2014 IL App (2d) 121203

No. 2-12-1203

Opinion filed August 5, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Du Page County.

)

Plaintiff-Appellee, )

)

v. ) No. 12-CF-697

)

BERNARD THOMAS, ) Honorable

) John J. Kinsella,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Justice Spence concurred in the judgment and opinion.

Justice Hudson specially concurred, with opinion.

OPINION

¶ 1 On September 12, 2013, a jury found the defendant, Bernard Thomas, guilty of one count 

of retail theft (720 ILCS 5/16-25(a)(1) (West 2012)). The sole issue raised in this appeal is the 

constitutional validity of the trial court’s statement to the jury—in response to a written question 

asking for the legal definition of the term “reasonable doubt”—that “[i]t is for you to determine.” 

In arguing that this response violated his due process right to have the State held to the burden of 

proving his guilt beyond a reasonable doubt, the defendant relies on two recent appellate court 

cases, People v. Turman, 2011 IL App (1st) 091019, and People v. Franklin, 2012 IL App (3d) 

100618, which held that it is reversible error per se for a trial court to tell a jury that it must 

define “reasonable doubt” for itself. We view this holding as questionable under applicable 

precedent of the United States Supreme Court and the Illinois Supreme Court. We instead hold
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that a court must consider the totality of the circumstances and determine whether there is a 

reasonable likelihood that the jury applied a lesser standard than beyond a reasonable doubt. We 

conclude that this standard is not met here and therefore affirm the defendant’s conviction.

¶ 2 BACKGROUND

¶ 3 The defendant was indicted on two counts of felony retail theft. Count I alleged that, on 

March 27, 2012, he took several bottles of liquor from a Jewel-Osco store in Elmhurst with the 

intent to permanently deprive Jewel-Osco of the possession and benefit of the merchandise, 

having been previously convicted of theft (720 ILCS 5/16-25(a)(1) (West 2010)). Count II 

alleged the same retail theft, with the added element that the value of the liquor taken was over 

$300 (thereby increasing the sentence (720 ILCS 5/16-25(f)(3) (West 2010))).

¶ 4 The jury trial commenced on September 11, 2012. During jury selection, the trial court 

made comments giving the prospective jurors an overview of the case, including the charges and 

the schedule of the trial. With respect to the State’s burden of proof, the trial court stated that:

the State bore the burden of proving the charges beyond a reasonable doubt; the burden of proof 

never shifted to the defendant; the defendant was presumed innocent of the charges throughout 

the trial; at the end of the trial, if the State did not prove its case beyond a reasonable doubt, the 

jurors would be required to find the defendant not guilty; and if the jurors found that the State 

had sustained its burden of proof beyond a reasonable doubt, they would be required to find the 

defendant guilty. The trial court did not make any comments about the meaning of the term 

“reasonable doubt.”

¶ 5 Nathan Bown, an assistant director for the Osco portion of the Jewel-Osco store, testified 

that on February 11, 2012, he noticed that an unusual amount of liquor was missing from one of 

the shelves in aisle 7. He checked the surveillance video for the day before and saw an AfricanAmerican man placing bottles of liquor inside his jacket, which was puffy and black with a furry 
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lining at the neck. The man later walked out the northwest entrance of the store. Bown did not 

call the police, because he did not know who the man was, but he monitored aisle 7 closely after 

that. Bown later observed, via video, the same man stealing liquor from aisle 7 on February 20

and 29 and March 12, 14, and 27, 2012. As of March 27, he still had not contacted the police 

because he still did not know who the man was. However, he backed up the surveillance video 

to preserve it. 

¶ 6 Rafael Lopez, a Jewel-Osco employee, testified that he was working at the store on 

March 31, 2012. About 3 p.m. that day, Lopez saw a man leave the store through the entrance 

doors. The man, who walked right past him, was African-American and had a tattoo on his neck, 

and he was wearing a heavy winter coat with a furry lining, although it was a warm afternoon. 

Lopez noticed that he had a big bulge in his midsection. Lopez identified the defendant in court 

as the man he saw leaving the store on that day and as the man shown in photographs of aisle 7 

taken on that day. Lopez continued to watch as the defendant approached the passenger side of a 

gold four-door vehicle with an older African-American man in the driver’s seat. The defendant 

got into the car. As the car drove away, Lopez was behind it and made a note of the number of 

the license plate, which had a “handicapped” emblem. At trial, he testified that the number was 

either 117346 or 117396 (he could not tell whether he had written down a “4” or a “9”). Lopez 

notified his manager. 

