State of Iowa v. Ethan L. Davis

• Court: Supreme Court of Iowa
• Decided: May 27, 2022
• Docket: 19-0453
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 19–0453

Submitted November 16, 2021—Filed May 27, 2022

STATE OF IOWA,

Appellee,

vs.

ETHAN LANDON DAVIS,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Appanoose County, Myron K.

Gookin, Judge.

Defendant seeks further review of a court of appeals decision rejecting his

challenge to jury instruction on reasonable doubt and instruction to break a jury

deadlock. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

JUDGMENT AFFIRMED AND CASE REMANDED WITH INSTRUCTIONS.

Christensen, C.J., delivered the opinion of the court, in which Waterman,

Mansfield, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an

opinion concurring in part and dissenting in part. 2

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued),

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven (argued) and Scott D.

Brown, Assistant Attorneys General, for appellee. 3

CHRISTENSEN, Chief Justice.

On further review from the court of appeals, we decide to address two jury

instructions provided by the district court after evidence was presented in a

murder trial. First, we decide whether a jury instruction that explains reasonable

doubt in terms of “hesitate to act” should have been added to a jury instruction

that already contained an explanation of reasonable doubt in terms of “firmly

convinced.” Second, we decide whether a verdict-urging instruction improperly

coerced the jury verdict.

The “hesitate to act” formulation of reasonable doubt is a legally adequate

instruction on reasonable doubt. However, we determine the inclusion of

“hesitate to act” language was not legally required because it would not have

amplified the concept of reasonable doubt already present in the trial court’s

“firmly convinced” instruction. Therefore, the district court did not abuse its

discretion by refusing to add the discretionary “hesitate to act” instruction.

The verdict-urging instruction lacked content that we have previously

disapproved of in past caselaw. The timing of the verdict from the verdict-urging

instruction indicates that the jury adequately considered the case. Each member

of the jury was polled and indicated that guilty was indeed their verdict.

Therefore, the content and circumstances indicate that the jury was not

improperly coerced by the court’s verdict-urging instruction.

I. Facts and Procedural Background.

The defendant, Ethan Davis, lived with his parents and brother on a

400-acre family farm near the Wayne-Appanoose county line in Promise City in 4

2017. Davis was the parent of a one-and-a-half-year-old son with his

ex-girlfriend. Davis thought their son would be with him starting on

Thanksgiving Day 2017 through the weekend, but he learned the day before that

his ex-girlfriend did not agree to such an arrangement. On Thanksgiving Day,

Davis drove around Moravia, Centerville, and Promise City before visiting his

friend Joseph Babbitt that evening in Plano. Babbitt described Davis as upset

because of a recent breakup, losing his job, and the situation with his child.

Davis returned to his parents’ home at about midnight.

The next day (Friday), Davis left his parents’ place to buy cigarettes at a

Casey’s in Seymour. As Davis left the Casey’s, he noticed his ex-girlfriend’s car

outside the house of her new boyfriend, Jarvis Kennebeck. Davis entered

Kennebeck’s home, “fired a round into the air” from the 9 mm gun he generally

carried, and took his son and left. The ex-girlfriend called 911 to report the

incident at 11:42 a.m.

With his child in tow, Davis headed back to the family farm, taking gravel

roads to avoid law enforcement in case police were looking to arrest him for what

he had done at Kennebeck’s home. Davis tried dropping off his son at his parents’

home, but no one was there. He also traveled to find other friends and family,

but no one was home.

Eventually, Davis ended up at the house of Babbitt, who was home.

According to Babbitt, Davis drove erratically into Babbitt’s backyard. This was

not normal behavior. It was clear to Babbitt that Davis was “pretty upset” when

he arrived. Specifically, Babbitt noticed Davis was fast-talking and had been 5

crying. Davis left his sleeping child on Babbitt’s living room floor and scribbled

down his mother’s phone number for Babbitt. Davis then quickly fled the house

at about 1:05 p.m. and Babbitt called Davis’s mother. This was the last time

anyone claimed to have seen Davis until approximately 5:00 p.m. the next day

(Saturday).

Not too far away, Curtis Ross began his Thanksgiving weekend. Davis and

Ross had never met before. Ross was an avid hunter from northwest Iowa who

traveled to Lucas to bow-hunt deer in Appanoose and Wayne counties. He spent

Thanksgiving night with a friend, William Tyler Jensen, at Jensen’s home in

Lucas. Ross and Jensen had been hunting friends for five or six years. The two

regularly communicated with each other through calls, texts, and Snapchat.1

In the early morning hours on the day after Thanksgiving (Friday), the two

friends separately left Jensen’s home to hunt in different areas. Jensen was the

first to return home to take a nap after his early morning hunt at around

10:00 a.m. Soon after, Ross returned as well. The two discussed how Ross

planned to go hunting that afternoon at a place he fondly referred to as “Narnia,”

a public hunting ground located near the border of Appanoose and Wayne

counties. Jensen saw Ross leave his house around noon. This was the last time

Jensen saw Ross alive.

1Snapchat is a social media application that allows individuals to send pictures, videos, and messages (colloquially known as “Snaps”) to other individuals with a Snapchat username. A Snapchat username is a handle that is unique to an individual’s account. Snaps have time stamps that indicate when the sender sends a message and when the receiver opens the message. 6

Ross sent a Snap to several individuals on Friday at 1:26 p.m. This Snap

was a picture of his hunting gear with a text that said, “It’s going to be a long

walk outta here.” This was the last Snap communication sent by Ross. Donna

Westphal, another one of Ross’s friends, sent Ross a Snap shortly afterward.

This Snap was opened at 1:38 p.m. But starting at 1:59 p.m., Snaps sent to

Ross’s Snapchat account were not opened. The last cell phone ping2 to Ross’s

phone was at 3:31 p.m. In between this time period, around 2:30 p.m., Kenneth

Brown was washing his work truck near the same public hunting ground where

Ross was supposedly hunting when he heard several ringing, rapid-fire

gunshots. The shots persisted for several rounds and sounded so close that

Brown took cover.

Jensen attempted to communicate to Ross through text message around

3:30 p.m. and Snapchat around 3:50 p.m. Ross did not respond. Jensen

attempted to make contact with Ross again at 11:30 p.m. when he had not

returned to the house. Jensen again received no response and he began to worry.

He checked for Ross at a local bar that Ross had been to when in the area, but

Ross was not there.

Jensen’s search for his friend continued into the early Saturday morning

hours. At about 1:00 a.m., he arrived at the entrance to the public hunting

ground where Ross told Jensen he would be hunting. Jensen spotted Ross’s

vehicle at the end of a road where it abuts into a lake, but Ross was nowhere to

2A ping involves a message sent to the cellular device through a signal tower. A signal is

then returned to the tower with the device’s location. 7

be seen. Jensen shouted Ross’s name into the woods but heard nothing in

response.

At this point, Jensen called the Appanoose County Sheriff’s Office to report

Ross as missing, and a law-enforcement-led search soon began. Jensen and law

enforcement officers attempted to search the public hunting area for a couple of

hours, which proved to be difficult because it was dark and densely wooded. At

8:00 a.m., Wayne County Sheriff Officer Cody Jellison was shielding his eyes

from the sun when something caught his eye in a nearby creek. Upon closer

observation, the eerie sight appeared to be a naked human body, obviously

deceased, submerged in the middle of the creek. The body was later confirmed

to be Ross.

Upon removing Ross’s body from the water, it was clear that his body had

been mutilated. The medical examiner who performed the autopsy testified that

Ross had been shot at least ten times, had five sweeping incise wounds, and

twenty-six plunging stab wounds. Stippling, an indicator of being shot at close

range, was noticed, burned into the left side of Ross’s face. Many of his stab

wounds were four to six inches deep. There were four extensive incise wounds

carved into his legs, one on each thigh and one on each calf. Vital organs were

damaged such as the liver, kidneys, diaphragm, lungs, and intestines. One

particularly serious stab severed his carotid artery and another incise wound

severed his femoral artery. Some of the injuries were determined to have

occurred before death, some at the time of death, and some after death. It was

unclear which specific wound was the fatal shot, stab or incise. However, it was 8

clearly evident that several of the shots or cuts would have been fatal on their

own.

A massive evidence collection effort began at the creek with the

collaboration of law enforcement from the Appanoose and Wayne county sheriff

departments, the Department of Natural Resources, and the Department of

Criminal Investigation (DCI). Officers canvassed the surrounding area after

locating Ross’s body. They observed small areas of blood in the water near the

body. Hanging onto a rope, officers lined up side by side and slowly walked the

creek in an effort to gather any evidence floating or submerged in the creek. The

areas surrounding the creek were photographed and processed for evidence.

Although neither Ross’s clothes nor any other personally identifiable

evidence was ever found during the search, other evidence was gathered. The

officers found several 5.56 mm and .223 mm shell casings located in two areas

near the murder—one casing near a grassy bloody area determined to contain

Ross’s blood and four casings located on a hilltop overseeing the grassy bloody

area and the creek. While standing on that same hilltop where the shell casings

were found, law enforcement noted that there was a line of sight to where Ross’s

body was found as well as where the other shell casings were found in the grass.

