PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4498

ERIC ARTHUR WALTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4537

ELDRIDGE MAYFIELD, a/k/a Sippy,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-41)

Argued: April 6, 1999

Decided: March 27, 2000

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,
ERVIN,* WILKINS, NIEMEYER, LUTTIG, WILLIAMS,
MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
*Judge Ervin died while the case was under submission.
Affirmed by published per curiam opinion. Chief Judge Wilkinson
and Judge Williams wrote concurring opinions. Judge Widener wrote
a dissenting opinion. Judge King wrote a dissenting opinion, in which
Judge Murnaghan, Judge Wilkins, and Judge Traxler joined. Senior
Judge Hamilton wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jay Thornton McCamic, MCCAMIC & MCCAMIC,
Wheeling, West Virginia, for Appellant Walton; Gerald Grant Ash-
down, WEST VIRGINIA UNIVERSITY SCHOOL OF LAW, Mor-
gantown, West Virginia, for Appellant Mayfield. Paul Thomas
Camilletti, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee. ON BRIEF: Bren Pomponio, Student Attorney,
WEST VIRGINIA UNIVERSITY SCHOOL OF LAW, Morgantown,
West Virginia, for Appellant Mayfield. William D. Wilmoth, United
States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

OPINION

PER CURIAM:

This case came to be argued before the en banc court on April 6,
1999. The judgment of the district court is hereby affirmed by an
equally divided en banc court. Separate opinions follow seriatim.

AFFIRMED

PREFATORY NOTE:

On April 6, 1999, the en banc court heard argument in this case.
While the case was under submission, Judge Ervin died, leaving the
judgment of the district court affirmed by an equally divided en banc
court. Chief Judge Wilkinson, Judge Niemeyer, Judge Luttig, Judge
Williams, and Judge Michael continue to concur in what Judge Ervin
wrote. Judge Motz concurs in the judgment.

                    2
ERVIN, Circuit Judge:

The question before this Court is whether a district court must
comply with a jury's request for a definition of reasonable doubt in
a criminal trial. Our current practice is well-established. We have
never required a district court to define reasonable doubt to a jury. See
United States v. Reives, 15 F.3d 42, 46 (4th Cir. 1994), cert. denied,
512 U.S. 1207 (1994).

During its deliberations, the jury in the present case asked the dis-
trict court for a definition of reasonable doubt. In accordance with our
longstanding practice, the district court refused. On appeal, a panel of
this Court affirmed.1

We granted a rehearing en banc in this case to reconsider this issue.
Finding no reason to change our current practice, we affirm.

I.

Eric A. Walton and Eldridge Mayfield (the "Defendants") were
convicted by a jury for conspiracy to influence a petit juror and for
aiding and abetting in the attempt to influence a petit juror. See 18
U.S.C.A. §§ 2 (West 1969), 371 (West 1966 & Supp. 1999), 1503(a),
(b)(3) (Supp. 1999). During its deliberations, the jury asked the dis-
trict court for a definition of reasonable doubt. The district court
refused.

On appeal, the Defendants argued that, because the jury may have
been confused over the burden of proof and, therefore, may have con-
victed the Defendants upon a lesser showing than required by due
process, the district court should have defined reasonable doubt for
the jury. In support, the Defendants argued that our opinion in United
States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995), compelled such a
result.
_________________________________________________________________
1 The original panel opinion was unpublished. See United States v.
Walton, 166 F.3d 336 (4th Cir. 1998) (Table). The full text of this opin-
ion has been reproduced in United States v. Walton, Nos. 97-4498, 97-
4537, 1998 WL 879650 (4th Cir. Dec. 17, 1998) (per curiam).

                    3
A panel of this Court rejected the Defendants' argument, holding
that "[t]he rule regarding reasonable doubt for the jury is well settled
in this Circuit--a trial judge may define reasonable doubt only if the
jury requests a definition; however, the trial judge is not required to
provide a definition, even if the jury requests it." Walton, 1998 WL
879650, at *4. Finding "nothing in Oriakhi overruling or creating
exceptions to the rule," id. at *5, the panel affirmed the Defendants'
conviction.

Subsequently, the Defendants submitted a petition for rehearing en
banc to this Court. The only issue raised in this petition was whether
a district court should give a jury an instruction on the definition of
reasonable doubt when requested. Granting the petition, we elected to
rehear this case en banc.

II.

The issue before this Court is whether a district court should be
required to give an instruction defining reasonable doubt when
requested by a jury. This is a question of law that we review de novo.
See United States v. Singh, 54 F.3d 1182, 1189 (4th Cir. 1995).

There is no constitutional requirement to define reasonable doubt
to a jury. The Supreme Court has never required trial courts to define
the term. In its most recent case addressing reasonable doubt, the
Court stated that

          the Constitution neither prohibits trial courts from defining
          reasonable doubt nor requires them to do so as a matter of
          course. Indeed, so long as the court instructs the jury on the
          necessity that the defendant's guilt be proved beyond a rea-
          sonable doubt, the Constitution does not require that any
          particular form of words be used in advising the jury of the
          government's burden of proof.

Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citations omitted).2 The
_________________________________________________________________
2 As Justice Ginsburg observed in her concurrence in Victor, this state-
ment from the majority opinion could be considered dictum because in

                     4
Court has even recognized that "[a]ttempts to explain the term `rea-
sonable doubt' do not usually result in making it any clearer to the
minds of the jury." Holland v. United States , 348 U.S. 121, 140
(1954) (citation omitted).

