Another member of Colorado’s second-highest court registered his concern on Thursday that a portion of the recently revised “reasonable doubt” definition improperly lowers the prosecution’s burden to prove a defendant guilty.

Judge Daniel M. Taubman wrote that the current instruction advising jurors to acquit whenever there is “a real possibility the defendant is not guilty” is ambiguous and problematic. He is now the second appellate judge to reject that language, even as others have found it to be an accurate statement of the law.

Before 2023, Colorado’s template jury instructions for criminal cases contained a longstanding explanation of reasonable doubt: A doubt based upon reason and common sense, which was not vague or speculative, that would “cause reasonable people to hesitate to act in matters of importance to themselves.”

Then, in January 2023, the judicial branch announced a small group of judges had voted to change the language of the model instruction. The revision advised jurors to vote to convict if they were “firmly convinced of the defendant’s guilt.”

“But if you think there is a real possibility that the defendant is not guilty,” the instruction continued, “then the prosecution has failed to prove the crime charged beyond a reasonable doubt.”

The 2023 update resembled the reasonable doubt instruction used in Colorado’s federal trial court, and the language was endorsed by U.S. Supreme Court Justice Ruth Bader Ginsburg in 1994 as a “clear, straightforward, and accurate” definition of reasonable doubt for jurors. Last year, the state’s Court of Appeals issued a pair of precedent-setting decisions upholding the new wording as constitutional.

Then, in December, Judge Michael H. Berger became the first appellate judge to argue that the “real possibility” language unconstitutionally lowered the prosecution’s burden of proof. Among other things, he worried that the phrasing appeared to assume the defendant’s guilt.

“It suggests that the defendant is guilty unless there is a real possibility that he is not guilty. However, a defendant has no obligation to prove that he is not guilty or even that there is a real possibility that he is not guilty,” Berger wrote.

On Feb. 12, a different appellate panel addressed Michael Lyne Green’s challenge to his convictions, partly based on the revised reasonable doubt instruction. The majority acknowledged Berger’s “legitimate concerns” about the language, but declined to find it so problematic as to warrant a new trial.

“And we echo Judge Berger’s observation that, should they share his concerns about the revised model instruction, trial courts retain discretion to use the well-tested (prior) model instruction,” wrote Judge Elizabeth L. Harris for herself and Judge Karl L. Schock.

Taubman, writing in dissent, would have ordered a new trial for Green.

“I believe that the (2023) model instruction was motivated by the Supreme Court’s rejection of a hypothetical used by a trial judge,” wrote Taubman, referring to a 2022 state Supreme Court decision to reverse a defendant’s convictions over a trial judge’s botched attempt to explain reasonable doubt under the old definition.

Taubman, who, like Berger, is a retired judge who hears cases part-time, argued that removing the “real possibility” language from the revised instruction “would simplify and clarify for jurors the meaning of ‘proof beyond a reasonable doubt.'”

The Colorado Supreme Court announced in September that it would review the constitutionality of the revised definition in another case.

Otherwise, the appellate panel agreed that one of Green’s Douglas County convictions could not stand for reasons unrelated to the reasonable doubt instruction. Then-District Court Judge Patricia Herron, without explanation, allowed jurors to hear evidence of Green’s alleged shoplifting, even though prosecutors had not charged him with shoplifting.

The testimony “suggested Green had bad character and a propensity to steal,” which cannot be the basis for admitting evidence of other misconduct, wrote Harris.

The decision is the third in three months to find that Herron made a substantial error in a criminal case. She retired from the bench at the end of 2023, but the chief justice subsequently hired her as a part-time senior judge despite the Court of Appeals having reversed numerous convictions and sentences due to her errors. A different appellate panel overturned a defendant’s convictions in January because Herron allowed a biased juror to serve, and reversed another defendant’s sentence in December because of Herron’s actions.

The case is People v. Green.