¶ 7 On April 1, Bown learned that another potential theft of liquor had occurred on March 

31. When he checked the surveillance video for that day, he saw the same man he had seen 

earlier taking bottles of liquor and then walking out the northwest entrance. As on earlier 

occasions, the red lights on the anti-theft towers activated. Bown called the Elmhurst police and 

gave them the surveillance video and the license plate number observed by Lopez. Lopez was 
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interviewed by the Elmhurst police, who showed him an array of six photographs. He identified 

a photograph of the defendant as the man he had seen leaving the store.

¶ 8 On April 5, Bown saw a man in the store who looked like the suspect in the surveillance 

videos. The man was pushing a cart containing some liquor bottles. Bown called the police. He 

then began following the man, whom he identified in court as the defendant. After he followed 

the defendant up and down a few aisles, the defendant abandoned his cart and left the store. The 

defendant did not steal anything on April 5. Bown testified that he later determined, by looking 

at the video, that on March 27 the defendant had stolen six bottles of Ciroc vodka and three 

bottles of Hennessey cognac. Bown also generated a receipt showing the total value of the liquor 

taken on that date, which exceeded $300 ($38.99 per bottle of Ciroc vodka and $32.99 per bottle 

of Hennessey cognac).

¶ 9 Police officer Alexander Kefaloukas of the Elmhurst police department testified that he 

went to the Jewel-Osco store at about 5:30 p.m. on April 5, 2012, after a report was received 

about a potential theft in progress. He met with a store employee who gave him a description of 

a suspect, which he relayed to other police officers.

¶ 10 Elmhurst police officer Michael Campise testified that he responded to the Jewel-Osco

store at about 5:30 p.m. on April 5. While there, he saw an African-American man loitering 

outside the store. The man walked to a tan Chevy Lumina, which had a license plate with a 

“handicapped” emblem and the number 117346, and got in. Campise told other officers to 

detain the car if it drove away. He later learned that this man was Horace Smith.

¶ 11 Campise received a report that the suspect was leaving the store, and he arrested the 

defendant. Kefaloukas joined him and they searched the defendant, who was wearing a black 

“poofy” jacket with fur on the hood. The defendant had a small amount of change in his pocket 

but no other money, and no credit or debit cards.
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¶ 12 Elmhurst police officer Edward Coughlin interviewed the defendant at the police station 

at about 6:30 p.m. He gave the defendant Miranda warnings. The defendant, who had a tattoo 

on the side of his neck, appeared agitated and said that he had not stolen anything. Coughlin told 

him that they were interested in prior incidents, not events at the Jewel-Osco that day. The 

defendant said that he had been at the store to pick up some things for his wife. Coughlin 

expressed skepticism, noting that the defendant had only six cents on him when he was brought 

to the police station. The defendant contended that a police officer on the street had taken his 

credit card. However, after Coughlin showed the defendant a surveillance DVD and mentioned 

the dates that the defendant had been seen in the store, the defendant admitted that he had stolen 

liquor from the store. The defendant stated that Smith would drive him to the store, where he 

would take bottles of liquor from the shelf and put them in his jacket. He would then sell the 

liquor on the street to get money for his heroin habit. His habit cost him about $60 per day. 

Coughlin had seen people under the influence of narcotics before and the defendant did not seem 

to be under the influence at the time of the interview.

¶ 13 After closing arguments, the trial court instructed the jury. As part of the instructions, the 

trial court gave Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. Supp. 2009)

(hereinafter, IPI Criminal 4th No. 2.03 (Supp. 2009)):

“The defendant is presumed to be innocent of the charges against him. This 

presumption remains with him throughout every stage of the trial and during your 

deliberations on the verdict and is not overcome unless from all the evidence in this case 

you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving the guilt of the defendant beyond a 

reasonable doubt, and this burden remains on the State throughout the case. The 

defendant is not required to prove his innocence.”
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¶ 14 The jury sent out three notes during its deliberations. Only the second is at issue here. 

That note read, “[W]hat is the legal definition of reasonable doubt?” The trial court commented 

to the parties:

“It’s not the first time I heard that question. I don’t think the law in Illinois has 

changed, nor the position of the Supreme Court. The only question is how do I wish to 

word my response. My inclination is to say: It is for you to determine; that is for you to 

determine.”