As the panel observed in its original opinion, the well-established
rule of this Circuit is that although the district court may define rea-
sonable doubt to a jury upon request, the district court is not required
to do so. Walton, 1998 WL 879650, at *4. According to our research,
the First, Seventh, Ninth, and District of Columbia Circuits share our
unwillingness to require the district court to define reasonable doubt.3
_________________________________________________________________
both consolidated cases the trial judges defined reasonable doubt. The
question of whether a definition of reasonable doubt was constitutionally
required, therefore, was not squarely before the Court. See Victor, 511
U.S. at 26 (Ginsburg, J., concurring in part and concurring with the judg-
ment). But see Hopt v. Utah, 120 U.S. 430, 440 (1887) (commenting that
a jury instruction refusing to define reasonable doubt further "is simple,
and as a rule to guide the jury is as intelligible to them generally as any
which could be stated . . .").
3 See United States v. Smith, 46 F.3d 1223, 1238 (1st Cir. 1995) (hold-
ing that "district courts need not define the concept of reasonable doubt
so long as the phrase is not buried as an aside"); United States v. Black-
burn, 992 F.2d 666, 668 (7th Cir. 1993) (upholding a district court's
refusal to define reasonable doubt even after a jury's request); United
States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (holding that "a
District Court need not give any definition of reasonable doubt at all");
United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc)
(holding that "an appropriate instruction defining reasonable doubt is
permissible but not necessarily required").

The status of reasonable doubt jury instructions in the Fifth and Sixth
Circuits remains unclear. Although in Thompson v. Lynaugh the Fifth
Circuit stated that "attempts by trial courts to define `reasonable doubt'
have been disfavored by this court," 821 F.2d 1054, 1061 (5th Cir. 1987),
Thompson is distinguishable because it concerned a state collateral
attack. Id. at 1055. See also United States v. Williams, 20 F.3d 125, 128
(5th Cir. 1994) (noting that the Fifth Circuit has never "required a partic-
ular definition of reasonable doubt to be read to the jury"). Likewise, the
Sixth Circuit's District Judges Association commented:

                    5
At least fifteen state courts also appear not to require a trial court to
define reasonable doubt to a jury.4 In addition, the foreign courts of
_________________________________________________________________

          Some Sixth Circuit decisions have sustained state criminal con-
          victions against constitutional attacks based on the trial court's
          failure to define the term reasonable doubt. Other Sixth Circuit
          decisions have noted in dicta the Supreme Court's statement that
          attempts to define reasonable doubt do not usually make the term
          more understandable. But no Sixth Circuit decisions reviewing
          federal criminal convictions have explicitly discouraged or con-
          demned instructions defining reasonable doubt, as some other
          circuits have done.

           Instead, Sixth Circuit decisions have rather consistently pro-
          ceeded on the assumption that some definition should be given,
          with the only real question being what the definition should say.

Committee on Pattern Crim. Jury Instructions, District Judges Ass'n,
Sixth Circuit, Pattern Crim. Jury Instructions § 1.03 (1991) (citations
omitted).

4 See La. Code Crim. Proc. Ann. art. 804A(3) (West 1998) ("The court
may, but is not required to, define . . . `reasonable doubt.' "); Ky. R.
Crim. P. § 9.56(2) ("The instructions should not attempt to define the
term `reasonable doubt.'"); People v. Carroll, 663 N.E.2d 458, 460 (Ill.
App. Ct. 1996) ("The concept of reasonable doubt needs no definition,
and it is prejudicial error for the court to give an involved instruction on
that concept."); Chase v. State, 645 So.2d 829, 850 (Miss. 1994)
("reasonable doubt defines itself and needs no further definition by the
court"); State v. Johnson, 445 S.E.2d 637, 637 (S.C. 1994) (upholding a
trial court's refusal to define reasonable doubt, commenting that the
expression "without an explanation of its legal significance is much more
favorable to a defendant"); State v. McMahon , 603 A.2d 1128, 1129 (Vt.
1992) ("We have never held that a defendant is entitled to an explanation
of `reasonable doubt'. . ."); Means v. Sidiropolis, 401 S.E.2d 447, 451
n.1 (W. Va. 1990) ("We have made it clear that a jury instruction
attempting to define `reasonable doubt' probably confuses the jury more
than it helps it."); Grant v. State, 703 P.2d 943, 946 (Okla. Crim. App.
1985) ("The long standing rule in this jurisdiction is that trial judges
should not define the term."); State v. Burton, 681 P.2d 646, 655 (Kan.
1984) ("This court has consistently adhered to the position that no defini-
tion could make the concept of `reasonable doubt' any clearer than the
words themselves."); State v. Olkon, 299 N.W.2d 89, 105 (Minn. 1980)

                    6
England and Australia -- with which we share a common lineage, the
right to trial by jury, and the standard of proof beyond a reasonable
doubt in criminal trials -- also do not require trial courts to define
reasonable doubt to a jury.5

The rationale behind this rule is "our belief that efforts to define
reasonable doubt are likely to confuse rather than clarify the concept.
. . ." United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998). We
are convinced "that the term reasonable doubt has a self-evident
meaning comprehensible to the lay juror which judicial efforts to
define generally do more to obscure than to illuminate." United States
v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988) (citation omitted),
_________________________________________________________________
("Defining the term should be at the option of the trial judge even though
a defining instruction is tendered. Lack of definition would not appear to
be prejudicial."); Cosco v. State, 521 P.2d 1345, 1346 (Wy. 1974) (hold-
ing that "the term `reasonable doubt' need not be defined and a trial court
would be well-advised to avoid instructions on reasonable doubt"); Spur-
lin v. State, 149 S.E.2d 315, 318 (Ga. 1966) (affirming trial court's
refusal to define reasonable doubt); State v. Robinson, 385 P.2d 754, 756
(Or. 1963) ("While it is doubtful if a definition is necessary, attempts to
define the term are not error for that reason."); City of Sioux Falls v.
Wolf, 114 N.W.2d 100, 101 (S.D. 1962) ("The term `reasonable doubt'
needs no definition. It means what it says.") (citation omitted); Strawder-
man v. Commonwealth, 108 S.E.2d 376, 379 (Va. 1959) (commenting
"that instructions attempting to define reasonable doubt should be dis-
couraged as it is highly probable that any definition devised would be
less illuminating than the expression itself").

