Ethics Quiz: The Improper Jury Instruction

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?


27 thoughts on “Ethics Quiz: The Improper Jury Instruction

  1. No, I do not see anything that even remotely seemed unfair in those instructions.

    Then again, I’m not a lawyer…

  2. Not going to be my most clear response, but I like this issue, so I am jumping in with my mind half-cocked. Maybe more later this weekend.

    I don’t like the instruction. It does mess with the burden of proof, but it cuts both ways.

    If someone precious has a life-threatening condition and a doctor says an experimental procedure is the only option, some may jump at the procedure without a second thought. Personally, I would get a second opinion, but, if both doctors agree, probably no amount of research in the world would matter. It would not matter if the chance of success is 10%, 20%, 80%, or whatever. If that is the only option, you jump at it, even at 10%, at least for someone precious. You could have substantial doubts and still go for it.

    However, the way the hypothetical is phrased, every additional step is designed to eliminate doubt just a bit more. The instruction seems to suggest that (hmmmm….now, I am confused about the instruction works). Does the defense have to still make you pause about voting guilty if you do all those things; or, do you have to vote not guilty if the State does not vonvince you as strongly as the hypothetical suggests you would be convinced?

    Either way, I think the hypothetical confuses the issue of what doubt constitutes reasonable doubt? That is the ultimate problem.


    • “It would not matter if the chance of success is 10%, 20%, 80%, or whatever. If that is the only option, you jump at it, even at 10%, at least for someone precious.”

      I read the hypothetical a little differently. I assumed that the life-threatening condition was not necessarily fatal without treatment, and the decision was between an experimental treatment with uncertain results or letting the condition run its course, also with uncertain results.

      Either way, it seems confusing.

  3. Judge Hughes’ instruction seems well-intended — he’s trying to impress on the jury the seriousness of the decision they have to make — but the analogy seems bad to me because of they way each situation deals with uncertainty.

    Medical decisions like these can, and often must, be made in the presence of considerable uncertainty. You may be able to stop and think or do some research, but sooner or later you have to act or decide not to. The choice is forced on you by circumstances, the doctor has asked you a question and is waiting for an answer, and you do the best you can, even if you have no clue.

    But a jury is only supposed to vote guilty if they reach a pretty high degree of certainty about the defendant’s guilt. If, at the end of a trial, a jury has no clue, I’m pretty sure they’re supposed to vote not guilty.

  4. I don’t like the metaphor because many (probably myself included) would not have to believe, beyond a reasonable doubt, that the medical procedure is the right thing to do. Rather, there could still be a very high degree of doubt but, hey, what are the options at this point. I am concerned that a jury receiving this instruction might believe that, given the metaphor, they would opt for the procedure even if there is a high degree of doubt about it. You asked what you were missing? Nothing. Then again, I think the instruction leaves the possibility of a broad range of doubt that could be considered “beyond a reasonable….”.

  5. I’m with JutGory in that I won’t be clear and will come to the same conclusions. I read the instruction and thought – that’s fine. Then I read the decision and I see the point. However, I will agree that it’s such fine minutiae that it’s hard to make solid sense of it all and the decision could have easily gone the other way.

    The crux of it for me is that the instruction encourages the juror to think like a brave & courageous savior, to make a decision to try an experimental treatment in the face of risks – even unrelated reasonable risks because those reasonable risks aren’t directly related to the procedure itself. (Is it reasonable to worry about a bacterial infection due to unclean equipment when that’s not specific to the risks related specifically the the experimental treatment?) A person making a medical decision for another more easily dismisses procedural risks because the alternative is a worse life or even death. There’s something to be gained.

    A juror in that mindset is thinking that it is brave to pass a conviction and vote guilty. There might be doubt but it’s brave to be the savior and give justice. The victim is the patient and the disease to be treated is the defendant – it’s courageous to try the experimental guilty plea because it might get the right perpetrator behind bars.

    I think I agree with the decision from Judge McHugh.

  6. I really do not like this metaphor, a medical decision is much iffier than the case should be.

    But far worse is setting up an emotional link between a dying loved one and the accused. People have done all sorts of insane things when a loved one’s at risk. (ref Anakin) That emotional link to any accused and turning off reason is NOT what I want in a jury, even if it’s only a trace. This instruction courts bias that we’re trying to limit.

    If I’d received this instruction, I’d probably spend part of the next X minutes riled up at the speaker to use my tragedies to play me, forgetting the case. The emotion-based instruction risks raising too many counterproductive things. It may not be wrong for some jurors, but that doesn’t mean it is right.

