State v. Andersen

*337 MEYER, Justice (concurring). I join in the concurrence of Justice Page but write separately to restate that the majority’s analytical framework “unduly narrows our traditional standard of review for circumstantial evidence by replacing the term ‘circumstantial evidence’ with ‘circumstances proved’ and then restricting review of ‘circumstances proved’ to only those circumstances deemed by the court to be implicit in the guilty verdict.” State v. Stein, 776 N.W.2d 709, 719 (Minn.2010) (Anderson, Paul H., J., concurring). Given that we are abandoning our traditional standard of review, I believe that trial courts should instruct the jury on the law of circumstantial evidence. Minnesota’s pattern reasonable-doubt jury instruction tends to shift the burden of proof away from the State in prosecutions based on circumstantial evidence and fails to impress upon the jury the need to reach the requisite subjective state of certitude of guilt. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 1 In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). The reasonable-doubt standard “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.” Id. (citation omitted) (internal quotation marks omitted). “Minnesota’s traditional circumstantial evidence standard incorporates the burden of proof in sufficiency review....” State v. Tscheu, 758 N.W.2d 849, 869 (Minn.2008) (Meyer, J., concurring). State v. Johnson, the seminal authority cited for limiting review to circumstances implied in the verdict, involved the theft of 60 bushels of potatoes from a farmer’s root cellar. 173 Minn. 543, 544 , 217 N.W. 683, 683 (1928). The State’s evidence was circumstantial. Id. at 544 , 217 N.W. at 683 . The defendant denied the theft and presented his own testimony and that of two others to establish an alibi. Id. at 544-45 , 217 N.W. at 683 . In affirming the conviction, this court noted that the credibility of defendant’s witnesses and the weight of their testimony were for the jury. Id. at 545 , 217 N.W. at 683-84 . In regard to the circumstantial evidence, the court said: Various secondary rules relating to circumstantial evidence have been stated by the courts. Perhaps the most generally used rule is that all the circumstances proved must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt. By the term “circumstances proved” is not meant every circumstance as to which there may be some testimony in the case, but only such circumstances as the jury finds proved by the evidence. There may well be in any case testimony *338 on behalf of the defendant as to inconsistent facts and circumstances, not conclusively proved, and which the jury may have a right to and. do reject as not proved. Followed to its logical conclusion, the secondary rule stated reverts back to the reasonable doubt rule. For, if any one or more circumstances found proved are inconsistent with guilt, or consistent with innocence, then a reasonable doubt as to guilt arises. Id. at 545-46 , 217 N.W. at 684 (citation omitted). When Johnson was decided, instructions on the law of circumstantial evidence were given to guide the jury in evaluating this evidence: Such instructions, which place restrictions upon the jury’s use of inculpatory circumstantial evidence, are given to protect the accused by confining the jury, in arriving at a verdict of guilt, to a reliance only upon such facts and circumstances as form a complete chain which, in the light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt. The need for protective restrictions upon the use of inculpatory circumstantial evidence 'is elementary. For example, where circumstantial evidence consists in reasoning from a minor fact or series of minor facts to establish a principal fact, the process is fatally vicious if the circumstances, from which an attempt is made to deduce a conclusion of guilt, depends upon speculation and conjecture. State v. Waltz, 237 Minn. 409, 415-16 , 54 N.W.2d 791, 796 (1952) (emphasis omitted) (footnotes omitted); see also Stein, 776 N.W.2d at 723 (Meyer, J., concurring) (noting that since at least 1869, Minnesota courts instructed the jury on the law of circumstantial evidence). In Holland v. United States, the U.S. Supreme Court determined that a proper reasonable-doubt instruction obviated the need for a rational-hypothesis instruction: The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect. 348 U.S. 121, 139-40 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954) (citations omitted). Citing Holland, “we eventually abandoned the special jury instruction.” Stein, 776 N.W.2d at 723 (Meyer, J., concurring). 2 “The standard of proof beyond a reasonable doubt ... ‘plays a vital role in the American scheme of criminal procedure,’ because it operates to give ‘concrete substance’ to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding.” Jackson v. Virginia, 443 U.S. 307, 315 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (quoting Winship, 397 U.S. at 363 , 90 S.Ct. 1068 ). “At the same time, by impressing upon the factfinder the need to *339 reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” Id. Minnesota’s pattern reasonable-doubt jury instruction reads: Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.03 (5th ed. 2006). This instruction neither incorporates the Win-ship concept of impressing upon the jury the need to reach “a subjective state of certitude,” 397 U.S. at 364 , 90 S.Ct. 1068 , nor Jackson’s less rigorous “subjective state of near certitude.” 