Proof Beyond a Reasonable Doubt

In Commonwealth v. Whitson, 97 Mass. App. Ct. 798 (2020), the defendant contended that the trial judge's failure to read to the jury the following required instruction entitled the defendant to a new trial: "When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs--based solely on the evidence that has been put before you in this case."

Nevertheless, the Appeals Court concluded that failure to provide the required jury instruction was without consequence, relying on the judge's instruction that the jury "must have in their 'minds an abiding conviction to a moral certainty that the charge is true' in order to convict." 

Without a definition of moral certainty, however, how can the court be confident that each juror applied the "highest degree of certainty possible in matters relating to human affairs"? It can't and the system denied the defendant a fair trial.

The court placed some emphasis on the fact that the defendant's trial counsel made no objection to the jury instruction. Considering instructions for omissions, however, would require that counsel have all the instructions the judge intends to give in writing--to review as the judge reads the instructions. This, however, is not how jury instructions are address at trial.

As between the defense attorney--who failed in an exercise of mental gymnastics--and the judge--who failed to perform an express requirement of his or her role, the consequence of error should be borne by the court (by awarding the defendant a new trial) and not the defendant.

UPDATE: May 27, 2021: In Commonwealth v. Gonsalves (Massachusetts Appeals Court No. 19-P-1167, May 27, 2021), the Appeals Court noted:

Although the judge instructed the jury that they must be convinced of the defendant's guilt to a moral certainty, he omitted the language mandated by Commonwealth v. Russell, 470 Mass. 464, 477 (2015), defining moral certainty as “the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.” The defendant contends that this created a substantial risk of a miscarriage of justice. As he acknowledged at oral argument, however, the judge’s instruction was identical to the one considered in Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 799-803 (2020), where we found no substantial risk of a miscarriage of justice. We decline the defendant's invitation to overrule Whitson.

So much for “mandated” procedures intended to satisfy constitutional rights. (In Re Winship, 397 U. S. 358, 374 (1970)).