State of Iowa v. Ethan L. Davis

IN THE SUPREME COURT OF IOWA
No. 19–0453
Submitted November 16, 2021—Filed May 27, 2022
STATE OF IOWA,
Appellee,
vs.
ETHAN LANDON DAVIS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Appanoose County, Myron K.
Gookin, Judge.
Defendant seeks further review of a court of appeals decision rejecting his
challenge to jury instruction on reasonable doubt and instruction to break a jury
deadlock. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT AFFIRMED AND CASE REMANDED WITH INSTRUCTIONS.
Christensen, C.J., delivered the opinion of the court, in which Waterman,
Mansfield, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an
opinion concurring in part and dissenting in part.
2
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued),
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued) and Scott D.
Brown, Assistant Attorneys General, for appellee.
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CHRISTENSEN, Chief Justice.
On further review from the court of appeals, we decide to address two jury
instructions provided by the district court after evidence was presented in a
murder trial. First, we decide whether a jury instruction that explains reasonable
doubt in terms of “hesitate to act” should have been added to a jury instruction
that already contained an explanation of reasonable doubt in terms of “firmly
convinced.” Second, we decide whether a verdict-urging instruction improperly
coerced the jury verdict.
The “hesitate to act” formulation of reasonable doubt is a legally adequate
instruction on reasonable doubt. However, we determine the inclusion of
“hesitate to act” language was not legally required because it would not have
amplified the concept of reasonable doubt already present in the trial court’s
“firmly convinced” instruction. Therefore, the district court did not abuse its
discretion by refusing to add the discretionary “hesitate to act” instruction.
The verdict-urging instruction lacked content that we have previously
disapproved of in past caselaw. The timing of the verdict from the verdict-urging
instruction indicates that the jury adequately considered the case. Each member
of the jury was polled and indicated that guilty was indeed their verdict.
Therefore, the content and circumstances indicate that the jury was not
improperly coerced by the court’s verdict-urging instruction.
I. Facts and Procedural Background.
The defendant, Ethan Davis, lived with his parents and brother on a
400-acre family farm near the Wayne-Appanoose county line in Promise City in
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2017. Davis was the parent of a one-and-a-half-year-old son with his
ex-girlfriend. Davis thought their son would be with him starting on
Thanksgiving Day 2017 through the weekend, but he learned the day before that
his ex-girlfriend did not agree to such an arrangement. On Thanksgiving Day,
Davis drove around Moravia, Centerville, and Promise City before visiting his
friend Joseph Babbitt that evening in Plano. Babbitt described Davis as upset
because of a recent breakup, losing his job, and the situation with his child.
Davis returned to his parents’ home at about midnight.
The next day (Friday), Davis left his parents’ place to buy cigarettes at a
Casey’s in Seymour. As Davis left the Casey’s, he noticed his ex-girlfriend’s car
outside the house of her new boyfriend, Jarvis Kennebeck. Davis entered
Kennebeck’s home, “fired a round into the air” from the 9 mm gun he generally
carried, and took his son and left. The ex-girlfriend called 911 to report the
incident at 11:42 a.m.
With his child in tow, Davis headed back to the family farm, taking gravel
roads to avoid law enforcement in case police were looking to arrest him for what
he had done at Kennebeck’s home. Davis tried dropping off his son at his parents’
home, but no one was there. He also traveled to find other friends and family,
but no one was home.
Eventually, Davis ended up at the house of Babbitt, who was home.
According to Babbitt, Davis drove erratically into Babbitt’s backyard. This was
not normal behavior. It was clear to Babbitt that Davis was “pretty upset” when
he arrived. Specifically, Babbitt noticed Davis was fast-talking and had been
5
crying. Davis left his sleeping child on Babbitt’s living room floor and scribbled
down his mother’s phone number for Babbitt. Davis then quickly fled the house
at about 1:05 p.m. and Babbitt called Davis’s mother. This was the last time
anyone claimed to have seen Davis until approximately 5:00 p.m. the next day
(Saturday).
Not too far away, Curtis Ross began his Thanksgiving weekend. Davis and
Ross had never met before. Ross was an avid hunter from northwest Iowa who
traveled to Lucas to bow-hunt deer in Appanoose and Wayne counties. He spent
Thanksgiving night with a friend, William Tyler Jensen, at Jensen’s home in
Lucas. Ross and Jensen had been hunting friends for five or six years. The two
regularly communicated with each other through calls, texts, and Snapchat.1
In the early morning hours on the day after Thanksgiving (Friday), the two
friends separately left Jensen’s home to hunt in different areas. Jensen was the
first to return home to take a nap after his early morning hunt at around
10:00 a.m. Soon after, Ross returned as well. The two discussed how Ross
planned to go hunting that afternoon at a place he fondly referred to as “Narnia,”
a public hunting ground located near the border of Appanoose and Wayne
counties. Jensen saw Ross leave his house around noon. This was the last time
Jensen saw Ross alive.
1Snapchat is a social media application that allows individuals to send pictures, videos,
and messages (colloquially known as “Snaps”) to other individuals with a Snapchat username. A
Snapchat username is a handle that is unique to an individual’s account. Snaps have time
stamps that indicate when the sender sends a message and when the receiver opens the message.
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Ross sent a Snap to several individuals on Friday at 1:26 p.m. This Snap
was a picture of his hunting gear with a text that said, “It’s going to be a long
walk outta here.” This was the last Snap communication sent by Ross. Donna
Westphal, another one of Ross’s friends, sent Ross a Snap shortly afterward.
This Snap was opened at 1:38 p.m. But starting at 1:59 p.m., Snaps sent to
Ross’s Snapchat account were not opened. The last cell phone ping2 to Ross’s
phone was at 3:31 p.m. In between this time period, around 2:30 p.m., Kenneth
Brown was washing his work truck near the same public hunting ground where
Ross was supposedly hunting when he heard several ringing, rapid-fire
gunshots. The shots persisted for several rounds and sounded so close that
Brown took cover.
Jensen attempted to communicate to Ross through text message around
3:30 p.m. and Snapchat around 3:50 p.m. Ross did not respond. Jensen
attempted to make contact with Ross again at 11:30 p.m. when he had not
returned to the house. Jensen again received no response and he began to worry.
He checked for Ross at a local bar that Ross had been to when in the area, but
Ross was not there.
Jensen’s search for his friend continued into the early Saturday morning
hours. At about 1:00 a.m., he arrived at the entrance to the public hunting
ground where Ross told Jensen he would be hunting. Jensen spotted Ross’s
vehicle at the end of a road where it abuts into a lake, but Ross was nowhere to
2A ping involves a message sent to the cellular device through a signal tower. A signal is
then returned to the tower with the device’s location.
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be seen. Jensen shouted Ross’s name into the woods but heard nothing in
response.
At this point, Jensen called the Appanoose County Sheriff’s Office to report
Ross as missing, and a law-enforcement-led search soon began. Jensen and law
enforcement officers attempted to search the public hunting area for a couple of
hours, which proved to be difficult because it was dark and densely wooded. At
8:00 a.m., Wayne County Sheriff Officer Cody Jellison was shielding his eyes
from the sun when something caught his eye in a nearby creek. Upon closer
observation, the eerie sight appeared to be a naked human body, obviously
deceased, submerged in the middle of the creek. The body was later confirmed
to be Ross.
Upon removing Ross’s body from the water, it was clear that his body had
been mutilated. The medical examiner who performed the autopsy testified that
Ross had been shot at least ten times, had five sweeping incise wounds, and
twenty-six plunging stab wounds. Stippling, an indicator of being shot at close
range, was noticed, burned into the left side of Ross’s face. Many of his stab
wounds were four to six inches deep. There were four extensive incise wounds
carved into his legs, one on each thigh and one on each calf. Vital organs were
damaged such as the liver, kidneys, diaphragm, lungs, and intestines. One
particularly serious stab severed his carotid artery and another incise wound
severed his femoral artery. Some of the injuries were determined to have
occurred before death, some at the time of death, and some after death. It was
unclear which specific wound was the fatal shot, stab or incise. However, it was
8
clearly evident that several of the shots or cuts would have been fatal on their
own.
A massive evidence collection effort began at the creek with the
collaboration of law enforcement from the Appanoose and Wayne county sheriff
departments, the Department of Natural Resources, and the Department of
Criminal Investigation (DCI). Officers canvassed the surrounding area after
locating Ross’s body. They observed small areas of blood in the water near the
body. Hanging onto a rope, officers lined up side by side and slowly walked the
creek in an effort to gather any evidence floating or submerged in the creek. The
areas surrounding the creek were photographed and processed for evidence.
Although neither Ross’s clothes nor any other personally identifiable
evidence was ever found during the search, other evidence was gathered. The
officers found several 5.56 mm and .223 mm shell casings located in two areas
near the murder—one casing near a grassy bloody area determined to contain
Ross’s blood and four casings located on a hilltop overseeing the grassy bloody
area and the creek. While standing on that same hilltop where the shell casings
were found, law enforcement noted that there was a line of sight to where Ross’s
body was found as well as where the other shell casings were found in the grass.
Nearby the crime scene, officers discovered an ammunition can stashed in
a rusty old refrigerator and multiple gun magazines, some loaded with
ammunition, concealed inside a culvert. The ammunition can contained loose
ammunition including 5.56 and .223 ammunition. The gun magazines contained
.223 rounds with green polymer tips. According to the officers, 5.56 and .223
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ammunition are the type of ammunition typically used with an AR-15 rifle. The
ammunition can and gun magazines were immediately sent to the DCI lab for
analysis.
A couple of days later, the forensic analysis identified Davis’s fingerprints
on the ammunition can and on some of the gun magazines. Based on the
fingerprint evidence and a report from Davis’s ex-girlfriend that Davis owned an
AR-15, officers obtained a search warrant and conducted a search of the Davis
family farm, which was two and a half miles away from the crime scene. Among
other evidence, during that search, officers uncovered an AR-15 hidden under a
parked hay mower. This AR-15 was later identified as purchased by and owned
by Davis.
At the DCI lab, the AR-15 was carefully analyzed for fingerprints and DNA.
Reddish spots on the AR-15 scope were identified as Ross’s blood. The AR-15
butt plate also had blood on it, which was also identified as Ross’s blood. In
addition to Ross’s blood, Davis’s fingerprints were identified on the AR-15. The
shell casings found near the crime scene were identified as having markings
specific to the same AR-15.
Davis was charged with first-degree murder to which he entered a plea of
not guilty. A six-day jury trial occurred in early February 2019. At the trial, Davis
testified in his own defense as to what happened between 1:05 p.m. Friday and
5:00 p.m. Saturday on the Thanksgiving weekend of 2017. He claimed that he
never entered into the public hunting grounds and mostly stayed within the
confines of his parents’ property. On Friday, after dropping off his child at
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Babbitt’s house, Davis returned to his family’s home. He parked in a remote
wooded area of the farm to avoid an interaction with the police regarding what
happened at Kennebeck’s home. He stayed in his car listening to music and
smoking, and later walked to a nearby church, where he prayed for a couple of
hours before returning to his car where he slept overnight.