Nearby the crime scene, officers discovered an ammunition can stashed in

a rusty old refrigerator and multiple gun magazines, some loaded with

ammunition, concealed inside a culvert. The ammunition can contained loose

ammunition including 5.56 and .223 ammunition. The gun magazines contained

.223 rounds with green polymer tips. According to the officers, 5.56 and .223 9

ammunition are the type of ammunition typically used with an AR-15 rifle. The

ammunition can and gun magazines were immediately sent to the DCI lab for

analysis.

A couple of days later, the forensic analysis identified Davis’s fingerprints

on the ammunition can and on some of the gun magazines. Based on the

fingerprint evidence and a report from Davis’s ex-girlfriend that Davis owned an

AR-15, officers obtained a search warrant and conducted a search of the Davis

family farm, which was two and a half miles away from the crime scene. Among

other evidence, during that search, officers uncovered an AR-15 hidden under a

parked hay mower. This AR-15 was later identified as purchased by and owned

by Davis.

At the DCI lab, the AR-15 was carefully analyzed for fingerprints and DNA.

Reddish spots on the AR-15 scope were identified as Ross’s blood. The AR-15

butt plate also had blood on it, which was also identified as Ross’s blood. In

addition to Ross’s blood, Davis’s fingerprints were identified on the AR-15. The

shell casings found near the crime scene were identified as having markings

specific to the same AR-15.

Davis was charged with first-degree murder to which he entered a plea of

not guilty. A six-day jury trial occurred in early February 2019. At the trial, Davis

testified in his own defense as to what happened between 1:05 p.m. Friday and

5:00 p.m. Saturday on the Thanksgiving weekend of 2017. He claimed that he

never entered into the public hunting grounds and mostly stayed within the

confines of his parents’ property. On Friday, after dropping off his child at 10

Babbitt’s house, Davis returned to his family’s home. He parked in a remote

wooded area of the farm to avoid an interaction with the police regarding what

happened at Kennebeck’s home. He stayed in his car listening to music and

smoking, and later walked to a nearby church, where he prayed for a couple of

hours before returning to his car where he slept overnight.

On Saturday morning, Davis testified that he wandered from his car to his

parents’ house to eat, but no one from his family saw him do so. He then returned

to his car until about 5:00 p.m., at which time he once again returned to his

parents’ home. This time, his family was present and he agreed to turn himself

into law enforcement because of what happened at Kennebeck’s home a couple

of hours later.

Davis admitted he owned the ammunition can, gun magazines, and AR-15

but claimed they had been stolen from his car four to six weeks before the

murder. Davis acknowledged that he never reported his weapon and ammunition

being stolen. He suggested that someone had deliberately placed the

incriminating evidence near the murder scene or on the family farm in order to

frame him for the murder.

Upon conclusion of the six-day trial, the jury deliberated over two days

before returning a guilty verdict to murder in the first degree. Davis filed a timely

appeal, and we transferred the case to the court of appeals. The court of appeals

affirmed the conviction but remanded the case to the district court for the limited

purpose of entering an order removing the court costs and attorney fee

obligations from the sentencing order to be consistent with the oral 11

pronouncement at sentencing. We take this case on further review upon Davis’s

application.

II. Standard of Review.

“We have discretion to choose which issues we review when we take a case

on further review.” In re D.M., 965 N.W.2d 475, 480 n.2 (Iowa 2021) (quoting

Holmes v. Pomeroy, 959 N.W.2d 387, 389 (Iowa 2021)). We use our discretion to

review the jury instruction on reasonable doubt and instruction to break a jury

deadlock. However, we let the court of appeals decision stand on the remaining

issues, including the sufficiency of the evidence, challenges to the closing

arguments, and the need for a nunc pro tunc order.

“[W]e generally review a district court’s refusal to give a requested jury

instruction for errors at law; however, if the jury instruction is not required but

discretionary, we review for an abuse of discretion.” State v. Bynum, 937 N.W.2d

319, 324 (Iowa 2020) (alteration in original) (quoting State v. Plain, 898 N.W.2d

801, 811 (Iowa 2017)) “[W]e consider the jury instructions as a whole rather than

in isolation to determine whether they correctly state the law.” State v. Benson,

919 N.W.2d 237, 242 (Iowa 2018).

III. Analysis.

A. Reasonable Doubt Instruction. Davis disputes whether the trial court

was correct to exclude his proposed reasonable doubt instruction. The trial court

provided the following jury instruction:

The burden is on the State to prove Ethan Landon Davis guilty beyond a reasonable doubt. 12

A reasonable doubt is one that fairly and naturally arises from the evidence in the case, or from the lack or failure of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are firmly convinced of the defendant’s guilt, then you have no reasonable doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence in the case, or from the lack or failure of evidence produced by the State, you are not firmly convinced of the defendant’s guilt, then you have a reasonable doubt and you should find the defendant not guilty.

(Emphasis added.) In addition to the language cited above, Davis requested the

insertion of an additional paragraph that included a “hesitate to act” formulation:

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to reply and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

(Emphasis added.) The trial court denied the request to include this paragraph,

relying on State v. Frei, in which we approved an instruction that solely provided

the “firmly convinced” formulation of reasonable doubt. 831 N.W.2d 70, 79

(Iowa 2013), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d

699, 708 n.3 (Iowa 2016). The court of appeals determined the trial court was

not legally required to provide the “hesitate to act” formulation because the

“firmly convinced” formulation adequately addressed reasonable doubt and did

not abuse its discretion by refusing to add the “hesitate to act” formulation.

Reasonable doubt is one of the most recognizable concepts in our criminal

justice system. It sets forth a demanding burden of proof on the government. 13

“[A]n understanding of reasonable doubt is crucial to the deliberations of the jury

in nearly every criminal case.” State v. McGranahan, 206 N.W.2d 88, 92

(Iowa 1973) (en banc). Despite its grave importance, “[c]ourts have struggled . . .

in settling upon a serviceable definition of the ‘reasonable doubt’ standard.” Frei,

831 N.W.2d at 77. Notably, “[t]he Due Process Clause provides no definitional

guidance as it requires no ‘particular form of words be used in advising the jury

of the government’s burden of proof.’ ” Id. (quoting Victor v. Nebraska, 511 U.S.

1, 5 (1994)). The lack of definitional guidance has produced several jury

instructions explaining reasonable doubt in different ways such as “hesitate to

act,” “firmly convinced,” “abiding conviction,” and their respective variations.

2A Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure:

Criminal: Federal Rules of Criminal Procedure § 502 (4th ed. 2009) [hereinafter

Wright & Henning]; see 1 Barbara E. Bergman, Nancy Hollander, & Theresa M.

Duncan, Wharton’s Criminal Evidence § 2.4, Westlaw (15th ed. database updated

Oct. 2020). As the concurrence in part and dissent in part in this case mentions,

some jurisdictions do not provide any jury instruction defining or describing

reasonable doubt. See, e.g., United States v. Walton, 207 F.3d 694, 696–99

(4th Cir. 2000) (per curiam).

1. The Iowa State Bar Association’s uniform criminal jury instructions on

reasonable doubt. The Iowa State Bar Association (ISBA) publishes uniform jury

instructions every year that attorneys and district courts rely upon for civil and

criminal proceedings. These uniform instructions include a jury instruction

explaining “reasonable doubt.” We have acknowledged that “trial courts should 14

generally adhere to the uniform instructions.” State v. Becker, 818 N.W.2d 135,

143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)),

overruled on other grounds by Alcala, 880 N.W.2d at 708 n.3. Even though

“we normally approve the submission of uniform instructions, we [can] conclude

[a] particular instruction is faulty.” State v. McMullin, 421 N.W.2d 517, 518

(Iowa 1988). “[T]rial courts are [not] bound by any model or form in formulating

instructions.” McGranahan, 206 N.W.2d at 92; see Becker, 818 N.W.2d at 141.

Moreover, “[t]rial courts have a rather broad discretion in the language that may

be chosen to convey a particular idea to the jury.” Stringer v. State, 522 N.W.2d

797, 800 (Iowa 1994).

One of the first ISBA jury instructions on reasonable doubt was published

in 1972. Iowa State Bar Ass’n, Unif. Jury Instr. (Criminal) 501.11 (1972). This

1972 uniform jury instruction defined reasonable doubt as:

A “reasonable doubt” is such a doubt as fairly and naturally arises in your mind and by reason of which you cannot say that you have a full and abiding conviction of the guilt of the defendant; and if, after considering all of the circumstances as disclosed by the evidence, you find your mind wavering or vaci[l]lating, then you have a reasonable doubt, and the defendant is entitled to the benefit of such doubt and you must acquit him. A reasonable doubt may arise from the evidence in the case or it may arise from a lack or failure of evidence, and it must be such a doubt as would cause a reasonable, prudent and considerate man to pause and hesitate before acting in the graver and more important affairs of life. But you should not ignore credible evidence to hunt for doubt, and you should not entertain such doubt as is purely imaginary or fanciful or based on groundless conjecture. If, after a careful and impartial consideration of all of the evidence in the case, you have a full and abiding conviction of the guilt of the defendant, then you are satisfied beyond a reasonable doubt, otherwise you are not satisfied beyond a reasonable doubt. 15

Id. (emphasis added). In State v. McGranahan, we determined that any one of the

emphasized reasonable doubt formulations—“full or abiding conviction,”

“wavering or vaci[l]lating,” or “hesitate before acting in the graver and more

important affairs of life”—would be more acceptable than a jury instruction that

did not substantively define reasonable doubt. 206 N.W.2d at 91–92.

