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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.



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.

(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. For 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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