On Saturday morning, Davis testified that he wandered from his car to his
parents’ house to eat, but no one from his family saw him do so. He then returned
to his car until about 5:00 p.m., at which time he once again returned to his
parents’ home. This time, his family was present and he agreed to turn himself
into law enforcement because of what happened at Kennebeck’s home a couple
of hours later.
Davis admitted he owned the ammunition can, gun magazines, and AR-15
but claimed they had been stolen from his car four to six weeks before the
murder. Davis acknowledged that he never reported his weapon and ammunition
being stolen. He suggested that someone had deliberately placed the
incriminating evidence near the murder scene or on the family farm in order to
frame him for the murder.
Upon conclusion of the six-day trial, the jury deliberated over two days
before returning a guilty verdict to murder in the first degree. Davis filed a timely
appeal, and we transferred the case to the court of appeals. The court of appeals
affirmed the conviction but remanded the case to the district court for the limited
purpose of entering an order removing the court costs and attorney fee
obligations from the sentencing order to be consistent with the oral
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pronouncement at sentencing. We take this case on further review upon Davis’s
application.
II. Standard of Review.
“We have discretion to choose which issues we review when we take a case
on further review.” In re D.M., 965 N.W.2d 475, 480 n.2 (Iowa 2021) (quoting
Holmes v. Pomeroy, 959 N.W.2d 387, 389 (Iowa 2021)). We use our discretion to
review the jury instruction on reasonable doubt and instruction to break a jury
deadlock. However, we let the court of appeals decision stand on the remaining
issues, including the sufficiency of the evidence, challenges to the closing
arguments, and the need for a nunc pro tunc order.
“[W]e generally review a district court’s refusal to give a requested jury
instruction for errors at law; however, if the jury instruction is not required but
discretionary, we review for an abuse of discretion.” State v. Bynum, 937 N.W.2d
319, 324 (Iowa 2020) (alteration in original) (quoting State v. Plain, 898 N.W.2d
801, 811 (Iowa 2017)) “[W]e consider the jury instructions as a whole rather than
in isolation to determine whether they correctly state the law.” State v. Benson,
919 N.W.2d 237, 242 (Iowa 2018).
III. Analysis.
A. Reasonable Doubt Instruction. Davis disputes whether the trial court
was correct to exclude his proposed reasonable doubt instruction. The trial court
provided the following jury instruction:
The burden is on the State to prove Ethan Landon Davis guilty
beyond a reasonable doubt.
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A reasonable doubt is one that fairly and naturally arises from
the evidence in the case, or from the lack or failure of evidence
produced by the State.
If, after a full and fair consideration of all the evidence, you
are firmly convinced of the defendant’s guilt, then you have no
reasonable doubt and you should find the defendant guilty.
But if, after a full and fair consideration of all the evidence in
the case, or from the lack or failure of evidence produced by the
State, you are not firmly convinced of the defendant’s guilt, then you
have a reasonable doubt and you should find the defendant not
guilty.
(Emphasis added.) In addition to the language cited above, Davis requested the
insertion of an additional paragraph that included a “hesitate to act” formulation:
A reasonable doubt is a doubt based upon reason and
common sense, and not the mere possibility of innocence. A
reasonable doubt is the kind of doubt that would make a reasonable
person hesitate to act. Proof beyond a reasonable doubt, therefore,
must be proof of such a convincing character that a reasonable
person would not hesitate to reply and act upon it. However, proof
beyond a reasonable doubt does not mean proof beyond all possible
doubt.
(Emphasis added.) The trial court denied the request to include this paragraph,
relying on State v. Frei, in which we approved an instruction that solely provided
the “firmly convinced” formulation of reasonable doubt. 831 N.W.2d 70, 79
(Iowa 2013), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d
699, 708 n.3 (Iowa 2016). The court of appeals determined the trial court was
not legally required to provide the “hesitate to act” formulation because the
“firmly convinced” formulation adequately addressed reasonable doubt and did
not abuse its discretion by refusing to add the “hesitate to act” formulation.
Reasonable doubt is one of the most recognizable concepts in our criminal
justice system. It sets forth a demanding burden of proof on the government.
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“[A]n understanding of reasonable doubt is crucial to the deliberations of the jury
in nearly every criminal case.” State v. McGranahan, 206 N.W.2d 88, 92
(Iowa 1973) (en banc). Despite its grave importance, “[c]ourts have struggled . . .
in settling upon a serviceable definition of the ‘reasonable doubt’ standard.” Frei,
831 N.W.2d at 77. Notably, “[t]he Due Process Clause provides no definitional
guidance as it requires no ‘particular form of words be used in advising the jury
of the government’s burden of proof.’ ” Id. (quoting Victor v. Nebraska, 511 U.S.
1, 5 (1994)). The lack of definitional guidance has produced several jury
instructions explaining reasonable doubt in different ways such as “hesitate to
act,” “firmly convinced,” “abiding conviction,” and their respective variations.
2A Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure:
Criminal: Federal Rules of Criminal Procedure § 502 (4th ed. 2009) [hereinafter
Wright & Henning]; see 1 Barbara E. Bergman, Nancy Hollander, & Theresa M.
Duncan, Wharton’s Criminal Evidence § 2.4, Westlaw (15th ed. database updated
Oct. 2020). As the concurrence in part and dissent in part in this case mentions,
some jurisdictions do not provide any jury instruction defining or describing
reasonable doubt. See, e.g., United States v. Walton, 207 F.3d 694, 696–99
(4th Cir. 2000) (per curiam).
1. The Iowa State Bar Association’s uniform criminal jury instructions on
reasonable doubt. The Iowa State Bar Association (ISBA) publishes uniform jury
instructions every year that attorneys and district courts rely upon for civil and
criminal proceedings. These uniform instructions include a jury instruction
explaining “reasonable doubt.” We have acknowledged that “trial courts should
14
generally adhere to the uniform instructions.” State v. Becker, 818 N.W.2d 135,
143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)),
overruled on other grounds by Alcala, 880 N.W.2d at 708 n.3. Even though
“we normally approve the submission of uniform instructions, we [can] conclude
[a] particular instruction is faulty.” State v. McMullin, 421 N.W.2d 517, 518
(Iowa 1988). “[T]rial courts are [not] bound by any model or form in formulating
instructions.” McGranahan, 206 N.W.2d at 92; see Becker, 818 N.W.2d at 141.
Moreover, “[t]rial courts have a rather broad discretion in the language that may
be chosen to convey a particular idea to the jury.” Stringer v. State, 522 N.W.2d
797, 800 (Iowa 1994).
One of the first ISBA jury instructions on reasonable doubt was published
in 1972. Iowa State Bar Ass’n, Unif. Jury Instr. (Criminal) 501.11 (1972). This
1972 uniform jury instruction defined reasonable doubt as:
A “reasonable doubt” is such a doubt as fairly and naturally
arises in your mind and by reason of which you cannot say that you
have a full and abiding conviction of the guilt of the defendant; and
if, after considering all of the circumstances as disclosed by the
evidence, you find your mind wavering or vaci[l]lating, then you have
a reasonable doubt, and the defendant is entitled to the benefit of
such doubt and you must acquit him. A reasonable doubt may arise
from the evidence in the case or it may arise from a lack or failure of
evidence, and it must be such a doubt as would cause a reasonable,
prudent and considerate man to pause and hesitate before acting in
the graver and more important affairs of life. But you should not
ignore credible evidence to hunt for doubt, and you should not
entertain such doubt as is purely imaginary or fanciful or based on
groundless conjecture. If, after a careful and impartial consideration
of all of the evidence in the case, you have a full and abiding
conviction of the guilt of the defendant, then you are satisfied
beyond a reasonable doubt, otherwise you are not satisfied beyond
a reasonable doubt.
15
Id. (emphasis added). In State v. McGranahan, we determined that any one of the
emphasized reasonable doubt formulations—“full or abiding conviction,”
“wavering or vaci[l]lating,” or “hesitate before acting in the graver and more
important affairs of life”—would be more acceptable than a jury instruction that
did not substantively define reasonable doubt. 206 N.W.2d at 91–92.
Sixteen years later, the ISBA instruction on reasonable doubt changed to
solely define reasonable doubt with a “firmly convinced” formulation. Iowa State
Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (1988). This instruction is
substantially similar to what the district court in this case provided:
The burden is on the State to prove (name of defendant) guilty
beyond a reasonable doubt.
A reasonable doubt is one that fairly and naturally arises from
the evidence, or lack of evidence produced by the State.
If, after a full and fair consideration of all the evidence, you
are firmly convinced of the defendant’s guilt, then you have no
reasonable doubt and you should find the defendant guilty.
But if, after a full and fair consideration of all the evidence or
lack of evidence produced by the State, you are not firmly convinced
of the defendant’s guilt, then you have a reasonable doubt and you
should find the defendant not guilty.
Id. (emphasis added). Nearly twenty years later, in 2007, a new paragraph
expressing a “hesitate to act” formulation was included along with the “firmly
convinced” language in the ISBA’s jury instruction on reasonable doubt. This
instruction is almost identical to what Davis proposed to the district court:
The burden is on the State to prove (name of defendant) guilty
beyond a reasonable doubt.
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A reasonable doubt is one that fairly and naturally arises from
the evidence in the case, or from the lack or failure of evidence
produced by the State.
A reasonable doubt is a doubt based upon reason and common
sense—the kind of doubt that would make a reasonable person
hesitate to act. Proof beyond a reasonable doubt, therefore, must be
proof of such a convincing character that a reasonable person would
not hesitate to rely and act upon it. However, proof beyond a
reasonable doubt does not mean proof beyond all possible doubt.
If, after a full and fair consideration of all the evidence, you
are firmly convinced of the defendant’s guilt, then you have no
reasonable doubt and you should find the defendant guilty.
But if, after a full and fair consideration of all the evidence in
the case, or from the lack or failure of evidence produced by the
State, you are not firmly convinced of the defendant’s guilt, then you
have a reasonable doubt and you should find the defendant not
guilty.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2007) (emphasis
added). The current ISBA instruction remains substantially similar to this
instruction. Compare Iowa State Bar Ass’n, Iowa Criminal Jury Instruction
100.10 (2007), with Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10
(2020).