Sixteen years later, the ISBA instruction on reasonable doubt changed to

solely define reasonable doubt with a “firmly convinced” formulation. Iowa State

Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (1988). This instruction is

substantially similar to what the district court in this case provided:

The burden is on the State to prove (name of defendant) guilty beyond a reasonable doubt.

A reasonable doubt is one that fairly and naturally arises from the evidence, or lack of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are firmly convinced of the defendant’s guilt, then you have no reasonable doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence or lack of evidence produced by the State, you are not firmly convinced of the defendant’s guilt, then you have a reasonable doubt and you should find the defendant not guilty.

Id. (emphasis added). Nearly twenty years later, in 2007, a new paragraph

expressing a “hesitate to act” formulation was included along with the “firmly

convinced” language in the ISBA’s jury instruction on reasonable doubt. This

instruction is almost identical to what Davis proposed to the district court:

The burden is on the State to prove (name of defendant) guilty beyond a reasonable doubt. 16

A reasonable doubt is one that fairly and naturally arises from the evidence in the case, or from the lack or failure of evidence produced by the State.

A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

If, after a full and fair consideration of all the evidence, you are firmly convinced of the defendant’s guilt, then you have no reasonable doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence in the case, or from the lack or failure of evidence produced by the State, you are not firmly convinced of the defendant’s guilt, then you have a reasonable doubt and you should find the defendant not guilty.

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2007) (emphasis

added). The current ISBA instruction remains substantially similar to this

instruction. Compare Iowa State Bar Ass’n, Iowa Criminal Jury Instruction

100.10 (2007), with Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10

(2020).

2. The “firmly convinced” formulation is a legally adequate definition of

reasonable doubt. Both parties agree that “firmly convinced” is a legally adequate

formulation of reasonable doubt and that we explicitly approved this formulation

in Frei, 831 N.W.2d at 76–79. In Frei, we noted that previous Iowa caselaw

approved of an analogous “firmly and abidingly convinced” formulation as

“an objective standard for measuring the jurors’ doubts.” Id. at 78 (quoting State

v. McFarland, 287 N.W.2d 162, 163 (Iowa 1980)). We also acknowledged that

several academics, respected jurists, and multiple courts also had endorsed the 17

“firmly convinced” formulation. Id. at 78–79. Furthermore, we concluded that

the dictionary definitions of “firmly” and “firm” showed them to be “plain, well-

understood word[s] commonly used in modern speech . . . [that] adequately

expressed . . . the extent of certitude the jury must possess to convict a

defendant of a crime in this state.” Id. at 79. Despite our approval of the “firmly

convinced” language in Frei, we noted that “this case should not be viewed as a

rejection of any other formulation expressing in equivalent terms the state’s

burden of proof.” Id. at 79 n.7.

3. Davis’s proposed “hesitate to act” formulation is a legally adequate

definition of reasonable doubt. The “hesitate to act” formulation carries some

similar traits of the “firmly convinced” formulation we approved in Frei. The

United States Supreme Court has historically approved “hesitate to act”

formulations to define reasonable doubt. Holland v. United States, 348 U.S. 121,

140 (1954) (“We think this section of the charge should have been in terms of

the kind of doubt that would make a person hesitate to act . . . .” (citation

omitted)); see Victor, 511 U.S. at 20–21 (“[T]he hesitate to act standard gives a

common sense benchmark for just how substantial such a doubt must be.”);

cf. Hopt v. Utah, 120 U.S. 430, 441 (1887) (“If the evidence produced be of such

a convincing character that they would unhesitatingly be governed by it in such

weighty and important matters, they may be said to have no reasonable doubt

respecting the guilt or innocence of the accused, notwithstanding the 18

uncertainty that attends all human evidence.”). Several federal circuits3 and

state courts4 have also approved variations of the “hesitate to act” formulation.

See 2A Wright & Henning § 502 (“The most acceptable form of instruction is that

a reasonable doubt is a doubt that would cause a prudent person to hesitate

before acting in matters of importance to themselves, but other formulations are

not erroneous.”); see also Robert C. Power, Reasonable and Other Doubts: The

Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 73–76 (1999) [hereinafter

Power].

We also indicated in McGranahan that one “hesitate to act” variation—“it

must be such a doubt as would cause a reasonable, prudent and considerate

man to pause and hesitate before acting in the graver and more important affairs

3See, e.g., United States v. Owens, 966 F.3d 700, 705 n.2 (8th Cir. 2020) (“A reasonable

doubt is the kind of doubt that would make a reasonable person hesitate to act.”); United States v. Stewart, 306 F.3d 295, 306–07 (6th Cir. 2002) (“Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives.”); United States v. Isaac, 134 F.3d 199, 202–04 (3d Cir. 1998) (“A reasonable doubt is a fair doubt, based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it, unhesitatingly, in the most important of your own affairs.”); United States v. Morris, 647 F.2d 568, 571 (5th Cir. 1981) (“[P]roof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.”). 4See, e.g., Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc) (“Reasonable

doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life.”); Hilbish v. State, 891 P.2d 841, 850 (Alaska Ct. App. 1995) (“[P]roof of such a convincing character that after careful consideration of all relevant facts and circumstances, you would be willing to rely and act upon it without hesitation in your important affairs.”); State v. Gomez, 622 A.2d 1014, 1017 n.8 (Conn. 1993) (“[A] reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs.”); Commonwealth v. Bowser, 624 A.2d 125, 137–38 (Penn. Super. Ct. 1993) (“A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate or refrain from acting upon some matter of the highest importance in your own daily life.”); State v. Darby, 477 S.E.2d 710, 710 (S.C. 1996) (approving a reasonable doubt definition as “the kind of doubt that would cause a reasonable person to hesitate to act”). 19

of life”—would be an acceptable definition of reasonable doubt as compared to

no substantive definition. 206 N.W.2d at 91–92; see McFarland, 287 N.W.2d at

163 (“We quoted with approval Iowa Uniform Jury Instruction 501.11 with its

three distinct standards [in McGranahan] . . . .”); see also State v. Pierce, 21 N.W.

195, 197–98 (Iowa 1884) (approving a jury instruction as a whole which included

reasonable doubt “must be such a doubt as would cause a reasonable, prudent,

and considerate man to hesitate and pause before acting in the graver and more

important affairs of life” (emphasis omitted)).

Davis’s specific “hesitate to act” variation was most notably present in the

Eighth Circuit’s Model Jury Instructions and in the ISBA’s current criminal jury

instructions. Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual

of Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2011)

(“Proof beyond a reasonable doubt, therefore, must be proof of such a convincing

character that a reasonable person would not hesitate to rely and act upon it.”);

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2020).5 On its own,

“hesitate” means “to hold back in doubt or indecision” and is synonymous with

“waver,” “vacillate,” and “falter.” Hesitate, Webster’s Third International

Dictionary 1061 (unabr. ed. 2002). Similar to “firmly,” “hesitate to act” is

generally understood and can adequately explain to the jury the level of certainty

needed to convict. Victor, 511 U.S. at 20–21; cf. Frei, 831 N.W.2d at 79. We

5The Eighth Circuit’s model jury instruction was recently updated to include a phrase “in life’s most important decisions” after the “hesitate to act” portion. Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual of Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2021). The “in life’s most important decisions” portion is not present in the ISBA’s current jury instruction on reasonable doubt. 20

conclude that Davis’s proposed “hesitate to act” formulation is also a legally

sufficient jury instruction to define reasonable doubt.

4. The district court’s decision to reject the “hesitate to act” formulation was

not an abuse of discretion. Davis argues the district court’s rationale in rejecting

the “hesitate to act” instruction amounts to an abuse of discretion. Specifically,

he argues that we approved of the “hesitate to act” variations in McGranahan

and Pierce. See McGranahan, 206 N.W.2d at 92; Pierce, 21 N.W. at 197–98.

Because of this prior approval, Davis asserts the district court’s rationale that

the Iowa Supreme Court has not given its “imprimatur” to the “hesitate to act”

language was wrong and constitutes an abuse of discretion.

Our precedent is explicit that the district court need only provide one of

the approved “reasonable doubt” definitions from the ISBA’s uniform jury

instructions to the jury in order for it to be legally sufficient. While we indicated

that any of the ISBA’s reasonable doubt formulations in its 1972 jury instruction

would be better than no formulation in McGranahan, we warned that “[w]e do

not hold all or any of these three frames of reference must be included or

described in the instruction.” 206 N.W.2d at 92. In State v. McFarland, we

specifically stated that the jury instruction, which utilized solely the “abidingly

and firmly convinced” language, “was not deficient for failing to provide more

than one standard.” 287 N.W.2d at 163. Similarly, in Frei, we held the district

court did not err by providing a reasonable doubt jury instruction that solely

contained the legally adequate “firmly convinced” language rather than the

defendant’s proposed “hesitate to act” instruction. 831 N.W.2d at 75–76. 21

This district court’s action is comparable to what occurred in State v.

Williams, 929 N.W.2d 621 (Iowa 2019). In Williams, the district court rejected the

defendant’s additional implicit-bias instruction because the additional

“instruction had not been reviewed by any Iowa court to its knowledge” and

another implicit-bias instruction modeled after the ISBA’s instruction already

“covered the subject matter.” Id. at 633. We determined the district court did not

abuse its discretion because its instruction adequately addressed the

defendant’s concerns of implicit bias. Id. An abuse of discretion may have

occurred here if the district court’s instruction did not substantively define

reasonable doubt or if the district court believed it lacked authority to define

reasonable doubt at all. McGranahan, 206 N.W.2d at 91–92; see Plain,

898 N.W.2d at 816–17 (finding abuse of discretion when the trial court

erroneously believed it did not have authority to provide any implicit-bias

instruction). Similar to Williams, the district court here gave an approved

instruction that adequately explained the legal concept at issue.6 Therefore, the

trial court did not abuse its discretion in refusing to include the additional

“hesitate to act” language in the jury instruction on reasonable doubt.