The State assented; the defense suggested that the jurors be told that if they wanted to find the 

defendant not guilty, they should do so. The trial court then consulted the IPI Criminal and 

noted that it did not recommend any definition. The trial court’s written response read, “It is for 

you to determine.”

¶ 15 The jury found the defendant guilty of count I and not guilty of count II. On October 12, 

2012, the defendant was sentenced to six years’ imprisonment. After his motion to reconsider 

the sentence was denied, he filed a timely notice of appeal.

¶ 16 ANALYSIS

¶ 17 The sole issue on appeal is whether the trial court violated the defendant’s due process 

rights through its response to the jury’s note asking for the legal definition of “reasonable doubt.” 

The defendant concedes that he did not raise this issue in the trial court (through either a 

contemporaneous objection or a posttrial motion) and thus the issue is forfeited unless the trial 

court’s actions amounted to plain error. The plain error doctrine allows a reviewing court to 

consider unpreserved error when “(1) a clear or obvious error occurred and the evidence is so 

closely balanced that the error alone threatened to tip the scales of justice against the defendant, 

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is 

so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the 
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judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 

551, 565 (2007). The first step in determining whether plain error exists is determining whether

an error actually occurred. People v. Naylor, 229 Ill. 2d 584, 593 (2008).

¶ 18 The defendant argues that, under Turman and Franklin, the trial court’s response to the 

jury’s question about the definition of “reasonable doubt”—“It is for you to determine”—was 

plain error. We begin by setting out the fundamental analysis applicable to this issue, as 

expressed by the United States and Illinois Supreme Courts, before turning to an examination of

Turman, Franklin, and later decisions. 

¶ 19 A. Constitutional Requirements

¶ 20 The requirement to correctly instruct the jury on fundamentals such as the proper burden 

of proof is of constitutional dimension. “[T]he Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). However, in 

considering whether a particular jury instruction violated the defendant’s due process rights, “the 

proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional 

manner, but whether there is a reasonable likelihood that the jury did so apply it.” (Emphasis in 

original.) Victor v. Nebraska, 511 U.S. 1, 6 (1994).

¶ 21 In 1994, the United States Supreme Court issued its decision in Victor, in which it 

considered whether the jury instructions defining “reasonable doubt” in two state criminal cases 

violated due process. The Court began by laying out the analytical framework for such claims:

“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. [Citation.] Indeed, so long as the court instructs the 

jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, 
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[citation], the Constitution does not require that any particular form of words be used in 

advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a 

whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the 

jury.’ ” Id. at 5 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

¶ 22 The Court then summarized the key issue: “The constitutional question *** is whether 

there is a reasonable likelihood that the jury understood the instructions to allow conviction 

based on proof insufficient to meet the Winship standard.” Id. at 6. In assessing this likelihood, 

the court should consider other instructions or comments to the jury that occurred during the 

trial. See id. at 13, 21-22 (considering the other instructions given during the defendants’ trials, 

which provided context for the instructions at issue). Thus, the standard to be applied in cases 

such as the one before us is: taken as a whole, were the instructions to the jury such that there is a 

reasonable likelihood that the jury understood those instructions as allowing a conviction under a 

lesser standard than proof beyond a reasonable doubt?

¶ 23 B. Illinois Supreme Court Precedent

¶ 24 There is no dispute that attempts to define the term “reasonable doubt” for jurors are

discouraged in Illinois. In People v. Speight, 153 Ill. 2d 365, 374 (1992), the Illinois Supreme 

Court commented that “[t]he law in Illinois is clear that neither the court nor counsel should 

attempt to define the reasonable doubt standard for the jury.” Reflecting this sentiment, there is 

no recommended jury instruction that would provide such a definition. See Illinois Pattern Jury 

Instructions, Criminal, No. 2.05, Committee Note, at 78 (4th ed. 2000) (“The Committee 

recommends that no instruction be given defining the term “ ‘reasonable doubt.’ ”).1

 1 Nothing in Illinois’s hands-off approach to defining “reasonable doubt” for jurors is 

incompatible with Victor, in which the Court noted that due process neither requires nor 
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¶ 25 Nevertheless, it is equally clear that providing a jury with a definition of “reasonable 

doubt” does not necessarily constitute reversible error. A review of Illinois Supreme Court 

precedent on this issue demonstrates this: typically, the supreme court finds that giving such a 

definition either is not error or is harmless error. See, e.g., People v. Lucas, 244 Ill. 603, 615 

