For the Defense - Vol. 8, Issue 1 - 6

Handling the Use of Analogies and
Other Rhetorical Devices to Define
Reasonable Doubt in Light of
Commonwealth v. Drummond
O
n November 23, 2022, the Pennsylvania Supreme
Court
decided Commonwealth
v.
Drummond,1
deeming improper the trial court's use of an analogy
to define " reasonable doubt " for the jury. The Court found
the specific analogy used to be particularly problematic, but
it also expressed a preference against the entire practice of
using analogies to define reasonable doubt. The Drummond
decision has significant implications for how to define-
or not to define-reasonable doubt going forward. And,
because courts as well as counsel often supply freewheeling,
folksy analogies to define reasonable doubt for the jury, the
Drummond decision requires consideration of how best to
approach such devices when they inevitably arise. This article
will examine the Drummond decision and its implications,
offer suggestions on the practical handling of analogies
to reasonable doubt, and discuss where the Court may be
headed when it comes to the definition of reasonable doubt.
The Drummond Decision
The Drummond case arose on appeal from denial of PostConviction
Relief Act ( " PCRA " ) relief and considered whether
trial counsel was ineffective for failing to challenge a jury
instruction analogizing " the 'proof beyond a reasonable
doubt' standard to jurors' hypothetical decision-making
regarding surgery involving a 'precious one.' " 2
Specifically,
sandwiched in between more familiar
" reasonable doubt " was the following analogy:
definitions of
Now, ladies and gentlemen, I find it helpful to
think about reasonable doubt in this way. Because
I had the great fortune to speak with every one
6 For The Defense l Vol. 8, Issue 1
In addressing the claim of ineffectiveness at issue, the Court
discussed the propriety of this analogy at length.4
Although
mindful that the obligation that the government prove guilt
beyond a reasonable doubt is central to the criminal justice
system, the Court nevertheless acknowledged that courts
had struggled to " explain[ ] this critical, yet amorphous
Brian A. McNeil
of you individually, I know that each of you has
someone in your life that you love, a precious one,
a spouse, a significant other, a sibling, a niece, a
nephew, a grandchild. Each of you loves somebody.
If you were told by your precious one that they
had a life-threatening condition and the doctor was
calling for surgery, you would probably say, stop.
Wait a minute. Tell me about this condition. What
is this? You probably want to know what's the best
protocol for treating this condition? Who is the
best doctor in the region? No. You are my precious
one. Who is the best doctor in the country? You
will probably research the illness. You will research
the people who handle this, the hospitals.
If you are like me, you will call everyone who
you know who has anything to do with medicine
in their life. Tell me what you know. Who is the
best? Where do I go? But at some moment the
question will be called. Do you go forward with
the surgery or not? If you go forward, it is not
because you have moved beyond all doubt. There
are no guarantees. If you go forward, it is because
you have moved beyond all reasonable doubt.3
For the Defense - Vol. 8, Issue 1

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