5 See Thomas V. Mulrine, Reasonable Doubt: How in the World Is It
Defined?, 12 Am. U. J. Int'l L. & Pol'y 195, 217-18 (1997), citing
Regina v. Ching, 63 Crim. App. 7, 10 (Eng. 1976) (warning trial judges
not to attempt to put "any gloss on what is meant by . . . `reasonable
doubt'"); The Queen v. Bilick, 36 S.A. St. R. 321 (Austl. 1984) (stating
that "[a]n attempt to characterize a reasonable doubt is a misdirection").
For an examination of the joint Anglo-American origins of the "beyond
a reasonable doubt" standard, see generally Barbara J. Shapiro, `To a
Moral Certainty': Theories of Knowledge and Anglo-American Juries,
1600-1850, 38 Hastings L.J. 153 (1986); Anthony A. Morano, A Reex-
amination of the Development of the Reasonable Doubt Rule, 55 B.U. L.
Rev. 507, 508 (1975).

                    7
overruled on other grounds by Taylor v. United States, 495 U.S. 575,
597 (1990).6

This rationale is challenged when, as in the present case, a jury spe-
cifically requests a definition of reasonable doubt. We understand that
when a jury specifically requests a definition of reasonable doubt dur-
ing deliberations, there is a risk that the jury may be confused over
what standard of proof to apply in a criminal case. At the same time,
we also appreciate the constitutionally-mandated importance of the
reasonable doubt standard in a criminal trial. See In re Winship, 397
U.S. 358, 362 (1970) ("Expressions in many opinions of this Court
indicate that it has long been assumed that proof of a criminal charge
beyond a reasonable doubt is constitutionally required."). Neverthe-
less, we remain convinced that attempting to explain the words "be-
yond a reasonable doubt" is more dangerous than leaving a jury to
wrestle with only the words themselves.7
_________________________________________________________________

6 The United States District Court for the District of Massachusetts
summarized this belief as "a basic philosophical precept that the concept
of reasonable doubt has an a priori existence in the minds of all jurors."
Smith v. Butler, 696 F. Supp. 748, 765 (D. Mass. 1988). Chief Judge Pos-
ner of the Seventh Circuit commented that "deeply entrenched in the
popular culture as it is, the term `beyond a reasonable doubt' may be the
single legal term that jurors understand best." United States v. Hall, 854
F.2d 1036, 1044 (7th Cir. 1988) (Posner, J., concurring).

7 The Seventh Circuit analogized defining reasonable doubt to a jury to
"playing with fire." United States v. Shaffner, 524 F.2d 1021, 1023 (7th
Cir. 1975). It recognized that "at best, definitions of reasonable doubt are
unhelpful to a jury, and, at worst, they have the potential to impair a
defendant's constitutional right to have the government prove each ele-
ment beyond a reasonable doubt." Hall, 854 F.2d at 1039. As the United
States Supreme Court noted in Victor, reasonable doubt "defies easy
explanation." 511 U.S. at 5.

The Supreme Court of New Hampshire observed that reasonable doubt
jury instructions often result in a "grand conglomeration of garbled ver-
biage and verbal garbage." State v. Aubert , 421 A.2d 124, 127 (N.H.
1980) (citation omitted). While we believe that the jury instructions we
have examined were more artfully drafted than that, we still did not find
any of them clearer than the words themselves. See Edward J. Devitt et
al., Federal Jury Practice and Instructions: Civil and Criminal § 12.10

                    8
In the end, only a jury can truly define reasonable doubt. Reason-
able doubt cannot be divorced from its specific context any more than
the concepts of "reason" or a "reasonable person." Jurors differ in
their own individual conceptions of reasonable doubt. During jury
deliberations, these jurors debate whether or not the prosecution in the
specific case before them has proven the guilt of a particular defen-
dant beyond a reasonable doubt. Through "the community participa-
tion and shared responsibility that results from that group's
determination of guilt or innocence," Williams v. Florida, 399 U.S.
78, 100 (1970), the jury itself defines reasonable doubt and applies its
own definition to the specific case before it.

The only definition of the standard of proof in criminal cases
required by the Supreme Court remains "the necessity of proof
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 320
n.14 (1979). While we discourage further definition of the reasonable
doubt standard, see Williams, 152 F.3d at 298, we continue to leave
the final decision of whether to acquiesce to a jury's request and
define reasonable doubt to the district court's discretion. See United
States v. Patterson, 150 F.3d 382, 389 (4th Cir. 1998). Given the
inherent risks, however, we refuse to require such a practice.

III.

Accordingly, since we find no reason to alter our current practice
of not requiring a jury instruction defining reasonable doubt in crimi-
nal cases, we affirm the judgment of the district court.
_________________________________________________________________

(4th ed. 1992 & Supp. 1998) (collecting federal reasonable doubt jury
instructions); 5 Edward R. Branson, The Law of Instructions to Juries in
Civil and Criminal Cases § 3308 (3d ed. 1962 & Supp. 1997) (collecting
state reasonable doubt jury instructions). Dean John Henry Wigmore
expressed this sentiment earlier when he wrote,"The truth is that no one
has yet invented or discovered a mode of measurement for the intensity
of human belief. Hence there can be yet no successful method of com-
municating intelligibly to a jury a sound method of self-analysis for
one's belief." 9 John H. Wigmore, Evidence in Trials at Common Law
§ 2497 (Chadbourn rev. 1981).

                    9
WILKINSON, Chief Judge, concurring:

One picture can be worth a thousand words. And fewer words are
sometimes better than many. So it is with "reasonable doubt." The
majesty of the term has always been its brevity. It is not at all a bad
thing for a jury to be left to work through its meaning. With longer
instructions, one cannot tell which part the ear will choose to hear or
the mind to accentuate. And that can make all the difference.

The principal dissent's proposed instruction further illustrates the
point that different is not always better. Though accompanied by
much verbal fanfare, all it does is substitute for"reasonable doubt"
the equally capacious term "not firmly convinced." This is to do noth-
ing more than restate the traditional constitutional formulation with
verbiage that carries uncertain connotations. Indeed, I can see either
the prosecution or the defense thinking that this reformulation works
to its detriment. From the standpoint of the prosecution, the "not
firmly convinced" standard appears to require virtual certainty from
jurors before they may vote to convict. From the standpoint of the
defense, the "reasonable doubt" standard encourages the jury to adopt
a reflective and deliberative state of mind, while the "not firmly con-
vinced" standard may require only that the jury be sufficiently opin-
ionated. The cure proposed by the dissent may thus be worse than the
disease. The district court acted within its discretion in avoiding this
danger.