2. The “firmly convinced” formulation is a legally adequate definition of
reasonable doubt. Both parties agree that “firmly convinced” is a legally adequate
formulation of reasonable doubt and that we explicitly approved this formulation
in Frei, 831 N.W.2d at 76–79. In Frei, we noted that previous Iowa caselaw
approved of an analogous “firmly and abidingly convinced” formulation as
“an objective standard for measuring the jurors’ doubts.” Id. at 78 (quoting State
v. McFarland, 287 N.W.2d 162, 163 (Iowa 1980)). We also acknowledged that
several academics, respected jurists, and multiple courts also had endorsed the
17
“firmly convinced” formulation. Id. at 78–79. Furthermore, we concluded that
the dictionary definitions of “firmly” and “firm” showed them to be “plain, well-
understood word[s] commonly used in modern speech . . . [that] adequately
expressed . . . the extent of certitude the jury must possess to convict a
defendant of a crime in this state.” Id. at 79. Despite our approval of the “firmly
convinced” language in Frei, we noted that “this case should not be viewed as a
rejection of any other formulation expressing in equivalent terms the state’s
burden of proof.” Id. at 79 n.7.
3. Davis’s proposed “hesitate to act” formulation is a legally adequate
definition of reasonable doubt. The “hesitate to act” formulation carries some
similar traits of the “firmly convinced” formulation we approved in Frei. The
United States Supreme Court has historically approved “hesitate to act”
formulations to define reasonable doubt. Holland v. United States, 348 U.S. 121,
140 (1954) (“We think this section of the charge should have been in terms of
the kind of doubt that would make a person hesitate to act . . . .” (citation
omitted)); see Victor, 511 U.S. at 20–21 (“[T]he hesitate to act standard gives a
common sense benchmark for just how substantial such a doubt must be.”);
cf. Hopt v. Utah, 120 U.S. 430, 441 (1887) (“If the evidence produced be of such
a convincing character that they would unhesitatingly be governed by it in such
weighty and important matters, they may be said to have no reasonable doubt
respecting the guilt or innocence of the accused, notwithstanding the
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uncertainty that attends all human evidence.”). Several federal circuits3 and
state courts4 have also approved variations of the “hesitate to act” formulation.
See 2A Wright & Henning § 502 (“The most acceptable form of instruction is that
a reasonable doubt is a doubt that would cause a prudent person to hesitate
before acting in matters of importance to themselves, but other formulations are
not erroneous.”); see also Robert C. Power, Reasonable and Other Doubts: The
Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 73–76 (1999) [hereinafter
Power].
We also indicated in McGranahan that one “hesitate to act” variation—“it
must be such a doubt as would cause a reasonable, prudent and considerate
man to pause and hesitate before acting in the graver and more important affairs
3See, e.g., United States v. Owens, 966 F.3d 700, 705 n.2 (8th Cir. 2020) (“A reasonable
doubt is the kind of doubt that would make a reasonable person hesitate to act.”); United States
v. Stewart, 306 F.3d 295, 306–07 (6th Cir. 2002) (“Proof beyond a reasonable doubt means proof
which is so convincing that you would not hesitate to rely and act on it in making the most
important decisions in your own lives.”); United States v. Isaac, 134 F.3d 199, 202–04
(3d Cir. 1998) (“A reasonable doubt is a fair doubt, based upon reason and common sense—the
kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable
doubt must, therefore, be proof of such a convincing character that you would be willing to rely
and act upon it, unhesitatingly, in the most important of your own affairs.”); United States v.
Morris, 647 F.2d 568, 571 (5th Cir. 1981) (“[P]roof beyond a reasonable doubt, therefore, is proof
of such a convincing character that you would be willing to rely and act upon it without hesitation
in the most important of your own affairs.”).
4See, e.g., Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc) (“Reasonable
doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful
reflection, to hesitate to act in the graver or more important matters in life.”); Hilbish v. State,
891 P.2d 841, 850 (Alaska Ct. App. 1995) (“[P]roof of such a convincing character that after
careful consideration of all relevant facts and circumstances, you would be willing to rely and
act upon it without hesitation in your important affairs.”); State v. Gomez, 622 A.2d 1014, 1017
n.8 (Conn. 1993) (“[A] reasonable doubt is a doubt which would cause you as reasonable and
prudent men and women to hesitate to act in the more weighty and important matters relating
to your own affairs.”); Commonwealth v. Bowser, 624 A.2d 125, 137–38 (Penn. Super. Ct. 1993)
(“A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to
hesitate or refrain from acting upon some matter of the highest importance in your own daily
life.”); State v. Darby, 477 S.E.2d 710, 710 (S.C. 1996) (approving a reasonable doubt definition
as “the kind of doubt that would cause a reasonable person to hesitate to act”).
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of life”—would be an acceptable definition of reasonable doubt as compared to
no substantive definition. 206 N.W.2d at 91–92; see McFarland, 287 N.W.2d at
163 (“We quoted with approval Iowa Uniform Jury Instruction 501.11 with its
three distinct standards [in McGranahan] . . . .”); see also State v. Pierce, 21 N.W.
195, 197–98 (Iowa 1884) (approving a jury instruction as a whole which included
reasonable doubt “must be such a doubt as would cause a reasonable, prudent,
and considerate man to hesitate and pause before acting in the graver and more
important affairs of life” (emphasis omitted)).
Davis’s specific “hesitate to act” variation was most notably present in the
Eighth Circuit’s Model Jury Instructions and in the ISBA’s current criminal jury
instructions. Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual
of Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2011)
(“Proof beyond a reasonable doubt, therefore, must be proof of such a convincing
character that a reasonable person would not hesitate to rely and act upon it.”);
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2020).5 On its own,
“hesitate” means “to hold back in doubt or indecision” and is synonymous with
“waver,” “vacillate,” and “falter.” Hesitate, Webster’s Third International
Dictionary 1061 (unabr. ed. 2002). Similar to “firmly,” “hesitate to act” is
generally understood and can adequately explain to the jury the level of certainty
needed to convict. Victor, 511 U.S. at 20–21; cf. Frei, 831 N.W.2d at 79. We
5The Eighth Circuit’s model jury instruction was recently updated to include a phrase “in
life’s most important decisions” after the “hesitate to act” portion. Jud. Comm. on Model Jury
Instructions for the Eighth Cir., Manual of Model Jury Instructions for the District Courts of the
Eighth Circuit § 3.11 (2021). The “in life’s most important decisions” portion is not present in the
ISBA’s current jury instruction on reasonable doubt.
20
conclude that Davis’s proposed “hesitate to act” formulation is also a legally
sufficient jury instruction to define reasonable doubt.
4. The district court’s decision to reject the “hesitate to act” formulation was
not an abuse of discretion. Davis argues the district court’s rationale in rejecting
the “hesitate to act” instruction amounts to an abuse of discretion. Specifically,
he argues that we approved of the “hesitate to act” variations in McGranahan
and Pierce. See McGranahan, 206 N.W.2d at 92; Pierce, 21 N.W. at 197–98.
Because of this prior approval, Davis asserts the district court’s rationale that
the Iowa Supreme Court has not given its “imprimatur” to the “hesitate to act”
language was wrong and constitutes an abuse of discretion.
Our precedent is explicit that the district court need only provide one of
the approved “reasonable doubt” definitions from the ISBA’s uniform jury
instructions to the jury in order for it to be legally sufficient. While we indicated
that any of the ISBA’s reasonable doubt formulations in its 1972 jury instruction
would be better than no formulation in McGranahan, we warned that “[w]e do
not hold all or any of these three frames of reference must be included or
described in the instruction.” 206 N.W.2d at 92. In State v. McFarland, we
specifically stated that the jury instruction, which utilized solely the “abidingly
and firmly convinced” language, “was not deficient for failing to provide more
than one standard.” 287 N.W.2d at 163. Similarly, in Frei, we held the district
court did not err by providing a reasonable doubt jury instruction that solely
contained the legally adequate “firmly convinced” language rather than the
defendant’s proposed “hesitate to act” instruction. 831 N.W.2d at 75–76.
21
This district court’s action is comparable to what occurred in State v.
Williams, 929 N.W.2d 621 (Iowa 2019). In Williams, the district court rejected the
defendant’s additional implicit-bias instruction because the additional
“instruction had not been reviewed by any Iowa court to its knowledge” and
another implicit-bias instruction modeled after the ISBA’s instruction already
“covered the subject matter.” Id. at 633. We determined the district court did not
abuse its discretion because its instruction adequately addressed the
defendant’s concerns of implicit bias. Id. An abuse of discretion may have
occurred here if the district court’s instruction did not substantively define
reasonable doubt or if the district court believed it lacked authority to define
reasonable doubt at all. McGranahan, 206 N.W.2d at 91–92; see Plain,
898 N.W.2d at 816–17 (finding abuse of discretion when the trial court
erroneously believed it did not have authority to provide any implicit-bias
instruction). Similar to Williams, the district court here gave an approved
instruction that adequately explained the legal concept at issue.6 Therefore, the
trial court did not abuse its discretion in refusing to include the additional
“hesitate to act” language in the jury instruction on reasonable doubt.
5. District courts should solely utilize the “firmly convinced” formulation.
Agreeing on a jury instruction for reasonable doubt remains a contentious issue
in district court. The debate on an appropriate reasonable doubt instruction has
been the subject of unpublished decisions by the Iowa Court of Appeals since
6We make no determination as to whether the implicit-bias instruction given in Williams,
929 N.W.2d at 632–33, is better than the most recent ISBA implicit-bias instruction.
22
the 2007 ISBA jury instruction on reasonable doubt included the “hesitate to
act” formulation. See State v. Chamberlain, No. 17–1426, 2018 WL 6719730, at
*6–7 (Iowa Ct. App. Dec. 19, 2018); State v. Tullar, No. 13–1567,
2014 WL 6680927, at *3–4 (Iowa Ct. App. Nov. 26, 2014); State v. Thinh Van
Quang, No. 12–0739, 2013 WL 4504934, at *5–6 (Iowa Ct. App. Aug. 21, 2013);
State v. Merrett, No. 11–0776, 2013 WL 104545, at *4 (Iowa Ct. App. Jan. 9,
2013); State v. Tabor, No. 10–0475, 2011 WL 238427, at *2–3 (Iowa Ct. App. Jan.
20, 2011); State v. White, No. 09–1463, 2011 WL 227587, at *3–4 (Iowa Ct. App.
Jan. 20, 2011). Each of these court of appeals decisions has held the district
court does not err when it solely provides the “firmly convinced” definition
instead of adding or solely using the “hesitate to act” definition in a reasonable
doubt jury instruction.
The ISBA uniform criminal jury instructions committee, whose committee
members are regularly handling criminal jury instructional issues in our district
courts, is undoubtedly aware of the several different formulations of reasonable
doubt jury instructions provided in both opinions. Ultimately, the committee has
settled on two formulations—“hesitate to act” and “firmly convinced”—as the best
reasonable doubt formulations. But as exemplified by the unpublished court of
appeals opinions, the specific legal debate between using the hesitate to act and
firmly convinced formulation, or “race” as the concurrence in part and dissent
in part puts it, has been occurring for nearly fifteen years in our court system.
