For the Defense - Vol. 8, Issue 1 - 7

standard to jurors in a way that allows them to perform their
role objectively and that concentrates their focus exclusively
upon the evidence of record. " 5
The Court found that judges
often resort to analogies in the hopes of bringing home the
concept of reasonable doubt, but noted that these devices
can confuse jurors and lower the burden of proof.6
The Court
explained: " In assessing whether such devices contravene
basic constitutional requirements, we ask 'whether there is a
reasonable likelihood that the jury has applied the challenge[d
instruction] in a way that violates the Constitution.' " 7
The
Court found the analogy in question created the requisite
reasonable likelihood for two reasons.
First, the analogy " asked jurors to consider whether they
would 'go forward' with the surgical procedure instead of
asking them whether the circumstances cited would cause
them to 'hesitate to act [.]' " 8
jurors ignored the emotional effect of the instruction and
that they instead acted only in accordance with the other,
objective instructions. " 20
Accordingly, the Court concluded
that, " comparing the valid portions of the instruction against
the invalid ones does not suffice to neutralize the prejudicial
effect of the error. If it did, there never could be a successful
challenge to an errant reasonable doubt instruction so long
as the judge correctly mentioned the standard somewhere-
anywhere-in the record. If that were the case, then the
Fourteenth Amendment would be toothless in this context. " 21
So, while there is no explicit discussion of the prejudice prong
This sort of framing was criticized
by the United States Supreme Court in Holland v. United
States, which stated a challenged analogy " should have been
in terms of the kind of doubt that would make a person
hesitate to act . . . rather than the kind on which he would be
willing to act. " 9
The Drummond Court found that this alone
would not establish the impropriety of the instruction where
the Holland Court had criticized this phrasing but stopped
short of deeming it unconstitutional.10
But, the Court noted
that casting an analogy in this way could create confusion,
and " urge[d] trial courts to avoid instructions framed in terms
of 'going forward' or of a 'willingness to act.' " 11
Second, and more important, " [b]eckoning jurors to draw
upon their personal lives not only misdirects them from their
neutral task of objectively evaluating the evidence presented
by the parties, but also 'allows each juror to judge the
evidence by a visceral standard unique to that juror rather
than an objective heightened standard of proof applicable
to each juror. It allows jurors to convict based upon their
individual " gut feeling. " ' " 12
The challenged analogy also set
an inappropriately high bar for finding reasonable doubt.13
As United States District Judge Gerald Austin McHugh had
put it in condemning roughly the same instruction from the
same judge in a different case: " Necessarily, one would need
profound, if not overwhelming, doubt to deny a loved one
their only or best opportunity for care. " 14
Based on the foregoing, the Court found arguable merit
to the claim.15
It denied relief, however, on the ground that
The Court thus did not reach the third
the prevailing law would not have supported the objection
at the time of trial.16
prong of ineffectiveness: prejudice. But, the Court gestured
toward a prejudice discussion under the arguable merit rubric
where it " assess[ed] the impact of the errant instruction " and
found it unnecessary " to conclude that the jurors understood
the instruction in a way that in fact caused any or all of them
to apply a diminished burden of proof. " 17
Instead, due to
the impossibility of " proving definitively that the jury used
an unconstitutional standard, " the Court reasoned that all
that was necessary was the aforementioned " reasonable
likelihood " that the jury held the Commonwealth to an
unconstitutionally low standard of proof.18
The Court acknowledged that jury instructions are judged
as a whole, but found a disconnect between instructions
that jurors weigh the evidence objectively and the offending
analogy's encouragement that they consider the evidence
" on a very personal and emotional
level. " 19
Because
" [n]othing but confusion could result from that 180-degree
pivot, " the Court found " no reasonable possibility that the
Although the analogy examined in Drummond was
uniquely improper for the reasons expressed above, the case
has a potentially broad sweep. It is easy to see that other
attempts to demonstrate the concept of reasonable doubt
through an analogy could fall into one or both categories
identified by the Drummond Court. Further, the Court did not
limit its criticism to these specific forms of analogy. Instead,
it expressed a more general distaste for defining reasonable
doubt by way of analogy, stating it was " tempting " to
ban such analogies outright but deeming this a step too
far because " the United States Supreme Court has never
condemned the use of hypotheticals as a matter of federal
constitutional law[.] " 23
The Court added, however, that it had
been unable to envision a " single usable " analogy that did
not create grave problems; it thus " strongly discourage[d] the
use of hypotheticals and examples as a means of explaining
proof beyond a reasonable doubt. " 24
In reaching this conclusion, the Court drew support from
former Chief Justice Saylor's concurrence in Commonwealth v.
Fisher,25
to " a parent weighing the advantages of placing a child in
a private school rather than public school " and " described
the point at which the parent reaches a decision as the point
where he overcomes reasonable doubt. " 26
The plurality of
the Fisher Court rejected the defendant's challenge to this
analogy.27
Former Chief Justice Saylor, however, found some
force to the challenge, noting that " other jurisdictions have
cautioned against the use of analogies or illustrations to
explain reasonable doubt, reasoning that such examples tend
to mislead the jury, trivialize its responsibility, and understate
the burden of proof. " 28
In particular, he observed that people
often make day-to-day decisions despite reasonable doubts as
to their wisdom and these analogies are an awkward fit for
the deliberative process at a criminal trial: " '[d]eciding the
wisdom of future action involves a different type of judgment
than that used in deciding whether something did or did not
happen.' " 29
Due to the broad pronouncements in Drummond and the
authorities it cited, this decision is unlikely to be confined to
its facts. In addition to creating the opportunity-the duty,
even-to object to a judge's analogies that suffer from the
specific defects identified in the decision, Drummond casts a
very long shadow over every instance in which a judge uses
Vol. 8, Issue 1 l For The Defense 7
where the trial court had analogized jury deliberations
in Drummond, the Court showed that the offending analogy
was prejudicial due to its effect on the jury's deliberations.
And, notably, this analysis contained no discussion of the
strength of the evidence against the defendant-suggesting
the erroneous instruction was not subject to traditional
harmless error review.22
Implications for Defining Reasonable Doubt By Way of
Analogy In the Future
For the Defense - Vol. 8, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 1
