PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4498

ERIC ARTHUR WALTON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4537

ELDRIDGE MAYFIELD, a/k/a Sippy,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-96-41)

Argued: April 6, 1999

Decided: March 27, 2000

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,

ERVIN,* WILKINS, NIEMEYER, LUTTIG, WILLIAMS,

MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

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*Judge Ervin died while the case was under submission.
Affirmed by published per curiam opinion. Chief Judge Wilkinson

and Judge Williams wrote concurring opinions. Judge Widener wrote

a dissenting opinion. Judge King wrote a dissenting opinion, in which

Judge Murnaghan, Judge Wilkins, and Judge Traxler joined. Senior

Judge Hamilton wrote a dissenting opinion.

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COUNSEL

ARGUED: Jay Thornton McCamic, MCCAMIC & MCCAMIC,

Wheeling, West Virginia, for Appellant Walton; Gerald Grant Ashdown, WEST VIRGINIA UNIVERSITY SCHOOL OF LAW, Morgantown, West Virginia, for Appellant Mayfield. Paul Thomas

Camilletti, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: Bren Pomponio, Student Attorney,

WEST VIRGINIA UNIVERSITY SCHOOL OF LAW, Morgantown,

West Virginia, for Appellant Mayfield. William D. Wilmoth, United

States Attorney, Wheeling, West Virginia, for Appellee.

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OPINION

PER CURIAM:

This case came to be argued before the en banc court on April 6,

1999. The judgment of the district court is hereby affirmed by an

equally divided en banc court. Separate opinions follow seriatim.

AFFIRMED

PREFATORY NOTE:

On April 6, 1999, the en banc court heard argument in this case.

While the case was under submission, Judge Ervin died, leaving the

judgment of the district court affirmed by an equally divided en banc

court. Chief Judge Wilkinson, Judge Niemeyer, Judge Luttig, Judge

Williams, and Judge Michael continue to concur in what Judge Ervin

wrote. Judge Motz concurs in the judgment.

 2
ERVIN, Circuit Judge:

The question before this Court is whether a district court must

comply with a jury's request for a definition of reasonable doubt in

a criminal trial. Our current practice is well-established. We have

never required a district court to define reasonable doubt to a jury. See

United States v. Reives, 15 F.3d 42, 46 (4th Cir. 1994), cert. denied,

512 U.S. 1207 (1994).

During its deliberations, the jury in the present case asked the district court for a definition of reasonable doubt. In accordance with our

longstanding practice, the district court refused. On appeal, a panel of

this Court affirmed.1

We granted a rehearing en banc in this case to reconsider this issue.

Finding no reason to change our current practice, we affirm.

I.

Eric A. Walton and Eldridge Mayfield (the "Defendants") were

convicted by a jury for conspiracy to influence a petit juror and for

aiding and abetting in the attempt to influence a petit juror. See 18

U.S.C.A. §§ 2 (West 1969), 371 (West 1966 & Supp. 1999), 1503(a),

(b)(3) (Supp. 1999). During its deliberations, the jury asked the district court for a definition of reasonable doubt. The district court

refused.

On appeal, the Defendants argued that, because the jury may have

been confused over the burden of proof and, therefore, may have convicted the Defendants upon a lesser showing than required by due

process, the district court should have defined reasonable doubt for

the jury. In support, the Defendants argued that our opinion in United

States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995), compelled such a

result.

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1 The original panel opinion was unpublished. See United States v.

Walton, 166 F.3d 336 (4th Cir. 1998) (Table). The full text of this opinion has been reproduced in United States v. Walton, Nos. 97-4498, 97-

4537, 1998 WL 879650 (4th Cir. Dec. 17, 1998) (per curiam).

 3
A panel of this Court rejected the Defendants' argument, holding

that "[t]he rule regarding reasonable doubt for the jury is well settled

in this Circuit--a trial judge may define reasonable doubt only if the

jury requests a definition; however, the trial judge is not required to

provide a definition, even if the jury requests it." Walton, 1998 WL

879650, at *4. Finding "nothing in Oriakhi overruling or creating

exceptions to the rule," id. at *5, the panel affirmed the Defendants'

conviction.

Subsequently, the Defendants submitted a petition for rehearing en

banc to this Court. The only issue raised in this petition was whether

a district court should give a jury an instruction on the definition of

reasonable doubt when requested. Granting the petition, we elected to

rehear this case en banc.

II.

The issue before this Court is whether a district court should be

required to give an instruction defining reasonable doubt when

requested by a jury. This is a question of law that we review de novo.

See United States v. Singh, 54 F.3d 1182, 1189 (4th Cir. 1995).

There is no constitutional requirement to define reasonable doubt

to a jury. The Supreme Court has never required trial courts to define

the term. In its most recent case addressing reasonable doubt, the

Court stated that

the Constitution neither prohibits trial courts from defining

reasonable doubt nor requires them to do so as a matter of

course. Indeed, so long as the court instructs the jury on the

necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any

particular form of words be used in advising the jury of the

government's burden of proof.

Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citations omitted).2 The

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2 As Justice Ginsburg observed in her concurrence in Victor, this statement from the majority opinion could be considered dictum because in

 4
Court has even recognized that "[a]ttempts to explain the term `reasonable doubt' do not usually result in making it any clearer to the

minds of the jury." Holland v. United States , 348 U.S. 121, 140

(1954) (citation omitted).