As with all marathons, they must come to an end. Guidance is appropriate to
23
reduce further appellate litigation and confusion in district court on which
formulation for a jury instruction on reasonable doubt is most preferred.7
We believe the “firmly convinced” formulation as used in this case best
captures reasonable doubt. “[T]he ‘firmly convinced’ standard has achieved
extensive recognition and is likely the formulation of the reasonable doubt
standard most widely approved by American jurists, academics, and litigants.”
Frei, 831 N.W.2d at 78 (citing Lawrence M. Solan, Refocusing the Burden of Proof
in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L. Rev. 105, 145
(1999) and Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979,
990–91 (1993)). A highly regarded report from distinguished federal judges at the
Federal Judicial Center (FJC) endorsed solely utilizing the “firmly convinced”
definition. Fed. Jud. Ctr., Pattern Criminal Jury Instructions § 21, at 28–29 (1987)
[hereinafter Fed. Jud. Ctr., Pattern Instructions]. Justice Ginsburg described
“firmly convinced” as “clear, straightforward, and accurate.” Victor, 511 U.S. at26–27 (Ginsburg, J., concurring in part and concurring in the judgment). One
prominent study, cited by the concurrence in part and dissent in part, found the
“firmly convinced” formulation more accurately distinguished weak and strong
criminal cases as compared to other mainstream reasonable doubt formulations.
7The concurrence in part and dissent in part worries that section III.A.5 of this opinion
amounts to overruling “a long and well-established line of our caselaw providing discretion to
district court judges” on jury instructional issues and that this opinion amounts to an “advisory
opinion.” Those concerns fail to account for the advantages of having a single, consistent jury
instruction on reasonable doubt in Iowa courts and our inherent supervisory authority over Iowa
district courts. See State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (en banc) (invoking supervisory
authority to utilize “firmly convinced” reasonable doubt jury instruction). Moreover, we have
previously provided guidance to district courts on jury instructions in other areas. See, e.g., State
v. Campbell, 294 N.W.2d 803, 812–13 (Iowa 1980) (endorsing a jury deadlock instruction from
American Bar Association and ISBA).
24
Irwin A. Horowitz, Reasonable Doubt Instructions: Commonsense Justice and
Standard of Proof, 3 Psychol. Pub. Pol’y & L. 285, 296–97, 300 (1997) [hereinafter
Horowitz] (concluding that “[r]esearch suggests that at least one definition of the
reasonable doubt standard (i.e., the [‘firmly convinced’] instruction) is more likely
to enhance jury performance than others”).
Despite the “hesitate to act” formulation being legally sufficient and having
historic approval, this formulation has recently drawn significant criticism.
Power, 67 Tenn. L. Rev. at 78–81; see Paulson v. State, 28 S.W.3d 570, 572
(Tex. Crim. App. 2000) (“Judgments that brand men and women as criminals,
and take their money, their liberty, or their lives are deadly serious. They are
decisions that make us hesitate if we have any human feelings or sensitivity at
all.”). Criticism of “hesitate to act” is especially increased when the hesitancy is
framed in the context of important personal affairs—an analogy that has been
examined as inappropriate for deciding criminal cases. See Victor, 511 U.S. at
24 (Ginsburg, J., concurring in part and concurring in the judgment)
(“[T]he analogy it uses seems misplaced. In the decisions people make in the
most important of their own affairs, resolution of conflicts about past events does
not usually play a major role [and] . . . generally involve a very heavy element of
uncertainty and risk-taking.” (quoting Fed. Jud. Ctr., Pattern Instructions § 21
cmt., at 29)); id. at 34 (Blackmun, J., concurring in part and dissenting in part)
(“ ‘[H]esitate to act’ language is far from helpful, and may in fact make matters
worse by analogizing the decision whether to convict or acquit a defendant to the
frequently high-risk personal decisions people must make in their daily lives.”);
25
United States v. Ashrafkhan, 964 F.3d 574, 579–80 (6th Cir. 2020) (“[J]urists
have noted that such language may tend to understate the government’s burden
of proof and have expressed trepidation at fully endorsing it.”); Commonwealth
v. Ferreira, 364 N.E.2d 1264, 1273 (Mass. 1977) (“The degree of certainty
required to convict is unique to the criminal law. We do not think that people
customarily make private decisions according to this standard nor may it even
be possible to do so.”); Mandeep K. Dhami et. al., Instructions on Reasonable
Doubt: Defining the Standard of Proof and the Juror’s Task, 21 Psychol. Pub. Pol’y
& L. 169, 175 (2015) (“[B]y reducing the standard of proof below that intended
by the law, the ‘doubt-hesitate’ instruction is more likely to lead to false
convictions.”). A “real doubt means a hesitation” or “waiver or facilitate”
formulation has also shown greater statistical variability than “firmly convinced”
with juries deciding between strong and weak criminal cases. Horowitz,
3 Psychol. Pub. Pol’y & L. at 296–97.
In acknowledging this criticism, we expressly approve jury instructions
that use the “firmly convinced” formulation without the “hesitate to act”
formulation. Because of the difference in superiority between the two definitions,
an additional “hesitate to act” definition would not serve as an amplification to a
jury instruction on reasonable doubt. Additionally, allowing the defendant to add
an additional “hesitate to act” formulation to compete with the pre-existing
“firmly convinced” formulation would have confused the jury on how to approach
reasonable doubt and probably lead to individual jurors understanding
reasonable doubt differently during jury deliberations. See Darryl K. Brown,
26
Regulating Decision Effects of Legally Sufficient Jury Instructions, 73 S. Cal.
L. Rev. 1105, 1110–11 (2000) (explaining how the “firmly convinced” definition
is superior). A similar concern exists if we were to include the “real possibility”
portion from the FJC’s model instruction to compete with the “firmly convinced”
formulation. Cf. United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987)
(indicating the “real possibility” portion impermissibly places the burden of
persuasion back onto the defense); United States v. McBride, 786 F.2d 45, 51–52
(2d Cir. 1986) (same); State v. Jackson, 925 A.2d 1060, 1067 n.3 (Conn. 2007)
(“[U]se of [‘real possibility’] actually may create confusion about the meaning of
reasonable doubt and impermissibly shift the burden of proof to the defendant.”).
We join the several states that have strongly urged their district courts to
solely utilize the “firmly convinced” definition for reasonable doubt jury
instructions. See, e.g., State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (en banc);
Jackson, 925 A.2d at 1065–70; Winegeart v. State, 665 N.E.2d 893, 902
(Ind. 1996); State v. Medina, 685 A.2d 1242, 1251–52 (N.J. 1996); State v. Reyes,
116 P.3d 305, 314 (Utah 2005).8 By explicitly approving the “firmly convinced”
8Among state jurisdictions, the concurrence in part and dissent in part mainly relies on
the Hawaii Court of Appeals case State v. Perez, 976 P.2d 427 (Haw. Ct. App. 1998), and the
Nebraska Supreme Court case State v. Putz, 662 N.W.2d 606 (Neb. 2003) (per curiam), for
support that the “firmly convinced” instruction lowers the burden of proof. However, Perez and
Putz are uniquely limited to Hawaii and Nebraska because their civil jury instructions also use
“firm belief” to describe clear and convincing evidence that could lead to improper conflation
between reasonable doubt and clear and convincing standards. Perez, 976 P.2d at 442; Putz,
662 N.W.2d at 613. That concern doesn’t appear in Iowa’s current uniform civil jury instructions.
Iowa State Bar Ass’n, Iowa Civil Jury Instruction 100.19 (2020) (“Clear, convincing and
satisfactory evidence. Evidence is clear, convincing and satisfactory if there is no serious or
substantial uncertainty about the conclusion.”); see Commonwealth v. Russell, 23 N.E.3d 867,
873–74 (Mass. 2015) (“Unlike the Hawaii standard for clear and convincing evidence, our cases
27
formulation of reasonable doubt, we hope to “eliminate confusion and foster
fairness for defendants, the state, and jurors alike” and “obviate the need for any
future appeals on this issue.” Portillo, 898 P.2d at 974; see Reyes, 116 P.3d at
314. We hold that use of solely the “firmly convinced” formulation for a jury
instruction on reasonable doubt will be considered a “safe harbor” instruction in
Iowa district courts. Reyes, 116 P.3d at 314.9
B. Verdict-Urging Instruction. After seven hours of jury deliberation, the
court attendant informed the court that the jury may be deadlocked. The court
then told the parties that a verdict-urging instruction, also known as an Allen
charge,10 would be given to the jury. Davis objected on the grounds that such an
instruction would have a coercive effect on the jury. The trial court provided the
following instruction over Davis’s objection:
You’ve been deliberating on this case now for a considerable
period of time, yesterday afternoon and most of this morning, and
the Court deems it proper to advise you further in regard to the
desirability of agreement, if possible.
The case has been exhaustively and carefully tried by both
sides and has been submitted to you for decision and verdict, if
possible. It’s the law that a unanimous verdict is required, and while
this verdict must be the conclusion of each juror and not mere
acquiescence of the jurors in order to reach an agreement, it is still
necessary for all jurors to examine the issues and questions
and instructions on clear and convincing evidence are not cast in terms of the ‘firmness’ of the
jury’s conclusions.”); see also Jackson, 925 A.2d at 1066 n.2 (rejecting Perez).
9However, this decision does not prevent the use of other legally adequate jury
instructions on reasonable doubt besides the “firmly convinced” formulation provided that both
parties agree and the court approves the other legally adequate jury instruction on reasonable
doubt.
10An “Allen charge” is a common name for a verdict-urging instruction originating from
the Supreme Court case Allen v. United States, 164 U.S. 492, 500–02 (1896).
28
submitted to them with candor and fairness and with proper regard
for, and deference to, the opinion of each other.
A proper regard for the judgment of others will greatly aid us
in forming our own judgment. So each juror should listen to the
arguments of the other jurors with a disposition to be convinced by
them, and if the members of the jury differ in their views of the
evidence, such difference of opinion should cause them to scrutinize
the evidence more closely and to reexamine the grounds of their
problem.
Your duty is to decide the issues of fact which have been
submitted to you, if you can conscientiously do so.
In conferring, you should lay aside all mere pride of opinion
and should bear in mind that the jury room is no place for espousing
and maintaining in a spirit of controversy either side of a cause. The
aim ever to be kept in view is the truth as it appears from the
evidence, examined in the light of the instructions of the Court.
So you will again retire to the jury room, examine your
differences in the spirit of fairness and candor, and try to arrive at a
verdict. So I am advising you to please continue to review the
evidence, review the jury instructions that have been provided to
you, and continue your deliberations.
So at this time I’ll have the court attendant return you to the
jury room.
After the jury was provided with this instruction verbally, they deliberated
for approximately four and a half hours before returning with a guilty verdict.
