The case is Victor v. Nebraska, 1994. Writing the majority opinion, Justice O, Connor stated that the court did not condone its (moral certainly) use.
Thanks. Very instructive as to reasonable doubt. Difficult to select excerpts so as to fit. The opinion does not condone the use of "moral evidence" or "moral certainty" but also does not disapprove it.
Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (U.S. 03/22/1994) excerpts; some with emphasis added:
JUSTICE O'CONNOR delivered the opinion of the Court.*fn1
...
The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430, 440-441 (1887). Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 320, n. 14 (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 485-486 (1978). Rather, "taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury." Holland v. United States, 348 U.S. 121, 140 (1954).
...
The instruction given in Sandoval's case has its genesis in a charge given by Chief Justice Shaw of the Massachusetts Supreme Judicial Court more than a century ago:
"What is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt." Commonwealth v. Webster, 59 Mass. 295, 320 (1850).
...
A leading 19th century treatise observed that "matters of fact are proved by moral evidence alone; . . . in the ordinary affairs of life, we do not require demonstrative evidence, . . . and to insist upon it would be unreasonable and absurd." 1 S. Greenleaf, Law of Evidence 3-4 (13th ed. 1876).
...
Thus, when Chief Justice Shaw penned the Webster instruction in 1850, moral certainty meant a state of subjective certitude about some event or occurrence. As the Massachusetts Supreme Judicial Court subsequently explained:
"Proof 'beyond a reasonable doubt' . . . is proof 'to a moral certainty,' as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible." Commonwealth v. Costley, 118 Mass. 1, 24 (1875).
Indeed, we have said that "proof to a 'moral certainty' is an equivalent phrase with 'beyond a reasonable doubt.'" Fidelity Mut. Life Assn. v. Mettler, 185 U.S. 308, 317 (1902), citing Commonwealth v. Costley, supra. See also Wilson v. United States, 232 U.S. 563, 570 (1914) (approving reasonable doubt instruction cast in terms of moral certainty); Miles v. United States, 103 U.S. 304, 309, 312 (1881).
...
Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction given in Sandoval's case lends content to the phrase. The jurors were told that they must have "an abiding conviction, to a moral certainty, of the truth of the charge." Sandoval App. 49. An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof. Hopt v. Utah, 120 U.S., at 439 ("The word 'abiding' here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence"); see Criminal Jury Instructions: District of Columbia 46 (3d H. Greene & T. Guidoboni ed. 1978). And the judge had already informed the jury that matters relating to human affairs are proven by moral evidence, see supra, at 9; giving the same meaning to the word moral in this part of the instruction, moral certainty can only mean certainty with respect to human affairs. As used in this instruction, therefore, we are satisfied that the reference to moral certainty, in conjunction with the abiding conviction language, "impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused." Jackson v. Virginia, 443 U.S., at 315. Accordingly, we reject Sandoval's contention that the moral certainty element of the California instruction invited the jury to convict him on proof below that required by the Due Process Clause.
...
We do not think it reasonably likely that the jury understood the words moral certainty either as suggesting a standard of proof lower than due process requires or as allowing conviction on factors other than the government's proof. At the same time, however, we do not condone the use of the phrase. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship standard. Indeed, the definitions of reasonable doubt most widely used in the federal courts do not contain any reference to moral certainty. See Federal Judicial Center, Pattern Criminal Jury Instructions 28 (1988); 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions ? 11.14 (3d ed. 1977).
But we have no supervisory power over the state courts, and in the context of the instructions as a whole we cannot say that the use of the phrase rendered the instruction given in Sandoval's case unconstitutional.
...
Finally, Sandoval objects to the portion of the charge in which the judge instructed the jury that a reasonable doubt is "not a mere possible doubt." The Cage instruction included an almost identical reference to "not a mere possible doubt," but we did not intimate that there was anything wrong with that part of the charge. See 498 U.S., at 40. That is because "[a] 'reasonable doubt,' at a minimum, is one based upon 'reason.'" Jackson v. Virginia, supra, at 317. A fanciful doubt is not a reasonable doubt. As Sandoval's defense attorney told the jury: "Anything can be possible . . . . [A] planet could be made out of blue cheese. But that's really not in the realm of what we're talking about." Sandoval App. 79 (excerpt from closing argument). That this is the sense in which the instruction uses "possible" is made clear from the final phrase of the sentence, which notes that everything "is open to some possible or imaginary doubt." We therefore reject Sandoval's challenge to this portion of the instruction as well.
...
"'Reasonable doubt' is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture." Id., at 11 (emphasis added).
...
In any event, the instruction provided an alternative definition of reasonable doubt: a doubt that would cause a reasonable person to hesitate to act. This is a formulation we have repeatedly approved, Holland v. United States, 348 U.S., at 140; cf. Hopt v. Utah, 120 U.S., at 439-441, and to the extent the word substantial denotes the quantum of doubt necessary for acquittal, the hesitate to act standard gives a common-sense benchmark for just how substantial such a doubt must be. We therefore do not think it reasonably likely that the jury would have interpreted this instruction to indicate that the doubt must be anything other than a reasonable one.
...
JUSTICE GINSBURG, concurring in part and concurring in the judgment.
...
The Federal Judicial Center has proposed a definition of reasonable doubt that is clear, straightforward, and accurate. That instruction reads:
"The government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.
"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." Federal Judicial Center, Pattern Criminal Jury Instructions 17-18 (1987) (instruction 21).
This instruction plainly informs the jurors that the prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The "firmly convinced" standard for conviction, repeated for emphasis, is further enhanced by the juxtaposed prescription that the jury must acquit if there is a "real possibility" that the defendant is innocent. This model instruction surpasses others I have seen in stating the reasonable doubt standard succinctly and comprehensibly.
I recognize, however, that this Court has no supervisory powers over the state courts, see ante, at 13-14, and that the test we properly apply in evaluating the constitutionality of a reasonable doubt instruction is not whether we find it exemplary; instead, we inquire only whether there is a "reasonable likelihood that the jury understood the instruction to allow conviction based on proof insufficient to meet" the reasonable doubt standard. ...
JUSTICE BLACKMUN, with whom JUSTICE SOUTER joins in all but Part II, concurring in part and dissenting in part.
...
Our democracy rests in no small part on our faith in the ability of the criminal justice system to separate those who are guilty from those who are not. ...
...
Any jury instruction defining "reasonable doubt" that suggests an improperly high degree of doubt for acquittal or an improperly low degree of certainty for conviction, offends due process.
..."
