A cardinal principle for lawyers is that words count.  A closing argument may run afoul of the law when “I believe” slips in; a case may be overturned when a judge ad-libs a jury instruction; and of course a jury may be misled when words are incomprehensible – the bane of most jury instructions – or simply dead wrong.

But words count only if and when lawyers listen, digest and analyze what is being said.  If they glaze over, particularly during the charge to the jury, fundamental constitutional error may occur and a client improperly convicted.  And this failure to listen, dissect and object occurred repeatedly in homicide trials in Philadelphia on that most important if elusive principle – the definition of “proof beyond a reasonable doubt.”

Those five words are, to say the least, awkwardly phrased.  They sound geographic in nature – the jury must get to some place on a map ‘past’ reasonable doubt’s coordinates.  Better phrasing might be to tell jurors that they must get to a level of certainty “beyond having a reasonable doubt” or “where they no longer have a reasonable doubt” that every element has been proved.

But even with that clarification, the jury is left wondering – how big or small is a reasonable doubt, or “if and when I still have some doubt, is that doubt a reasonable one or an unreasonable one?”  Can it be quantified?  To this writer, it was reflected by a sliding scale – the less important the decision, the greater doubt that could be entertained without any impact on your decision; the more important, the smaller the doubt that would cause one to “hesitate.”

And this is where the “words count” issue arose, and where lawyer after lawyer failed to note and then challenge the defect.  A Philadelphia trial judge, in case after case, told juries essentially the following:

I find it helpful to think about reasonable doubt in this way. Because I had the great fortune to speak with every one of you individually, I know that each of you has someone in your life that you love, a precious one, a spouse, a significant other, a sibling, a niece, a nephew, a grandchild.

Each of you loves somebody.

If you were told by your precious one that they had a life-threatening condition and the doctor was calling for surgery, you would probably say, stop. Wait a minute. Tell me about this condition. What is this? You probably want to know what’s the best protocol for treating this condition? Who is the best doctor in the region? No. You are my precious one. Who is the best doctor in the country? You will probably research the illness. You will research the people who handle this, the hospitals.

If you are like me, you will call everyone who you know who has anything to do with medicine in their life. Tell me what you know. Who is the best? Where do I go? But at some moment the question will be called. Do you go forward with the surgery or not? If you go forward, it is 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.

A reasonable doubt, ladies and gentlemen, must be a real doubt. A reasonable doubt must not be imagined or manufactured to avoid carrying out an unpleasant responsibility. The fact that you stop and think about an issue doesn’t mean you have reasonable doubt. Responsible people think about what they are doing and I’m asking you think deeply about my [sic] evidence. You may not find a citizen guilty based upon mere suspicion of guilt. The Commonwealth’s burden is to prove a citizen who has been accused of a crime guilty beyond a reasonable doubt.

Commonwealth v. Drummond, 2022 Pa. LEXIS 1700, *10-11 (November 23, 2022)(quoting the variation delivered to Drummond’s jury).

So what’s wrong?  As recognized by Philadelphia lawyer and Temple University Criminal Justice Professor Daniel Silverman, plenty.  Silverman challenged case after case, finally winning federal habeas relief for multiple clients and setting the model for others who sought and won in federal court.  And then other convicted persons raised ineffectiveness claims in Pennsylvania courts for their lawyers’ failure to see the problem with these words.

The Drummond case was one of those challenges.  And in a scholarly opinion Justice David Wecht, speaking for the Court, laid it out:

Not only does the average person not require proof beyond a reasonable doubt before making important decisions in his or her life, but often people press forward even though they harbor serious doubt and uncertainty, particularly when changing jobs, buying houses, or assisting in the health decisions of loved ones.

 Id., at 32.  Put more simply, while on the one hand an operation is a matter of great importance, one can go forward on a risk-benefit analysis even when there is great doubt.  The lawyers ‘heard’ the importance of the decision but ignored the calculus a parent would undertake.  In such a way, a constitution right was stripped from their clients.  “[W]e conclude that Drummond has satisfied the arguable merit prong of the ineffective assistance of counsel test. Drummond has advanced a legal claim that manifestly has arguable merit…With the trial court’s instructions here, it was not merely reasonably likely that the jury used an unconstitutional standard; it was almost a certainty.”  Id., 44-45.

Sticking with words, the Court noted an additional concern. Some reasonable doubt instructions focus on whether the doubt would cause a person to hesitate before acting; others frame it in terms of whether a juror, in the presence of such doubt, would be willing to go forward or to act.  The Majority Opinion expressed disfavor for the latter formulations but did not outright ban them.  That stance was left to Justice Donohue’s concurrence, which explained that “there is a difference between allowing trial courts discretion in formulating their charge and engendering the confusion inherent in expressing reasonable doubt in terms of taking action instead of hesitating to do so. I would, therefore, expressly disapprove the use of the…second alternative.”  Id., at 50 (Donohue, J., concurring).

What does this all mean?  For Mr. Drummond, no relief was granted because although the jury instruction was flagrantly unconstitutional “[c]ounsel was not required to anticipate, nor could he have foreseen, that this Court would find the instruction to be constitutionally defective over a decade later.” Id., at 45-46.  One might question this analysis as the claim was not whether hypotheticals could be given to illustrate what the term “beyond a reasonable doubt” means but whether this instruction, on its face, was fatally flawed in a way a reasonable lawyer could see, especially when  over 30 years ago the U.S. Supreme Court held in Cage v. Louisiana that reasonable doubt instructions that reduce the prosecution’s burden, just like the one in Drummond, are unconstitutional.

But this article is on words, and the Drummond decision means a lot – words do count, lawyers need to pay attention and imagine how a lay juror might apprehend (or misapprehend) them, and then act.  Of those principles there can be no reasonable doubt.