As the panel observed in its original opinion, the well-established

rule of this Circuit is that although the district court may define reasonable doubt to a jury upon request, the district court is not required

to do so. Walton, 1998 WL 879650, at *4. According to our research,

the First, Seventh, Ninth, and District of Columbia Circuits share our

unwillingness to require the district court to define reasonable doubt.3

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both consolidated cases the trial judges defined reasonable doubt. The

question of whether a definition of reasonable doubt was constitutionally

required, therefore, was not squarely before the Court. See Victor, 511

U.S. at 26 (Ginsburg, J., concurring in part and concurring with the judgment). But see Hopt v. Utah, 120 U.S. 430, 440 (1887) (commenting that

a jury instruction refusing to define reasonable doubt further "is simple,

and as a rule to guide the jury is as intelligible to them generally as any

which could be stated . . .").

3 See United States v. Smith, 46 F.3d 1223, 1238 (1st Cir. 1995) (holding that "district courts need not define the concept of reasonable doubt

so long as the phrase is not buried as an aside"); United States v. Blackburn, 992 F.2d 666, 668 (7th Cir. 1993) (upholding a district court's

refusal to define reasonable doubt even after a jury's request); United

States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (holding that "a

District Court need not give any definition of reasonable doubt at all");

United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc)

(holding that "an appropriate instruction defining reasonable doubt is

permissible but not necessarily required").

The status of reasonable doubt jury instructions in the Fifth and Sixth

Circuits remains unclear. Although in Thompson v. Lynaugh the Fifth

Circuit stated that "attempts by trial courts to define `reasonable doubt'

have been disfavored by this court," 821 F.2d 1054, 1061 (5th Cir. 1987),

Thompson is distinguishable because it concerned a state collateral

attack. Id. at 1055. See also United States v. Williams, 20 F.3d 125, 128

(5th Cir. 1994) (noting that the Fifth Circuit has never "required a particular definition of reasonable doubt to be read to the jury"). Likewise, the

Sixth Circuit's District Judges Association commented:

 5
At least fifteen state courts also appear not to require a trial court to

define reasonable doubt to a jury.4 In addition, the foreign courts of

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Some Sixth Circuit decisions have sustained state criminal convictions against constitutional attacks based on the trial court's

failure to define the term reasonable doubt. Other Sixth Circuit

decisions have noted in dicta the Supreme Court's statement that

attempts to define reasonable doubt do not usually make the term

more understandable. But no Sixth Circuit decisions reviewing

federal criminal convictions have explicitly discouraged or condemned instructions defining reasonable doubt, as some other

circuits have done.

 Instead, Sixth Circuit decisions have rather consistently proceeded on the assumption that some definition should be given,

with the only real question being what the definition should say.

Committee on Pattern Crim. Jury Instructions, District Judges Ass'n,

Sixth Circuit, Pattern Crim. Jury Instructions § 1.03 (1991) (citations

omitted).

4 See La. Code Crim. Proc. Ann. art. 804A(3) (West 1998) ("The court

may, but is not required to, define . . . `reasonable doubt.' "); Ky. R.

Crim. P. § 9.56(2) ("The instructions should not attempt to define the

term `reasonable doubt.'"); People v. Carroll, 663 N.E.2d 458, 460 (Ill.

App. Ct. 1996) ("The concept of reasonable doubt needs no definition,

and it is prejudicial error for the court to give an involved instruction on

that concept."); Chase v. State, 645 So.2d 829, 850 (Miss. 1994)

("reasonable doubt defines itself and needs no further definition by the

court"); State v. Johnson, 445 S.E.2d 637, 637 (S.C. 1994) (upholding a

trial court's refusal to define reasonable doubt, commenting that the

expression "without an explanation of its legal significance is much more

favorable to a defendant"); State v. McMahon , 603 A.2d 1128, 1129 (Vt.

1992) ("We have never held that a defendant is entitled to an explanation

of `reasonable doubt'. . ."); Means v. Sidiropolis, 401 S.E.2d 447, 451

n.1 (W. Va. 1990) ("We have made it clear that a jury instruction

attempting to define `reasonable doubt' probably confuses the jury more

than it helps it."); Grant v. State, 703 P.2d 943, 946 (Okla. Crim. App.

1985) ("The long standing rule in this jurisdiction is that trial judges

should not define the term."); State v. Burton, 681 P.2d 646, 655 (Kan.

1984) ("This court has consistently adhered to the position that no definition could make the concept of `reasonable doubt' any clearer than the

words themselves."); State v. Olkon, 299 N.W.2d 89, 105 (Minn. 1980)

 6
England and Australia -- with which we share a common lineage, the

right to trial by jury, and the standard of proof beyond a reasonable

doubt in criminal trials -- also do not require trial courts to define

reasonable doubt to a jury.5

The rationale behind this rule is "our belief that efforts to define

reasonable doubt are likely to confuse rather than clarify the concept.

. . ." United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998). We

are convinced "that the term reasonable doubt has a self-evident

meaning comprehensible to the lay juror which judicial efforts to

define generally do more to obscure than to illuminate." United States

v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988) (citation omitted),

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("Defining the term should be at the option of the trial judge even though

a defining instruction is tendered. Lack of definition would not appear to

be prejudicial."); Cosco v. State, 521 P.2d 1345, 1346 (Wy. 1974) (holding that "the term `reasonable doubt' need not be defined and a trial court

would be well-advised to avoid instructions on reasonable doubt"); Spurlin v. State, 149 S.E.2d 315, 318 (Ga. 1966) (affirming trial court's

refusal to define reasonable doubt); State v. Robinson, 385 P.2d 754, 756

(Or. 1963) ("While it is doubtful if a definition is necessary, attempts to

define the term are not error for that reason."); City of Sioux Falls v.

Wolf, 114 N.W.2d 100, 101 (S.D. 1962) ("The term `reasonable doubt'

needs no definition. It means what it says.") (citation omitted); Strawderman v. Commonwealth, 108 S.E.2d 376, 379 (Va. 1959) (commenting

"that instructions attempting to define reasonable doubt should be discouraged as it is highly probable that any definition devised would be

less illuminating than the expression itself").