(1910) (expressing no condemnation of the trial court’s instruction that the term means “a 

serious, substantial doubt and not a mere possibility of a doubt”; supreme court held this 

instruction was not error, noting that “reasonable doubt” need not exclude all possibility of 

doubt, as that state of certainty was almost unattainable in human affairs (internal quotation 

marks omitted)); People v. Moses, 288 Ill. 281, 285-86 (1919) (commenting that the giving of 

lengthy instructions is unnecessary because “there is no better definition of the meaning of the 

words ‘reasonable doubt’ than the words themselves” but adding that such lengthy definitions 

are not necessarily reversible error; affirming the conviction); People v. Malmenato, 14 Ill. 2d 

52, 61 (1958) (although supreme court discouraged the practice of defining “reasonable doubt,” 

trial court’s instruction on the topic was not error); Speight, 153 Ill. 2d at 374-75 (although 

“neither the court nor counsel should attempt to define the reasonable doubt standard for the 

jury,” prosecutor’s comments were not reversible error in light of trial court’s immediate 

admonishment to the jury to disregard the comments).

¶ 26 One of the few supreme court cases to find that an instruction defining reasonable doubt

was reversible error is People v. Cagle, 41 Ill. 2d 528, 536 (1969), in which the trial court had 

 

prohibits definitions of the term. Victor, 511 U.S. at 5. See also People v. Failor, 271 Ill. App. 

3d 968, 971 (1995) (Victor did not conflict with the prevailing practice in Illinois of not defining 

“reasonable doubt” and trial court did not err in refusing to provide jurors with a definition of the 

term).
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instructed the jury that “a doubt, to justify an acquittal, must be reasonable, and it must arise 

from a candid and impartial investigation and consideration of all the evidence in the case and 

unless it [meets a standard described at some length], it is insufficient to authorize a verdict of 

not guilty.” (Internal quotation marks omitted.) The supreme court held that this instruction 

improperly shifted the burden of proof to the defendant by implying that an acquittal must be 

justified, contrary to the presumption of innocence. In reaching this conclusion, the supreme 

court noted that it had “repeatedly held that the legal concept of ‘reasonable doubt’ needs no 

definition.” Id. Nevertheless, giving an instruction on the concept was not necessarily

prejudicial or reversible error, so long as the instruction did not improperly minimize the State’s 

burden of proof or attempt to shift that burden to the defendant. Id.

¶ 27 In the years since Victor, the Illinois Supreme Court has only rarely addressed the issue 

of defining “reasonable doubt,” but the essential principles are unchanged. In People v. Keene, 

169 Ill. 2d 1 (1995), a case involving prosecutorial comments about reasonable doubt, the 

supreme court reaffirmed that, although it is unwise, defining the term is not automatic error:

“This court has cautioned against attempts by counsel as well as trial judges to 

explain the reasonable doubt standard. [Citation.] The danger is that, no matter how 

well-intentioned, the attempt may distort the standard to the prejudice of the defendant. If 

sufficient prejudice results, reversal is warranted.” (Emphasis added.) Id. at 24-25.

In Keene, the court held that the prosecutor’s comments did not rise to the level of plain error. 

More recently, the supreme court issued People v. Green, 225 Ill. 2d 612 (2007), in which it

considered whether the failure to formally instruct the jury that the State bore the burden of proof 

as to each and every element of the offense (as part of Illinois Pattern Jury Instructions, Criminal, 

No. 14.04 (4th ed. 2000)) rendered the trial fundamentally unfair. The supreme court held that 

the essential requirements for a fair trial had been met because IPI Criminal 4th No. 2.03 (Supp. 
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2009) (which lays out the State’s general burden of proof and the presumption of the defendant’s 

innocence) had been given. Green, 225 Ill. 2d at 624 (“once IPI Criminal 4th No. 2.03 was 

given, the constitutional threshold was met”). Although it does not directly bear on the issue of 

definining reasonable doubt, Green is illuminating because it reflects Victor’s emphasis on the 

constitutional requirement that jurors be told that they must apply the beyond a reasonable doubt 

standard, and Victor holds that it is unimportant whether “reasonable doubt” is defined so long as 

the proper standard is applied.

¶ 28 Thus, under Illinois Supreme Court precedent, it remains the law in Illinois that defining

“reasonable doubt” is discouraged but is not reversible error per se.

