C O M P A R AT I V E S T U D Y stated that this provided a common sense context in which to interpret the term “substantial doubt.” According to the Court, the jury instruction stayed within constitutional parameters. In concurring, Justice Kennedy remarked that the phrase “moral evidence” although not fatal to the jury instruction given in Sandoval’s case, was nonetheless so obscure and so malleable that in other circumstances it could put an instruction on reasonable doubt at risk.487 In a concurring separate opinion, Justice Ginsburg made some keen observations. She took the view that the “hesitate to act” language, the analogy used in Victor’s jury instruction, was particularly confusing, noting judicial criticism of this language.488 She also criticized the confusing wording of the jury instruction, which she believed amounted to the trial judge defining reasonable doubt as “doubt … that is reasonable.”489 Justice Ginsburg rightly noted that despite the many attempts by trial judges to define the reasonable doubt standard, a clear definition remained wanting.490 She recommended the model instruction put forward by the Federal Judicial Center.491 Justice Blackmun entered a dissenting opinion, joined in part by Justice Souter. His dissent was based on what he believed was a misapplication of Cage by the majority.492 He maintained that “[a]ny jury instruction defining ‘reasonable doubt’ that suggests an improperly high degree of doubt for acquittal or an improperly low degree of certainty for conviction offends due process.”493 He noted the US Supreme Court’s finding in Cage that “the phrases ‘actual substantial doubt’ and ‘grave uncertainty’ suggested a ‘higher degree of doubt’ than is required for acquittal under the reasonable-doubt standard.”494 He also noted that “those phrases taken together with the reference to ‘moral certainty,’ rather than ‘evidentiary certainty,’ rendered the instruction as a whole constitutionally defective.”495 He opined that the “majority’s attempt to distinguish [the Victor] instruction from the one employed in Cage [was] wholly unpersuasive.”496 Justice Blackmun also noted that “the majority’s speculation that the jury in Victor’s case interpreted ‘substantial’ to mean something other than ‘that specified to a large degree’ simply because the word ‘substantial’ is used at one point to distinguish mere conjecture is unfounded and Victor, at 22. Victor, at 24, citing Pattern Criminal Jury Instructions, Report of the Subcommittee on Pattern Jury Instructions, Committee on the Operation of the Jury System, Judicial Conference of the United States Federal Judicial Center (1987). 489 Victor, at 25. 490 Victor, at 26. 491 Victor, at 27; supra n. 438. 492 Victor, at 28. 493 Victor, at 29. 494 Victor, at 30-31, citing Cage, at 41. 495 Victor, at 30-31, citing Cage, at 41. 496 Victor, at 31. 487 488 107