Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt is foreclosed by Cage itself.”497 Justice Blackmun observed that the US Supreme Court did not concern itself with the difference between “substantial doubt” and “grave uncertainty,” remaining unconvinced that there was any possible interpretation of the term “substantial doubt” that would be constitutionally acceptable.498 Justice Blackmun agreed with Justice Ginsburg that the “hesitate to act” language is “far from helpful, and may, in fact, make matters worse by analogizing the decision whether to convict or acquit … to the frequently high-risk personal decisions people must make in their daily lives.”499 He took the view that the language used in the Victor’s jury instruction, in particular, the term “strong probabilities” and “hesitate to act” did, in fact, make it likely that the jury would apply the incorrect standard of proof.500 Regarding the use of the phrase “moral certainty,” Justice Blackmun believed that this phrase was especially dangerous because it was used in conjunction with language that already overstated the degree of doubt necessary to convict.501 He distinguished the instruction given in Sandoval’s trial from the one in Victor’s trial, and deemed the latter instruction to be particularly egregious as all of the misleading terms used were mutually reinforcing.502 Although all the US Supreme Court Justices seemed to agree that “moral certainty” was confusing and ought to be removed, the Court did not provide any alternative definition of the reasonable doubt standard. The Court did not resolve the confusion in Victor, which resulted from Cage, as to whether all three phrases – “substantial doubt,” “grave uncertainty,” and “moral certainty” – must be present to result in a violation of due process. Post-victor jurisprudence of the US Circuit Courts of Appeal In analyzing the differences between jury instructions within the federal courts of appeal, Robert Power demonstrates in his chart the subtle but potentially significant differences in four areas: (1) Reasonable doubt (RD) and beyond a reasonable doubt (BRD); (2) Subject (who); (3) Verb (action); and (4) Object (which matters).503 Some of the instructions call on jurors to consider how an objective “reasonable person” would interpret the evidence. By contrast, other instructions call on jurors to consider their own personal opinion on the evidence, presented in Power’s chart as “you.” Power notes that there is no practical distinction between the “reasonable person” or “you,” as the courts acknowledge that in any event jurors will inevitably self-identify with the “reasonable person.”504 Victor, at 33. Victor, at 33-34. 499 Victor, at 34. 500 Victor, at 35. 501 Victor, at 37. 502 Victor, at 38. 503 Power, p. 75-76 (The chart is reproduced as presented in Power’s article, including the citations to column 1 “Circuit”), supra n.285. 504 Power, p. 77, citing, inter alia, United States v. Ivic, 700 F.2d 51, 68-69 (2d Cir. 1983). 497 498 108