¶ 29 C. Turman and Franklin

¶ 30 In 2011, the First District Appellate Court issued Turman, 2011 IL App (1st) 091019, 

¶ 19, in which it held that the trial court committed reversible error when it answered a jury’s

request for a definition of “reasonable doubt” by saying that “ ‘reasonable doubt is not defined 

under Illinois law. It is for the jury to collectively determine what reasonable doubt is.’ ” The 

parties had agreed to this response, and the defendant had not identified it as error in his posttrial 

motion, instead raising it for the first time on appeal. The appellate court stated that the issue 

was subject to plain error analysis, rejecting the State’s argument that the defendant had 

acquiesced in the error and could not raise it on appeal. Id. ¶ 27.

¶ 31 Analyzing the trial court’s response to the jury’s question, the Turman court held that, 

although the first part of the response (that the term was not defined under Illinois law) was 

correct, the second part was error:

“By instructing the jurors that they should collectively determine what reasonable doubt 

was, the court allowed the jury to use a standard that in all likelihood was below the 

threshold of a reasonable doubt standard. *** The effort by the trial court in this case 
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can be construed as an attempt to define that which the Illinois Supreme Court has said 

cannot be defined in this way.” Id. ¶ 25.

The Turman court went on to say that the trial court’s response was plain error under both prongs 

of the analysis. The response was error under the first prong because the court viewed the 

evidence as close, and the response “did not clarify the meaning of reasonable doubt.” Id. ¶ 27. 

It also held that, because the error allowed the jury to apply an incorrect standard of proof, it 

affected the fairness and integrity of the trial and violated the defendant’s right to due process, 

thereby amounting to plain error under the second prong. Id.

¶ 32 The Turman court did not provide any detailed explanation as to what aspect of the trial 

court’s response created the probability that the jury applied a lesser standard of proof. Was it 

the use of the word “collectively,” which might have suggested that reasonable doubt meant 

whatever a majority of the group thought, without regard for the beliefs of individual jurors? Or 

was it simply that the trial court gave some response, and the court read Illinois law as saying 

that any response (other than refusing to answer the question) was automatic error? The Turman

decision left these questions unanswered.

¶ 33 One year later, the Third District Appellate Court issued Franklin, 2012 IL App (3d) 

100618. In Franklin, the trial court had stated, during jury selection: “ ‘Beyond a reasonable 

doubt means beyond a reasonable doubt. It’s what each of you individually and collectively, as 

12 of you, believe is beyond a reasonable doubt.’ ” Id. ¶ 4. During the State’s rebuttal closing, 

the prosecutor reminded the jurors that the trial judge had told them that “ ‘[r]easonable doubt is 

what you believe to be reasonable doubt. You decide what reasonable doubt is. Not [defense 

counsel], not the State, you decide.’ ” Id. ¶ 15. The defendant did not make any 

contemporaneous objections or raise the issue in his posttrial motion, but raised the issue on 

appeal.
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¶ 34 The majority in Franklin began by stating that “[t]he United States Constitution does not 

prohibit courts from defining reasonable doubt” (citing Victor), but “judges in Illinois courts are 

prohibited from doing so” (citing Failor and Speight). Id. ¶ 24. The Franklin majority went on 

to state that any attempt to define “reasonable doubt” was error per se: “A trial court’s attempt to 

explain reasonable doubt is improper because there is no better definition of reasonable doubt 

than the words themselves.” Id. ¶ 25; see also id. ¶ 27 (the instruction given was improper 

“because it contravene[d] the Illinois Supreme Court’s mandate that trial courts not define 

reasonable doubt for the jury”). The Franklin majority then followed Turman in holding that, 

“by telling jurors that it was for them to collectively determine what reasonable doubt meant,” 

the trial court’s instruction created a reasonable likelihood that the jury had convicted the 

defendant based on a standard of proof less than beyond a reasonable doubt, a structural error 

requiring reversal. Id. ¶ 28.