I would affirm the judgment.

WILLIAMS, Circuit Judge, concurring:

I concur in Judge Ervin's opinion. When a criminal jury requests
the district court to define reasonable doubt, the district court must
have discretion to decide whether to provide such a definition. Should
the district court determine that a definition of reasonable doubt is
necessary to remove jury confusion about the proper standard of
proof, I believe that the definitions suggested by the dissenters would
be adequate. The mere act of a jury requesting a definition of reason-
able doubt, however, does not alone demonstrate jury confusion and
there is no evidence in this case from which to infer that the jury
applied a constitutionally inadequate standard of proof. Cf. Weeks v.

                    10
Angelone, No. 99-5746, 2000 WL 33524, at *5-*6 (U.S. Jan. 19,
2000) (explaining that the jury's request for clarification of an instruc-
tion was insufficient to demonstrate that the jury applied an incorrect
legal standard where the trial court referred the jury back to the origi-
nal, constitutionally adequate instruction).

WIDENER, Circuit Judge, dissenting:

I join in all of Judge King's dissenting opinion except part III
thereof. I would give the following instruction:

          Proof beyond a reasonable doubt is such as you would be
          willing to rely and act upon without hesitation in the most
          important of your own affairs.

This instruction, in almost the same words, has been approved by
the Second Circuit. See United States v. Birbal , 62 F.3d 456, 459-460
(2d Cir. 1995). More importantly, a similar instruction emphasizing
the use of the word hesitate was suggested by the Supreme Court as
providing a clearer definition of reasonable doubt in Holland v.
United States, 348 U.S. 121, 140 (1954).

KING, Circuit Judge, dissenting:

The question before us today is whether a district court should
respond to a request from a criminal trial jury with an instruction
defining reasonable doubt. We reheard this case en banc to reconsider
our position in this regard. I write separately because I believe it is
inappropriate to deny a criminal jury an explanation of reasonable
doubt when the jury has explicitly requested a definition.

The bases for my view, explained more fully below, are: (1) proof
beyond a reasonable doubt is fundamental to our criminal justice sys-
tem; (2) a trial court should assist a jury in every way possible in the
fulfillment of its obligations; and (3) the term"reasonable doubt" can
be defined in a manner readily understood by, and of assistance to,
a trial jury. I would require a reasonable doubt instruction be given
when the jury requests a definition, and I propose an instruction sub-
stantially similar to that advocated by the Federal Judicial Center

                     11
("FJC"). Because I find error in the district court's failure in this case
to define reasonable doubt in response to the jury's request, I respect-
fully dissent.

I.

While long a fundamental principle of our criminal justice system,
it was not until 1970 that the Supreme Court expressly afforded con-
stitutional stature to the reasonable doubt concept. See In re Winship,
397 U.S. 358, 364 (1970). In Winship, the Court held that the due pro-
cess mandates of the Fifth and Fourteenth Amendments require that
every element of a charged offense be proved beyond a reasonable
doubt. Id. In so holding, the Court emphasized the importance of the
reasonable doubt standard in our criminal justice system:

          The [reasonable doubt] standard provides concrete sub-
          stance for the presumption of innocence -- that bedrock
          "axiomatic and elementary" principle whose"enforcement
          lies at the foundation of the administration of our criminal
          law."

Id. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)).1
Recognizing the fundamental unfairness that would result from per-
mitting a criminal defendant to be convicted and imprisoned on the
lesser standard of proof sufficient in civil cases, the Court explained
the rationale underlying the reasonable doubt standard applicable in
a criminal prosecution:

           The accused during a criminal prosecution has at stake inter-
           ests of immense importance, both because of the possibility
           that he may lose his liberty upon conviction and because of
           the certainty that he would be stigmatized by the conviction.
           Accordingly, a society that values the good name and free-
           dom of every individual should not condemn a man for
_________________________________________________________________
1 Due process is satisfied by nothing less than a juror's understanding
that he or she may not vote to convict a defendant based upon a belief
"that the defendant is probably guilty. . . ." United States v. Hernandez,
176 F.3d 719, 728 (3d Cir. 1999) (quoting Sullivan v. Louisiana, 508
U.S. 275, 278(1993))(emphasis added).

                     12
          commission of a crime when there is reasonable doubt about
          his guilt.

Winship, 397 U.S. at 363-64. Echoing these sentiments, the concur-
ring opinion of Justice Harlan in Winship provides perhaps the most
persuasive justification for the Court's decision:"I view the require-
ment of proof beyond a reasonable doubt in a criminal case as bot-
tomed on a fundamental value determination of our society that it is
far worse to convict an innocent man than to let a guilty man go free."
Id. at 372 (Harlan, J., concurring).

II.

Although it has explicitly held that the reasonable doubt standard
is mandated by due process, the Supreme Court, subsequent to its
1970 Winship decision, has offered little guidance as to if, when, or
how the concept of reasonable doubt should be defined for a criminal
jury. Indeed, as Judge Ervin's opinion points out, ante at 4, the Court
has never required trial courts to define reasonable doubt. Neither,
however, has the Court ever ruled that the concept of reasonable
doubt is incapable of definition, or that trial courts should not, as a
matter of course, provide a definition. Victor v. Nebraska, 511 U.S.
1, 26 (1994) (Ginsburg, J., concurring in part and concurring in the
judgment).