5. District courts should solely utilize the “firmly convinced” formulation.

Agreeing on a jury instruction for reasonable doubt remains a contentious issue

in district court. The debate on an appropriate reasonable doubt instruction has

been the subject of unpublished decisions by the Iowa Court of Appeals since

6We make no determination as to whether the implicit-bias instruction given in Williams,

929 N.W.2d at 632–33, is better than the most recent ISBA implicit-bias instruction. 22

the 2007 ISBA jury instruction on reasonable doubt included the “hesitate to

act” formulation. See State v. Chamberlain, No. 17–1426, 2018 WL 6719730, at

*6–7 (Iowa Ct. App. Dec. 19, 2018); State v. Tullar, No. 13–1567,

2014 WL 6680927, at *3–4 (Iowa Ct. App. Nov. 26, 2014); State v. Thinh Van

Quang, No. 12–0739, 2013 WL 4504934, at *5–6 (Iowa Ct. App. Aug. 21, 2013);

State v. Merrett, No. 11–0776, 2013 WL 104545, at *4 (Iowa Ct. App. Jan. 9,

2013); State v. Tabor, No. 10–0475, 2011 WL 238427, at *2–3 (Iowa Ct. App. Jan.

20, 2011); State v. White, No. 09–1463, 2011 WL 227587, at *3–4 (Iowa Ct. App.

Jan. 20, 2011). Each of these court of appeals decisions has held the district

court does not err when it solely provides the “firmly convinced” definition

instead of adding or solely using the “hesitate to act” definition in a reasonable

doubt jury instruction.

The ISBA uniform criminal jury instructions committee, whose committee

members are regularly handling criminal jury instructional issues in our district

courts, is undoubtedly aware of the several different formulations of reasonable

doubt jury instructions provided in both opinions. Ultimately, the committee has

settled on two formulations—“hesitate to act” and “firmly convinced”—as the best

reasonable doubt formulations. But as exemplified by the unpublished court of

appeals opinions, the specific legal debate between using the hesitate to act and

firmly convinced formulation, or “race” as the concurrence in part and dissent

in part puts it, has been occurring for nearly fifteen years in our court system.

As with all marathons, they must come to an end. Guidance is appropriate to 23

reduce further appellate litigation and confusion in district court on which

formulation for a jury instruction on reasonable doubt is most preferred.7

We believe the “firmly convinced” formulation as used in this case best

captures reasonable doubt. “[T]he ‘firmly convinced’ standard has achieved

extensive recognition and is likely the formulation of the reasonable doubt

standard most widely approved by American jurists, academics, and litigants.”

Frei, 831 N.W.2d at 78 (citing Lawrence M. Solan, Refocusing the Burden of Proof

in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L. Rev. 105, 145

(1999) and Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979,

990–91 (1993)). A highly regarded report from distinguished federal judges at the

Federal Judicial Center (FJC) endorsed solely utilizing the “firmly convinced”

definition. Fed. Jud. Ctr., Pattern Criminal Jury Instructions § 21, at 28–29 (1987)

[hereinafter Fed. Jud. Ctr., Pattern Instructions]. Justice Ginsburg described

“firmly convinced” as “clear, straightforward, and accurate.” Victor, 511 U.S. at

26–27 (Ginsburg, J., concurring in part and concurring in the judgment). One

prominent study, cited by the concurrence in part and dissent in part, found the

“firmly convinced” formulation more accurately distinguished weak and strong

criminal cases as compared to other mainstream reasonable doubt formulations.

7The concurrence in part and dissent in part worries that section III.A.5 of this opinion amounts to overruling “a long and well-established line of our caselaw providing discretion to district court judges” on jury instructional issues and that this opinion amounts to an “advisory opinion.” Those concerns fail to account for the advantages of having a single, consistent jury instruction on reasonable doubt in Iowa courts and our inherent supervisory authority over Iowa district courts. See State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (en banc) (invoking supervisory authority to utilize “firmly convinced” reasonable doubt jury instruction). Moreover, we have previously provided guidance to district courts on jury instructions in other areas. See, e.g., State v. Campbell, 294 N.W.2d 803, 812–13 (Iowa 1980) (endorsing a jury deadlock instruction from American Bar Association and ISBA). 24

Irwin A. Horowitz, Reasonable Doubt Instructions: Commonsense Justice and

Standard of Proof, 3 Psychol. Pub. Pol’y & L. 285, 296–97, 300 (1997) [hereinafter

Horowitz] (concluding that “[r]esearch suggests that at least one definition of the

reasonable doubt standard (i.e., the [‘firmly convinced’] instruction) is more likely

to enhance jury performance than others”).

Despite the “hesitate to act” formulation being legally sufficient and having

historic approval, this formulation has recently drawn significant criticism.

Power, 67 Tenn. L. Rev. at 78–81; see Paulson v. State, 28 S.W.3d 570, 572

(Tex. Crim. App. 2000) (“Judgments that brand men and women as criminals,

and take their money, their liberty, or their lives are deadly serious. They are

decisions that make us hesitate if we have any human feelings or sensitivity at

all.”). Criticism of “hesitate to act” is especially increased when the hesitancy is

framed in the context of important personal affairs—an analogy that has been

examined as inappropriate for deciding criminal cases. See Victor, 511 U.S. at

24 (Ginsburg, J., concurring in part and concurring in the judgment)

(“[T]he analogy it uses seems 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 [and] . . . generally involve a very heavy element of

uncertainty and risk-taking.” (quoting Fed. Jud. Ctr., Pattern Instructions § 21

cmt., at 29)); id. at 34 (Blackmun, J., concurring in part and dissenting in part)

(“ ‘[H]esitate to act’ language is far from helpful, and may in fact make matters

worse by analogizing the decision whether to convict or acquit a defendant to the

frequently high-risk personal decisions people must make in their daily lives.”); 25

United States v. Ashrafkhan, 964 F.3d 574, 579–80 (6th Cir. 2020) (“[J]urists

have noted that such language may tend to understate the government’s burden

of proof and have expressed trepidation at fully endorsing it.”); Commonwealth

v. Ferreira, 364 N.E.2d 1264, 1273 (Mass. 1977) (“The degree of certainty

required to convict is unique to the criminal law. We do not think that people

customarily make private decisions according to this standard nor may it even

be possible to do so.”); Mandeep K. Dhami et. al., Instructions on Reasonable

Doubt: Defining the Standard of Proof and the Juror’s Task, 21 Psychol. Pub. Pol’y

& L. 169, 175 (2015) (“[B]y reducing the standard of proof below that intended

by the law, the ‘doubt-hesitate’ instruction is more likely to lead to false

convictions.”). A “real doubt means a hesitation” or “waiver or facilitate”

formulation has also shown greater statistical variability than “firmly convinced”

with juries deciding between strong and weak criminal cases. Horowitz,

3 Psychol. Pub. Pol’y & L. at 296–97.

In acknowledging this criticism, we expressly approve jury instructions

that use the “firmly convinced” formulation without the “hesitate to act”

formulation. Because of the difference in superiority between the two definitions,

an additional “hesitate to act” definition would not serve as an amplification to a

jury instruction on reasonable doubt. Additionally, allowing the defendant to add

an additional “hesitate to act” formulation to compete with the pre-existing

“firmly convinced” formulation would have confused the jury on how to approach

reasonable doubt and probably lead to individual jurors understanding

reasonable doubt differently during jury deliberations. See Darryl K. Brown, 26

Regulating Decision Effects of Legally Sufficient Jury Instructions, 73 S. Cal.

L. Rev. 1105, 1110–11 (2000) (explaining how the “firmly convinced” definition

is superior). A similar concern exists if we were to include the “real possibility”

portion from the FJC’s model instruction to compete with the “firmly convinced”

formulation. Cf. United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987)

(indicating the “real possibility” portion impermissibly places the burden of

persuasion back onto the defense); United States v. McBride, 786 F.2d 45, 51–52

(2d Cir. 1986) (same); State v. Jackson, 925 A.2d 1060, 1067 n.3 (Conn. 2007)

(“[U]se of [‘real possibility’] actually may create confusion about the meaning of

reasonable doubt and impermissibly shift the burden of proof to the defendant.”).