5 See Thomas V. Mulrine, Reasonable Doubt: How in the World Is It

Defined?, 12 Am. U. J. Int'l L. & Pol'y 195, 217-18 (1997), citing

Regina v. Ching, 63 Crim. App. 7, 10 (Eng. 1976) (warning trial judges

not to attempt to put "any gloss on what is meant by . . . `reasonable

doubt'"); The Queen v. Bilick, 36 S.A. St. R. 321 (Austl. 1984) (stating

that "[a]n attempt to characterize a reasonable doubt is a misdirection").

For an examination of the joint Anglo-American origins of the "beyond

a reasonable doubt" standard, see generally Barbara J. Shapiro, `To a

Moral Certainty': Theories of Knowledge and Anglo-American Juries,

1600-1850, 38 Hastings L.J. 153 (1986); Anthony A. Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B.U. L.

Rev. 507, 508 (1975).

 7
overruled on other grounds by Taylor v. United States, 495 U.S. 575,

597 (1990).6

This rationale is challenged when, as in the present case, a jury specifically requests a definition of reasonable doubt. We understand that

when a jury specifically requests a definition of reasonable doubt during deliberations, there is a risk that the jury may be confused over

what standard of proof to apply in a criminal case. At the same time,

we also appreciate the constitutionally-mandated importance of the

reasonable doubt standard in a criminal trial. See In re Winship, 397

U.S. 358, 362 (1970) ("Expressions in many opinions of this Court

indicate that it has long been assumed that proof of a criminal charge

beyond a reasonable doubt is constitutionally required."). Nevertheless, we remain convinced that attempting to explain the words "beyond a reasonable doubt" is more dangerous than leaving a jury to

wrestle with only the words themselves.7 

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6 The United States District Court for the District of Massachusetts

summarized this belief as "a basic philosophical precept that the concept

of reasonable doubt has an a priori existence in the minds of all jurors."

Smith v. Butler, 696 F. Supp. 748, 765 (D. Mass. 1988). Chief Judge Posner of the Seventh Circuit commented that "deeply entrenched in the

popular culture as it is, the term `beyond a reasonable doubt' may be the

single legal term that jurors understand best." United States v. Hall, 854

F.2d 1036, 1044 (7th Cir. 1988) (Posner, J., concurring).

7 The Seventh Circuit analogized defining reasonable doubt to a jury to

"playing with fire." United States v. Shaffner, 524 F.2d 1021, 1023 (7th

Cir. 1975). It recognized that "at best, definitions of reasonable doubt are

unhelpful to a jury, and, at worst, they have the potential to impair a

defendant's constitutional right to have the government prove each element beyond a reasonable doubt." Hall, 854 F.2d at 1039. As the United

States Supreme Court noted in Victor, reasonable doubt "defies easy

explanation." 511 U.S. at 5.

The Supreme Court of New Hampshire observed that reasonable doubt

jury instructions often result in a "grand conglomeration of garbled verbiage and verbal garbage." State v. Aubert , 421 A.2d 124, 127 (N.H.

1980) (citation omitted). While we believe that the jury instructions we

have examined were more artfully drafted than that, we still did not find

any of them clearer than the words themselves. See Edward J. Devitt et

al., Federal Jury Practice and Instructions: Civil and Criminal § 12.10

 8
In the end, only a jury can truly define reasonable doubt. Reasonable doubt cannot be divorced from its specific context any more than

the concepts of "reason" or a "reasonable person." Jurors differ in

their own individual conceptions of reasonable doubt. During jury

deliberations, these jurors debate whether or not the prosecution in the

specific case before them has proven the guilt of a particular defendant beyond a reasonable doubt. Through "the community participation and shared responsibility that results from that group's

determination of guilt or innocence," Williams v. Florida, 399 U.S.

78, 100 (1970), the jury itself defines reasonable doubt and applies its

own definition to the specific case before it.

The only definition of the standard of proof in criminal cases

required by the Supreme Court remains "the necessity of proof

beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 320

n.14 (1979). While we discourage further definition of the reasonable

doubt standard, see Williams, 152 F.3d at 298, we continue to leave

the final decision of whether to acquiesce to a jury's request and

define reasonable doubt to the district court's discretion. See United

States v. Patterson, 150 F.3d 382, 389 (4th Cir. 1998). Given the

inherent risks, however, we refuse to require such a practice.

III.

Accordingly, since we find no reason to alter our current practice

of not requiring a jury instruction defining reasonable doubt in criminal cases, we affirm the judgment of the district court.

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(4th ed. 1992 & Supp. 1998) (collecting federal reasonable doubt jury

instructions); 5 Edward R. Branson, The Law of Instructions to Juries in

Civil and Criminal Cases § 3308 (3d ed. 1962 & Supp. 1997) (collecting

state reasonable doubt jury instructions). Dean John Henry Wigmore

expressed this sentiment earlier when he wrote,"The truth is that no one

has yet invented or discovered a mode of measurement for the intensity

of human belief. Hence there can be yet no successful method of communicating intelligibly to a jury a sound method of self-analysis for

one's belief." 9 John H. Wigmore, Evidence in Trials at Common Law

§ 2497 (Chadbourn rev. 1981).

 9
WILKINSON, Chief Judge, concurring:

One picture can be worth a thousand words. And fewer words are

sometimes better than many. So it is with "reasonable doubt." The

majesty of the term has always been its brevity. It is not at all a bad

thing for a jury to be left to work through its meaning. With longer

instructions, one cannot tell which part the ear will choose to hear or

the mind to accentuate. And that can make all the difference.

