C O M P A R AT I V E S T U D Y represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt reasonably arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the State, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.465 Sandoval and Victor argued that these instructions, which included references to “moral certainty,” “substantial” and “grave” doubts, and “strong probabilities” of the case, overstated the degree of doubt necessary for acquittal and therefore unconstitutionally lowered the prosecutions’ burden of proof.466 After the respective state Supreme Courts of California and Nebraska affirmed their convictions, the defendants filed petitions to the US Supreme Court, and their cases were consolidated. On appeal, the US Supreme Court reaffirmed the convictions by majority. The Court held, Justice O’Connor delivering the judgment for the majority, that the Constitution neither prohibited nor required trial courts to define the term “reasonable doubt.”467 She noted that the Court had only once held an instruction on the definition of reasonable doubt to be unconstitutional, that the use of the terms “substantial” and “grave” suggest to an ordinary juror a higher degree of doubt than the standard required for an acquittal.468 Justice O’Connor noted that no particular form of words is required in jury instructions; “[r]ather ‘taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.’”469 Both Sandoval and Victor challenged the use of the term “moral certainty” in their respective jury instructions.470 The Court stated that it “do[es] not condone the use of the phrase”471 and “do[es] not countenance its use[;]”472 however, the inclusion of the phrase did not render the instructions unconstitutional.473 Victor, at 18 (italics in original). Victor, at 14-22. 467 Victor, at 26. 468 Victor, at 6, citing Cage, at 41. 469 Victor, at 5, citing Holland, at 140. 470 Victor, at 16, 21. 471 Victor, at 16. 472 Victor, at 21. 473 Victor, at 22. 465 466 105