We join the several states that have strongly urged their district courts to

solely utilize the “firmly convinced” definition for reasonable doubt jury

instructions. See, e.g., State v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (en banc);

Jackson, 925 A.2d at 1065–70; Winegeart v. State, 665 N.E.2d 893, 902

(Ind. 1996); State v. Medina, 685 A.2d 1242, 1251–52 (N.J. 1996); State v. Reyes,

116 P.3d 305, 314 (Utah 2005).8 By explicitly approving the “firmly convinced”

8Among state jurisdictions, the concurrence in part and dissent in part mainly relies on the Hawaii Court of Appeals case State v. Perez, 976 P.2d 427 (Haw. Ct. App. 1998), and the Nebraska Supreme Court case State v. Putz, 662 N.W.2d 606 (Neb. 2003) (per curiam), for support that the “firmly convinced” instruction lowers the burden of proof. However, Perez and Putz are uniquely limited to Hawaii and Nebraska because their civil jury instructions also use “firm belief” to describe clear and convincing evidence that could lead to improper conflation between reasonable doubt and clear and convincing standards. Perez, 976 P.2d at 442; Putz, 662 N.W.2d at 613. That concern doesn’t appear in Iowa’s current uniform civil jury instructions. Iowa State Bar Ass’n, Iowa Civil Jury Instruction 100.19 (2020) (“Clear, convincing and satisfactory evidence. Evidence is clear, convincing and satisfactory if there is no serious or substantial uncertainty about the conclusion.”); see Commonwealth v. Russell, 23 N.E.3d 867, 873–74 (Mass. 2015) (“Unlike the Hawaii standard for clear and convincing evidence, our cases 27

formulation of reasonable doubt, we hope to “eliminate confusion and foster

fairness for defendants, the state, and jurors alike” and “obviate the need for any

future appeals on this issue.” Portillo, 898 P.2d at 974; see Reyes, 116 P.3d at

314. We hold that use of solely the “firmly convinced” formulation for a jury

instruction on reasonable doubt will be considered a “safe harbor” instruction in

Iowa district courts. Reyes, 116 P.3d at 314.9

B. Verdict-Urging Instruction. After seven hours of jury deliberation, the

court attendant informed the court that the jury may be deadlocked. The court

then told the parties that a verdict-urging instruction, also known as an Allen

charge,10 would be given to the jury. Davis objected on the grounds that such an

instruction would have a coercive effect on the jury. The trial court provided the

following instruction over Davis’s objection:

You’ve been deliberating on this case now for a considerable period of time, yesterday afternoon and most of this morning, and the Court deems it proper to advise you further in regard to the desirability of agreement, if possible.

The case has been exhaustively and carefully tried by both sides and has been submitted to you for decision and verdict, if possible. It’s the law that a unanimous verdict is required, and while this verdict must be the conclusion of each juror and not mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all jurors to examine the issues and questions

and instructions on clear and convincing evidence are not cast in terms of the ‘firmness’ of the jury’s conclusions.”); see also Jackson, 925 A.2d at 1066 n.2 (rejecting Perez). 9However, this decision does not prevent the use of other legally adequate jury

instructions on reasonable doubt besides the “firmly convinced” formulation provided that both parties agree and the court approves the other legally adequate jury instruction on reasonable doubt. 10An “Allen charge” is a common name for a verdict-urging instruction originating from

the Supreme Court case Allen v. United States, 164 U.S. 492, 500–02 (1896). 28

submitted to them with candor and fairness and with proper regard for, and deference to, the opinion of each other.

A proper regard for the judgment of others will greatly aid us in forming our own judgment. So each juror should listen to the arguments of the other jurors with a disposition to be convinced by them, and if the members of the jury differ in their views of the evidence, such difference of opinion should cause them to scrutinize the evidence more closely and to reexamine the grounds of their problem.

Your duty is to decide the issues of fact which have been submitted to you, if you can conscientiously do so.

In conferring, you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for espousing and maintaining in a spirit of controversy either side of a cause. The aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the Court.

So you will again retire to the jury room, examine your differences in the spirit of fairness and candor, and try to arrive at a verdict. So I am advising you to please continue to review the evidence, review the jury instructions that have been provided to you, and continue your deliberations.

So at this time I’ll have the court attendant return you to the jury room.

After the jury was provided with this instruction verbally, they deliberated

for approximately four and a half hours before returning with a guilty verdict.

Davis argues that this supplemental verdict-urging instruction had a

coercive effect on the jury and, as such, constitutes an abuse of discretion. State

v. Campbell, 294 N.W.2d 803, 808–13 (Iowa 1980). Some jurisdictions have

banned Allen charge instructions because of their coercive effect on the jury.

See, e.g., State v. Weidul, 628 A.2d 135, 136 (Maine 1993); Commonwealth v.

Spencer, 275 A.2d 299, 303 (Pa. 1971). However, as Davis acknowledges, Iowa 29

courts have never held an Allen charge to be per se error. Campbell, 294 N.W.2d

at 809.

In State v. Campbell, we reviewed and upheld a verdict-urging instruction

quite similar to the one provided to the jury here. Id. at 808. When reviewing an

Allen charge, we look at “whether the instruction improperly coerced or helped

coerce a verdict or merely initiated a new train of real deliberation which

terminated the disagreement.” Id. According to Campbell, “each case is to be

decided on its own circumstances” and the court “has considerable discretion in

determining whether [a] verdict-urging instruction[] should be given.” Id. at

808–09. Only in cases where prejudice has been demonstrated by surrounding

circumstances will the trial court be reversed. Id.

Several factors are considered in determining whether coercion existed

under the context and circumstances. Our caselaw has mainly focused on the

content of the verdict-urging instruction and the timing surrounding the verdict.

State v. Piper, 663 N.W.2d 894, 911–12 (Iowa 2003), overruled on other grounds

by State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). We have also looked at

responses from juror polling to ensure each juror was not coerced into their

verdict. Middle States Utils. Co. v. Inc. Tel. Co., 271 N.W. 180, 184–85 (Iowa 1937);

see In re Cocklin’s Est., 5 N.W.2d 577, 583–84 (Iowa 1942).

1. The district court’s verdict-urging instruction lacked problematic content.

We have specifically condemned instructions targeting jurors in the minority by

asking those jurors to reevaluate their opinions to possibly conform to the

majority. Campbell, 294 N.W.2d at 809; see Middle States Utils. Co., 271 N.W. at 30

184 (“[I]f any of the jurors differ in their view of the evidence from a larger number

of their fellow jurors, such differences of opinion should induce the minority to

doubt the correctness of their own judgment, and cause them to scrutinize the

evidence more closely and re-examine the grounds of their opinion.”); Clemens

v. Chi., R.I. & P. Ry., 144 N.W. 354, 357–58 (Iowa 1913) (same). Closely related

to this concern is an action by the district court that proactively identifies the

number of jurors of the minority opinion. Piper, 663 N.W.2d at 912; State v.

Cornell, 266 N.W.2d 15, 19–20 (Iowa 1978) (en banc). We have also condemned

language that requires the jury to reach a verdict and states that a hung jury

would lead to a retrial or create further litigation expenses. Piper, 663 N.W.2d at

911–12; Campbell, 294 N.W.2d at 809.

This instruction lacks the problematic content that we have previously

condemned. It does not target jurors in the minority to conform to other jurors.

Rather, the instruction warns against acquiescence and implores all jurors to

fully consider each other’s opinions. Campbell, 294 N.W.2d at 811. Moreover, the

district court did not identify the number of jurors with a minority opinion to

further coerce the jury. Piper, 663 N.W.2d at 912; Campbell, 294 N.W.2d at 811.

The instruction at issue also does not express any requirement that the jury

reaches a verdict. Instead, the jury is repeatedly made aware they only have to

reach a unanimous verdict “if possible” or “if you can conscientiously do so.”

Burton v. Neill, 118 N.W. 302, 303 (Iowa 1908) (“The court was justified in

insisting that the jurors should give further deliberation to the case for the

purpose of reaching an agreement, if possible, and the instruction was in 31

accordance with the proper practice in such cases, and not erroneous in the

language used.”). Lastly, the instruction does not discuss the possibility of a

retrial or the mounting litigation expenses that Campbell found concerning.

Campbell, 294 N.W.2d at 810–11 (collecting cases, including Taylor v. Murray

and In re Stern, on litigation expenses); see, e.g., Taylor v. Murray, 115 S.E.2d

776, 778 (Ga. Ct. App. 1960) (discouraging a specific instruction that asked the

jury to continue deliberating considering “the viewpoint of the litigants and from

the viewpoint of the county and the expense to the county to have this problem

to continue in the courts unresolved”); In re Stern, 95 A.2d 593, 594 (N.J. 1953)

(reversing based on instruction that stated that “[i]t costs a lot of money to the

state to maintain the court”).

Davis takes issue with specific language pointing to how the jury had

deliberated for a “considerable period of time” and how the parties have

“exhaustively and carefully tried” the case. He argues that these considerations

were directly linked to “the desirability of agreement” and the duty to reach a

verdict. Again, any harm from this linkage is diminished by the repetitive

“if possible” or “if you can conscientiously do so” reminders attached to the

desirability of agreement and duty to reach a verdict. Even so, instructions about

“deliberating for a considerable period of time” and how the parties have

“exhaustively and carefully tried” the case don’t go to influencing the jury on the

expenses of the parties or the judicial system. Rather, these statements suggest

that the evidence has been fully examined by both parties and that the jury

should continue to deliberate with open minds. 32

Davis also objects to certain language discussing how “the jury room is no

place for espousing and maintaining in a spirit of controversy either side of a

cause.” Davis claims that this sentence is coercive because it implies that the

failure to reach an agreement arose from the jurors’ personal failings or

intentional obstruction of proper deliberations. We disagree. We have not found

this specific language objectionable in the past. Armstrong v. James & Co., 136

N.W. 686, 690 (Iowa 1912) (approving an instruction that included “on the other

hand, the jury room, as said, is no place for mere pride of opinion, or for

maintaining in the spirit of controversy either side of a cause”). Additionally, this

language is buttressed with other instructions imploring jurors to have a

“proper regard for the judgment of others,” “the aim ever to be kept in view is the

truth as it appears from the evidence,” and to “examine . . . differences in the

spirit of fairness and candor.” With this context, we think this surrounding

language “merely encourages the thoughtful consideration of all viewpoints

before forming individual judgments” rather than putting blame on the jurors for

failing to agree. Campbell, 294 N.W.2d at 812; see Armstrong, 136 N.W. at 690.

