Anytime anywhere in any courthouse at any hour in any case at any moment ever, please object if the prosecutor or court gives an analogy to beyond a reasonable doubt. Any analogy. Like I don’t care if it’s right. Just a brightline rule: judges and DAs do not analogize to BRD on my watch.
Current vibe: diet coke, rainy grey, skies, and reading a case where the court of appeal cites the Beatles to advise trial courts to avoid effing up the definition of BRD. It’s dicey man. Let the CALCRIM do the talking, no judges or DAs squawking.
People v. Johnson (2004) 119 Cal.App.4th 976:
“Just months ago, a Court of Appeal case confirmed Brannon’s enduring vitality. During jury selection, the court “amplified on the concept of reasonable doubt” by noting that although “we all have a possible doubt whether we will be here tomorrow” we “take vacations” and “get on airplanes” because we “have a belief beyond a reasonable doubt that we will be here tomorrow.” (People v. Johnson (2004) 115 Cal.App.4th 1169, 1171, 9 Cal.Rptr.3d 781.) The court rejected the notions “that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors,” or “finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor,” and “make such decisions while aware of the concept of ‘beyond a reasonable doubt.’ ” (Id. at p. 1172, 9 Cal.Rptr.3d 781.) In reliance on Brannon, the court reversed the judgment and ordered a new trial on the ground that “the trial court’s attempt to explain reasonable doubt had the effect of lowering the prosecution’s burden of proof.” (Ibid.)34Here, as in Brannon, the court’s tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt. (In re Winship, supra, 397 U.S. at pp. 363–364, 90 S.Ct. 1068; see Cage v. Louisiana (1990) 498 U.S. 39, 40–41, 111 S.Ct. 328, 112 L.Ed.2d 339, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385;*986People v. Brannon, supra, 47 Cal. at p. 97; cf. Pen.Code, § 1096.) Lamentably, “the essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182.) The error “unquestionably qualifies as ‘structural error’ ” and compels reversal per se. (Id. at p. 282, 113 S.Ct. 2078;People v. Harris (1994) 9 Cal.4th 407, 427, 37 Cal.Rptr.2d 200, 886 P.2d 1193;People v. Evans (1998) 62 Cal.App.4th 186, 195–196, 72 Cal.Rptr.2d 543.)
Over a quarter of a century ago, a thoughtful Court of Appeal opinion collected cases from a number of jurisdictions on the fate of “innovative” and “[w]ell intentioned efforts” by trial courts “to ‘clarify’ and ‘explain’ ” reasonable doubt that instead created “confusion and uncertainty” and led to reversals on appeal. (People v. Garcia (1975) 54 Cal.App.3d 61, 63, 126 Cal.Rptr. 275.) A few excerpts from those cases are instructive: “[Citation]: ‘… [T]he term “reasonable doubt” best defines itself. All attempts at definition are likely to prove confusing and dangerous.’ [Citation]: ‘Every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary.’ [Citation]: ‘It is in a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it.’ [Citation]: ‘[G]enerally, the attempted definitions of [reasonable doubt] … are simply misleading and confusing, and not proper explanations of their meaning at all.’ [Citation]: ‘As it is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject, … the better practice is to follow as nearly as practicable the language of the [statute], which is certainly as intelligible and as easily comprehended as the definition given in this case.’ ” (Id. at p. 66, 126 Cal.Rptr. 275.)
To any trial judge who feels the urge to clarify or explain reasonable doubt, we **787 commend the concise history of the reasonable doubt standard that appears in the latest CALJIC compendium. (California Jury Instructions, Criminal, Appendix B (Jan.2004 ed.).) Originating in English cases of centuries ago, that history came to fruition only in the past decade with “the universal approval” by federal and state courts alike of CALJIC No. 2.90, “conclusively settl[ing]” its “legal sufficiency and propriety.” (Id. at p. 1240.) We trust that any trial judge who reads that history will heed the two English bards whose sage advice antedated Garcia by only a few years: “Let it be.” (Lennon & McCartney (Northern Songs 1970) “Let It Be”.)”