Supreme Court Finds Jury Instruction Analogizing Reasonable Doubt to Surgery Involving a "Precious One" Was Improper

Imagine that a judge's instruction on guilty beyond a reasonable doubt includes the following paragraphs:

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 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.

Would such an instruction be improper? According to the recent opinion of the Supreme Court of Pennsylvania in Commonwealth v. Drummond, 285 A.3d 625 (Pa. 2022), the answer is "yes."

In Drummond, the facts were as stated above. According to the court, after the trial court urged

the jurors toward an objective frame of mind, the court's hypothetical demanded otherwise. Now, the jurors were told, they were supposed to consider their task not objectively, but on a very personal and emotional level. Their examination of the facts no longer was about being evenhanded, logical, or dispassionate. Their assessment turned instead to how each individual juror would react if one of his or her own “precious ones” was at a very real risk of death. The jurors were given free rein to do what the court had been telling them all along they were not allowed to do. Nothing but confusion could result from that 180-degree pivot. There is no reasonable possibility that the jurors ignored the emotional effect of the instruction and that they instead acted only in accordance with the other, objective instructions.

We recognize that the problematic aspect of the trial court's reasonable doubt instruction was bookended by other, correctly-stated and objectively-based reasonable doubt instructions. We do not overlook our practice of assessing instructions in the context of the trial judge's instructions as a whole, rather than in isolation. We have considered all of the relevant instructions provided to the jury in this case in their entirety, and in the manner in which the instructions interact. Such analysis does not ameliorate the error, nor does it undermine our conclusion that it was reasonably likely that the jury here considered the evidence using a lower standard of proof. The principle of considering instructions as a whole might suffice to salvage a charge when a judge has made a minor misstatement in some peripheral instruction. But this approach offers no safe harbor when the misstatement confuses and distorts the most fundamental principle in our criminal law and when it instructs jurors to perform their otherwise objective task by likening it to an impassioned, last-ditch plea to save a loved one. Under these circumstances, 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.

Nonetheless, because the petitioner's claim sounded in ineffective assistance of counsel, the court affirmed his conviction because his attorney could not anticipate the change in the law that this case precipitated.

-CM