The Ralph L. Carr Colorado Judicial Center, on Tuesday, Sept. 13, 2022, in Denver, Colo. (Timothy Hurst/The Denver Gazette)

Colorado's prosecutors and criminal defense attorneys were caught off guard on Friday by a small judicial committee's quiet change to the longstanding definition of "beyond a reasonable doubt" in the template instructions for jury trials.

While prosecutors appeared cautiously supportive of the rewrite, defense lawyers condemned the sudden move.

The Model Criminal Jury Instructions Committee, composed entirely of judges, has now recommended that jurors be told that if they are "firmly convinced of the defendant's guilt, then the prosecution has proven the crime charged beyond a reasonable doubt."

The prosecution has not proven guilt, the new instructions read, "if you think there is a real possibility that the defendant is not guilty."

"We didn’t know that they were working on this revision," said Timothy Lane of the Colorado District Attorneys' Council, which represents the state's district attorneys. "We didn’t have any forewarning or request for input."

The Office of the Colorado State Public Defender went further, telling Colorado Politics it was concerned about the committee's change.

"This occurred without any opportunity for input from any other criminal legal system stakeholders," said James Karbach, director of legislative policy and external communications. "As defenders of the poor and marginalized, our initial reading is that this change unfairly favors the government and will lessen the burden of proof in everyday jurors’ minds and make it easier to overcome the very important presumption of innocence."

Minutes from the judicial committee's meetings, which are not open to the public, show that members discussed the possibility of changing the reasonable doubt instruction at least as early as last summer. The Aug. 26, 2022 meeting reportedly had "robust debate" about whether to modify the language.

The new directive that jurors be "firmly convinced" of a defendant's guilt tracks with the instructions for Colorado's federal trial court. U.S. Supreme Court Justice Ruth Bader Ginsburg endorsed the wording in 1994 as a "clear, straightforward, and accurate" definition of reasonable doubt for jurors.

Previously, the model instructions for Colorado explained reasonable doubt in a more complex fashion. Reasonable doubt was 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."

In January of last year, the Colorado Supreme Court addressed a problem that the state's Court of Appeals had repeatedly encountered in criminal cases: Well-meaning trial judges who attempted to illustrate the legal definition of reasonable doubt in plain English, but potentially botched the analogy.

The Supreme Court, in Tibbels v. People reversed a conviction for the first time after determining a trial judge, who compared reasonable doubt to the crack in the foundation of a home, had impermissibly lowered the threshold to convict the defendant and also made it seem as if the defendant was presumed guilty.

John Kellner, the district attorney for Arapahoe, Douglas, Elbert and Lincoln counties, believed the change was an attempt to dissuade further faulty analogies.

"This is a change to the definition of 'beyond a reasonable doubt' that has been on the books for at least 15 years," he said, adding that his office would need to train its staff on the new wording.

The committee did not explicitly link the definitional change to Tibbels, and cautioned that the update "in no way casts aspersions on the validity of the prior version of this instruction." Instead, the committee explained that it wanted to remove the "hesitate to act" language and reinforce that convicting a criminal defendant requires more proof than "highly probable," but less proof than "absolute certainty."

Justice Carlos A. Samour Jr., who chairs the model jury instructions committee, told Colorado Politics in an email that the committee sets its own agenda and does not consult with others when making changes.

"The model instructions are intended as guidelines to be considered by the courts, but they are not binding on the courts," Samour said. The time for prosecutors and criminal defense attorneys to weigh in, he elaborated, is when a jury instruction is "tested" in actual proceedings.

"The appellate courts then decide whether an instruction is binding and authoritative," he said.

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Colorado Supreme Court Justice Carlos A. Samour Jr. takes notes during during a Courts in the Community session at Pine Creek High School on Thursday, Nov. 17, 2022. (The Gazette, Parker Seibold)

Lane, of the district attorneys' council, said he welcomed the new definition and expected prosecutors and defense attorneys would challenge the revised wording once judges begin to deploy it.

"The phrase 'reasonable doubt’ has been around for a long time and it’s always been confusing," he said. "Jurors struggled with it pretty regularly under the old definition. The new definition is just simpler. It’s something in words that jurors can easily understand."

In contrast, Timothy R. Bussey, a Colorado Springs defense attorney, called the change "appalling." In his view, the wording shifts jurors away from the government's burden to provide evidence and toward the juror's own "firm" beliefs.

"I do not respect the committee's effort to change what was never in need of change. I anticipate that defense attorneys across the state will be objecting to this instruction which will lead to more litigation and appeals," Bussey said.

The state's Judicial Department said the committee voted 5-1 in December to adopt the new definition, with no indication of which judges voted for or against the proposal. During the prior meeting, on Nov. 18, the vote was 4-2 in support of the change. Judge Rebecca R. Freyre of the Court of Appeals was absent, according to the minutes.

But the committee included her in the tally after it "unanimously agreed that Judge Freyre would have voted to update the instruction had she been present," according to the minutes.

Samour said that Freyre "made her vote clear" prior to the November meeting and "confirmed her vote during subsequent discussions by the committee."

Ian P. Farrell, an associate law professor at the University of Denver, believed the "less is more" approach was an improvement upon the previous reasonable doubt instruction.

"The more detail you give in attempting to explain the term, the more likely the jury will just become more confused," he said.

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