2. The timing surrounding the verdict after the Allen charge does not indicate

coercion. The timing of the verdict involves several distinct observations.

However, we are primarily concerned with whether the jury spent enough time

engaging in “further worthwhile consideration before a verdict was agreed to.”

Campbell, 294 N.W.2d at 811 (quoting State v. Kelley, 161 N.W.2d 123, 126

(Iowa 1968)); see Piper, 663 N.W.2d at 912. For example, in Coulthard v. Keenan,

we expressed our disapproval of an oral verdict-urging instruction given to a 33

deadlocked jury at two in the morning after eleven and a half hours of

uninterrupted jury deliberation. 129 N.W.2d 597, 601–02 (Iowa 1964). The

verdict in Coulthard was returned within ten minutes of the instruction. Id. at

601. Five of the ten minutes were likely spent on the formalities of courtroom

procedure. Id. Five minutes could not have possibly been enough for the jury to

engage in “any real deliberation after it returned to the jury room.” Id. In other

cases, we have noted that timeframes as short as forty-one minutes are sufficient

indicia that the jury engaged in real deliberation of the case. State v. Myers,

140 N.W.2d 891, 898 (Iowa 1966); see, e.g., Campbell, 294 N.W.2d at 811 (two

and a half hours); Kelley, 161 N.W.2d at 126 (two and a half hours); State v.

Bogardus, 176 N.W. 327, 329 (Iowa 1920) (one and a half hours); Armstrong, 136

N.W. at 690 (one and a half hours).

The timing factor includes other aspects, although less relevant. In

Clemens v. Chicago, R.I. & P. Ry., we were concerned that the lengthy

confinement before and after the verdict-urging instruction with suspect content

would lead a reasonable juror to believe that they would not be able to leave

unless they submitted to the jurors’ majority opinion. 144 N.W. at 357. We have

also looked at the ratio of “the time spent in deliberation before, and the duration

of the deliberations after, such an instruction was given.” State v. Peirce,

159 N.W. 1050, 1054 (Iowa 1916) (explaining prejudice arose when the jury

spent forty-eight hours deliberating before a verdict-urging instruction

containing suspect content and returned with a guilty verdict only four hours

later), overruled on other grounds by State v. McLaughlin, 94 N.W.2d 303, 310 34

(Iowa 1959); see Piper, 663 N.W.2d at 912 (“[W]e note that the length of

deliberations must be considered in the context of the entire case in deciding

whether the jury was unfairly coerced into returning a verdict.”). We are also

cognizant of the time of day and specific day of the week when the verdict is

announced. See Peirce, 159 N.W. at 1055 (determining prejudice arose after the

verdict-urging instruction was given when confinement of the jury would have

been extended into a Sunday because the district judge would not be present to

receive a verdict on Saturday).

In the present case, the jury verdict was returned four and a half hours

after the verdict-urging instruction was given. Four and a half hours was ample

time for the jurors to engage in meaningful conversation on the evidence

presented and thoroughly evaluate each other’s opinions. Spending seven hours

deliberating before the verdict-urging instruction and four and a half hours after

the instruction is not a suspect ratio to indicate prejudice.

We do acknowledge that the jury returned a verdict in the late afternoon

on a Friday. United States v. Murvine, 743 F.2d 511, 515 (7th Cir. 1984)

(“[J]urors who begin deliberations at 9:30 on a Friday night, after a full day of

trial and after serving all week, may be eager to reach a verdict and go home.”).

However, the court did not mention it was Friday or that there was an upcoming

weekend in the verdict-urging instruction. See United States v. Flannery, 451

F.2d 880, 883 (1st Cir. 1971) (finding error when the judge reminded the jury it

was Friday afternoon). Moreover, the instruction was given at around noon on a

Friday rather than late at night. United States v. Bailey, 468 F.2d 652, 664 35

(5th Cir. 1972). The four and a half hours of deliberation after the verdict-urging

instruction is enough to show the jury adequately reconsidered the case even

with it being a Friday afternoon. See id.

3. The polling of the jury supports a lack of coercion. “The purpose of polling

the jury is to determine that the verdict returned is actually the verdict of each

individual member.” State v. Morelock, 164 N.W.2d 819, 823 (Iowa 1969). In

Middle States Utilities Co. v. Incorporated Telephone Co., the district court used a

verdict-urging instruction that targeted jurors with the minority opinion to

re-examine their own judgment. 271 N.W. at 184. A verdict was returned seven

hours after the instruction. Id. During polling, a juror stated “No--I had to” before

quickly conforming. Id. We explained this first utterance “strongly indicates that

the giving of the verdict inducing instruction had an effect not intended by the

court in giving the same, namely, to overpersuade or coerce an agreement on the

part of this particular juror to the verdict which was returned.” Id. (granting a

new trial based on other errors).

Here, each juror was polled in open court before the trial court judge,

prosecution, and defense trial counsel. The record indicates the court attendant

asked each juror whether guilty was that juror’s verdict. Each juror responded

“yes” to the question. In the record, neither party nor the trial court judge

identified any hesitation, comments, or body language from the jurors during

polling that would indicate coercion during the return of the verdict or in the

motion for a new trial. 36

An Allen charge has been sometimes referred to as a “dynamite charge.”

Kelley, 161 N.W.2d at 127 (Rawlings, J., dissenting) (quoting Green v. United

States, 309 F.2d 852, 854 (5th Cir. 1962)). Under the context and circumstances

of this case, the court’s verdict-urging instruction was no such thing. If anything,

it was more like a sparkler than a stick of dynamite. It simply refocused the

jurors on their responsibilities to go back to the jury room and consider the

evidence and each other’s opinions fairly and properly. We note that similar

verdict-urging charges were upheld in Campbell and in State v. Parmer, an

unpublished court of appeals decision referenced by both parties. See Campbell,

294 N.W.2d at 808; State v. Parmer, No. 13–2033, 2015 WL 2393652, at *6

(Iowa Ct. App. May 20, 2015). The trial court did not abuse its discretion in

providing this verdict-urging instruction.

4. Guidance to the trial courts. We remain steadfast in our approval of the

verdict-urging instruction procedure suggested for trial courts nearly forty years

ago in Campbell. Campbell endorsed Iowa Uniform Jury Instruction No. 115

(currently 100.18), which significantly conforms with section 5.4(a) of the

American Bar Association (ABA) Standards relating to Trial by Jury. 294 N.W.2d

at 812–13. In the present case, we noted the instruction’s absence of problematic

language and its widespread support across jurisdictions. See id. Instead of

polling it out when a jury appears to be stuck, this instruction should be

“given at the conclusion of the trial, with the other instructions given to the jury

before any deliberations have begun.” Id. at 812. “If it later appears that the jury 37

cannot reach an agreement, the trial court may repeat the instruction before

requiring continued deliberations.” Id. at 812–13.

Davis argues in his further review application that Campbell prospectively

mandated the ABA-approved approach. That is incorrect. Campbell’s support of

the ABA standard was couched in phrases of “we recommend” or “we advise.” Id.

Campbell did not announce that the ABA approach was mandatory. See, e.g.,

State v. Jensen, 189 N.W.2d 919, 924 (Iowa 1971) (“We realize that the present

decision changes a rule of evidence for criminal trials. The new rule will not be

applied retrospectively.”); accord Weidul, 628 A.2d at 136 (“Accordingly, we

announce that departures from the ABA standard, if the subject of a proper

objection, will be met by this court with summary reversal.”); People v. Sullivan,

220 N.W.2d 441, 450 (Mich. 1974) (“Therefore, prospectively from the date of this

opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by

this Court. Any substantial departure therefrom shall be grounds for reversible

error.”).11

Regardless, Campbell’s endorsement of the ABA/ISBA instruction is best

illustrated in State v. Piper. 663 N.W.2d at 910–13. In Piper, the jury told the

district court that it was unable to reach a verdict after four days of deliberation.

11This court cited the American Law Report (ALR) extensively in deciding Campbell. 294 N.W.2d at 808–13. The ALR explained: “Associated with the determination of prejudicial effect is the question of prospective application. In many of the cases in which the Allen charge has been abandoned or modified, the courts have announced the new rule prospectively, without reversing the conviction under challenge.” Wayne F. Foster, Annotation, Instructions Urging Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen Charge)—Modern Cases, 97 A.L.R.3d 96, 104 (1980). Campbell’s lack of an explicit mandatory language prospectively adopting the ABA standards appears purposeful in light of the ALR and several cases cited therein. 38

Id. at 910–11. In response, the district court “referred the jury to” a verdict-

urging instruction, modeled substantially after the ABA instruction that was

approved in Campbell, provided in the original instructions. Id. at 911 (citing

Campbell, 294 N.W.2d at 812). The Piper court found no objectionable language

in this instruction and concluded that ten to eleven hours of deliberation after

the postverdict-urging instruction was enough time for the jury to adequately

reconsider the evidence and their opinions. Id. at 912. We believe the best option

is to closely follow the process set out in Piper and utilize the approved ABA/ISBA

instruction described in Campbell in the initial instructions and remind the jury

of this initial instruction if the jury is deadlocked:

When you begin your deliberations, you should select a foreperson. He or she shall see that your deliberations are carried on in an orderly manner, that the issues are fully and freely discussed, and that every juror is given an opportunity to express his or her views.