The principal dissent's proposed instruction further illustrates the

point that different is not always better. Though accompanied by

much verbal fanfare, all it does is substitute for"reasonable doubt"

the equally capacious term "not firmly convinced." This is to do nothing more than restate the traditional constitutional formulation with

verbiage that carries uncertain connotations. Indeed, I can see either

the prosecution or the defense thinking that this reformulation works

to its detriment. From the standpoint of the prosecution, the "not

firmly convinced" standard appears to require virtual certainty from

jurors before they may vote to convict. From the standpoint of the

defense, the "reasonable doubt" standard encourages the jury to adopt

a reflective and deliberative state of mind, while the "not firmly convinced" standard may require only that the jury be sufficiently opinionated. The cure proposed by the dissent may thus be worse than the

disease. The district court acted within its discretion in avoiding this

danger.

I would affirm the judgment.

WILLIAMS, Circuit Judge, concurring:

I concur in Judge Ervin's opinion. When a criminal jury requests

the district court to define reasonable doubt, the district court must

have discretion to decide whether to provide such a definition. Should

the district court determine that a definition of reasonable doubt is

necessary to remove jury confusion about the proper standard of

proof, I believe that the definitions suggested by the dissenters would

be adequate. The mere act of a jury requesting a definition of reasonable doubt, however, does not alone demonstrate jury confusion and

there is no evidence in this case from which to infer that the jury

applied a constitutionally inadequate standard of proof. Cf. Weeks v.

 10
Angelone, No. 99-5746, 2000 WL 33524, at *5-*6 (U.S. Jan. 19,

2000) (explaining that the jury's request for clarification of an instruction was insufficient to demonstrate that the jury applied an incorrect

legal standard where the trial court referred the jury back to the original, constitutionally adequate instruction).

WIDENER, Circuit Judge, dissenting:

I join in all of Judge King's dissenting opinion except part III

thereof. I would give the following instruction:

Proof beyond a reasonable doubt is such as you would be

willing to rely and act upon without hesitation in the most

important of your own affairs.

This instruction, in almost the same words, has been approved by

the Second Circuit. See United States v. Birbal , 62 F.3d 456, 459-460

(2d Cir. 1995). More importantly, a similar instruction emphasizing

the use of the word hesitate was suggested by the Supreme Court as

providing a clearer definition of reasonable doubt in Holland v.

United States, 348 U.S. 121, 140 (1954).

KING, Circuit Judge, dissenting:

The question before us today is whether a district court should

respond to a request from a criminal trial jury with an instruction

defining reasonable doubt. We reheard this case en banc to reconsider

our position in this regard. I write separately because I believe it is

inappropriate to deny a criminal jury an explanation of reasonable

doubt when the jury has explicitly requested a definition.

The bases for my view, explained more fully below, are: (1) proof

beyond a reasonable doubt is fundamental to our criminal justice system; (2) a trial court should assist a jury in every way possible in the

fulfillment of its obligations; and (3) the term"reasonable doubt" can

be defined in a manner readily understood by, and of assistance to,

a trial jury. I would require a reasonable doubt instruction be given

when the jury requests a definition, and I propose an instruction substantially similar to that advocated by the Federal Judicial Center

 11
("FJC"). Because I find error in the district court's failure in this case

to define reasonable doubt in response to the jury's request, I respectfully dissent.

I.

While long a fundamental principle of our criminal justice system,

it was not until 1970 that the Supreme Court expressly afforded constitutional stature to the reasonable doubt concept. See In re Winship,

397 U.S. 358, 364 (1970). In Winship, the Court held that the due process mandates of the Fifth and Fourteenth Amendments require that

every element of a charged offense be proved beyond a reasonable

doubt. Id. In so holding, the Court emphasized the importance of the

reasonable doubt standard in our criminal justice system:

The [reasonable doubt] standard provides concrete substance for the presumption of innocence -- that bedrock

"axiomatic and elementary" principle whose"enforcement

lies at the foundation of the administration of our criminal

law."

Id. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)).1

Recognizing the fundamental unfairness that would result from permitting a criminal defendant to be convicted and imprisoned on the

lesser standard of proof sufficient in civil cases, the Court explained

the rationale underlying the reasonable doubt standard applicable in

a criminal prosecution:

The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility

that he may lose his liberty upon conviction and because of

the certainty that he would be stigmatized by the conviction.

Accordingly, a society that values the good name and freedom of every individual should not condemn a man for

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1 Due process is satisfied by nothing less than a juror's understanding

that he or she may not vote to convict a defendant based upon a belief

"that the defendant is probably guilty. . . ." United States v. Hernandez,

176 F.3d 719, 728 (3d Cir. 1999) (quoting Sullivan v. Louisiana, 508

U.S. 275, 278(1993))(emphasis added).

 12
commission of a crime when there is reasonable doubt about

his guilt.

Winship, 397 U.S. at 363-64. Echoing these sentiments, the concurring opinion of Justice Harlan in Winship provides perhaps the most

persuasive justification for the Court's decision:"I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is

far worse to convict an innocent man than to let a guilty man go free."

Id. at 372 (Harlan, J., concurring).

II.

Although it has explicitly held that the reasonable doubt standard

is mandated by due process, the Supreme Court, subsequent to its

1970 Winship decision, has offered little guidance as to if, when, or

how the concept of reasonable doubt should be defined for a criminal

jury. Indeed, as Judge Ervin's opinion points out, ante at 4, the Court

has never required trial courts to define reasonable doubt. Neither,

however, has the Court ever ruled that the concept of reasonable

doubt is incapable of definition, or that trial courts should not, as a

matter of course, provide a definition. Victor v. Nebraska, 511 U.S.

1, 26 (1994) (Ginsburg, J., concurring in part and concurring in the

judgment).

