Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Eastern District of New York

June 27, 1991


The opinion of the court was delivered by: Weinstein, District Judge:


Petitioner was found guilty of strangling a woman after breaking into her apartment. The evidence consisted of what were said to be three of his fingerprints at the scene and testimony that he had been observed near the apartment about the time of the crime.

The first trial resulted in a hung jury. At the second, the judge three times instructed the jury that if it had a reasonable doubt to a moral certainty it should acquit:

  if you should entertain a reasonable doubt, that
  is a doubt to a moral certainty of the guilt of
  the defendant . . . then you would be — you must
  find the defendant not guilty and acquit him . . . .

The charge in other particulars was correct. Objection was timely made to the judge's lapse, but he refused to take corrective action. The conviction was affirmed without opinion.

The state has the burden of proof "beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); see also Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985). The seriousness of that burden has sometimes been emphasized by suggesting that the state must convince to a "moral certainty." This solemn phrase once had some epistemological warrant in weighting the scales of justice to favor the accused. See Shapiro, "To a Moral Certainty": Theories of Knowledge and Anglo-American Juries 1600-1850, 38 Hastings L.J. 153 (1986). It is now falling into disuse in favor of more sparse and possibly more comprehensible instructions.

As used by the court, the phrase benefited the prosecutor rather than the defendant. To acquit, the jury was mistakenly told, there must be a doubt rising to a level of "a moral certainty," rather than simply a reasonable doubt as to the defendant's guilt.

The use of doubt and moral certainty "in this manner and for this purpose would tend to create more confusion than light in the minds of the jury." United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1965) (reversing on other grounds). It is reasonable to expect that the charge made it appreciably more difficult for the jury to conclude that it had a reasonable doubt, partially shifting the burden of proof away from the prosecutor. See Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1309-10 (1977) ("instruction can affect the outcome of the case").

Winship remains undiluted. It requires a finding that the error was constitutional. In view of the failure to convict on the same evidence at the first trial, the error was not harmless.

  No objection has been raised by the respondent on the ground
that petitioner failed to present the issue in constitutional
terms at the state level. The citation of four
pre-Winship federal cases in the defendant's state appellate
brief (pp. 12-13) was not adequate to alert the Appellate
Division to the problem. Nevertheless, the claim was
sufficiently particular to "call to mind" the error in the jury
charge which implicated a "specific right protected by the
Constitution," and was "well within the mainstream of
constitutional litigation." Daye v. Attorney General,
696 F.2d 186, 194 (2d Cir. 1982). The issue was fairly presented at the
state level.

  The petition is granted. Defendant shall be released unless
he is tried within sixty days of the completion of appeals.

So ordered.


© 1992-2003 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.