaps decisive, principle in a criminal trial to random interpretation by counsel and jurors. Reasonable doubt is "perhaps the most important aspect of the closing instruction to [709 A2d Page 80]
the jury in a criminal trial." Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978); see also Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (reasonable doubt has "traditionally been regarded as the decisive difference between culpability and civil liability"). Lay jurors should not be left to undertake the important task of deciding whether the government has proven "the guilt of the accused beyond a reasonable doubt without some intelligent statement of its meaning[.]" Egan v. United States, 52 App. D.C. 384, 393, 287 F. 958, 967 (1923).
In the strongest terms, a division of the court previously approved the definition for reasonable doubt set forth in Redbook instruction No. 2.09. *fn3 See Butler, supra, 646 A.2d at 337. The Redbook instruction on reasonable doubt has been used in this jurisdiction for decades and approved repeatedly, not only by this court but by the D.C. Circuit as well. See, e.g., id.; Foreman, supra note 4, 633 A.2d at 794; Baptist v. United States, 466 A.2d 452, 459 (D.C. 1983); Moore v. United States, 120 U.S.App. D.C. 203, 204 & n. 4, 345 F.2d 97, 98 & n. 4 (1965). *fn3 The Supreme Court also has approved some of the definitional terms from the Redbook instruction. See, e.g., Victor, supra, 511 U.S. at 14-15, 114 S.Ct. at 1247 ("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."); Wilson v. United States, 232 U.S. 563, 570, 34 S.Ct. 347, 349, 58 L.Ed. 728 (1914) (reasonable doubt defined accurately as an "abiding conviction of defendant's guilt" and a doubt which would cause a juror to "pause and hesitate" before acting in important personal affairs). *fn3 Thus, although arguably not ideal, the Redbook instruction has withstood over time various constitutional challenges.
The Supreme Court has made clear that a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis and will require reversal. See Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S.Ct. 2078, 2081-82, 124 L.Ed.2d 182 (1993) (citation omitted). *fn4 Therefore, a deviation [709 A2d Page 81]
from the instruction in a way which misdescribes or lessens the government's burden of proof is severely prejudicial to the fairness of the trial and the administration of justice. See Butler, supra, 646 A.2d at 337. For that reason, we have warned that "[e]fforts to reformulate [the Redbook] instruction should proceed with extreme caution, for '[a]n instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity.' " Foreman, supra note 4, 633 A.2d at 794 (quoting United States v. Alston, 179 U.S.App. D.C. 129, 135, 551 F.2d 315, 321 (1976) (footnote omitted)). In spite of our strong admonitions to the trial court of the unnecessary risks attendant to deviations from the tried and tested Redbook instruction, some judges have modified the language, no doubt in an effort to achieve greater clarity. *fn5 In turn, this has resulted in a number of appeals challenging the deviations as constitutionally deficient. See, e.g., Proctor, supra note 8, 685 A.2d 735, 738 (trial court revised and deleted parts of the Redbook instruction); Butler, supra, 646 A.2d at 335-36 (same); Foreman, supra note 4, 633 A.2d at 794 (trial court substituted different language for phrase "abiding conviction" in Redbook instruction). In the present case, the trial court abandoned Redbook instruction 2.09 and gave instead one patterned after the FJC instruction on reasonable doubt. See Smith, supra, 687 A.2d at 1359-60 & n. 2.
This case by case approach creates a lack of uniformity on a fundamental principle applicable to every criminal trial. Approval of a standard reasonable doubt instruction, particularly one which eliminates much of the criticism surrounding the current Redbook instruction, would promote uniformity and avoid the pitfalls of ad hoc interpretations and repetitive constitutional challenges. Adherence to an approved instruction would relieve the appellate court of "the necessities and niceties — and the concomitant uncertainties — of gauging various . . . renditions [of the reasonable doubt instruction] in terms of" their risk of misdescribing the government's burden of proof. United States v. Thomas, 146 U.S.App. D.C. 101, 110, 449 F.2d 1177, 1186 (1971) (en banc). A standard instruction on this central principle of a criminal trial would thus conserve judicial resources. See Winters v. United States, 317 A.2d 530, 532 (D.C. 1974) (en banc). *fn6 Furthermore, "[a]llowing varying definitions . . . detracts from the goal of a uniform and equal system of justice." State v. Portillo, 182 Ariz. 592, 898 P.2d 970, 974 (1995). In a matter central to the determination of guilt or innocence, as this is, the appearance of evenhandedness, like the actuality, is important. "Use of a standard definition thus will eliminate confusion and foster fairness for defendants, the [government], and jurors alike." Id. At the same time, the approval of a single instruction for use in all criminal trials will not intrude unduly into the area of trial court discretion, for the standard of proof beyond a reasonable doubt is applicable to every criminal trial and is not subject to change because of the evidence or legal theories presented. For all of these reasons, we are persuaded that the approval of a uniform, modified reasonable doubt instruction is appropriate.
The parties in this case and amicus all agree that some modification of the Redbook [709 A2d Page 82]
instruction is warranted, although they disagree on its formulation. After reviewing various alternatives, ably presented by the counsel for the parties and amicus curiae, we have formulated an instruction which we believe fairly and accurately conveys the meaning of reasonable doubt and responds to the most substantial criticisms of the Redbook instruction made by some Superior Court judges and by the institutional litigants representing the parties in this case. The instruction retains proven language from the Redbook instruction, but also borrows helpful language from the FJC instruction. The instruction which we adopt is as follows:
The government has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government's ...