Though we have never insisted that district courts in this Circuit

define reasonable doubt, we have historically accorded them the discretion to provide a definition when the jury asks for one.2 According

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2 See e.g., United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991)

("The only exception to our categorical disdain for definition is when the

jury specifically requests it."); United States v. Ricks, 882 F.2d 885, 894

n.12 (4th Cir. 1989) (noting the "limited exception to our general proscription in those cases where jurors are demonstrably confused or uncertain . . .") (citing Murphy v. Holland, 776 F.2d 470, 475 (4th Cir. 1985));

United States v. Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (construing

Ricks to suggest that reasonable doubt should be defined when "the jury

is `demonstrably confused or uncertain' and requests such an instruction"); United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988)

("We have frequently admonished district courts not to attempt to define

 13
to Judge Ervin, we should not require district courts to define reasonable doubt because the term "has a self-evident meaning comprehensible to the lay juror which judicial efforts to define generally do more

to obscure than to illuminate." Ante at 7 (quoting Headspeth, 852 F.2d

at 755, see supra note 2 (citation omitted)). However, the persuasiveness of this reasoning is substantially undermined in instances, such

as here, where the jury itself has entreated the district court to define

reasonable doubt. As my distinguished former colleague acknowledged, "[w]e understand that when a jury specifically requests a definition of reasonable doubt during deliberations, there is a risk that the

jury may be confused over what standard of proof to apply in a criminal case."3 Ante at 8.

The meaning of "reasonable doubt" is not as overwhelmingly evident to lay jurors as some courts have assumed. Though each word

in the term appears regularly in common parlance, they do not, when

coupled without further explanation, "necessarily convey the high

standard of proof that the due process clause requires." United States

v. Nolasco, 926 F.2d 869, 873 (9th Cir. 1991) (Wiggins, J., dissenting) (citation omitted).4 The potential for confusion among jurors is

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reasonable doubt in their instructions to the jury absent a specific request

from the jury itself."), overruled on other grounds by Taylor v. United

States, 495 U.S. 575, 597 (1990); United States v. Porter, 821 F.2d 968,

972 (4th Cir. 1987) ("This court has urged trial courts to avoid defining

reasonable doubt unless requested to do so by the jury . . .").

3 See also Henry A. Diamond, Reasonable Doubt: To Define, Or Not

To Define, 90 Colum. L. Rev. 1716, 1723-24 (1990) ("A jury's request

for a definition of reasonable doubt must be an indication that it does not

understand what the term means."), cited in Victor, 511 U.S. at 26 (Ginsburg, J., concurring in part and concurring in the judgment).

4 See also Jessica N. Cohen, The Reasonable Doubt Jury Instruction:

Giving Meaning To A Critical Concept, 22 Am. J. Crim. L. 677, 688-89

(1995) ("[A]lthough reasonable doubt is not a Latin term like res ipsa

loquitur or a technical term like `accessory after the fact' or `aider and

abettor,' it is more than merely the sum of the two common words `reasonable' and `doubt.' It is a legal term of art.").

Moreover, the fact that certain words are commonly used should not

otherwise prevent them from being defined for the jury. Jury instructions

frequently define simple words and phrases that are part of the everyday

lexicon of the average lay juror, such as "attempt," "knowingly," "agreement," and "conspiracy." Cohen at 690 (citations omitted).

 14
poignantly illustrated by the acknowledged reality that trial judges,

despite their extensive legal training and professional experience,

themselves often have difficulty articulating the meaning of reasonable doubt. Simply put, if "judges and legal scholars struggle to define

reasonable doubt, it is unrealistic to expect a lay jury to properly

grasp and apply the stark words." State v. Portillo, 898 P.2d 970, 973

(Ariz. 1995).

Nevertheless, despite the potential for juror confusion, Judge Ervin

concluded that attempts to define reasonable doubt are "more dangerous than leaving a jury to wrestle with only the words themselves."

Ante at 8. With all respect to the experience and acumen of this eminent jurist, I disagree. In my view, it serves little purpose to instruct

the average juror that she must be convinced of guilt beyond a "reasonable doubt," absent some intelligent elaboration on the meaning of

the term.5 One of a trial judge's most important responsibilities is to

assist jurors with their understanding of applicable legal principles.

See United States v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995) ("The purpose of jury instructions is to instruct the jury clearly regarding the

law to be applied in the case.") (citations omitted). Without sufficient

instruction, "the jury becomes mired in a factual morass, unable to

draw the appropriate legal conclusions based on those facts." Id. The

failure of a trial court to offer a definition of reasonable doubt, after

the jury has requested assistance with the term, is an abdication of its

responsibility.

The positions taken by some of our sister circuits strongly support

the view that reasonable doubt should, at least in some circumstances,

be defined. In Blatt v. United States, 60 F.2d at 481 (3d Cir. 1932),

the Third Circuit held that the failure to define reasonable doubt constituted "error prejudicial to the defendant." Sixty years later, in

United States v. Polan, 970 F.2d 1280, 1286 n.4 (3d Cir. 1992), the

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5 See Jackson v. Virginia, 443 U.S. 307, 316-17 (1979) (ruling that simply instructing a jury to apply the reasonable doubt standard does not satisfy the constitutional mandate of Winship; the Winship doctrine requires

more than merely a trial ritual). As Judge Wiggins made plain in his dissent in Nolasco, "[s]imple repetition of the phrase `beyond a reasonable

doubt' does not adequately communicate to jurors the degree to which

they must be convinced." 926 F.2d at 874 (Wiggins, J., dissenting).

 15
Third Circuit adhered to Blatt by approving a "model" instruction that

included a definition of reasonable doubt. Similarly, in Friedman v.

United States, 381 F.2d 155, 160 (8th Cir. 1967), the Eighth Circuit

held that the failure to define reasonable doubt upon request by the

defendant would constitute error. Additionally, the Eighth Circuit has

approved a set of model jury instructions that include a definition of

reasonable doubt. United States v. Harris, 974 F.2d 84, 85-86 (8th

Cir. 1992). The Tenth Circuit has also concluded that jurors should

be instructed on the meaning of reasonable doubt. See Holland v.

