IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 17, 2003 Session

STATE OF TENNESSEE v. LEROY NEVILS

 Direct Appeal from the Circuit Court for Williamson County

No. I-115-701 Donald P. Harris, Judge

No. M2003-00520-CCA-R3-CD - Filed February 26, 2004

JOSEPH M. TIPTON, J., concurring.

I concur in the results reached in the majority opinion. However, I question whether a

“reasonable certainty” equates to a “moral certainty” relative to the definition of reasonable doubt

in Tennessee. Also, I believe that trial courts in this state should not be using varying definitions of

reasonable doubt.

T.P.I.–Crim. 2.03 (7th ed. 2002) provides:

Reasonable doubt is that doubt engendered by an investigation

of all the proof in the case and an inability, after such investigation,

to let the mind rest easily to the certainty of guilt. Reasonable doubt

does not mean a doubt that may arise from possibility. Absolute

certainty of guilt is not demanded by the law to convict of any

criminal charge, but moral certainty is required, and this certainty is

required as to every proposition of proof requisite to constitute the

offense.

This description of reasonable doubt is the one that has historically been given in Tennessee. See,

e.g., Hardin v. State, 210 Tenn. 116, 122, 355 S.W.2d 105, 108 (1962); Ware v. State, 108 Tenn.

466, 470-71, 67 S.W. 853, 854 (1902).

The majority opinion quotes from the defendant’s prior DUI case in which a panel of this

court, including my colleagues in this case, also concluded that using “reasonable certainty” as

opposed to “moral certainty” did not violate due process. It recognized that T.P.I.–Crim. 2.03

included the language “moral certainty” in the context of reasonable doubt, but it stated that

T.P.I.–Crim. 2.03(a) “provides alternative language” that has “continuously withstood challenges

to its constitutionality.” 
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The opinion’s reference to T.P.I.–Crim. 2.03(a) relates to an alternative reasonable doubt

instruction placed into the fourth edition of the pattern instructions in 1995 because of the concern

of the Committee on Pattern Jury Instructions (Criminal) of the Tennessee Judicial Conference “that

the use of the term of ‘moral certainty’ in the jury charge on reasonable doubt may be reversible error

under Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990).” See T.P.I.–Crim.

2.03 Comments. In pertinent part, T.P.I.–Crim. 2.03(a) provided:

A reasonable doubt is a doubt based upon reason and common

sense after careful and impartial consideration of all the evidence in

this case.

It is not necessary that the defendant’s guilt be proved beyond

all possible doubt, as absolute certainty of guilt is not demanded by

the law to convict of any criminal charge.

A reasonable doubt is just that–a doubt that is reasonable after

an examination of all the facts of this case.

However, the United States Supreme Court did not condemn “moral certainty.” In Victor

v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994), the Supreme Court explained the relationship of

reasonable doubt to the “moral certainty” phrase. It stated that moral certainty was the highest

degree of certitude based upon moral evidence, as opposed to demonstrative or “mathematical”

evidence, such as scientific truths. 511 U.S. at 10-11, 114 S. Ct. at 1245-46. In other words, “moral

certainty” is that level of certainty humanly attainable in matters relating to human affairs and

observation. The court recognized that a modern jury, unaware of the historical meaning, might

understand the phrase, in the abstract, to mean something less than the level of certainty

constitutionally required in criminal cases. 511 U.S. at 13-14, 114 S. Ct. at 1247. However, the

Court did not hold that the phrase was constitutionally inappropriate when the full charge to the jury

placed the phrase in such a context that a jury would understand that it mean certainty with respect

to human affairs. 511 U.S. at 15-16, 114 S. Ct. at 1247-48. In this respect, I believe the context of

T.P.I.–Crim. 2.03 describes the high level of certainty required in criminal cases. As for the

alternative instruction, T.P.I.–Crim. 2.03(a), the Committee removed it in the 2000 fifth edition of

the pattern jury instructions. 

I recognize that various panels of this court have approved the wording of T.P.I.–Crim.

2.03(a). See, e.g., State v. Melvin Edward Henning, No. 02C01-9703-CC-00126, Madison County

(Tenn. Crim. App. Oct. 24, 1997). However, as I maintained in State v. Derek Denton, No. 02C01-

9409-CR-00186, Shelby County (Tenn. Crim. App. Aug. 2, 1996), the courts in Tennessee should

use the historical definition. To me, different words have different meaning and I do not equate

“reasonable certainty” to “moral certainty.” I do not believe “reasonable certainty” engenders as high

a state of certainty. In any event, we should not be faced with an issue regarding instructions that

differ from the pattern jury instruction. That is, all the courts in this state should use the instruction

presented in T.P.I.–Crim. 2.03 (7th ed. 2002).
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I concurin the results reached in the majority opinion because the record reflects that the trial

court essentially instructed the jury as provided in T.P.I.–Crim. 2.03 but substituted “reasonable” for

“moral.” To me, the surrounding instructions regarding reasonable doubt sufficiently explain to the

jury the level of certainty that due process requires.

____________________________________

JOSEPH M. TIPTON, JUDGE