Davis argues that this supplemental verdict-urging instruction had a
coercive effect on the jury and, as such, constitutes an abuse of discretion. State
v. Campbell, 294 N.W.2d 803, 808–13 (Iowa 1980). Some jurisdictions have
banned Allen charge instructions because of their coercive effect on the jury.
See, e.g., State v. Weidul, 628 A.2d 135, 136 (Maine 1993); Commonwealth v.
Spencer, 275 A.2d 299, 303 (Pa. 1971). However, as Davis acknowledges, Iowa
29
courts have never held an Allen charge to be per se error. Campbell, 294 N.W.2d
at 809.
In State v. Campbell, we reviewed and upheld a verdict-urging instruction
quite similar to the one provided to the jury here. Id. at 808. When reviewing an
Allen charge, we look at “whether the instruction improperly coerced or helped
coerce a verdict or merely initiated a new train of real deliberation which
terminated the disagreement.” Id. According to Campbell, “each case is to be
decided on its own circumstances” and the court “has considerable discretion in
determining whether [a] verdict-urging instruction[] should be given.” Id. at
808–09. Only in cases where prejudice has been demonstrated by surrounding
circumstances will the trial court be reversed. Id.Several factors are considered in determining whether coercion existed
under the context and circumstances. Our caselaw has mainly focused on the
content of the verdict-urging instruction and the timing surrounding the verdict.
State v. Piper, 663 N.W.2d 894, 911–12 (Iowa 2003), overruled on other grounds
by State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). We have also looked at
responses from juror polling to ensure each juror was not coerced into their
verdict. Middle States Utils. Co. v. Inc. Tel. Co., 271 N.W. 180, 184–85 (Iowa 1937);
see In re Cocklin’s Est., 5 N.W.2d 577, 583–84 (Iowa 1942).
1. The district court’s verdict-urging instruction lacked problematic content.
We have specifically condemned instructions targeting jurors in the minority by
asking those jurors to reevaluate their opinions to possibly conform to the
majority. Campbell, 294 N.W.2d at 809; see Middle States Utils. Co., 271 N.W. at
30
184 (“[I]f any of the jurors differ in their view of the evidence from a larger number
of their fellow jurors, such differences of opinion should induce the minority to
doubt the correctness of their own judgment, and cause them to scrutinize the
evidence more closely and re-examine the grounds of their opinion.”); Clemens
v. Chi., R.I. & P. Ry., 144 N.W. 354, 357–58 (Iowa 1913) (same). Closely related
to this concern is an action by the district court that proactively identifies the
number of jurors of the minority opinion. Piper, 663 N.W.2d at 912; State v.
Cornell, 266 N.W.2d 15, 19–20 (Iowa 1978) (en banc). We have also condemned
language that requires the jury to reach a verdict and states that a hung jury
would lead to a retrial or create further litigation expenses. Piper, 663 N.W.2d at911–12; Campbell, 294 N.W.2d at 809.
This instruction lacks the problematic content that we have previously
condemned. It does not target jurors in the minority to conform to other jurors.
Rather, the instruction warns against acquiescence and implores all jurors to
fully consider each other’s opinions. Campbell, 294 N.W.2d at 811. Moreover, the
district court did not identify the number of jurors with a minority opinion to
further coerce the jury. Piper, 663 N.W.2d at 912; Campbell, 294 N.W.2d at 811.
The instruction at issue also does not express any requirement that the jury
reaches a verdict. Instead, the jury is repeatedly made aware they only have to
reach a unanimous verdict “if possible” or “if you can conscientiously do so.”
Burton v. Neill, 118 N.W. 302, 303 (Iowa 1908) (“The court was justified in
insisting that the jurors should give further deliberation to the case for the
purpose of reaching an agreement, if possible, and the instruction was in
31
accordance with the proper practice in such cases, and not erroneous in the
language used.”). Lastly, the instruction does not discuss the possibility of a
retrial or the mounting litigation expenses that Campbell found concerning.
Campbell, 294 N.W.2d at 810–11 (collecting cases, including Taylor v. Murray
and In re Stern, on litigation expenses); see, e.g., Taylor v. Murray, 115 S.E.2d
776, 778 (Ga. Ct. App. 1960) (discouraging a specific instruction that asked the
jury to continue deliberating considering “the viewpoint of the litigants and from
the viewpoint of the county and the expense to the county to have this problem
to continue in the courts unresolved”); In re Stern, 95 A.2d 593, 594 (N.J. 1953)
(reversing based on instruction that stated that “[i]t costs a lot of money to the
state to maintain the court”).
Davis takes issue with specific language pointing to how the jury had
deliberated for a “considerable period of time” and how the parties have
“exhaustively and carefully tried” the case. He argues that these considerations
were directly linked to “the desirability of agreement” and the duty to reach a
verdict. Again, any harm from this linkage is diminished by the repetitive
“if possible” or “if you can conscientiously do so” reminders attached to the
desirability of agreement and duty to reach a verdict. Even so, instructions about
“deliberating for a considerable period of time” and how the parties have
“exhaustively and carefully tried” the case don’t go to influencing the jury on the
expenses of the parties or the judicial system. Rather, these statements suggest
that the evidence has been fully examined by both parties and that the jury
should continue to deliberate with open minds.
32
Davis also objects to certain language discussing how “the jury room is no
place for espousing and maintaining in a spirit of controversy either side of a
cause.” Davis claims that this sentence is coercive because it implies that the
failure to reach an agreement arose from the jurors’ personal failings or
intentional obstruction of proper deliberations. We disagree. We have not found
this specific language objectionable in the past. Armstrong v. James & Co., 136
N.W. 686, 690 (Iowa 1912) (approving an instruction that included “on the other
hand, the jury room, as said, is no place for mere pride of opinion, or for
maintaining in the spirit of controversy either side of a cause”). Additionally, this
language is buttressed with other instructions imploring jurors to have a
“proper regard for the judgment of others,” “the aim ever to be kept in view is the
truth as it appears from the evidence,” and to “examine . . . differences in the
spirit of fairness and candor.” With this context, we think this surrounding
language “merely encourages the thoughtful consideration of all viewpoints
before forming individual judgments” rather than putting blame on the jurors for
failing to agree. Campbell, 294 N.W.2d at 812; see Armstrong, 136 N.W. at 690.
2. The timing surrounding the verdict after the Allen charge does not indicate
coercion. The timing of the verdict involves several distinct observations.
However, we are primarily concerned with whether the jury spent enough time
engaging in “further worthwhile consideration before a verdict was agreed to.”
Campbell, 294 N.W.2d at 811 (quoting State v. Kelley, 161 N.W.2d 123, 126
(Iowa 1968)); see Piper, 663 N.W.2d at 912. For example, in Coulthard v. Keenan,
we expressed our disapproval of an oral verdict-urging instruction given to a
33
deadlocked jury at two in the morning after eleven and a half hours of
uninterrupted jury deliberation. 129 N.W.2d 597, 601–02 (Iowa 1964). The
verdict in Coulthard was returned within ten minutes of the instruction. Id. at
601. Five of the ten minutes were likely spent on the formalities of courtroom
procedure. Id. Five minutes could not have possibly been enough for the jury to
engage in “any real deliberation after it returned to the jury room.” Id. In other
cases, we have noted that timeframes as short as forty-one minutes are sufficient
indicia that the jury engaged in real deliberation of the case. State v. Myers,
140 N.W.2d 891, 898 (Iowa 1966); see, e.g., Campbell, 294 N.W.2d at 811 (two
and a half hours); Kelley, 161 N.W.2d at 126 (two and a half hours); State v.
Bogardus, 176 N.W. 327, 329 (Iowa 1920) (one and a half hours); Armstrong, 136
N.W. at 690 (one and a half hours).
The timing factor includes other aspects, although less relevant. In
Clemens v. Chicago, R.I. & P. Ry., we were concerned that the lengthy
confinement before and after the verdict-urging instruction with suspect content
would lead a reasonable juror to believe that they would not be able to leave
unless they submitted to the jurors’ majority opinion. 144 N.W. at 357. We have
also looked at the ratio of “the time spent in deliberation before, and the duration
of the deliberations after, such an instruction was given.” State v. Peirce,
159 N.W. 1050, 1054 (Iowa 1916) (explaining prejudice arose when the jury
spent forty-eight hours deliberating before a verdict-urging instruction
containing suspect content and returned with a guilty verdict only four hours
later), overruled on other grounds by State v. McLaughlin, 94 N.W.2d 303, 310
34
(Iowa 1959); see Piper, 663 N.W.2d at 912 (“[W]e note that the length of
deliberations must be considered in the context of the entire case in deciding
whether the jury was unfairly coerced into returning a verdict.”). We are also
cognizant of the time of day and specific day of the week when the verdict is
announced. See Peirce, 159 N.W. at 1055 (determining prejudice arose after the
verdict-urging instruction was given when confinement of the jury would have
been extended into a Sunday because the district judge would not be present to
receive a verdict on Saturday).
In the present case, the jury verdict was returned four and a half hours
after the verdict-urging instruction was given. Four and a half hours was ample
time for the jurors to engage in meaningful conversation on the evidence
presented and thoroughly evaluate each other’s opinions. Spending seven hours
deliberating before the verdict-urging instruction and four and a half hours after
the instruction is not a suspect ratio to indicate prejudice.
We do acknowledge that the jury returned a verdict in the late afternoon
on a Friday. United States v. Murvine, 743 F.2d 511, 515 (7th Cir. 1984)
(“[J]urors who begin deliberations at 9:30 on a Friday night, after a full day of
trial and after serving all week, may be eager to reach a verdict and go home.”).
However, the court did not mention it was Friday or that there was an upcoming
weekend in the verdict-urging instruction. See United States v. Flannery, 451
F.2d 880, 883 (1st Cir. 1971) (finding error when the judge reminded the jury it
was Friday afternoon). Moreover, the instruction was given at around noon on a
Friday rather than late at night. United States v. Bailey, 468 F.2d 652, 664
35
(5th Cir. 1972). The four and a half hours of deliberation after the verdict-urging
instruction is enough to show the jury adequately reconsidered the case even
with it being a Friday afternoon. See id.
3. The polling of the jury supports a lack of coercion. “The purpose of polling
the jury is to determine that the verdict returned is actually the verdict of each
individual member.” State v. Morelock, 164 N.W.2d 819, 823 (Iowa 1969). In
Middle States Utilities Co. v. Incorporated Telephone Co., the district court used a
verdict-urging instruction that targeted jurors with the minority opinion to
re-examine their own judgment. 271 N.W. at 184. A verdict was returned seven
hours after the instruction. Id. During polling, a juror stated “No--I had to” before
quickly conforming. Id. We explained this first utterance “strongly indicates that
the giving of the verdict inducing instruction had an effect not intended by the
court in giving the same, namely, to overpersuade or coerce an agreement on the
part of this particular juror to the verdict which was returned.” Id. (granting a
new trial based on other errors).