443 U.S. at 315 , 99 S.Ct. 2781 . In addition, “[t]he result of focusing the jury on the notion of reasonable doubt is that once the government puts on a case, even a weak one, it appears to be up to the defendant to rebut it.” Lawrence M. Solan, Convicting the Innocent Beyond a Reasonable Doubt: Some Lessons About Jury Instructions from the Sheppard Case, 49 Clev. St. L.Rev. 465, 481 (2001). And instructions that spend time explaining to jurors what should not count as a reasonable doubt, and making sure that jurors do not take the concept of reasonable doubt too far ... add[ ] to the burden that a defendant must meet when the government has a fairly weak case based on circumstantial evidence, and the defendant does not have any good alternative explanations of what happened because he wasn’t there and didn’t commit the crime. Id. at 484. Moreover, the analogy of proof beyond a reasonable doubt to decisions people act upon in their own most important affairs is misplaced: In the decisions people make in the most important of their own affairs, resolution of conflicts about past events does not usually play a major role. Indeed, decisions we make in the most important affairs of our lives — choosing a spouse, a job, a place to live, and the like — generally involve a very heavy element of uncertainty and risk-taking. They are wholly unlike the decisions jurors ought to make in criminal cases. Victor v. Nebraska, 511 U.S. 1, 24 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994) (Ginsburg, J., concurring in part and concurring in the judgment) (internal quotation marks omitted) (quoting Fed. Judicial Ctr., Pattern Criminal Jury Instructions 29 (1987) (commentary on Instruction 21)); see id. at 34 , 114 S.Ct. 1239 (Blackmun, J., concurring in part, dissenting in part) (noting agreement with Justice Ginsburg’s observation on misplaced analogy to “frequently high-risk personal decisions people must make in their daily lives”). In addressing potential juror confusion and misunderstanding posed by instructions similar to Minnesota’s reasonable-doubt formulation, a number of courts have turned to the Federal Judicial Center’s instruction, which reads: 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 certainty, and in criminal cases the law does not require proof that *340 overcomes every possible doubt. If, based on your consideration 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 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. Fed. Judicial Ctr., Pattern Criminal Jury Instructions, Instruction 21. See, e.g., State v. Reyes, 116 P.3d 305, 314 (Utah 2005) (authorizing use of the model Federal Judicial Center instruction); see also R. Jason Richards, Reasonable Doubt: An Overview and Examination of Jury Instructions in Colorado, Colo. Law., Aug. 2004, at 85, 88, 91 nn. 89-90 (citing federal and state courts approving model Federal Judicial Center instruction). Justice Ginsburg endorsed the Federal Judicial Center instruction in her concurrence in Victor, 511 U.S. at 27 , 114 S.Ct. 1239 (1994) (“This model instruction surpasses others I have seen in stating the reasonable doubt standard succinctly and comprehensibly.”). Commentators find the Federal Judicial Center instruction superior to instructions similar to Minnesota’s formulation. See, e.g., Jon O. Newman, Beyond “Reasonable Doubt," 68 N.Y.U. L.Rev. 979, 991 (1993) (“Notably absent from the [Federal Judicial Center’s] model charge is the misleading phrase about a doubt ‘based on reason’ and the ambiguous language about ‘hesitating on important matters.’ ”); Solan, supra, at 482-83 (citing study conducted by psychologist Irwin Horowitz and evidence scholar Laird Kirkpatrick in which “[o]nly the [Federal Judicial Center] instruction achieved acquittals when the case was weak, and convictions when the case was strong”); Richards, supra, at 88 (finding Federal Judicial Center instruction superior to the traditional formulations”). The evaluation of circumstantial evidence requires the jury to closely examine the evidence and determine what inferences can and should be drawn from a minor fact or series of minor facts to establish a principal fact. The rational-hypothesis instruction directs the jury’s attention to the appropriate method for evaluating this evidence. Given the frailties in Minnesota’s reasonable-doubt instruction, it would be difficult for me to conclude that the instruction qualifies as a proper one, sufficient to preclude the need for the rational-hypotheses instruction as contemplated in Holland. Now that appellate courts review only those circumstances implicit in the verdict, the special instruction on circumstantial evidence is essential to avert undermining the presumption of innocence and to impress upon the jury the need to reach a state of certitude of the guilt of the accused. . The Winship Court explained that historically. [t]he requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula "beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt. 397 U.S. at 361 (citations omitted) (internal quotation marks omitted). For an analysis of the historical iterations of reasonable doubt, see generally Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 Notre Dame L.Rev. 1165, 1176-1223 (2003). . The Holland court believed that a special jury instruction would be confusing because testimonial evidence is no different from circumstantial evidence. There is, however, a distinction between the two categories: With regard to the former, the jury must determine whether the particular assertion is true, whereas in the latter case, the jury must not only decide whether it is true, but also whether guilt logically can be inferred from such evidence. Tscheu, 758 N.W.2d at 870 n. 3 (Meyer, J., concurring) (citations omitted) (internal quotation marks omitted).