¶ 35 Justice Carter dissented from this holding. He set out the constitutional requirements for 

instructing a jury in a criminal trial, including instructions on the presumption of innocence and 

the State’s burden to prove the commission of the offense beyond a reasonable doubt. In 

particular, he noted the United States Supreme Court’s statement that “ ‘the Constitution neither 

prohibits trial courts from defining reasonable doubt nor requires them to do so’ ” and “ ‘does 

not require that any particular form of words be used in advising the jury of the government’s 

burden of proof.’ ” Id. ¶ 48 (Carter, J., concurring in part and dissenting in part) (quoting Victor, 

511 U.S. at 6). Thus, contrary to the majority’s approach:

“[T]he United States Supreme Court’s ruling in Victor establishes that a jury instruction 

defining reasonable doubt is not automatically erroneous, *** and that such an instruction 

does not automatically violate a defendant’s right to a fair trial as guaranteed by the due 

process clause. See Victor, 511 U.S. at 5; Green, 225 Ill. 2d at 622 (adopting some of the 
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language set forth in Victor but in a different context). Indeed, the Supreme Court noted 

in Victor that it had only found that a reasonable doubt instruction violated the due 

process clause one time in the past. See Victor, 511 U.S. at 5. According to the Supreme 

Court, due process is violated only if under the totality of the circumstances, there is a 

reasonable likelihood that the jury understood that the instructions allowed it to find the 

defendant guilty based upon a standard of proof that was less than beyond a reasonable 

doubt.” Id.

¶ 36 Justice Carter then reviewed all of the trial court’s extensive (and correct) comments to 

the jury regarding the State’s burden of proof, the presumption of innocence, and the meaning of 

“reasonable doubt,” as well as all of the prosecutor’s comments (which included the statement 

that beyond a reasonable doubt was the highest standard of proof available under the law). He 

concluded that, considering all of the instructions received by the jury, there was not a 

reasonable likelihood that the jurors believed the trial court’s response allowed them to find the 

defendant guilty under a lesser standard of proof. Id. ¶ 49.

¶ 37 D. Developments Since Turman and Franklin

¶ 38 Less than six months after it decided Franklin, the Third District issued another opinion 

addressing comments about the meaning of “reasonable doubt.” In People v. Max, 2012 IL App 

(3d) 110385, the prosecutor had made two comments about reasonable doubt. During the initial 

closing argument, the prosecutor acknowledged that the State had the responsibility to prove 

beyond a reasonable doubt that the defendant engaged in theft and said he thought the jury would 

find the State had met this standard. He then said, “ ‘[n]ow, beyond a reasonable doubt, 

there’s—there’s no dictionary definition of that. I would suggest to you that if you imagine a 

balance—’ ” Id. ¶ 40. Defense counsel objected and the objection was sustained. In the 

defendant’s closing, her attorney argued that the State had failed to prove that she took any 
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money, noting that the State had not introduced her financial records or shown that she bought 

expensive items. Id. ¶ 41. On rebuttal, the prosecutor stated: “ ‘We all know better in our heart 

of hearts exactly what went on here. And when you know inside your heart of hearts, you know 

we have met our burden of proof of proving [the defendant] guilty beyond a reasonable doubt, 

and we don’t have to show where she spent the money.’ ” Id. ¶ 42.

¶ 39 Justice Carter wrote the opinion in Max, joined by two justices who were not on the panel 

in Franklin. The opinion reiterated much of Justice Carter’s dissent in Franklin and applied 

Victor’s “totality of the circumstances” test rather than the per se approach of Turman and 

Franklin. The court then held that, considering all of the information received by the jury in the 

case, there was not a reasonable likelihood that the jurors understood the prosecutor’s comments 

to mean that they could find the defendant guilty under a lesser standard than proof beyond a 

reasonable doubt. Id. ¶ 56.2

¶ 40 The First District also appears to have retreated from its position in Turman, to the extent 

that Turman held that telling jurors that they must define “reasonable doubt” for themselves 

 2 In People v. Sullivan, 2014 IL App (3d) 120312, the Third District (including one of the 

justices from the Franklin majority) once again addressed an attempt to define “reasonable 

doubt.” However, the court simply distinguished Turman and Franklin on the ground that those 

cases involved comments made by the trial judge, whereas Sullivan involved a prosecutorial 

comment, which did “not carry as grave a danger of distorting the reasonable doubt standard.” 

Id. ¶ 29. The court concluded that the defendant had not shown that the prosecutor’s comment

on the reasonable-doubt standard was “so egregious that it risked the jury using a lesser standard 

to convict” the defendant. Id. ¶ 33.
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violates a defendant’s due process rights. In People v. Johnson, 2013 IL App (1st) 111317, the 

trial court had made the following comments during jury selection:

“ ‘The State has the burden of proof beyond a reasonable doubt. In Illinois we do 

not—it is not defined by the Supreme Court or by the State legislature. That’s something 

for you to decide. But if any of you have served on a civil jury, if you use the analogy of 

a scale, all you have to do is tilt it. And that’s proof beyond a preponderance of the 

evidence.