Here, each juror was polled in open court before the trial court judge,
prosecution, and defense trial counsel. The record indicates the court attendant
asked each juror whether guilty was that juror’s verdict. Each juror responded
“yes” to the question. In the record, neither party nor the trial court judge
identified any hesitation, comments, or body language from the jurors during
polling that would indicate coercion during the return of the verdict or in the
motion for a new trial.
36
An Allen charge has been sometimes referred to as a “dynamite charge.”
Kelley, 161 N.W.2d at 127 (Rawlings, J., dissenting) (quoting Green v. United
States, 309 F.2d 852, 854 (5th Cir. 1962)). Under the context and circumstances
of this case, the court’s verdict-urging instruction was no such thing. If anything,
it was more like a sparkler than a stick of dynamite. It simply refocused the
jurors on their responsibilities to go back to the jury room and consider the
evidence and each other’s opinions fairly and properly. We note that similar
verdict-urging charges were upheld in Campbell and in State v. Parmer, an
unpublished court of appeals decision referenced by both parties. See Campbell,
294 N.W.2d at 808; State v. Parmer, No. 13–2033, 2015 WL 2393652, at *6
(Iowa Ct. App. May 20, 2015). The trial court did not abuse its discretion in
providing this verdict-urging instruction.
4. Guidance to the trial courts. We remain steadfast in our approval of the
verdict-urging instruction procedure suggested for trial courts nearly forty years
ago in Campbell. Campbell endorsed Iowa Uniform Jury Instruction No. 115
(currently 100.18), which significantly conforms with section 5.4(a) of the
American Bar Association (ABA) Standards relating to Trial by Jury. 294 N.W.2d
at 812–13. In the present case, we noted the instruction’s absence of problematic
language and its widespread support across jurisdictions. See id. Instead of
polling it out when a jury appears to be stuck, this instruction should be
“given at the conclusion of the trial, with the other instructions given to the jury
before any deliberations have begun.” Id. at 812. “If it later appears that the jury
37
cannot reach an agreement, the trial court may repeat the instruction before
requiring continued deliberations.” Id. at 812–13.
Davis argues in his further review application that Campbell prospectively
mandated the ABA-approved approach. That is incorrect. Campbell’s support of
the ABA standard was couched in phrases of “we recommend” or “we advise.” Id.Campbell did not announce that the ABA approach was mandatory. See, e.g.,
State v. Jensen, 189 N.W.2d 919, 924 (Iowa 1971) (“We realize that the present
decision changes a rule of evidence for criminal trials. The new rule will not be
applied retrospectively.”); accord Weidul, 628 A.2d at 136 (“Accordingly, we
announce that departures from the ABA standard, if the subject of a proper
objection, will be met by this court with summary reversal.”); People v. Sullivan,
220 N.W.2d 441, 450 (Mich. 1974) (“Therefore, prospectively from the date of this
opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by
this Court. Any substantial departure therefrom shall be grounds for reversible
error.”).11
Regardless, Campbell’s endorsement of the ABA/ISBA instruction is best
illustrated in State v. Piper. 663 N.W.2d at 910–13. In Piper, the jury told the
district court that it was unable to reach a verdict after four days of deliberation.
11This court cited the American Law Report (ALR) extensively in deciding Campbell.
294 N.W.2d at 808–13. The ALR explained: “Associated with the determination of prejudicial
effect is the question of prospective application. In many of the cases in which the Allen charge
has been abandoned or modified, the courts have announced the new rule prospectively, without
reversing the conviction under challenge.” Wayne F. Foster, Annotation, Instructions Urging
Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen
Charge)—Modern Cases, 97 A.L.R.3d 96, 104 (1980). Campbell’s lack of an explicit mandatory
language prospectively adopting the ABA standards appears purposeful in light of the ALR and
several cases cited therein.
38
Id. at 910–11. In response, the district court “referred the jury to” a verdict-
urging instruction, modeled substantially after the ABA instruction that was
approved in Campbell, provided in the original instructions. Id. at 911 (citing
Campbell, 294 N.W.2d at 812). The Piper court found no objectionable language
in this instruction and concluded that ten to eleven hours of deliberation after
the postverdict-urging instruction was enough time for the jury to adequately
reconsider the evidence and their opinions. Id. at 912. We believe the best option
is to closely follow the process set out in Piper and utilize the approved ABA/ISBA
instruction described in Campbell in the initial instructions and remind the jury
of this initial instruction if the jury is deadlocked:
When you begin your deliberations, you should select a
foreperson. He or she shall see that your deliberations are carried
on in an orderly manner, that the issues are fully and freely
discussed, and that every juror is given an opportunity to express
his or her views.
In order to return a verdict, each juror must agree to it. Your
verdict must be unanimous.
It is your duty as jurors to consult with one another and reach
an agreement, if you can do so without compromising your
individual judgment. Each of you must decide the case for yourself,
but do so only after an impartial consideration of the evidence with
the other jurors.
During your deliberations, do not hesitate to re-examine your
view and change your opinion if convinced it is wrong. But do not
change your opinion as to the weight or effect of the evidence just
because it is the opinion of the other jurors or for the mere purpose
of returning a verdict.
Your attitude at the beginning of your deliberations is
important. It is not a good idea for you to take a position before
thoroughly discussing this case with the other jurors. If you do this,
individual pride may become involved and you may later hesitate to
change an announced position even if shown it may be incorrect.
39
Remember, you are not partisans or advocates but are judges—
judges of the facts. Your sole interest is to find the truth and do
justice.
Id. at 911 n.3.
IV. Conclusion.
For these reasons, we affirm the decision of the court of appeals and the
district court judgment, and we remand the case for entry of the nunc pro tunc
order.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT AFFIRMED AND CASE REMANDED WITH INSTRUCTIONS.
Christensen, C.J., and Waterman, Mansfield, McDonald, Oxley, and
McDermott, JJ., join this opinion. Appel, J., files a concurrence in part and
dissent in part.
40
#19–0453, State v. Ethan Davis
APPEL, Justice (concurring in part and dissenting in part).
I. Introduction.
I respectfully concur in part and dissent in part. I agree with the court’s
thorough reasoning on instructional issues related to deadlocked juries. I would
not, however, provide muscular dicta declaring that while both the “firmly
convinced” instruction offered by the State and the “firmly convinced” and
“hesitate to act” instruction offered by the defendant are constitutionally
acceptable, district courts should “solely” use the State’s “firmly convinced”
formulation.
I cannot agree for several reasons. First, the majority’s straightjacket on
the acceptable formulation of a reasonable doubt instruction by the district court
is unnecessary to resolve the case. We are not, of course, an Article III court, and
thus our constitution does not expressly limit our power to “cases” and
“controversies,” but we should exercise caution in deciding complicated jury
instruction issues in advisory opinions not essential to the judgment. U.S. Const.
art. III, § 2. As will be seen below, this case is a poor vehicle to reach out to
engage in a rulemaking-type proceeding as a number of instructional
alternatives have not been thoroughly explored or illuminated.
Second, we have repeatedly not engaged in prescriptive wordsmithing on
jury instructions. The well-established law is that the district court “is not
required to give any particular form of an instruction; rather, the court must
merely give instructions that fairly state the law as applied to the facts of the
41
case.” State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010), overruled on other
grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016).
But today, the majority concludes that the district court may not decide to
use a constitutionally acceptable alternative jury instruction on reasonable
doubt. Although not stated in the majority opinion, there can be little doubt that
it overrules a long and well-established line of our caselaw providing discretion
to district court judges relating to the formulation of appropriate jury
instructions. See State v. Hibdon, 505 N.W.2d 502, 506 (Iowa Ct. App. 1993).
Whatever is at work in the majority’s advisory opinion, it is not stare decisis.
Third, the majority does not recognize that the “firmly convinced”
instruction that the State urges us to approve, and which the majority so warmly
embraces, is not the “firmly convinced” instruction approved by the Federal
Judicial Center (FJC) in 1987. As will be seen below, the language in the State’s
proposed instruction varies materially from the FJC’s version.
Finally, if we are now in the business of fashioning a mandatory reasonable
doubt jury instruction for all Iowa judges to use through the end of time, we
should at least broaden our horizons to select the best reasonable doubt
instruction available. Before putting judicial concrete around our reasonable
doubt instruction, we should engage in a thorough analysis of all available
alternatives. We do not want to entomb an instruction in our law when we’ve
limited our choices to two alternatives even though many others are available.
42
II. The Majority Does Not Address the Question of Whether
“Reasonable Doubt” Should Be Further Defined or Why the Phrase “Firmly
Convinced” is Helpful.
The majority is confident that reasonable doubt needs to be further defined
with its proposed brief “firmly convinced” language. Note the word “reasonable”
is replaced with “firmly” and the word “doubt” is replaced with the word
“convinced.” On the surface, the majority’s preferred reformulation looks to me
like a ratcheting up of language rather than an effort to clarify it.
As a result of similar concerns, many courts have been more cautious than
the majority in providing alternative words for “reasonable doubt.” There is
authority for the proposition that the term “reasonable doubt” should not be
further defined because to do so introduces more trouble than benefit. See, e.g.,
United States v. Walton, 207 F.3d 694, 697–99 (4th Cir. 2000) (en banc) (per
curiam) (noting that any attempts to define reasonable doubt do not usually
result in making it clearer and that only a jury can truly define reasonable
doubt); United States v. Cassiere, 4 F.3d 1006, 1024 (1st Cir. 1993) (concluding
that an instruction that requires a reasonable doubt standard “without [a]
definition adequately apprises the jury of the proper burden of proof” (quoting
United States v. Olmstead, 832 F.2d 642, 646 (1st Cir. 1987))); United States v.
Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (pointing out that ordinarily, a
judge may be best advised to attempt no definition of reasonable doubt unless
the jury requests it because experience has shown that doing so “add[s] little in
the way of clarity and often add[s] much in the way of confusion and
controversy”); People v. Johnson, 171 N.E.3d 936, 940 (Ill. App. Ct. 2020) (noting
43
that Illinois law is clear that neither the court nor the attorneys should attempt
to define reasonable doubt because the term should be self-defining and needs
no elaboration); State v. Levitt, 148 A.3d 204, 211 (Vt. 2016) (recognizing that
“attempting to define reasonable doubt is a ‘hazardous undertaking,’ ” and thus
the court “continue[s] to discourage trial judges from trying such an explanation”
(quoting State v. Francis, 561 A.2d 392, 396 (Vt. 1989))); Paulson v. State, 28
S.W.3d 570, 573 (Tex. Crim. App. 2000) (holding that “the better practice is to
give no definition of reasonable doubt at all to the jury”); The Comm. on Federal
Criminal Jury Instructions of the Seventh Cir., The William J. Bauer Pattern
Criminal Jury Instructions of the Seventh Circuit § 1.04 & comm. cmt. (2020)
[hereinafter 7th Circuit’s Criminal Jury Instructions] (providing no model
instruction on reasonable doubt and noting that it would be “inappropriate” for
the trial judge to attempt to do so). As noted in one United States Court of
Appeals for the First Circuit case, “[m]ost efforts at clarification result in further
obfuscation of the concept.” United States v. Campbell, 874 F.2d 838, 843 (1st
Cir. 1989) (quoting Olmstead, 832 F.2d at 645). I am not ready to embrace the
nihilistic view that no adequate reasonable doubt construction may be
developed, but I regard the above line of cases as waiving a yellow flag as this
court roars past on its racecar docket. We need to be very careful to analyze any
proposed instruction and carefully weigh its virtues and vices against those that
inhere in other alternatives.