Though we have never insisted that district courts in this Circuit
define reasonable doubt, we have historically accorded them the dis-
cretion to provide a definition when the jury asks for one.2 According
_________________________________________________________________
2 See e.g., United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991)
("The only exception to our categorical disdain for definition is when the
jury specifically requests it."); United States v. Ricks, 882 F.2d 885, 894
n.12 (4th Cir. 1989) (noting the "limited exception to our general pro-
scription in those cases where jurors are demonstrably confused or uncer-
tain . . .") (citing Murphy v. Holland, 776 F.2d 470, 475 (4th Cir. 1985));
United States v. Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (construing
Ricks to suggest that reasonable doubt should be defined when "the jury
is `demonstrably confused or uncertain' and requests such an instruc-
tion"); United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988)
("We have frequently admonished district courts not to attempt to define

                    13
to Judge Ervin, we should not require district courts to define reason-
able doubt because the term "has a self-evident meaning comprehen-
sible to the lay juror which judicial efforts to define generally do more
to obscure than to illuminate." Ante at 7 (quoting Headspeth, 852 F.2d
at 755, see supra note 2 (citation omitted)). However, the persuasive-
ness of this reasoning is substantially undermined in instances, such
as here, where the jury itself has entreated the district court to define
reasonable doubt. As my distinguished former colleague acknowl-
edged, "[w]e understand that when a jury specifically requests a defi-
nition of reasonable doubt during deliberations, there is a risk that the
jury may be confused over what standard of proof to apply in a crimi-
nal case."3 Ante at 8.

The meaning of "reasonable doubt" is not as overwhelmingly evi-
dent to lay jurors as some courts have assumed. Though each word
in the term appears regularly in common parlance, they do not, when
coupled without further explanation, "necessarily convey the high
standard of proof that the due process clause requires." United States
v. Nolasco, 926 F.2d 869, 873 (9th Cir. 1991) (Wiggins, J., dissent-
ing) (citation omitted).4 The potential for confusion among jurors is
_________________________________________________________________
reasonable doubt in their instructions to the jury absent a specific request
from the jury itself."), overruled on other grounds by Taylor v. United
States, 495 U.S. 575, 597 (1990); United States v. Porter, 821 F.2d 968,
972 (4th Cir. 1987) ("This court has urged trial courts to avoid defining
reasonable doubt unless requested to do so by the jury . . .").
3 See also Henry A. Diamond, Reasonable Doubt: To Define, Or Not
To Define, 90 Colum. L. Rev. 1716, 1723-24 (1990) ("A jury's request
for a definition of reasonable doubt must be an indication that it does not
understand what the term means."), cited in Victor, 511 U.S. at 26 (Gins-
burg, J., concurring in part and concurring in the judgment).
4 See also Jessica N. Cohen, The Reasonable Doubt Jury Instruction:
Giving Meaning To A Critical Concept, 22 Am. J. Crim. L. 677, 688-89
(1995) ("[A]lthough reasonable doubt is not a Latin term like res ipsa
loquitur or a technical term like `accessory after the fact' or `aider and
abettor,' it is more than merely the sum of the two common words `rea-
sonable' and `doubt.' It is a legal term of art.").

Moreover, the fact that certain words are commonly used should not
otherwise prevent them from being defined for the jury. Jury instructions
frequently define simple words and phrases that are part of the everyday
lexicon of the average lay juror, such as "attempt," "knowingly," "agree-
ment," and "conspiracy." Cohen at 690 (citations omitted).

                    14
poignantly illustrated by the acknowledged reality that trial judges,
despite their extensive legal training and professional experience,
themselves often have difficulty articulating the meaning of reason-
able doubt. Simply put, if "judges and legal scholars struggle to define
reasonable doubt, it is unrealistic to expect a lay jury to properly
grasp and apply the stark words." State v. Portillo, 898 P.2d 970, 973
(Ariz. 1995).

Nevertheless, despite the potential for juror confusion, Judge Ervin
concluded that attempts to define reasonable doubt are "more danger-
ous than leaving a jury to wrestle with only the words themselves."
Ante at 8. With all respect to the experience and acumen of this emi-
nent jurist, I disagree. In my view, it serves little purpose to instruct
the average juror that she must be convinced of guilt beyond a "rea-
sonable doubt," absent some intelligent elaboration on the meaning of
the term.5 One of a trial judge's most important responsibilities is to
assist jurors with their understanding of applicable legal principles.
See United States v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995) ("The pur-
pose of jury instructions is to instruct the jury clearly regarding the
law to be applied in the case.") (citations omitted). Without sufficient
instruction, "the jury becomes mired in a factual morass, unable to
draw the appropriate legal conclusions based on those facts." Id. The
failure of a trial court to offer a definition of reasonable doubt, after
the jury has requested assistance with the term, is an abdication of its
responsibility.

The positions taken by some of our sister circuits strongly support
the view that reasonable doubt should, at least in some circumstances,
be defined. In Blatt v. United States, 60 F.2d at 481 (3d Cir. 1932),
the Third Circuit held that the failure to define reasonable doubt con-
stituted "error prejudicial to the defendant." Sixty years later, in
United States v. Polan, 970 F.2d 1280, 1286 n.4 (3d Cir. 1992), the
_________________________________________________________________
5 See Jackson v. Virginia, 443 U.S. 307, 316-17 (1979) (ruling that sim-
ply instructing a jury to apply the reasonable doubt standard does not sat-
isfy the constitutional mandate of Winship; the Winship doctrine requires
more than merely a trial ritual). As Judge Wiggins made plain in his dis-
sent in Nolasco, "[s]imple repetition of the phrase `beyond a reasonable
doubt' does not adequately communicate to jurors the degree to which
they must be convinced." 926 F.2d at 874 (Wiggins, J., dissenting).

                     15
Third Circuit adhered to Blatt by approving a "model" instruction that
included a definition of reasonable doubt. Similarly, in Friedman v.
United States, 381 F.2d 155, 160 (8th Cir. 1967), the Eighth Circuit
held that the failure to define reasonable doubt upon request by the
defendant would constitute error. Additionally, the Eighth Circuit has
approved a set of model jury instructions that include a definition of
reasonable doubt. United States v. Harris, 974 F.2d 84, 85-86 (8th
Cir. 1992). The Tenth Circuit has also concluded that jurors should
be instructed on the meaning of reasonable doubt. See Holland v.
United States, 209 F.2d 516, 523 (10th Cir. 1954) (holding that the
accused is entitled to a definition of reasonable doubt); see also
United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974) (conclud-
ing that defendants are entitled to have the meaning of reasonable
doubt explained to the jury).