In a criminal case, if you use the same scale, it’s a balance like this. (Indicating.) 

Proof beyond a reasonable doubt is the highest burden that there is at law in Illinois and 

the United States.’ ” Id. ¶ 52. 

The Johnson court rejected the defendant’s argument that these comments constituted plain 

error, stating: “Although we do not condone the reference and comparison to the civil standard, 

we cannot say that the trial court’s comments constitute error, particularly where the court told 

jurors that reasonable doubt was the highest burden at law and that it was for them to decide what 

reasonable doubt meant.” (Emphasis added.) Id. ¶ 54. Johnson did not cite to either Turman or 

Franklin, however.

¶ 41 In People v. Downs, 2014 IL App (2d) 121156, this court recently addressed the issue of 

the proper response to juror confusion about the meaning of reasonable doubt. Like the present 

case, it involved a jury note asking for a definition of reasonable doubt. However, the note in 

Downs was more detailed and suggested that the jury fundamentally misunderstood the standard: 

“ ‘What is your definition of reasonable doubt[:] 80%[,] 70%[, or] 60%?’ ” Id. ¶ 4. The trial 

court consulted with the parties’ attorneys and eventually responded: “ ‘We cannot give you a 

definition ***[;] it is for you to define ***.’ ” Id. As here, the defendant did not raise the 
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correctness of this response before the trial court, and thus on appeal the issue was subject to 

plain error analysis.

¶ 42 We began by noting the firm position of Illinois law that no definition of “reasonable 

doubt” should be given and stated that, “[b]ased on this authority, we believe that it is abundantly 

clear that giving an erroneous definition of ‘reasonable doubt’ qualifies as error.” (Emphasis 

added.) Id. ¶ 22. We then considered whether the trial court’s response constituted an erroneous 

definition of reasonable doubt.

¶ 43 Analyzing Turman and Franklin, we summarized their holdings as focusing on “(1) the 

improper instruction that the jury is to collectively determine the meaning of reasonable doubt, 

and (2) the danger that the jury will convict a defendant on proof that did not meet the 

reasonable-doubt standard.” Id. ¶ 27. In Downs, the danger that the jury would apply a lesser 

standard to convict was obvious, in light of the reference in the jury’s question to percentages as 

low as 60 percent. “The question, at best, suggests that the jury was predisposed to use a 

standard less than reasonable doubt, and the trial court, by telling the jury that the court would 

stay out of it and let the jury do whatever it wanted, only compounded the error.” Id. ¶ 28. We 

therefore held that the integrity and fairness of the trial had been impugned, and we reversed the 

conviction and remanded for a new trial.

¶ 44 Importantly, although in Downs we rejected the State’s request to depart from Turman

and Franklin, we noted that, because of the peculiar facts relating to the content of the jury’s 

note in Downs, we would reverse even if the per se error approach of Turman and Franklin was 

incorrect:

“[T]he jury’s question regarding reasonable doubt gives us a concrete and undeniable 

view into the jury’s thought process regarding reasonable doubt. By asking if reasonable 

doubt was 80%, 70%, or 60%, the jury clearly showed that it was already contemplating a 
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standard less than the reasonable-doubt standard required under the law. By instructing 

the jury that it was ‘your duty to define [the term “reasonable doubt,”]’ the trial court 

gave the jury clear license to continue down its mistaken pathway of equating reasonable 

doubt to some percentage of confidence. The State claims that Turman was based on 

speculation. Even if it were, here we do not have that speculation, because the jury’s 

question provides insight into the jury’s thinking, and we do not have to speculate that the 

jury used a lesser standard. The jury’s question clearly shows that there is a reasonable 

likelihood that it used a lesser standard in convicting defendant. Because of this 

difference, we can follow the principles elucidated in Turman even if Turman were 

wrongly decided ***.” Id. ¶ 37.

¶ 45 E. Application to This Case

¶ 46 In this case, the trial court initially provided no definition of reasonable doubt to the jury. 

Thus, it conformed to the dictate of Speight that courts should not attempt to provide such a 

definition. And, even when the jury asked for the “legal definition” of the term, the trial court 

simply responded that the definition was for the jurors to determine. 