In order to return a verdict, each juror must agree to it. Your verdict must be unanimous.

It is your duty as jurors to consult with one another and reach an agreement, if you can do so without compromising your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with the other jurors.

During your deliberations, do not hesitate to re-examine your view and change your opinion if convinced it is wrong. But do not change your opinion as to the weight or effect of the evidence just because it is the opinion of the other jurors or for the mere purpose of returning a verdict.

Your attitude at the beginning of your deliberations is important. It is not a good idea for you to take a position before thoroughly discussing this case with the other jurors. If you do this, individual pride may become involved and you may later hesitate to change an announced position even if shown it may be incorrect. 39

Remember, you are not partisans or advocates but are judges— judges of the facts. Your sole interest is to find the truth and do justice.

Id. at 911 n.3.

IV. Conclusion.

For these reasons, we affirm the decision of the court of appeals and the

district court judgment, and we remand the case for entry of the nunc pro tunc

order.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

Christensen, C.J., and Waterman, Mansfield, McDonald, Oxley, and

McDermott, JJ., join this opinion. Appel, J., files a concurrence in part and

dissent in part. 40

#19–0453, State v. Ethan Davis

APPEL, Justice (concurring in part and dissenting in part).

I. Introduction.

I respectfully concur in part and dissent in part. I agree with the court’s

thorough reasoning on instructional issues related to deadlocked juries. I would

not, however, provide muscular dicta declaring that while both the “firmly

convinced” instruction offered by the State and the “firmly convinced” and

“hesitate to act” instruction offered by the defendant are constitutionally

acceptable, district courts should “solely” use the State’s “firmly convinced”

formulation.

I cannot agree for several reasons. First, the majority’s straightjacket on

the acceptable formulation of a reasonable doubt instruction by the district court

is unnecessary to resolve the case. We are not, of course, an Article III court, and

thus our constitution does not expressly limit our power to “cases” and

“controversies,” but we should exercise caution in deciding complicated jury

instruction issues in advisory opinions not essential to the judgment. U.S. Const.

art. III, § 2. As will be seen below, this case is a poor vehicle to reach out to

engage in a rulemaking-type proceeding as a number of instructional

alternatives have not been thoroughly explored or illuminated.

Second, we have repeatedly not engaged in prescriptive wordsmithing on

jury instructions. The well-established law is that the district court “is not

required to give any particular form of an instruction; rather, the court must

merely give instructions that fairly state the law as applied to the facts of the 41

case.” State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010), overruled on other

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016).

But today, the majority concludes that the district court may not decide to

use a constitutionally acceptable alternative jury instruction on reasonable

doubt. Although not stated in the majority opinion, there can be little doubt that

it overrules a long and well-established line of our caselaw providing discretion

to district court judges relating to the formulation of appropriate jury

instructions. See State v. Hibdon, 505 N.W.2d 502, 506 (Iowa Ct. App. 1993).

Whatever is at work in the majority’s advisory opinion, it is not stare decisis.

Third, the majority does not recognize that the “firmly convinced”

instruction that the State urges us to approve, and which the majority so warmly

embraces, is not the “firmly convinced” instruction approved by the Federal

Judicial Center (FJC) in 1987. As will be seen below, the language in the State’s

proposed instruction varies materially from the FJC’s version.

Finally, if we are now in the business of fashioning a mandatory reasonable

doubt jury instruction for all Iowa judges to use through the end of time, we

should at least broaden our horizons to select the best reasonable doubt

instruction available. Before putting judicial concrete around our reasonable

doubt instruction, we should engage in a thorough analysis of all available

alternatives. We do not want to entomb an instruction in our law when we’ve

limited our choices to two alternatives even though many others are available. 42

II. The Majority Does Not Address the Question of Whether “Reasonable Doubt” Should Be Further Defined or Why the Phrase “Firmly Convinced” is Helpful.

The majority is confident that reasonable doubt needs to be further defined

with its proposed brief “firmly convinced” language. Note the word “reasonable”

is replaced with “firmly” and the word “doubt” is replaced with the word

“convinced.” On the surface, the majority’s preferred reformulation looks to me

like a ratcheting up of language rather than an effort to clarify it.

As a result of similar concerns, many courts have been more cautious than

the majority in providing alternative words for “reasonable doubt.” There is

authority for the proposition that the term “reasonable doubt” should not be

further defined because to do so introduces more trouble than benefit. See, e.g.,

United States v. Walton, 207 F.3d 694, 697–99 (4th Cir. 2000) (en banc) (per

curiam) (noting that any attempts to define reasonable doubt do not usually

result in making it clearer and that only a jury can truly define reasonable

doubt); United States v. Cassiere, 4 F.3d 1006, 1024 (1st Cir. 1993) (concluding

that an instruction that requires a reasonable doubt standard “without [a]

definition adequately apprises the jury of the proper burden of proof” (quoting

United States v. Olmstead, 832 F.2d 642, 646 (1st Cir. 1987))); United States v.

Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (pointing out that ordinarily, a

judge may be best advised to attempt no definition of reasonable doubt unless

the jury requests it because experience has shown that doing so “add[s] little in

the way of clarity and often add[s] much in the way of confusion and

controversy”); People v. Johnson, 171 N.E.3d 936, 940 (Ill. App. Ct. 2020) (noting 43

that Illinois law is clear that neither the court nor the attorneys should attempt

to define reasonable doubt because the term should be self-defining and needs

no elaboration); State v. Levitt, 148 A.3d 204, 211 (Vt. 2016) (recognizing that

“attempting to define reasonable doubt is a ‘hazardous undertaking,’ ” and thus

the court “continue[s] to discourage trial judges from trying such an explanation”

(quoting State v. Francis, 561 A.2d 392, 396 (Vt. 1989))); Paulson v. State, 28

S.W.3d 570, 573 (Tex. Crim. App. 2000) (holding that “the better practice is to

give no definition of reasonable doubt at all to the jury”); The Comm. on Federal

Criminal Jury Instructions of the Seventh Cir., The William J. Bauer Pattern

Criminal Jury Instructions of the Seventh Circuit § 1.04 & comm. cmt. (2020)

[hereinafter 7th Circuit’s Criminal Jury Instructions] (providing no model

instruction on reasonable doubt and noting that it would be “inappropriate” for

the trial judge to attempt to do so). As noted in one United States Court of

Appeals for the First Circuit case, “[m]ost efforts at clarification result in further

obfuscation of the concept.” United States v. Campbell, 874 F.2d 838, 843 (1st

Cir. 1989) (quoting Olmstead, 832 F.2d at 645). I am not ready to embrace the

nihilistic view that no adequate reasonable doubt construction may be

developed, but I regard the above line of cases as waiving a yellow flag as this

court roars past on its racecar docket. We need to be very careful to analyze any

proposed instruction and carefully weigh its virtues and vices against those that

inhere in other alternatives. 44

III. The Majority’s Proposed Mandatory Reasonable Doubt Instruction Omits Critical Language in the Federal Judicial Center Model Instruction.

The majority apparently believes that the “firmly convinced” instruction as

used in this case best captures reasonable doubt. The majority defends its

endorsement by pointing out that some jurists, academics, and litigants seem to

embrace a version of a reasonable doubt instruction approved by the FJC about

fifty years ago. See Fed. Jud. Ctr., Pattern Criminal Jury Instructions § 21, at 28–

29 (1987) [hereinafter Fed. Jud. Ctr., Pattern Instructions]; see also State v. Frei,

831 N.W.2d 70, 78–79 (Iowa 2013), overruled on other grounds by Alcala, 880

N.W.2d at 708 n.3.

But the clipped “firmly convinced” version endorsed by the majority in this

case lacks critical language contained in the FJC model. The materially different

FJC model instruction on reasonable doubt is as follows:

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 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. Jud. Ctr., Pattern Instructions § 21, at 28–29 (emphasis added).

Now, compare that FJC language to the district court instruction issued

in this case endorsed by the majority:

The burden is on the State to prove Ethan Landon Davis guilty beyond a reasonable doubt. 45

A reasonable doubt is one that fairly and naturally arises from the evidence in the case, or from the lack or failure of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are firmly convinced of the defendant’s guilt, then you have no reasonable doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence in the case, or from the lack or failure of evidence produced by the State, you are not firmly convinced of the defendant’s guilt, then you have a reasonable doubt and you should find the defendant not guilty.

These two instructions, of course, are quite different. The last paragraph from

the State’s version in this case is merely a repetition of the previous language

expressed but put in a negative voice. It adds nothing to help the jurors

understand the concept of reasonable doubt—and perhaps even makes it more

confusing. See Paulson, 28 S.W.3d at 573 (cautioning that it would be ill advised

for the court to provide the jury with a redundant and confusing definition). And,

strikingly and inexplicably, the majority’s proposed instruction lacks the critical

last sentence of the FJC version, namely: “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. Jud. Ctr., Pattern Instructions § 21, at 28.

The majority does not explain why it approves an instruction that omits this

important language from the FJC model instruction.