United States, 209 F.2d 516, 523 (10th Cir. 1954) (holding that the

accused is entitled to a definition of reasonable doubt); see also

United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974) (concluding that defendants are entitled to have the meaning of reasonable

doubt explained to the jury).

The rule in these three circuits is more stringent than the modest

one I espouse today. I do not maintain that the jury must always be

instructed on the meaning of reasonable doubt, or even that -- as a

prophylactic measure -- a trial court must accede to the defendant's

request for such an instruction. I merely say that, when the jury's confusion is demonstrably palpable, i.e., the jury has requested that reasonable doubt be defined, a real danger exists that the defendant may

be convicted on less than the certainty demanded by the Constitution.

Accordingly, in that circumstance, I would require the presiding judge

to guide the jury down the appropriate path by defining reasonable

doubt.6

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6 Hypothetically, there are several scenarios in which a definition of

reasonable doubt might be given. For example, (1) district courts could

define reasonable doubt as a matter of course in all criminal cases; (2)

district courts could give such an instruction at the request of either

party; (3) such an instruction could be required only in response to a

request from a defendant; or (4) a definition of reasonable doubt could

be given when the jury's confusion leads it to request one.

As noted, our review today is limited to the fourth scenario: whether

a district court should define reasonable doubt when requested to do so

by a criminal jury. I would reserve for another day questions as to

whether reasonable doubt should be defined under other circumstances.

 16
In addition, the position of the Fifth Circuit is not quite as muddled

as has been suggested. Admittedly, in Thompson v. Lynaugh, 821

F.2d 1054, 1061 (5th Cir. 1987), that court broadly stated that

attempts to define reasonable doubt are disfavored. However, it is

acknowledged that Thompson is distinguishable because it involved

a state collateral attack, rather than a direct appeal. Ante at 5 n.3.

Accordingly, Thompson should not be construed as the Fifth Circuit's

adoption of a strict "no-definition" rule. To the contrary, the Fifth Circuit has indicated that reasonable doubt should be defined. See United

States v. Williams, 20 F.3d 125, 128-29 nn.1-2 (5th Cir. 1994)

(observing that "in contrast" to those circuits that discourage defining

reasonable doubt, it has repeatedly encouraged district courts to do

so).

In the Sixth Circuit, the status of instructions defining reasonable

doubt is not completely clear. As has been noted, the District Judges

Association of the Sixth Circuit, in promulgating model instructions

defining reasonable doubt, indicated that:

Sixth Circuit decisions have rather consistently proceeded

on the assumption that some definition should be given,

with the only real question being what the definition should

say.

Ante at 6 n.3 (citation omitted). While the model instructions were

subsequently approved, see United States v. Goodlett, 3 F.3d 976, 979

(6th Cir. 1993), the Sixth Circuit has not explicitly required district

courts to define reasonable doubt.

The considerable legal support in the federal courts for defining the

concept of reasonable doubt is well-grounded in reality, empirical

studies having demonstrated that juries often do not understand what

the phrase means.7 As Justice Ginsburg stated in her concurring opin-

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7 See, e.g., N.L. Kerr, et al., Guilt Beyond a Reasonable Doubt: Effects

of Concept Definition and Assigned Decision Rule on the Judgment of

Mock Jurors, 34 J. Personality & Soc. Psychology 282, 292 (1976). In

this study, the results of mock trials demonstrated that there was greater

uncertainty among individual jurors and more disagreement within the

 17
ion in Victor, "[s]everal studies of jury behavior have concluded that

`jurors are often confused about the meaning of reasonable doubt'

when that term is left undefined." 511 U.S. at 26 (Ginsburg, J., concurring in part and concurring in the judgment) (quoting Henry Diamond, Reasonable Doubt: To Define, Or Not To Define, 90 Colum.

L. Rev. 1716, 1723 (1990) (citations omitted)). The danger of such

confusion is that it increases the likelihood of an unjust result, i.e.,

that jurors may vote to convict on less than the constitutionally

required standard of proof, or that jurors may vote to acquit when the

proper result is to convict.

III.

In declining to require trial judges to define reasonable doubt under

the circumstances of this case, five of my colleagues conclude that the

concept is incapable of being defined clearly, and that attempting to

define it would only further confuse the jury.8 I am unpersuaded.

_________________________________________________________________

jury as a whole when reasonable doubt was not defined, and that more

deadlocked juries resulted.

In another study, D.U. Strawn & R.W. Buchanan, Jury Confusion: A

Threat to Justice, 59 Judicature 478, 480-81 (1976), researchers conducted a series of studies on jurors in Florida and collected the following

data: twenty-three percent believed that when the evidence was evenly

balanced between guilt and innocence, the defendant should be convicted; only fifty percent understood that the defendant did not have to

present any evidence of his innocence; two percent thought the burden

of proving innocence rested on the defendant. Based on these findings,

the authors concluded in a subsequent article that jurors should be

advised that certain phrases in instructions do not have their ordinary

meaning, but instead have specific legal meaning, including "burden of

proof" and "reasonable doubt". D.U. Strawn, et al., Reaching a Verdict,

Step by Step, 60 Judicature 383, 387 (1977).

8 In support of this determination, Judge Ervin points to our decision

in United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998), where

we wrote that "efforts to define reasonable doubt are likely to confuse

rather than clarify the concept. . . ." However, this language does not

necessarily indicate that the term is incapable of definition or that a

proper definition should not be given. Indeed, notwithstanding our tradi-

 18
Admittedly, reasonable doubt is not a precise concept. Nevertheless,

"even if definitions of reasonable doubt are necessarily imperfect, the

alternative -- refusing to define the concept at all -- is obviously not

preferable." Victor v. Nebraska, 511 U.S. at 26 (Ginsburg, J., concurring in part and concurring in the judgment). Despite its somewhat

nebulous nature, I am convinced that reasonable doubt can be defined

in simple terms that are readily understood by -- and of assistance to

-- a criminal jury.