44
III. The Majority’s Proposed Mandatory Reasonable Doubt Instruction
Omits Critical Language in the Federal Judicial Center Model Instruction.
The majority apparently believes that the “firmly convinced” instruction as
used in this case best captures reasonable doubt. The majority defends its
endorsement by pointing out that some jurists, academics, and litigants seem to
embrace a version of a reasonable doubt instruction approved by the FJC about
fifty years ago. See Fed. Jud. Ctr., Pattern Criminal Jury Instructions § 21, at 28–
29 (1987) [hereinafter Fed. Jud. Ctr., Pattern Instructions]; see also State v. Frei,
831 N.W.2d 70, 78–79 (Iowa 2013), overruled on other grounds by Alcala, 880
N.W.2d at 708 n.3.
But the clipped “firmly convinced” version endorsed by the majority in this
case lacks critical language contained in the FJC model. The materially different
FJC model instruction on reasonable doubt is as follows:
Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt. There are very few things
in this world that we know with absolute certainty, and in criminal
cases the law does not require proof that overcomes every possible
doubt. If, based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you
must find him guilty. If, on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.
Fed. Jud. Ctr., Pattern Instructions § 21, at 28–29 (emphasis added).
Now, compare that FJC language to the district court instruction issued
in this case endorsed by the majority:
The burden is on the State to prove Ethan Landon Davis guilty
beyond a reasonable doubt.
45
A reasonable doubt is one that fairly and naturally arises from
the evidence in the case, or from the lack or failure of evidence
produced by the State.
If, after a full and fair consideration of all the evidence, you
are firmly convinced of the defendant’s guilt, then you have no
reasonable doubt and you should find the defendant guilty.
But if, after a full and fair consideration of all the evidence in
the case, or from the lack or failure of evidence produced by the
State, you are not firmly convinced of the defendant’s guilt, then you
have a reasonable doubt and you should find the defendant not
guilty.
These two instructions, of course, are quite different. The last paragraph from
the State’s version in this case is merely a repetition of the previous language
expressed but put in a negative voice. It adds nothing to help the jurors
understand the concept of reasonable doubt—and perhaps even makes it more
confusing. See Paulson, 28 S.W.3d at 573 (cautioning that it would be ill advised
for the court to provide the jury with a redundant and confusing definition). And,
strikingly and inexplicably, the majority’s proposed instruction lacks the critical
last sentence of the FJC version, namely: “If on the other hand, you think there
is a real possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.” Fed. Jud. Ctr., Pattern Instructions § 21, at 28.
The majority does not explain why it approves an instruction that omits this
important language from the FJC model instruction.
In fact, none of the cases cited in Frei—United States v. Rodriguez, 162
F.3d 135, 145–46 (1st Cir. 1998) (including the “real possibility” language in the
46
FJC model instruction)12, United States v. Reese, 33 F.3d 166, 170 (2d Cir. 1994)
(adopting the FJC model instruction verbatim), United States v. Williams, 20 F.3d
125, 127–28 (5th Cir. 1994) (same), and United States v. Conway, 73 F.3d 975,
980 (10th Cir. 1995) (same)—resemble the language we have here. See Frei, 831
N.W.2d at 78–79. Notably, there is no model jury instruction in the federal
circuits that resembles the instruction endorsed in this case.13
The majority cites Irwin Horowitz’s study to show that the “firmly
convinced” formation is more likely to enhance jury performance. See Irwin A.
12In Rodriquez, the instruction at issue read, in part:
A reasonable doubt may arise not only from the evidence produced but also from
the lack of such evidence. A reasonable doubt exists when, after weighing and
considering all the evidence in the case, using your reason and common sense,
you cannot say that you have a firm and settled conviction that the charge is true.
It is not enough for the government to establish a probability, even a strong
probability, that a defendant is more likely guilty than not. That is not enough.
Proof beyond a reasonable doubt must be proof of such a convincing character
that you can, consistent with your oath as jurors, conscientiously base your
verdict upon it. If you so find as to a defendant, you will return a verdict of guilty.
On the other hand, if you think there is a real possibility that the defendant is not
guilty of the charges, you must give the defendant the benefit of that doubt and
find him not guilty.
162 F.3d at 145.
13Among all the circuit courts’ pattern jury instructions, five have adopted the “hesitate
to act” language. See Comm. on Model Criminal Jury Instructions: Third Cir., Model Criminal
Jury Instructions § 3.06 (2018); Comm. on Pattern Jury Instructions, Pattern Jury Instructions
(Criminal Cases) § 1.05 (2019) (Fifth Circuit); Sixth Cir. Comm. on Pattern Criminal Jury
Instructions, Pattern Criminal Jury Instructions § 1.03 (2021); Jud. Comm. on Model Jury
Instructions for the Eighth Cir., Manual of Model Jury Instructions for the District Courts of the
Eighth Circuit § 3.11 (2021); Jud. Council of the United States Eleventh Judicial Cir., Pattern
Jury Instructions for Criminal Cases § B3 (2022). Only the First Circuit, the Ninth Circuit, and
the Tenth Circuit have chosen the FJC’s “firmly convinced” formulation. See United States
District Court: District of Maine, 2022 Revisions to Pattern Criminal Jury Instructions for the
District Courts of the First Circuit § 3.02 & cmt. 4 (2022); Ninth Circuit Jury Instructions Comm.,
Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 6.5 (2021);
Criminal Pattern Jury Instruction Comm. of the United States Court of Appeals for the Tenth
Cir., Criminal Pattern Jury Instructions § 1.05 (2021). The Seventh Circuit refuses to provide any
definition of reasonable doubt. See 7th Circuit’s Criminal Jury Instructions § 1.04. Notice that
even the circuit courts that have adopted the “firmly convinced” instruction follow the FJC
formulation, which little resembles the one in this case.
47
Horowitz, Reasonable Doubt Instructions: Commonsense Justice and Standard of
Proof, 3 Psychol. Pub. Pol’y & L. 285, 296–97, 300 (1997) [hereinafter Horowitz].
Yet, Horowitz’s study actually used the FJC model instruction, which, as
established earlier, was nothing like the one favored by the majority. Id. at 294–
98. The majority cites to no empirical study establishing that the clipped “firmly
convinced” formulation used here would yield the same result. Additionally, the
“hesitation” formulation Horowitz used in his research was also materially
different from the “hesitate to act” language in The Iowa State Bar Association’s
(ISBA) model instruction. Compare id. at 294 (“Proof beyond a reasonable doubt
means that you are not left with a real doubt that the defendant is not guilty;
real doubt means a hesitation[.]”), with Iowa State Bar Ass’n, Iowa Criminal Jury
Instruction 100.10 (2020) (“A reasonable doubt is a doubt based upon reason and
common sense, and not the mere possibility of innocence. A reasonable doubt is the
kind of doubt that would make a reasonable person hesitate to act.”).
The bottom line is that the clipped “firmly convinced” instruction in this
case is materially different from the one proposed by the FJC. To adopt the
majority’s instruction is to reject the work of the FJC in favor of a repetitive and
potentially unbalanced instruction.
IV. Mixed Judicial Responses to the “Firmly Convinced” Approach to
the Reasonable Doubt Instruction of the Federal Judicial Center.
A. Federal Courts. The federal courts are not uniform on the issue of the
reasonable doubt instruction. As noted above, the Seventh Circuit has declined
to provide further elaboration on the ground of causing confusion. And, some
48
courts have been critical of the “firmly convinced” formulation. For instance, in
United States v. Woodward, the First Circuit stated:
[W]e have previously joined other circuits in criticizing the Federal
Judicial Center Instruction from which the district court’s “firmly
convinced” language is drawn. . . . We have expressed particular
concern that “many definitions reduce the burden of proof on the
government by expanding the degree of doubt permissible . . . .”
149 F.3d 46, 69 n.15 (1st Cir. 1998) (citations omitted). The First Circuit
subsequently endorsed a reasonable doubt instruction given by the district court
in United States v. Cleveland that avoided the firmly convinced language. 106
F.3d 1056 (1st Cir. 1997), abrogated on other grounds by Brache v. United States,
165 F.3d 99 (1st Cir. 1999).
In 1994, the Fifth Circuit considered the “firmly convinced” language in
United States v. Williams, 20 F.3d at 131. The Williams court concluded that the
“firmly convinced” formulation was satisfactory in light of the instructions as a
whole, which included the “real possibility” language contained in the FJC model
but excised in the State’s proposed instruction in this case. Id.The great majority of the federal circuit courts have also not gone along
with the recommendations of the FJC and instead include in their model
instructions the “hesitate to act”-type approach in the ISBA’s model instruction.
See Comm. on Model Criminal Jury Instructions: Third Cir., Model Criminal Jury
Instructions § 3.06 (2018) (“A reasonable doubt is a fair doubt based on reason,
logic, common sense, or experience. It is a doubt that an ordinary reasonable
person has after carefully weighing all of the evidence, and is a doubt of the sort
that would cause him or her to hesitate to act in matters of importance in his or
49
her own life.”); Comm. on Pattern Jury Instructions, Pattern Jury Instructions
(Criminal Cases) § 1.05 (2019) (Fifth Circuit instruction stating: “Proof beyond a
reasonable doubt, therefore, is proof of such a convincing character that you
would be willing to rely and act upon it without hesitation in making the most
important decisions of your own affairs”); Sixth Cir. Comm. on Pattern Criminal
Jury Instructions, Pattern Criminal Jury Instructions § 1.03 (2021) (“Proof beyond
a reasonable doubt means proof which is so convincing that you would not
hesitate to rely and act on it in making the most important decisions in your own
lives.”); Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual of
Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2021)
(“Proof beyond a reasonable doubt is proof of such a convincing character that a
reasonable person, after careful consideration, would not hesitate to rely and act
upon that proof in life’s most important decisions.”); Judicial Council of the
United States Eleventh Judicial Cir., Pattern Jury Instructions for Criminal Cases
§ B3 (2022) (“ ‘Proof beyond a reasonable doubt’ is proof so convincing that you
would be willing to rely and act on it without hesitation in the most important of
your own affairs.”).
