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Colorado Supreme Court Announces ‘Reasonable Likelihood’ Framework for Determining Whether Trial Court’s Comments to Prospective Jurors Lowered Prosecution’s Burden of Proof

by Douglas Ankney

In companion cases, the Supreme Court of Colorado adopted the functional “reasonable likelihood” framework for determining whether a trial court’s comments to prospective jurors lowered the prosecution’s burden of proof.

During jury voir dire at Ernest Joseph Tibbels trial on charges that included possession of contraband, the trial court read a portion of the pattern instruction defining “reasonable doubt.” The judge then undermined that definition by adding, “Now, you’re all sitting there saying [‘]what the hell does that mean[?’]” In an attempt to illustrate the meaning of reasonable doubt, the judge then told a story of a married couple seeking to purchase house. They find one that meets all of their criteria. It seems to be the perfect house until they enter the basement and discover a floor-to-ceiling crack in the house’s foundation. The judge said, “And it’s structurally significant. Are you going to buy that house?”

After one potential juror responded that she would not buy a house with a bad foundation, the judge continued: “Okay. You’ve got a reason. And it’s this crack that is structurally significant. And that’s causing you to hesitate, causing you to pause with going forward with a home purchase. This is my example of reasonable doubt.” The trial court reminded jurors of this illustration later during voir dire when defining reasonable doubt. Defense counsel never objected to the court’s example, and the judge never withdrew it or told the jury to disregard it.

The jury found Tibbels guilty of possession of contraband but acquitted him of the remaining charges. He appealed, arguing that the trial court’s example lowered the prosecution’s burden of proof by setting too high a standard for what qualifies as reasonable doubt. The court of appeals (“COA”) disagreed with Tibbels and affirmed. The Colorado Supreme Court then granted both Tibbels’ and the People’s petitions for certiorari.

In the companion case, William Scott Pettigrew was tried by jury on charges connected to his alleged prostituting of two minor girls. At issue in that case were four comments the trial court made during voir dire of the jury.

First, the judge explained why juries choose between “guilty” or “not guilty” as opposed to “guilty” or “innocent.” The judge concluded with “[b]ecause part of you would be saying, well, he might have done it, so you can’t find him innocent, but it’s—the evidence isn’t strong enough, so you can’t find him guilty. And then you are left without a verdict. So we don’t do that. We say not guilty means the prosecution hasn’t convinced you beyond a reasonable doubt, regardless of what evidence they introduce. If you have a reasonable doubt about the guilt of the defendant, then you find him not guilty.”

Second, the judge criticized the pattern definition of reasonable doubt saying “[u]nfortunately, the law couldn’t come up with anything better, so I’m going to read it to you even though it’s a little inadequate. Reasonable doubt means a doubt based on reason and common sense which arises from a fair and rational consideration of all the evidence or the lack of evidence in the case. It is a doubt which is not vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.”

Third, the trial court then proceeded to illustrate reasonable doubt by first asking a potential juror the month and date of her birth. The juror responded November 18. When asked how the juror knew that was correct, the juror responded the date was on her birth certificate, and her parents had told her the date. The judge then attempted to shake the juror’s confidence by offering some statements about hospitals making mistakes on birth certificates and mothers in the travail of labor not being clear minded to remember dates correctly. The judge concluded with “I can throw out maybe your birth certificate is wrong, maybe your mother wasn’t aware of the date. But I would suggest to you [that] you are going to recognize [November 18] as your birthday, aren’t you?” After the juror responded affirmatively, the judge explained that it was because he had not created a reasonable doubt and “[t]hat’s the important thing. It’s not to remove all doubt, every doubt, every vague or imaginative doubt. The burden is on the prosecution to remove all reasonable doubt.”

Fourth, in response to a question from a juror as to why no child pornography charges were brought against Pettigrew, the judge answered “we try people when there’s evidence to support the charges, okay?” The judge then added “right now he’s presumed innocent because there’s no evidence against him, so to speak, so I can’t speak to why he’s not being charged with other offenses.”

The jury convicted Pettigrew, and he appealed. The COA ultimately affirmed after remanding to the trial court for reasons not related to this discussion. The Colorado Supreme Court granted Pettigrew’s petition for certiorari.

The Court observed “[i]nstructions that lower the prosecution’s burden of proof below the reasonable doubt standard constitute structural error and require automatic reversal.” Sullivan v. Louisiana, 508 U.S. 275 (1993). The Due Process Clause of the U.S. Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358 (1970).

Courts must properly instruct—and the jury must apply—the reasonable doubt standard. Johnson v. People, 436 P.3d 529 (Colo. 2019). Courts are given flexibility in defining for the jury what constitutes reasonable doubt. Victor v. Nebraska, 511 U.S. 1 (1994). However, both the Colorado Supreme Court and the U.S. Supreme Court have repeatedly cautioned that attempts by trial courts to define “reasonable doubt” outside long-established pattern instructions usually fail. Holland v. United States, 348 U.S. 121 (1954).

The proper inquiry for determining if structural error occurred when instructing the jury is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyd v. California, 494 U.S. 370 (1990). Challenged instructions are not to be assessed in isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle v. McGuire, 502 U.S. 62 (1991). The U.S. Supreme Court has applied this “reasonable likelihood” standard in the context of trial courts attempting to define “reasonable doubt.” Victor. It is a “functional test” that asks whether the jury understood a contested instruction, in the context of the instructions as a whole and the trial record, to allow a conviction based on a standard lower than beyond a reasonable doubt. Victor.

After reviewing the foregoing case law, the Court announced: “we now conclude that in considering whether a court’s statements to a jury regarding the meaning of  ‘reasonable doubt’ (whether in formal instructions or not) unconstitutionally lowered the prosecution’s burden of proof, an appellate court must ask whether there is a reasonable likelihood that the jury understood the court’s statements, in the context of the instructions as a whole and the trial record, to allow a conviction based on a standard lower than beyond a reasonable doubt.”

Applying the newly announce standard to Tibbels, the Court observed that the record as a whole demonstrates that the trial court undermined the pattern instruction and replaced it with the “crack-in-the-foundation” illustration—suggesting to the jury that a reasonable doubt was one so obvious that it would give every reasonable person pause and cause them to hesitate to act. Further, the Court stated that trial court’s illustration suggests to the jury that Tibbels had to come forward with evidence to give them a reason to have reasonable doubt. The Court concluded it was reasonably likely that the jury understood the trial court’s statements to allow a conviction on a standard lower than beyond a reasonable doubt. Because it was structural error, the Court reversed the COA.

However, in Pettigrew, the Court reached the opposite conclusion. The trial court’s explanation of “innocent” versus “not guilty” actually helped Pettigrew by clearly stating acquittal requires the jury only to find the People had not proven his guilt beyond a reasonable doubt.

As to the trial court’s birthdate illustration to define reasonable doubt, the illustration ended with the judge correctly stating “the burden is on the prosecution to remove all reasonable doubt,” the Court determined.

Lastly, although the trial court’s statement that “we try people when there’s evidence to support the charges” is problematic in that jurors could have understood it to mean the court aligned itself with the prosecution, the judge mitigated the implication by immediately adding “right now [Pettigrew is] presumed innocent because there’s no evidence against him,” according to the Court.

Thus, the Court concluded that the trial court’s statements did not lower the standard of proof. Accordingly, it affirmed the COA. See: Tibbels v. People, 501 P.3d 792 (Colo. 2022), and Pettigrew v. People, 501 P.3d 813 (Colo. 2022). 

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Related legal cases

Pettigrew v. People

Tibbels v. People



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