¶ 47 This response was unquestionably correct. As our supreme court has held, neither the 

court nor counsel should attempt to define reasonable doubt for the jury. Speight, 153 Ill. 2d at 

374. As a practical matter, the refusal to supply a definition requires jurors to wrestle with the 

term’s meaning themselves. This is no bad thing: the American legal system is premised on the 

belief that jurors represent the conscience of the community and will act diligently and 

thoughtfully in applying the law. Thus, absent any concrete demonstration of error or confusion, 

jurors should be trusted to apply the beyond a reasonable doubt standard appropriately. See 

United States v. Glass, 846 F.2d 386, 387 (7th Cir. 1988) (“ ‘Reasonable doubt’ must speak for 

itself. Jurors know what is ‘reasonable’ and are quite familiar with the meaning of ‘doubt.’ ”). 
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A trial court’s instruction that the meaning of “reasonable doubt” is for jurors to determine is a 

correct statement of Illinois law.

¶ 48 The defendant argues that a trial court’s instruction telling jurors that they must define 

reasonable doubt inevitably encourages them to apply a standard that is less than proof beyond a 

reasonable doubt. However, he provides no explanation as to why this should be so, other than 

citing to Turman and Franklin. To the extent that Turman and Franklin held that simply 

instructing jurors that they must determine the meaning of “reasonable doubt” is (1) a violation 

of the Illinois Supreme Court’s proscription against providing a definition or (2) reversible error 

per se, we find them unpersuasive. See O’Casek v. Children’s Home & Aid Society of Illinois, 

229 Ill. 2d 421, 440 (2008) (decisions of one district of the appellate court are not binding on 

other districts). To the extent that those two cases rest on some other basis, such as the use of the 

word “collectively” in the instructions in those cases, they are distinguishable from this case. 

Either way, the defendant’s reliance on these cases is unavailing.

¶ 49 Under Victor, we must consider all of the instructions received by the jury and determine

whether there is a reasonable likelihood that the jury convicted the defendant under a lesser 

standard than proof beyond a reasonable doubt. Here, however, the defendant’s sole contention 

of error is the wording of the trial court’s response to the jury’s second question. We have found 

that there was no error in this response. Absent any other evidence that the jury applied a lesser 

standard than proof beyond a reasonable doubt in convicting the defendant of count I, we cannot 

conclude that there is a reasonable likelihood that the defendant’s due process rights were 

violated by the trial court’s instructions to the jury. Victor, 511 U.S. at 6.

¶ 50 As we find no error in the trial court’s instructions to the jury in this case, we likewise 

find no plain error. Naylor, 229 Ill. 2d at 593. Accordingly, the defendant’s forfeiture must 
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stand. People v. Pastorino, 91 Ill. 2d 178, 188 (1982) (“[p]lain error doctrine is a ‘narrow and 

limited exception to the general waiver rule”). 

¶ 51 CONCLUSION

¶ 52 The judgment of the circuit court of Du Page County is affirmed.

¶ 53 Affirmed.

¶ 54 JUSTICE HUDSON, specially concurring: 

¶ 55 I agree with the majority that there is no reasonable likelihood that the jury applied an 

incorrect standard of proof in the present case. I write separately to caution trial courts against 

proceeding down a path that is fraught with peril. It is true that a “trial court has a duty to 

provide instruction to the jury where it has posed an explicit question or requested clarification 

on a point of law arising from facts about which there is doubt or confusion.” People v. Childs, 

159 Ill. 2d 217, 229 (1994). On the other hand, “[a] trial court may exercise its discretion and 

properly decline to answer a jury’s inquiries where the instructions are readily understandable 

and sufficiently explain the relevant law, where further instructions would serve no useful 

purpose[,] or would potentially mislead the jury ***.” Id. at 228. As set forth by the majority, 

precedent of both the United States Supreme Court and our supreme court is abundantly clear—

there is no need for a trial court to attempt to define “reasonable doubt” any further than the plain 

meaning of those two common words conveys. I believe that the better practice is to let the 

phrase speak for itself. 

¶ 56 Indeed, even stating something as seemingly innocuous as “it is for you to decide” carries 

risks. Such an instruction could be read as directing a jury that it must try to define or interpret 

the objective meaning of the term. On the other hand, it could be read as vesting a jury with the 

discretion to interpret the term to mean whatever it wants it to mean (like 80%, 70%, or 60% 
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certitude, as the question was posed by the jury in Downs, 2014 IL App (2d) 121156). In short, 

any attempt to interpret, define, or even comment on the term “reasonable doubt” risks reversal.