A member of Colorado’s second-highest court asked the state Supreme Court on Thursday to endorse one definition of “reasonable doubt” for trial judges to use — out of the three versions currently on the table.

Colorado’s template jury instructions for criminal trials used to explain reasonable doubt as a doubt, based upon reason and common sense, and which was not vague or speculative, that would “cause reasonable people to hesitate to act in matters of importance to themselves.” Then, the Model Criminal Jury Instructions Committee, composed entirely of judges, abruptly released new language in January 2023, directing jurors that if they are “firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt.”

In a further revision released in 2024, the committee reinserted language from the pre-2023 version, directing jurors to consider the evidence or “lack of evidence” in a case when deciding upon guilt beyond a reasonable doubt.

However, “we have provided trial courts no meaningful guidance on what factors they should consider in exercising their discretion in the context of the various reasonable doubt instructions currently on the menu,” wrote Judge Timothy J. Schutz in a Sept. 25 concurring opinion out of the Court of Appeals.

Schutz noted the instruction committee’s revisions to the longstanding definition of reasonable doubt stated that the 2023 change “in no way casts aspersions on the validity of the prior version of this instruction.”

Since then, the Court of Appeals has addressed the 2023 wording and its 2024 variation, concluding in a pair of decisions that both are acceptable.

In the most recent case from the appellate court, Defendant Donavon B. Wilson appealed his criminal conviction out of Denver, contesting the use of the newly adopted 2023 definition of reasonable doubt at his trial. The three-judge Court of Appeals panel, relying on the court’s prior decisions approving of the revision, affirmed Wilson’s conviction.

Schutz wrote separately, however, to argue the Court of Appeals’ decisions had not addressed an underlying problem: too many reasonable doubt definitions available.

“As it stands, then, we have three varying reasonable doubt instructions that have been utilized in our trial courts and approved by our appellate courts within the last three years. So, how are trial courts to decide which instruction to use going forward?” he wrote.

Schutz, a former trial judge, wondered what factors are relevant in a judge’s decision to use the longstanding definition, the 2023 change or the 2024 amendment for a given criminal case.

“In an issue as fundamental and essential to our criminal justice system as reasonable doubt, I respectfully suggest that the public, litigants, and courts would greatly benefit from having a single, approved burden of proof instruction,” he wrote.

He elaborated that prosecutors seem to prefer the 2023 revision, while defense attorneys advocate for the longstanding verbiage or the most recent amendment. Given those dynamics, there is a risk of “subjectivity, uncertainty, and perceived inconsistencies” in how justice is administered, Schutz wrote.

“For these reasons, I respectfully encourage the supreme court to intervene and adopt a uniform definition of reasonable doubt that will permit Colorado’s courts to speak with a clear and unified voice on this fundamental issue,” he concluded.

Earlier this month, the Supreme Court accepted an appeal seeking a ruling on the constitutionality of the revised definition.

The case is People v. Wilson.