The rule in these three circuits is more stringent than the modest
one I espouse today. I do not maintain that the jury must always be
instructed on the meaning of reasonable doubt, or even that -- as a
prophylactic measure -- a trial court must accede to the defendant's
request for such an instruction. I merely say that, when the jury's con-
fusion is demonstrably palpable, i.e., the jury has requested that rea-
sonable doubt be defined, a real danger exists that the defendant may
be convicted on less than the certainty demanded by the Constitution.
Accordingly, in that circumstance, I would require the presiding judge
to guide the jury down the appropriate path by defining reasonable
doubt.6
_________________________________________________________________
6 Hypothetically, there are several scenarios in which a definition of
reasonable doubt might be given. For example, (1) district courts could
define reasonable doubt as a matter of course in all criminal cases; (2)
district courts could give such an instruction at the request of either
party; (3) such an instruction could be required only in response to a
request from a defendant; or (4) a definition of reasonable doubt could
be given when the jury's confusion leads it to request one.

As noted, our review today is limited to the fourth scenario: whether
a district court should define reasonable doubt when requested to do so
by a criminal jury. I would reserve for another day questions as to
whether reasonable doubt should be defined under other circumstances.

                    16
In addition, the position of the Fifth Circuit is not quite as muddled
as has been suggested. Admittedly, in Thompson v. Lynaugh, 821
F.2d 1054, 1061 (5th Cir. 1987), that court broadly stated that
attempts to define reasonable doubt are disfavored. However, it is
acknowledged that Thompson is distinguishable because it involved
a state collateral attack, rather than a direct appeal. Ante at 5 n.3.
Accordingly, Thompson should not be construed as the Fifth Circuit's
adoption of a strict "no-definition" rule. To the contrary, the Fifth Cir-
cuit has indicated that reasonable doubt should be defined. See United
States v. Williams, 20 F.3d 125, 128-29 nn.1-2 (5th Cir. 1994)
(observing that "in contrast" to those circuits that discourage defining
reasonable doubt, it has repeatedly encouraged district courts to do
so).

In the Sixth Circuit, the status of instructions defining reasonable
doubt is not completely clear. As has been noted, the District Judges
Association of the Sixth Circuit, in promulgating model instructions
defining reasonable doubt, indicated that:

          Sixth Circuit decisions have rather consistently proceeded
          on the assumption that some definition should be given,
          with the only real question being what the definition should
          say.

Ante at 6 n.3 (citation omitted). While the model instructions were
subsequently approved, see United States v. Goodlett, 3 F.3d 976, 979
(6th Cir. 1993), the Sixth Circuit has not explicitly required district
courts to define reasonable doubt.

The considerable legal support in the federal courts for defining the
concept of reasonable doubt is well-grounded in reality, empirical
studies having demonstrated that juries often do not understand what
the phrase means.7 As Justice Ginsburg stated in her concurring opin-
_________________________________________________________________
7 See, e.g., N.L. Kerr, et al., Guilt Beyond a Reasonable Doubt: Effects
of Concept Definition and Assigned Decision Rule on the Judgment of
Mock Jurors, 34 J. Personality & Soc. Psychology 282, 292 (1976). In
this study, the results of mock trials demonstrated that there was greater
uncertainty among individual jurors and more disagreement within the

                     17
ion in Victor, "[s]everal studies of jury behavior have concluded that
`jurors are often confused about the meaning of reasonable doubt'
when that term is left undefined." 511 U.S. at 26 (Ginsburg, J., con-
curring in part and concurring in the judgment) (quoting Henry Dia-
mond, Reasonable Doubt: To Define, Or Not To Define, 90 Colum.
L. Rev. 1716, 1723 (1990) (citations omitted)). The danger of such
confusion is that it increases the likelihood of an unjust result, i.e.,
that jurors may vote to convict on less than the constitutionally
required standard of proof, or that jurors may vote to acquit when the
proper result is to convict.

III.

In declining to require trial judges to define reasonable doubt under
the circumstances of this case, five of my colleagues conclude that the
concept is incapable of being defined clearly, and that attempting to
define it would only further confuse the jury.8 I am unpersuaded.
_________________________________________________________________
jury as a whole when reasonable doubt was not defined, and that more
deadlocked juries resulted.

In another study, D.U. Strawn & R.W. Buchanan, Jury Confusion: A
Threat to Justice, 59 Judicature 478, 480-81 (1976), researchers con-
ducted a series of studies on jurors in Florida and collected the following
data: twenty-three percent believed that when the evidence was evenly
balanced between guilt and innocence, the defendant should be con-
victed; only fifty percent understood that the defendant did not have to
present any evidence of his innocence; two percent thought the burden
of proving innocence rested on the defendant. Based on these findings,
the authors concluded in a subsequent article that jurors should be
advised that certain phrases in instructions do not have their ordinary
meaning, but instead have specific legal meaning, including "burden of
proof" and "reasonable doubt". D.U. Strawn, et al., Reaching a Verdict,
Step by Step, 60 Judicature 383, 387 (1977).
8 In support of this determination, Judge Ervin points to our decision
in United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998), where
we wrote that "efforts to define reasonable doubt are likely to confuse
rather than clarify the concept. . . ." However, this language does not
necessarily indicate that the term is incapable of definition or that a
proper definition should not be given. Indeed, notwithstanding our tradi-

                     18
Admittedly, reasonable doubt is not a precise concept. Nevertheless,
"even if definitions of reasonable doubt are necessarily imperfect, the
alternative -- refusing to define the concept at all -- is obviously not
preferable." Victor v. Nebraska, 511 U.S. at 26 (Ginsburg, J., concur-
ring in part and concurring in the judgment). Despite its somewhat
nebulous nature, I am convinced that reasonable doubt can be defined
in simple terms that are readily understood by -- and of assistance to
-- a criminal jury.

