C O M P A R AT I V E S T U D Y jury instruction as a whole, and not based on its individual elements. However, while this assessment may be the theory, in practice it is not applied consistently across the Circuits. A number of Circuits have approved particular language, providing definitions by analogy, or using terms such as “moral certainty,” “hesitate to act,” and “substantial doubt.” These terms may be approved in one case, and then overturned in another case involving substantially similar jury instructions. In a number of cases, the Courts have acknowledged that certain terms are misleading or confusing but have still upheld their constitutionality. Shealy concludes that “[t]hese kinds of decisions demonstrate that the Winship standard is so ill-defined and ill-understood that virtually any charge on ‘reasonable doubt’ which contains certain buzz words can be found to be permissible or impermissible in an ad hoc manner.”516 As Shealy puts it, this situation was “the logical outcome of the US Supreme Court’s refusal to define ‘reasonable doubt’ and its continued flirtation with the idea that ‘reasonable doubt’ is self-evident and needs no definition.”517 Several commentators offered as an alternative the model instructions prepared by the Federal Judicial Center.518 Following the example of the Federal Judicial Center, jury instruction committees of different Circuits prepare “model” or “pattern” jury instructions to help district court judges effectively communicate with jurors. Some of the proposed model instructions, drawing from existing jurisprudence, provide a more or less satisfactory explanation of the standard of proof.519 Yet, the model instructions do not try to explain every nuance of the standard of proof so as to avoid rendering it more complex and confusing. For instance, the Pattern Criminal Jury Instructions of the US Court of Appeals for the Sixth Circuit (last updated in September 2015) explain: Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence. Shealy, p. 264-65. Shealy, p. 268. 518 Newman, p. 991 (observing that the instruction “contains very useful language”); Power, p. 82, 85 (observing that this instruction “represents the modern trend toward brevity and simplicity,” and “focuses the jury’s attention on the prosecution’s burden instead of implying a burden on the defence to prove a doubt.”); Henry A. Diamond, Reasonable Doubt: To Define, or not to Define, 90 Colum. L. Rev. 1716, 1726 (1990) (noting that such definitions have been held to withstand constitutional scrutiny by the Supreme Court). 519 Some of the pattern jury instructions do not provide any definition, stating only: “On the other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of [defendant]’s guilt of a particular crime, you should find [him/her] guilty of that crime.” See Pattern Criminal Jury Instructions for the District Courts of the First Circuit (2015), instruction 3.02; supra n. 438. 516 517 111