The Tenth Circuit in one case even noted that the “hesitate to act”
instruction is the better language to describe reasonable doubt. United States v.
Barrera-Gonzales, 952 F.2d 1269, 1273 (10th Cir. 1992) (“[I]t should be
emphasized that the ‘hesitate to act’ language in our opinion more effectively
conveys to a jury the meaning of reasonable doubt than most other
50
formulations.” (alteration in original) (quoting United States v. Hart, 407 F.2d
1087, 1091 (2d Cir. 1969))).
The bottom line is that in the federal courts, there is a somewhat mixed
view of the FJC model instruction on reasonable doubt. There is some authority,
however, for the proposition that the inclusion of the “real possibility” language
might help save the instruction from understating the State’s burden when using
the term “firmly convinced.”
The majority pointed out that the “real possibility” language could lead to
the burden shifting to the defendant. That argument was, of course, repeatedly
rejected by courts. Victor v. Nebraska, 511 U.S. 1, 26 (1994) (Ginsburg, J.,
concurring in part and concurring in the judgment) (describing the FJC
instruction containing the “real possibility” language as “clear, straightforward,
and accurate”); United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984)
(holding that when the charge is read as a whole, the “real possibility” language
would not cause burden shifting because other parts of the instruction were
sufficient to dispel any possible confusion); Reese, 33 F.3d at 172 (rejecting
argument that “real possibility” language burdens the defendant and holding
that “[j]ury instructions must be viewed as a whole and in the context of the
entire trial”).
B. State Courts. The approach to reasonable doubt instructions in the
state courts is mixed. For instance, in State v. Perez, the Intermediate Court of
Appeals of Hawaii rejected the “firmly convinced” formulation as “so like the term
‘firm belief of conviction’ that is associated in law with . . . clear and convincing
51
evidence” to be beyond a reasonable doubt. 976 P.2d 427, 443 (Haw. Ct. App.
1998), aff’d in part, rev’d in part on other grounds, 976 P.2d 379 (Haw. 1999).
The Hawaii court declared that the “firmly convinced” language of the instruction
“diminished the very high standard by which the jury must abide in order to
convict.” Id. at 443.
Hawaii is not alone in rejecting the “firmly convinced” language. Although
representing a minority of jurisdictions, several other states have latched onto
the notion of reasonable doubt as “having a ‘convincing character’ which a
reasonable person ‘would not hesitate to rely and act upon.’ ” See Richard E.
Welch III, “Give Me That Old Time Religion”: The Persistence of the Webster
Reasonable Doubt Instruction and the Need to Abandon It, 48 New Eng. L. Rev.
31, 45 n.73 (2013) (citing state jury instructions using the “convincing character”
language).
In State v. Putz, the Nebraska Supreme Court considered a “firmly
convinced” instruction. 662 N.W.2d 606, 611–15 (Neb. 2003) (per curiam). Like
the Fifth Circuit in United States v. Williams, the Nebraska Supreme Court
acknowledged the critique of the “firmly convinced” language. Putz, 662 N.W.2d
at 613–14 (noting that the Hawaii court’s criticism of the “firmly convinced”
formula was “valid”). Yet, it found the instruction’s overall language acceptable
in large part due to the other amplifications within the instructions. Id. at 614–
15; see also Winegeart v. State, 665 N.E.2d 893, 904–05 (Ind. 1996) (DeBruler,
J., concurring in result) (“I do not believe that ‘firmly convinced’ equates to
‘beyond a reasonable doubt.’ Both objectively and subjectively, ‘firmly convinced’
52
seems more similar to ‘clear and convincing’ than to beyond a ‘reasonable
doubt.’ ”); State v. Crenshaw, 366 N.E.2d 84, 85 (Ohio Ct. App. 1977) (stating
that the “firmly convinced” language represents an appropriate but lesser
standard of proof than the former “moral certainty” language).
C. Scholarly Commentary. The “firmly convinced” language of the FJC
has been the subject of scholarly criticism. As noted by one commentator, “[a]t
least at a common sense level, it would seem possible to be ‘firmly convinced’ of
something about which we may not have ‘proof beyond a reasonable doubt.’ ”
Miller W. Shealy, Jr., A Reasonable Doubt About “Reasonable Doubt”, 65 Okla. L.
Rev. 251, 253 n.155 (2013). And another commentator observed: “I do not think
it a semantic quibble to say that while ‘firmly convinced’ is a phrase less
sententious and archaic than ‘abiding conviction,’ it does not connote the
emphasis and specificity of ‘subjective state of certitude’ or ‘subjective state of
near certitude.’ ” Stephen J. Fortunato, Jr., Instructing on Reasonable Doubt after
Victor v. Nebraska: A Trial Judge’s Certain Thoughts on Certainty, 41 Vill. L. Rev.
365, 390 n.105 (1996).
Although the meaning of “firmly convinced” is quickly grasped, the
standard of proof suggested by the phrase is vague. A juror satisfied
by the less rigorous “clear and convincing evidence” standard might
also be described as “firmly convinced” of a fact. Determining
whether proof has been established beyond a reasonable doubt
requires a unique thought process. Simply stating that a juror must
be “firmly convinced of the defendant’s guilt” undermines this
process.
Paul C. Smith, Note, The Process of Reasonable Doubt: A Proposed Instruction in
Response to Victor v. Nebraska, 41 Wayne L. Rev. 1811, 1839 (1995).
53
V. The Controversial “Hesitate to Act” Language is Not Included in
ISBA’s Model Instruction.
The majority emphasizes Justice Ginsburg’s offhand comment in Victor
seemingly to approve of the “firmly convinced” approach. But, the United States
Supreme Court in Holland v. United States declared that a reasonable doubt
instruction “should have been in terms of the kind of doubt that would make a
person hesitate to act.” 348 U.S. 121, 140 (1954).
Of course, as the majority correctly points out, the “hesitate to act”
language in a reasonable doubt instruction has been subject to criticism. See,
e.g., Gilday v. Callahan, 59 F.3d 257, 264 (1st Cir. 1995) (noting that “hesitate
to act” language is arguably unhelpful); United States v. O’Brien, 972 F.2d 12,
15–16 (1st Cir. 1992) (per curiam) (asserting that “hesitate to act” instruction
undermines the constitutionally required burden of proof). But so has the “firmly
convinced” language. And, the criticism of “hesitate to act” instruction often
focuses on the comparison of “conviction” in a criminal trial to important private
decisions, a comparison notably not made in the ISBA’s model instruction.14
14The Iowa State Bar Association’s model instruction provides, in part:
The burden is on the State to prove (name of defendant) guilty beyond a
reasonable doubt.
A reasonable doubt is one that fairly and naturally arises from the evidence
in the case, or from the lack or failure of evidence produced by the State.
A reasonable doubt is a doubt based upon reason and common sense, and
not the mere possibility of innocence. A reasonable doubt is the kind of doubt that
would make a reasonable person hesitate to act. Proof beyond a reasonable doubt,
therefore, must be proof of such a convincing character that a reasonable person
would not hesitate to rely and act upon it. However, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt.
54
VI. Overview of Choices.
I am concerned that there has been a general erosion of the concept of
reasonable doubt. In the past, instructions were often based upon the concept
of moral certainty but now tend to embrace secular language in an effort to
update the language. But any substituted “firmly convinced” language may imply
a lesser burden. See Crenshaw, 366 N.E.2d at 85 (characterizing “firmly
convinced” as providing less of a burden than the old definition of “moral
certainty” and thus giving an advantage to the state).
I would hesitate to act in this case to endorse the clipped version of the
“firmly convinced” language given the advisory posture of the case, the limited
briefing, and the wide variety of considerations that might be brought to bear on
the question. If there is a need to address a reasonable doubt instruction yet
again, I would instead engage in a rulemaking-type process on the question that
can consider the issue more broadly. Empirical research showed that what
definition is used makes a “significant difference” in the outcome of a case.
Horowitz, 3 Psychol. Pub. Pol’y & L. at 292. Any rush decision on this important
matter would be ill advised.
If, after a full and fair consideration of all the evidence, you are firmly
convinced of the defendant’s guilt, then you have no reasonable doubt and you
should find the defendant guilty.
But if, after a full and fair consideration of all the evidence in the case, or
from the lack or failure of evidence produced by the State, you are not firmly
convinced of the defendant’s guilt, then you have a reasonable doubt and you
should find the defendant not guilty.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2020).
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If forced to choose today, however, I would not warmly embrace the old
Frei language but would likely follow the ISBA’s model instruction until we come
up with something better. In the alternative, I’d give strong consideration to the
formulation of reasonable doubt in the trial court’s instruction approved by the
First Circuit in Cleveland, 106 F.3d at 1062–63,15 and to the Eighth Circuit’s
model instruction. But the majority makes its choice with a truncated analysis
that gives insufficient attention to the crosscurrents implicated by the
15In Cleveland, the instruction read:
As I have said, the burden is upon the Government to prove beyond a
reasonable doubt that a defendant is guilty of the charge made against the
defendant. It is a strict and heavy burden, but it does not mean that a defendant’s
guilt must be proved beyond all possible doubt. It does require that the evidence
exclude any reasonable doubt concerning a defendant’s guilt.
A reasonable doubt may arise not only from the evidence produced but
also from a lack of evidence. Reasonable doubt exists when, after weighing and
considering all the evidence, using reason and common sense, jurors cannot say
that they have a settled conviction of the truth of the charge.
Of course, a defendant is never to be convicted on suspicion or conjecture.
If, for example, you view the evidence in the case as reasonably permitting either
of two conclusions—one that a defendant is guilty as charged, the other that the
defendant is not guilty—you will find the defendant not guilty.
It is not sufficient for the Government to establish a probability, though a
strong one, that a fact charged is more likely to be true than not true. That is not
enough to meet the burden of proof beyond reasonable doubt. On the other hand,
there are very few things in this world that we know with absolute certainty, and
in criminal cases, the law does not require proof that overcomes every possible
doubt.
Concluding my instructions on the burden, then, I instruct you that what
the Government must do to meet its heavy burden is to establish the truth of each
part of each offense charged by proof that convinces you and leaves you with no
reasonable doubt, and thus satisfies you that you can, consistently with your oath
as jurors, base your verdict upon it. If you so find as to a particular charge against
a defendant, you will return a verdict of guilty on that charge. If, on the other
hand, you think there is a reasonable doubt about whether the defendant is guilty
of a particular offense, you must give the defendant the benefit of the doubt and
find the defendant not guilty of that offense.
106 F.3d at 1062–63.
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reasonable doubt instruction. As a result, I cannot join the opinion on the
reasonable doubt instruction question.16
16Davis does not challenge the constitutionality of the Frei instruction. There can be no
abuse of discretion for giving a constitutionally valid instruction absent some other infirmity. So
here, given the advocacy, it is not possible to find an abuse of discretion in this case.