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Ethics Quiz: The Improper Jury Instruction
Jack Marshall -- ProEthics, Ltd. Jack Marshall -- ProEthics, Ltd.
For Immediate Release:
Dateline: Alexandria , VA
Friday, January 04, 2019


At least a dozen Pennsylvania murder convictions may be reversed because Judge Renee Cardwell Hughes included this description of reasonable doubt to instruct her juries:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.."

U.S. District Judge Gerald McHugh ordered a new trial for a man convicted following this instruction, and Hughes may have used it in 50 cases.

This is why I am making this an ethics quiz: I have no idea why the instruction is wrong, or confusing. I’ve read McHugh’s opinion, and I still don’t understand what the alleged problem is, unless this judge just doesn’t want to anyone convicted. (He’s an Obama appointment, but I’m sure that has nothing to do with anything, for Chief Justice Roberts tells us so). The decision is here, and this the judge’s reasoning:

Because I am convinced that the use of this hypothetical improperly elevated the level of doubt necessary to secure an acquittal, Petitioner is entitled to a new trial…An instruction violates due process where jurors could interpret it to allow conviction based on any “degree of proof below." the reasonable doubt standard…While judges are afforded substantial discretion in how to instruct criminal juries, they cannot exercise such discretion in a way that distorts the controlling legal principles….

To test the constitutionality of the instruction given here requires consideration of how a reasonable juror would analyze the hypothetical decision presented in the court’s charge. In a case involving a “life threatening." condition affecting someone “absolutely precious." to a juror, where there is only one “known protocol." or “best protocol,." what level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt to deny a loved one their only or best opportunity for cure. But this is problematic because the Supreme Court has held that elevating the level of doubt a juror must have before acquittal is required violates the Due Process Clause. In Cage v. Louisiana, after the trial court had defined reasonable doubt as “grave uncertainty." and “substantial." doubt, the Supreme Court ordered a new trial. In doing so, the Court observed: “It is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.."
The Commonwealth is correct that the charge in this case did not use the specific words found objectionable in Cage. But the trial judge communicated the same concepts by means of a powerful and emotionally charged metaphor. Objectively speaking, any person of decency and morals would strive to put aside doubt when faced with a single life-saving option for a loved one.

The problem is compounded by the fact that the trial judge structured the hypothetical in terms of the jury proceeding to take action on behalf of their family member, twice using the phrase “if you go forward . . . .." The Supreme Court has made clear, however, that a charge on reasonable doubt should be expressed “in terms of the kind of doubt that would make a person hesitate to act rather than the kind on which he would be willing to act.." Holland v. United States, 348 U.S. 121, 140 (1954) (citation omitted). In the context of an otherwise sufficient charge, such error would not amount to a constitutional violation. But taken in combination with the trial court’s hypothetical here, which would require an excessively high degree of doubt to reach an acquittal, the deficiency of the charge is clear. Whereas the concept of reasonable doubt is grounded in a hesitation to act, here the court’s example posited a situation creating strong motivation to act. Given the issues involved, the court’s hypothetical was structured in a way that would encourage the jury to resolve any doubt.

Huh? The hypothetical involved a motivation NOT to act—the fact that the surgery was experimental, as in dangerous, life-threatening, risky. The Court is seeing a distinction I do not. The judge’s instructions simply say, “There is always a risk in being wrong with a conviction , and you should view this risk as seriously as if it involved a risk to a loved one. Nonetheless, your duty is to make a decision based on the best evidence, and not when you are absolutely certain it is the best course, but when no reasonable doubt remains that it is the best course.”

I see the judge’s conceit, which is that since a presumption of innocence is the starting point, a guilty plea is doing something affirmative, while a non guilty plea is allowing the status quo to remain, and thus is refusing to act. But that is sophistry and word games. The juror regards either voting guilty or not guilty an affirmative act, not a passive one: Hell’s bells, has the judge never seen “Twelve Angry Men”? Similarly, deciding whether to risk having an operation or to risk NOT having an operation are both affirmative actions. I’m not crazy about the jury instruction, but I don’t see how it pushes a jury toward guilty verdicts.

Maybe you do. If so, explain it to me.

Your Ethics Alarms Ethics Quiz of the Day is…

Was the judge’s jury instruction really unfair to the accused?

ProEthics, Ltd.
Alexandria, VA