I find such simplicity and clarity to be embodied in the definition

of reasonable doubt approved in 1987 by the FJC. This succinct

instruction was discussed with approval by Justice Ginsburg in her

concurring opinion in Victor. I propose today a slightly modified version of the FJC definition, providing as follows:

 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 con-

_________________________________________________________________

tional skepticism of defining reasonable doubt, we have approved of

some of the definitions offered by trial courts. See, e.g., United States v.

Love, 767 F.2d 1052, 1060 (4th Cir. 1985) (while arguing that reasonable

doubt definitions only confuse juries, we wrote,"In no way [was the definition offered by the court] `misleading or confusing' and, viewed in the

context of the charge as a whole, [the court's definition] `correctly convey[ed] the concept of reasonable doubt.'"); United States v. Mahabir,

1997 WL 297498, at *5 (4th Cir. June 4, 1997) (per curiam) (holding that

the FJC definition of reasonable doubt offered by the district court was

a "cogent" statement of the reasonable doubt standard).

 19
sideration 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 are not firmly convinced of

his guilt, you must find him not guilty.

The sole distinction between the instruction suggested here and that

sponsored by the FJC lies in the last sentence thereof. In its closing

sentence, the FJC instruction provides:

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.

I would amend this provision to make its language consistent with the

penultimate sentence of the FJC instruction. I am convinced that consistency is the best approach, and I find further support in United

States v. Porter, 821 F.2d 968 (4th Cir. 1987), where we criticized the

"real possibility" aspect of the FJC instruction. In Porter, the district

court had charged the jury in accordance with the FJC instruction. On

appeal, the defendants challenged the "real possibility" language of

the instruction, arguing that it was confusing and improperly shifted

the burden of proof. While concluding that the district court's instructions taken as a whole properly placed the burden of proof on the

prosecution, we criticized the "real possibility" terminology, writing

that,

Implying the evidence must show a real possibility of innocence to justify acquittal trenches on the principle that a

defendant is presumed to be innocent.

Id. at 973 (emphasis added). Judge Butzner's criticism of the "real

possibility" language is persuasive, and I have concluded that the

slight modification of the FJC instruction, explained above, would

render it of greater assistance to perplexed jurors.

I am not alone in this conclusion; indeed, a virtually identical modification of the FJC instruction has been endorsed in a recent publication of the Texas Law Review. Lawrence M. Solan, Refocusing the

Burden of Proof in Criminal Cases: Some Doubt About Reasonable

 20
Doubt, 78 Tex. L. Rev. 105 (1999). In his detailed and astute analysis

of various issues relating to reasonable doubt instructions, Professor

Solan recognizes the merits of this modification, writing,

The [modified FJC] instruction reminds jurors that not every

doubt is a reasonable one. But its main focus is to tell the

jurors that the real issue is whether the government has

made a strong, convincing case. It is marginally superior to

the FJC's instruction [because it eliminates the"real possibility" language that tends to shift the burden of proof, as

recognized by Porter].

Id. at 118. Moreover, as Professor Solan points out, the Supreme

Court of New Jersey has adopted a definition of reasonable doubt

nearly indistinguishable from the one I propose today. See State v.

Medina, 685 A.2d 1242, 1251-52 (N.J. 1996). 9 Professor Solan

explains that, by eliminating the "real possibility" language, the New

Jersey instruction avoids the tendency of the FJC instruction to shift

the burden of proof. Solan, 78 Tex. L. Rev. at 118. 10

In my view, this modified FJC instruction effectively and adequately conveys the meaning of reasonable doubt in clear and concise

terms. While eliminating the concerns raised by Judge Butzner in

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9 The last sentence of the instruction adopted by the New Jersey court

in Medina reads, "If, on the other hand, you are not firmly convinced of

defendant's guilt, you must give defendant the benefit of the doubt and

find him not guilty." Id. at 1252.

10 In this regard, Professor Solan thus recommends that the FJC instruction, as modified by the court in Medina, be adopted and given by those

courts that have not yet done so, arguing that the superiority of this

instruction stems

not from its semantic fidelity to the reasonable doubt standard

but from its greater success in promoting important values. To

lose sight of this point is to accept a formulaic approach to our

system of criminal justice rather than an approach that recognizes the values that led to the adoption of the reasonable doubt

standard in the first place.

Id. at 145.

 21
Porter, this modified instruction maintains the positive features of the

FJC instruction. In particular, the proposed instruction continues to

inform[ ] the jurors that the prosecution must prove its case

by more than a mere preponderance of the evidence, but not

necessarily to an absolute certainty. . . . [Contrasting the preponderance of the evidence standard and the beyond a reasonable doubt standard] is a useful way to frame the issue

for the jury.

Williams, 20 F.3d at 132 n.5. It is this feature, the juxtaposition of the

requisite standard of proof in civil cases with the more stringent criminal trial standard of proof beyond a reasonable doubt, that is the FJC

instruction's greatest asset. As the Fifth Circuit in Williams pointed

out, contrasting the civil and the criminal standards of proof is an

effective means of framing the issue for the jury. While making clear

that "reasonable doubt" is a higher standard of proof than that necessary in civil cases, the instruction does not unduly disadvantage the

prosecution; it clearly states that proof beyond a reasonable doubt

"does not require proof that overcomes every possible doubt."