  7. If I were a defense attorney and that instruction was suggested , I’d lose my shit. The whole premise is faulty. If somein had a life threatening condition, you’re much more likely to roll the dice on an experimental surgery. I’m as conservative as they come, and I’d unlock those 50 jail cells myself

  8. I think the instruction might be considered poisoning the jury against the defendant by the judge who is supposed to be impartial. The trial is about the guilt or innocence of the defendant not the absolutely precious person that whose life was taken. I think the judge’s instructions taint what they are supposed to do.

  9. As a non-attorney, I didn’t find the judges instruction particularly troubling. As someone who witnessed a multitude of criminal jury trials and testified in many -including death penalty cases- during my career, I definitely noticed the bar being raised for reasonable doubt over the past forty years. Back in the 70s, it seemed to me that juries would convict if they were (my estimate) about 95% sure the defendant was guilty. By 2014, I saw a juries regularly finding defendants not guilty (or only finding guilt of “lesser included offenses”) even when the evidence of heir guilt was so overwhelming that their own defense council were surprised at the acquittal or reduction in charges. I don’t understand it, but I certainly noticed it.

  10. I think it’s enflaming the jury.

    I know because I screwed that up in a moot court competition once.

    However, I’ve never heard a rule stating a judge couldn’t enflame the jury.

    So, I imagine the appellate court said to themselves, “Hey, that sounds like enflaming the jury, and makes us nervous, so we better overturn, but we can’t say “enflaming the jury” because there’s no rule saying a judge cannot do that. So, let’s bring in some mumbo jumbo about burden of proof.”

  11. The judge’s mistake here was not so much in the substance of the instruction but in reinventing a wheel that did not need to be reinvented. This is not the first time a “reasonable doubt” jury instruction was provided to a jury. Even if the judge believed he had come up with a better instruction than the one that is typically used, he must have known he was risking a mistrial. For what? What is wrong with the commonly-read instruction?

    • Only what is wrong with any such instruction: “reasonable doubt” can’t be accurately defined. What’s reasonable? Does reasonable doubt change according to the offense or likely sentence?

  12. The judge’s instructions are bad because the decision the jury has to make is not “What is the best way to deal with this person?”, Which is the analogy for “Do we go ahead with the experimental treatment or not?”. The jury has to decide whether the evidence presented supports a verdict of “guilty beyond reasonable doubt”. The “best way” question potentially brings in a lot of irrelevant and prejudicial issues, such as, “if we let him go now, is the defendant likely to harm someone else in the future?”

    Still, this should have been caught after the first time, not the 50th.

  13. Before answering your ethics quiz, I think I would like to hear the rest of the jury instructions used by this judge. I have only been on two juries (both criminal, but neither capital) and in both, the judge used several examples and metaphors to illustrate how to think about reasonable doubt. If this judge used this as one of her examples, I want to hear the rest of them to see how this metaphor meshes with the rest of her instructions.

  14. I don’t like the instruction, because the metaphor involves the family doing a lot of research on its own to decide if the treatment is appropriate. The jury’s job is to decide if the information given to them by the state is sufficient. Independent research by the jury is forbidden and grounds for a mistrial. The instruction doesn’t emphasize the state’s burden of proof.

    The other weakness is “the one known protocol” for treatment portion of the instruction. With an illness, the default duty is to treat, unless a compelling case is made not to treat (side effects, allergies, or other contraindications). Jury’s have two options, convict or acquit (they can also deadlock). The state must prove it’s case, or the jury’s default duty is to acquit. Justice resembles medicine in an important way; someone was injured, and conviction is one possible remedy. The judge’s instruction blurs the jury’s duty, however slightly.

    I concur with the overturning judge that the instructions could be interpreted as biasing the “reasonable doubt” standard towards conviction. The instructions tend to put the jury in the mindset of seeking information. It also tends to narrows jurys options towards choosing “treatment” absent a reason not to. My fear would be the jury attempting to fill in gaps in the state’s case to justify taking action, when their duty is to acquit unless convinced otherwise. It is an ever so slightly bias.

    I don’t think the instructions are automatic grounds for overturning the conviction. I would hope most cases were sufficiently strong that they would rapidly survive appeal. However marginal cases might be vulnerable. Had the jury’s other duty’s been sufficiently clear throughout the trial, even marginal cases should survive a single set of questionable instructions. The instructions are sufficiently ambiguous and conflicting, however, that they should be retired going forward.

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