doubt defense counsel agreed that we can't give them a definition of reasonable doubt and the trial court responded accordingly to the jury knows he said we cannot keep your definition it's for you to define and defend its jury ultimately returned  the victor court talking about when it says quote the proper inquiry is not whether the instruction could have been applied in an unconstitutional manner but whether there was a reasonable likelihood that the jury did so apply more likely than not does that mean fifty one percent what should the judge do but this is really clear that your is confused or is wrong what should the judge do we never know that exactly in the next at least me to my next point your honor because reasonable doubt to a percentage equation is the response invite the jury to apply a percentage not netscape not a response accurately states the law if they had the judge said is it appropriate for the judge to say what he did say that define reasonable doubt in the sense of it's up for you to decide apply i mean they may have got together and come up with something else entirely that's not reflected in the jury no it's my second point is that the policy question we don't want courts speculating about the jury's decision making process of cases that say if a jury is confused and has a question the judge should answer the question shouldn't you say you got the instructions or do you have any suggestions are you suggesting that we should formulate the response of the judge should give is the issue in this case also is not how should a trial court answer a basic general jury's question request seen a definition of reasonable doubt the issue in this case is whether the trial court's instruction to the jury which was given in response to a question which specifically indicated and contains language that the jury of fundamental misunderstanding of what is reasonable doubt and that it was off track and it was pre sposed to applying the standard lesson in reasonable doubt the question is whether there's a reasonable likelihood that that jury understood that instruction to allow conviction based on proof lesson beyond a reasonable doubt in the question of the the answer to that question is yes it did the jury was no which said what is your definition of reasonable doubt eighty percent seventy percent sixty percent clearly indicated that the jury was confused and prepared to apply a standard less than reasonable doubt no one has ever suggested in this case that any level that eighty percent seventy percent sixty percent constitutes proof beyond reasonable doubt believe is correct when the second district said that the trial judge sort of said reasonable doubt is not expressed as a percentage it is the highest percentage that we apply in the would we courts that tends to steer the jury back to to reconsider and tell them that they're off track let me let me throw out a couple of quick hypotheticals in to illustrate my answer what if the jury's question is what is your definition of reasonable doubt can we flip a coin and the jury thinks use of the trial court response is up to you to decide what if the jury comes right back and says can we borrow a quarter at some point the trial court has to step in and stop a jury percentages but then said both the state and the defense thought that that would be straying into giving the reasonable doubt instruction that would be heard yet at the time turman was the controlling authority and we were discussing terminate that time which that contests that it could be reversed where just any answer that you give and that's one of the complications of our longstanding jurisprudence of not having a definition of reasonable doubt it does but that the courts and the parties in a in a tough situation when they're forced to to deal with these kinds of questions but but again you know we've we've got to look beyond these general questions of what is the definition of reasonable doubt  can't consider this case with their thumb over the heart of the jury's note that said eighty percent seventy percent sixty percent that the orts response to the jury has to be considered in the context of the jury's note when th the no it was shown it affirmatively demonstrated it was prepared to apply in an constitutionally low standard standard that the second district on to be disturbingly low the trial court can't stand  believe and let the jury simply proceed ahead on that scene i'd like to address a point that the state raised for the first time it's reply brief and that's this notion of invited air  that it was the prosecutor actually suggested the response of the trial court ultimately give by no stretch of the imagination did trial work agree or propose an instruction which w you find that the trial court's instruction that basically gave the jury permission to apply a standard of reasonable doubt as low as a sixty percent certain ever indicate what the jury only in the footnote that says they should have told that the project should have informed the jury that reasonable doubt is not based on a percentage that has the highest percentage in that you've received algorithm instructions but going back to my hypotheticals you know if the jury has a question that says we flip a coin what your definition reasonable doubt is it more likely than not but your definition of reasonable doubt eighty percent seventy percent sixty percent i would say that the proper response of the trial court is you have to say no beyond a reasonable doubt reasonable doubt is not determined by flipping a coin no reasonable doubt is not determined the definition of reasonable doubt is not more likely than not know the definition of reasonable doubt is not a percentage eighty percent seventy percent sixty percent well and we do recognize recognize the black box you know the factor the the jury's deliberations or secrecy think of we don't get involved in what happens in the jury room where the jury has been properly instructed but when the jury before it enters the black box or comes out as one of the inputs into that black box and indicates that we're seriously off track we're going to convict this guy benefits to the judicial system of joining the other states that they do have a formal definition of reasonable doubt that that that's part of the jury instructions in there out there i mean  justice ginsburg proposed one and in victor versus nebraska the state massachusetts recently modified it's reasonable doubt definition based on that if you don't want to do a formal definition then the next category is these basic questions of you know can you give us a definition of reasonable doubt without any indication that the jury is off track i mean they're obviously confused they're wrestling with the question but there's it in those cases it is somewhat speculative that to try to figure out where the juries come from you know that one of the there is a non definition definition that the score is recognized over one hundred years you're going back to the one nine hundred twelve people versus thousand people versus moses there is no better definition of reasonable doubt than the words themselves even if you do something like that you've at least got the jury focused on look at the work look you know take a step back and think about this rather than this non answer answer which were seen of so for you to decide this we're not going to get involved even though you're confusing you've asked this a question a legal question you know on and  an important question for the trial judges who are struggling with this but that's not my case that's not the case that i'm standing here arguing to you this morning in this case we know that the jury was misguided that was off track was prepared to apply a standard of reasonable doubt which no one i think believes is beyond a reasonable doubt the trial court gave a permission to apply that standard and they came back with a guilty verdict in a case in which the second district walked right up to the edge of finding that it was would have satisfied his plane or under the  highest burden at law or something like that i said it might be appropriate but again you run the risk as you would with the definition of reasonable doubt that the lawyers and the judges are going to depart from those magic words creating for the lit and defense counsel's proposed burden or instruction is really no different than what happened here and so therefore there's no reason to depart from sports that precedent to be for the  to jettison hundred years of precedent just properly preserve the issue for review and before that or consider such an important issue is to define reasonable doubt the court is titled the adversarial brief