Furthermore, the modified FJC instruction ensures that the government's obligation to carry the burden of proof beyond a reasonable

doubt is properly understood by jurors. The language of this instruction thus focuses "on what the government must do-- not on what

the defendant has been able to accomplish. It tells jurors not to accept

the government's model unless they are convinced that it is the right

one." Solan, 78 Tex. L. Rev. at 144.

Accordingly, I find this slightly modified FJC instruction to be a

cogent and comprehensible statement of the reasonable doubt standard. Because I believe this definition of reasonable doubt to be a

fully acceptable instruction, and vastly preferable to none at all when

the jury has requested assistance, I would approve its use under the

limited circumstances at issue here.11 

_________________________________________________________________

11 The "hesitate to act" instruction suggested by Judge Widener, ante at

11, is also a suitable alternative, even though that particular instruction

has been subject to criticism. See Victor, 511 U.S. at 24-25 (Ginsburg,

J., concurring in part and concurring in the judgment). Likewise, giving

the FJC instruction in its original form would be a far superior practice

than simply ignoring a perplexed jury's request.

 22
IV.

The integrity of the judicial process requires that the appropriate

standard of proof be scrupulously applied by criminal trial juries;

hence, an adequate understanding by juries of the reasonable doubt

standard is necessary for our system to function properly. To ensure

the rigorous application of the proper standard of proof in our criminal justice system, I would require that trial courts define reasonable

doubt in the limited circumstances presented in this case, that is, when

the jury has explicitly requested a definition. 12 Because the district

court failed to provide such a definition in response to the jury's

request, I find reversible error.13

_________________________________________________________________

12 The Supreme Court's recent decision in Weeks v. Angelone, 120

S. Ct. 727 (2000), does not impact the views expressed in this opinion.

Weeks involved a habeas corpus petitioner who sought relief from his

state court conviction and death sentence. As such, the petitioner was

obliged to demonstrate a violation of clearly established Federal law to

be entitled to relief. See 28 U.S.C.A. § 2254(d)(1) (West 1994 & Supp.

1999). The specific issue before the Court was whether "the Constitution

is violated when a trial judge directs a capital jury's attention to a specific paragraph of a constitutionally sufficient instruction in response to

a question regarding the proper consideration of mitigating circumstances." Id. at 729. Finding no constitutional violation, the Court denied

relief.

By contrast, our ability to find error in this case is not confined to constitutional violations because, in evaluating the propriety of reasonable

doubt instructions, "the Constitution is not our only benchmark." Williams, 20 F.3d at 128. Even if the district court's refusal to define reasonable doubt in response to the jury's request does not run afoul of the

Constitution, we may find error "if we are persuaded that the district

court's jury instruction is not acceptable." Id. Our basis for doing so rests

in the inherent supervisory powers of federal courts, pursuant to which

we "may, within limits, formulate procedural rules not specifically

required by the Constitution or the Congress . . . . to preserve judicial

integrity by ensuring that a conviction rests on appropriate considerations

validly before the jury." United States v. Hasting, 461 U.S. 499, 505

(1983). Pursuant to the inherent supervisory power of this Court, we

should require district courts to define reasonable doubt when presented

with a jury request to do so.

13 Since I would establish a new rule for criminal prosecutions requiring district courts in this Circuit to define reasonable doubt when

 23
I am honored to state that Judge Murnaghan, Judge Wilkins, and

Judge Traxler concur in this dissenting opinion.

HAMILTON, Senior Circuit Judge, dissenting:

Of all the rights enjoyed by a criminal defendant, the right to be

found guilty upon proof beyond a reasonable doubt is undoubtedly

one of the most important. The right ensures that our criminal justice

system separates those who are guilty from those who are innocent.

See In re Winship, 397 U.S. 358, 363-64 (1970).

To be effective, that is, to fulfill its obligation to separate the guilty

from the innocent, the term reasonable doubt must have a comprehendible meaning, one that can be understood by the jury. Therefore,

the term reasonable doubt must be defined with accuracy to ensure

that it is applied with precision. Without this safeguard, the jury is left

to apply its own definition; thus, we risk the possibility that the jury

will apply the wrong standard, potentially convicting a criminal

defendant on less proof than that required by the Constitution.

Judge Ervin feels that the term reasonable doubt should not be

defined because defining the term reasonable doubt"is more dangerous than leaving a jury to wrestle with only the words themselves."

Ante at 8. Thus, Judge Ervin leaves it to the jury to create its own definition, applying its day-of-deliberations "definition to the specific

case before it." Ante at 9. I simply fail to see the logic in Judge

Ervin's approach.

It makes eminently more sense to define the term reasonable doubt

in a jury charge as a matter of course, just as district courts typically

define other terms such as knowingly, willfully, and intentionally.

When the term reasonable doubt is defined we avoid, if not eliminate,

the risk that a criminal defendant will be convicted on less evidence

_________________________________________________________________

requested to do so by the jury, I am compelled to vote to reverse the convictions in this case and remand for retrial. See Griffith v. Kentucky, 479

U.S. 314, 328 (1987) (holding that new rules for criminal prosecutions

must be applied retroactively to all cases not yet final, including cases

pending on direct appeal).

 24
than is constitutionally required. This benefit far outweighs any attendant problems associated with defining the term reasonable doubt.

In In re Winship, the Supreme Court explained that any "society

that values the good name and freedom of every individual should not

condemn a man for commission of a crime when there is reasonable

doubt about his guilt." 397 U.S. at 363-64. I simply see no way of

achieving this laudable goal other than by giving the jury an instruction that cogently and accurately defines the term reasonable doubt.

I would, therefore, require one, such as the one approved by the Federal Judicial Center in 1987, as a matter of course. Consequently, I

would find reversible error in this case. See Griffith v. Kentucky, 479

U.S. 314, 328 (1987).

 25