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An Adams County judge who compared the concept of reasonable doubt during jury selection to a crack in a house’s foundation will have his remarks examined by the state Supreme Court, as the justices on Monday agreed to decide whether the analogy unconstitutionally lowered the burden of proof to convict the defendant.

“This case presents a close question, as reflected by our split decision, and highlights the need for trial courts to discontinue this practice,” wrote Colorado Court of Appeals Judge Rebecca R. Freyre for the majority of the three-member panel that reviewed the case.

Ernest Joseph Tibbels called 9-1-1 for assistance in a mental health crisis, but police mistakenly arrested him. At the Adams County Detention Facility, he resisted deputies as they attempted to book him. Personnel assigned him to a “quiet room,” where he threatened to kill himself, hit the door with a metal spike he was carrying and promised to kill jail employees if they entered.

Deputies subsequently locked down the jail and subdued Tibbels. Prosecutors charged him with introduction and possession of contraband and felony menacing. A jury convicted him only of the possession charge.

Tibbels appealed, alleging that the court made two errors. First, the judge allowed the prosecution to ask the jury to hold Tibbels “accountable” for his “temper tantrum” in the jail. The defense countered that Tibbels was not on trial for creating a disturbance.

The appellate court found such comments did not likely affect the verdict, with Freyre observing that the defense’s lack of objection at the time “suggests that the prosecutor’s comments did not appear to be overly damaging when they were made.”

Second, Tibbels claimed that the Adams County District Court judge, Robert W. Kiesnowski, Jr., inadvertently lowered the burden of proof for the prosecution when he used an analogy during jury selection to illustrate the concept of reasonable doubt.

Kiesnowski read from the Colorado Jury Instructions manual for criminal cases, quoting that reasonable doubt was “such doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.”

However, he told jurors he would give an example, and continued: “So you and your spouse and your children are in a market to by [sic] a house, okay….And you come upon that ranch and it’s just like the dream come true, okay….And you descend the flight of stairs down to the basement and as you get to the bottom of the basement steps you see a crack in the foundation from the floor to the ceiling. And it’s not that superficial cracking that concrete will do. And structurally it’s significant. Are you going to buy that house?”

One juror responded in the negative. Kiesnowski responded, “it’s this crack that is structurally significant. And that’s causing you to hesitate, causing you to pause with going forward with a home purchase.”

Tibbels’s lawyer did not object at the time. The Court of Appeals’ majority agreed any action that lowers the prosecution’s burden of proof is a constitutional violation, but they did not agree the judge’s analogy was such a case.

Freyre wrote that federal judges have cautioned against analogies to everyday experiences because they are “are wholly unlike the decisions jurors ought to make in criminal cases.” For that reason, she added, “we strongly discourage the use of illustrations like this because they run the risk of confusing jurors, lowering the prosecution’s burden of proof, and diminishing the presumption of innocence.”

Ultimately, the appeals majority concluded that because the analogy occurred during voir dire and was never mentioned again, including in jury instructions, it did not merit a reversal of Tibbels’s conviction.

Judge Neeti Vasant Pawar dissented, explaining that she found no evidence to suggest the jury ignored Kiesnowski’s analogy in their decision-making. Rather, Pawar reasoned that a juror may well use the concrete illustration instead of abstract legal concepts within the official jury instruction.

“I find it unlikely that the jury would have, without direction, understood that the court’s illustration was not a formal instruction,” she wrote. “Instead, I think it far more likely that the jury took note of and remembered the only time the court explained, in familiar and accessible terms, what constitutes reasonable doubt. And when the jury received the proper reasonable doubt instructions in written form at the end of the case, I think it reasonably likely that the jury thought back to the court’s crack-in-the-foundation illustration and used it to determine whether it had reasonable doubts about Tibbels’ guilt.”

Pawar added that the majority concurred with her that the analogy lowered the burden required for the prosecution to prove its case, but they disagreed about whether the jurors based their decisions on it.

Christopher M. Jackson, a partner at Holland & Hart in Denver, agreed that attempts to illustrate set legal principles for jurors may confuse them in applying the standards of proof. For instance, with a "preponderance of the evidence" standard, a civil jury is instructed to find whether something is "more probably true than not."

"If a court gave an example and said, ‘Suppose your odds of winning at a casino are 1 in 3. Most people would take that bet. It’s not perfect, but it’s worth the risk. That’s what preponderance of the evidence means,'" Jackson explained, "that would seem to lower the plaintiff’s burden."

The Supreme Court will resolve the specific question of whether the house analogy altered the burden of proof, and whether judges' comments during jury selection should be considered formal instructions.

The case is People v. Tibbels.

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