I find such simplicity and clarity to be embodied in the definition
of reasonable doubt approved in 1987 by the FJC. This succinct
instruction was discussed with approval by Justice Ginsburg in her
concurring opinion in Victor. I propose today a slightly modified ver-
sion of the FJC definition, providing as follows:

           The government has the burden of proving the defendant
          guilty beyond a reasonable doubt. Some of you may have
          served as jurors in civil cases, where you were told that it
          is only necessary to prove that a fact is more likely true than
          not true. In criminal cases, the government's proof must be
          more powerful than that. It must be beyond a reasonable
          doubt.

            Proof beyond a reasonable doubt is proof that leaves you
           firmly convinced of the defendant's guilt. There are very
           few things in this world that we know with absolute cer-
           tainty, and in criminal cases the law does not require proof
           that overcomes every possible doubt. If, based on your con-
_________________________________________________________________
tional skepticism of defining reasonable doubt, we have approved of
some of the definitions offered by trial courts. See, e.g., United States v.
Love, 767 F.2d 1052, 1060 (4th Cir. 1985) (while arguing that reasonable
doubt definitions only confuse juries, we wrote,"In no way [was the def-
inition offered by the court] `misleading or confusing' and, viewed in the
context of the charge as a whole, [the court's definition] `correctly con-
vey[ed] the concept of reasonable doubt.'"); United States v. Mahabir,
1997 WL 297498, at *5 (4th Cir. June 4, 1997) (per curiam) (holding that
the FJC definition of reasonable doubt offered by the district court was
a "cogent" statement of the reasonable doubt standard).

                    19
          sideration of the evidence, you are firmly convinced that the
          defendant is guilty of the crime charged, you must find him
          guilty. If on the other hand, you are not firmly convinced of
          his guilt, you must find him not guilty.

The sole distinction between the instruction suggested here and that
sponsored by the FJC lies in the last sentence thereof. In its closing
sentence, the FJC instruction provides:

          If on the other hand, you think there is a real possibility that
          he is not guilty, you must give him the benefit of the doubt
          and find him not guilty.

I would amend this provision to make its language consistent with the
penultimate sentence of the FJC instruction. I am convinced that con-
sistency is the best approach, and I find further support in United
States v. Porter, 821 F.2d 968 (4th Cir. 1987), where we criticized the
"real possibility" aspect of the FJC instruction. In Porter, the district
court had charged the jury in accordance with the FJC instruction. On
appeal, the defendants challenged the "real possibility" language of
the instruction, arguing that it was confusing and improperly shifted
the burden of proof. While concluding that the district court's instruc-
tions taken as a whole properly placed the burden of proof on the
prosecution, we criticized the "real possibility" terminology, writing
that,

          Implying the evidence must show a real possibility of inno-
          cence to justify acquittal trenches on the principle that a
          defendant is presumed to be innocent.

Id. at 973 (emphasis added). Judge Butzner's criticism of the "real
possibility" language is persuasive, and I have concluded that the
slight modification of the FJC instruction, explained above, would
render it of greater assistance to perplexed jurors.

I am not alone in this conclusion; indeed, a virtually identical mod-
ification of the FJC instruction has been endorsed in a recent publica-
tion of the Texas Law Review. Lawrence M. Solan, Refocusing the
Burden of Proof in Criminal Cases: Some Doubt About Reasonable

                     20
Doubt, 78 Tex. L. Rev. 105 (1999). In his detailed and astute analysis
of various issues relating to reasonable doubt instructions, Professor
Solan recognizes the merits of this modification, writing,

          The [modified FJC] instruction reminds jurors that not every
          doubt is a reasonable one. But its main focus is to tell the
          jurors that the real issue is whether the government has
          made a strong, convincing case. It is marginally superior to
          the FJC's instruction [because it eliminates the"real possi-
          bility" language that tends to shift the burden of proof, as
          recognized by Porter].

Id. at 118. Moreover, as Professor Solan points out, the Supreme
Court of New Jersey has adopted a definition of reasonable doubt
nearly indistinguishable from the one I propose today. See State v.
Medina, 685 A.2d 1242, 1251-52 (N.J. 1996). 9 Professor Solan
explains that, by eliminating the "real possibility" language, the New
Jersey instruction avoids the tendency of the FJC instruction to shift
the burden of proof. Solan, 78 Tex. L. Rev. at 118. 10

In my view, this modified FJC instruction effectively and ade-
quately conveys the meaning of reasonable doubt in clear and concise
terms. While eliminating the concerns raised by Judge Butzner in
_________________________________________________________________
9 The last sentence of the instruction adopted by the New Jersey court
in Medina reads, "If, on the other hand, you are not firmly convinced of
defendant's guilt, you must give defendant the benefit of the doubt and
find him not guilty." Id. at 1252.
10 In this regard, Professor Solan thus recommends that the FJC instruc-
tion, as modified by the court in Medina, be adopted and given by those
courts that have not yet done so, arguing that the superiority of this
instruction stems

          not from its semantic fidelity to the reasonable doubt standard
          but from its greater success in promoting important values. To
          lose sight of this point is to accept a formulaic approach to our
          system of criminal justice rather than an approach that recog-
          nizes the values that led to the adoption of the reasonable doubt
          standard in the first place.

Id. at 145.

                    21
Porter, this modified instruction maintains the positive features of the
FJC instruction. In particular, the proposed instruction continues to

          inform[ ] the jurors that the prosecution must prove its case
          by more than a mere preponderance of the evidence, but not
          necessarily to an absolute certainty. . . . [Contrasting the pre-
          ponderance of the evidence standard and the beyond a rea-
          sonable doubt standard] is a useful way to frame the issue
          for the jury.

Williams, 20 F.3d at 132 n.5. It is this feature, the juxtaposition of the
requisite standard of proof in civil cases with the more stringent crim-
inal trial standard of proof beyond a reasonable doubt, that is the FJC
instruction's greatest asset. As the Fifth Circuit in Williams pointed
out, contrasting the civil and the criminal standards of proof is an
effective means of framing the issue for the jury. While making clear
that "reasonable doubt" is a higher standard of proof than that neces-
sary in civil cases, the instruction does not unduly disadvantage the
prosecution; it clearly states that proof beyond a reasonable doubt
"does not require proof that overcomes every possible doubt."

Furthermore, the modified FJC instruction ensures that the govern-
ment's obligation to carry the burden of proof beyond a reasonable
doubt is properly understood by jurors. The language of this instruc-
tion thus focuses "on what the government must do-- not on what
the defendant has been able to accomplish. It tells jurors not to accept
the government's model unless they are convinced that it is the right
one." Solan, 78 Tex. L. Rev. at 144.

Accordingly, I find this slightly modified FJC instruction to be a
cogent and comprehensible statement of the reasonable doubt stan-
dard. Because I believe this definition of reasonable doubt to be a
fully acceptable instruction, and vastly preferable to none at all when
the jury has requested assistance, I would approve its use under the
limited circumstances at issue here.11
_________________________________________________________________
11 The "hesitate to act" instruction suggested by Judge Widener, ante at
11, is also a suitable alternative, even though that particular instruction
has been subject to criticism. See Victor, 511 U.S. at 24-25 (Ginsburg,
J., concurring in part and concurring in the judgment). Likewise, giving
the FJC instruction in its original form would be a far superior practice
than simply ignoring a perplexed jury's request.

                     22
IV.

The integrity of the judicial process requires that the appropriate
standard of proof be scrupulously applied by criminal trial juries;
hence, an adequate understanding by juries of the reasonable doubt
standard is necessary for our system to function properly. To ensure
the rigorous application of the proper standard of proof in our crimi-
nal justice system, I would require that trial courts define reasonable
doubt in the limited circumstances presented in this case, that is, when
the jury has explicitly requested a definition. 12 Because the district
court failed to provide such a definition in response to the jury's
request, I find reversible error.13
_________________________________________________________________
12 The Supreme Court's recent decision in Weeks v. Angelone, 120
S. Ct. 727 (2000), does not impact the views expressed in this opinion.
Weeks involved a habeas corpus petitioner who sought relief from his
state court conviction and death sentence. As such, the petitioner was
obliged to demonstrate a violation of clearly established Federal law to
be entitled to relief. See 28 U.S.C.A. § 2254(d)(1) (West 1994 & Supp.
1999). The specific issue before the Court was whether "the Constitution
is violated when a trial judge directs a capital jury's attention to a spe-
cific paragraph of a constitutionally sufficient instruction in response to
a question regarding the proper consideration of mitigating circum-
stances." Id. at 729. Finding no constitutional violation, the Court denied
relief.

By contrast, our ability to find error in this case is not confined to con-
stitutional violations because, in evaluating the propriety of reasonable
doubt instructions, "the Constitution is not our only benchmark." Wil-
liams, 20 F.3d at 128. Even if the district court's refusal to define reason-
able doubt in response to the jury's request does not run afoul of the
Constitution, we may find error "if we are persuaded that the district
court's jury instruction is not acceptable." Id. Our basis for doing so rests
in the inherent supervisory powers of federal courts, pursuant to which
we "may, within limits, formulate procedural rules not specifically
required by the Constitution or the Congress . . . . to preserve judicial
integrity by ensuring that a conviction rests on appropriate considerations
validly before the jury." United States v. Hasting, 461 U.S. 499, 505
(1983). Pursuant to the inherent supervisory power of this Court, we
should require district courts to define reasonable doubt when presented
with a jury request to do so.
13 Since I would establish a new rule for criminal prosecutions requir-
ing district courts in this Circuit to define reasonable doubt when

                     23
I am honored to state that Judge Murnaghan, Judge Wilkins, and
Judge Traxler concur in this dissenting opinion.

HAMILTON, Senior Circuit Judge, dissenting:

Of all the rights enjoyed by a criminal defendant, the right to be
found guilty upon proof beyond a reasonable doubt is undoubtedly
one of the most important. The right ensures that our criminal justice
system separates those who are guilty from those who are innocent.
See In re Winship, 397 U.S. 358, 363-64 (1970).

To be effective, that is, to fulfill its obligation to separate the guilty
from the innocent, the term reasonable doubt must have a compre-
hendible meaning, one that can be understood by the jury. Therefore,
the term reasonable doubt must be defined with accuracy to ensure
that it is applied with precision. Without this safeguard, the jury is left
to apply its own definition; thus, we risk the possibility that the jury
will apply the wrong standard, potentially convicting a criminal
defendant on less proof than that required by the Constitution.

Judge Ervin feels that the term reasonable doubt should not be
defined because defining the term reasonable doubt"is more danger-
ous than leaving a jury to wrestle with only the words themselves."
Ante at 8. Thus, Judge Ervin leaves it to the jury to create its own def-
inition, applying its day-of-deliberations "definition to the specific
case before it." Ante at 9. I simply fail to see the logic in Judge
Ervin's approach.

It makes eminently more sense to define the term reasonable doubt
in a jury charge as a matter of course, just as district courts typically
define other terms such as knowingly, willfully, and intentionally.
When the term reasonable doubt is defined we avoid, if not eliminate,
the risk that a criminal defendant will be convicted on less evidence
_________________________________________________________________
requested to do so by the jury, I am compelled to vote to reverse the con-
victions in this case and remand for retrial. See Griffith v. Kentucky, 479
U.S. 314, 328 (1987) (holding that new rules for criminal prosecutions
must be applied retroactively to all cases not yet final, including cases
pending on direct appeal).

                     24
than is constitutionally required. This benefit far outweighs any atten-
dant problems associated with defining the term reasonable doubt.

In In re Winship, the Supreme Court explained that any "society
that values the good name and freedom of every individual should not
condemn a man for commission of a crime when there is reasonable
doubt about his guilt." 397 U.S. at 363-64. I simply see no way of
achieving this laudable goal other than by giving the jury an instruc-
tion that cogently and accurately defines the term reasonable doubt.
I would, therefore, require one, such as the one approved by the Fed-
eral Judicial Center in 1987, as a matter of course. Consequently, I
would find reversible error in this case. See Griffith v. Kentucky, 479
U.S. 314, 328 (1987).

                    25