In fact, none of the cases cited in Frei—United States v. Rodriguez, 162

F.3d 135, 145–46 (1st Cir. 1998) (including the “real possibility” language in the 46

FJC model instruction)12, United States v. Reese, 33 F.3d 166, 170 (2d Cir. 1994)

(adopting the FJC model instruction verbatim), United States v. Williams, 20 F.3d

125, 127–28 (5th Cir. 1994) (same), and United States v. Conway, 73 F.3d 975,

980 (10th Cir. 1995) (same)—resemble the language we have here. See Frei, 831

N.W.2d at 78–79. Notably, there is no model jury instruction in the federal

circuits that resembles the instruction endorsed in this case.13

The majority cites Irwin Horowitz’s study to show that the “firmly

convinced” formation is more likely to enhance jury performance. See Irwin A.

12In Rodriquez, the instruction at issue read, in part: A reasonable doubt may arise not only from the evidence produced but also from the lack of such evidence. A reasonable doubt exists when, after weighing and considering all the evidence in the case, using your reason and common sense, you cannot say that you have a firm and settled conviction that the charge is true. It is not enough for the government to establish a probability, even a strong probability, that a defendant is more likely guilty than not. That is not enough. Proof beyond a reasonable doubt must be proof of such a convincing character that you can, consistent with your oath as jurors, conscientiously base your verdict upon it. If you so find as to a defendant, you will return a verdict of guilty. On the other hand, if you think there is a real possibility that the defendant is not guilty of the charges, you must give the defendant the benefit of that doubt and find him not guilty. 162 F.3d at 145. 13Among all the circuit courts’ pattern jury instructions, five have adopted the “hesitate

to act” language. See Comm. on Model Criminal Jury Instructions: Third Cir., Model Criminal Jury Instructions § 3.06 (2018); Comm. on Pattern Jury Instructions, Pattern Jury Instructions (Criminal Cases) § 1.05 (2019) (Fifth Circuit); Sixth Cir. Comm. on Pattern Criminal Jury Instructions, Pattern Criminal Jury Instructions § 1.03 (2021); Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual of Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2021); Jud. Council of the United States Eleventh Judicial Cir., Pattern Jury Instructions for Criminal Cases § B3 (2022). Only the First Circuit, the Ninth Circuit, and the Tenth Circuit have chosen the FJC’s “firmly convinced” formulation. See United States District Court: District of Maine, 2022 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 3.02 & cmt. 4 (2022); Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 6.5 (2021); Criminal Pattern Jury Instruction Comm. of the United States Court of Appeals for the Tenth Cir., Criminal Pattern Jury Instructions § 1.05 (2021). The Seventh Circuit refuses to provide any definition of reasonable doubt. See 7th Circuit’s Criminal Jury Instructions § 1.04. Notice that even the circuit courts that have adopted the “firmly convinced” instruction follow the FJC formulation, which little resembles the one in this case. 47

Horowitz, Reasonable Doubt Instructions: Commonsense Justice and Standard of

Proof, 3 Psychol. Pub. Pol’y & L. 285, 296–97, 300 (1997) [hereinafter Horowitz].

Yet, Horowitz’s study actually used the FJC model instruction, which, as

established earlier, was nothing like the one favored by the majority. Id. at 294–

98. The majority cites to no empirical study establishing that the clipped “firmly

convinced” formulation used here would yield the same result. Additionally, the

“hesitation” formulation Horowitz used in his research was also materially

different from the “hesitate to act” language in The Iowa State Bar Association’s

(ISBA) model instruction. Compare id. at 294 (“Proof beyond a reasonable doubt

means that you are not left with a real doubt that the defendant is not guilty;

real doubt means a hesitation[.]”), with Iowa State Bar Ass’n, Iowa Criminal Jury

Instruction 100.10 (2020) (“A reasonable doubt is a doubt based upon reason and

common sense, and not the mere possibility of innocence. A reasonable doubt is the

kind of doubt that would make a reasonable person hesitate to act.”).

The bottom line is that the clipped “firmly convinced” instruction in this

case is materially different from the one proposed by the FJC. To adopt the

majority’s instruction is to reject the work of the FJC in favor of a repetitive and

potentially unbalanced instruction.

IV. Mixed Judicial Responses to the “Firmly Convinced” Approach to the Reasonable Doubt Instruction of the Federal Judicial Center.

A. Federal Courts. The federal courts are not uniform on the issue of the

reasonable doubt instruction. As noted above, the Seventh Circuit has declined

to provide further elaboration on the ground of causing confusion. And, some 48

courts have been critical of the “firmly convinced” formulation. For instance, in

United States v. Woodward, the First Circuit stated:

[W]e have previously joined other circuits in criticizing the Federal Judicial Center Instruction from which the district court’s “firmly convinced” language is drawn. . . . We have expressed particular concern that “many definitions reduce the burden of proof on the government by expanding the degree of doubt permissible . . . .”

149 F.3d 46, 69 n.15 (1st Cir. 1998) (citations omitted). The First Circuit

subsequently endorsed a reasonable doubt instruction given by the district court

in United States v. Cleveland that avoided the firmly convinced language. 106

F.3d 1056 (1st Cir. 1997), abrogated on other grounds by Brache v. United States,

165 F.3d 99 (1st Cir. 1999).

In 1994, the Fifth Circuit considered the “firmly convinced” language in

United States v. Williams, 20 F.3d at 131. The Williams court concluded that the

“firmly convinced” formulation was satisfactory in light of the instructions as a

whole, which included the “real possibility” language contained in the FJC model

but excised in the State’s proposed instruction in this case. Id.

The great majority of the federal circuit courts have also not gone along

with the recommendations of the FJC and instead include in their model

instructions the “hesitate to act”-type approach in the ISBA’s model instruction.

See Comm. on Model Criminal Jury Instructions: Third Cir., Model Criminal Jury

Instructions § 3.06 (2018) (“A reasonable doubt is a fair doubt based on reason,

logic, common sense, or experience. It is a doubt that an ordinary reasonable

person has after carefully weighing all of the evidence, and is a doubt of the sort

that would cause him or her to hesitate to act in matters of importance in his or 49

her own life.”); Comm. on Pattern Jury Instructions, Pattern Jury Instructions

(Criminal Cases) § 1.05 (2019) (Fifth Circuit instruction stating: “Proof beyond a

reasonable doubt, therefore, is proof of such a convincing character that you

would be willing to rely and act upon it without hesitation in making the most

important decisions of your own affairs”); Sixth Cir. Comm. on Pattern Criminal

Jury Instructions, Pattern Criminal Jury Instructions § 1.03 (2021) (“Proof beyond

a reasonable doubt means proof which is so convincing that you would not

hesitate to rely and act on it in making the most important decisions in your own

lives.”); Jud. Comm. on Model Jury Instructions for the Eighth Cir., Manual of

Model Jury Instructions for the District Courts of the Eighth Circuit § 3.11 (2021)

(“Proof beyond a reasonable doubt is proof of such a convincing character that a

reasonable person, after careful consideration, would not hesitate to rely and act

upon that proof in life’s most important decisions.”); Judicial Council of the

United States Eleventh Judicial Cir., Pattern Jury Instructions for Criminal Cases

§ B3 (2022) (“ ‘Proof beyond a reasonable doubt’ is proof so convincing that you

would be willing to rely and act on it without hesitation in the most important of

your own affairs.”).

The Tenth Circuit in one case even noted that the “hesitate to act”

instruction is the better language to describe reasonable doubt. United States v.

Barrera-Gonzales, 952 F.2d 1269, 1273 (10th Cir. 1992) (“[I]t should be

emphasized that the ‘hesitate to act’ language in our opinion more effectively

conveys to a jury the meaning of reasonable doubt than most other 50

formulations.” (alteration in original) (quoting United States v. Hart, 407 F.2d

1087, 1091 (2d Cir. 1969))).

The bottom line is that in the federal courts, there is a somewhat mixed

view of the FJC model instruction on reasonable doubt. There is some authority,

however, for the proposition that the inclusion of the “real possibility” language

might help save the instruction from understating the State’s burden when using

the term “firmly convinced.”

The majority pointed out that the “real possibility” language could lead to

the burden shifting to the defendant. That argument was, of course, repeatedly

rejected by courts. Victor v. Nebraska, 511 U.S. 1, 26 (1994) (Ginsburg, J.,

concurring in part and concurring in the judgment) (describing the FJC

instruction containing the “real possibility” language as “clear, straightforward,

and accurate”); United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984)

(holding that when the charge is read as a whole, the “real possibility” language

would not cause burden shifting because other parts of the instruction were

sufficient to dispel any possible confusion); Reese, 33 F.3d at 172 (rejecting

argument that “real possibility” language burdens the defendant and holding

that “[j]ury instructions must be viewed as a whole and in the context of the

entire trial”).

B. State Courts. The approach to reasonable doubt instructions in the

state courts is mixed. For instance, in State v. Perez, the Intermediate Court of

Appeals of Hawaii rejected the “firmly convinced” formulation as “so like the term

‘firm belief of conviction’ that is associated in law with . . . clear and convincing 51

evidence” to be beyond a reasonable doubt. 976 P.2d 427, 443 (Haw. Ct. App.

1998), aff’d in part, rev’d in part on other grounds, 976 P.2d 379 (Haw. 1999).

The Hawaii court declared that the “firmly convinced” language of the instruction

“diminished the very high standard by which the jury must abide in order to

convict.” Id. at 443.

Hawaii is not alone in rejecting the “firmly convinced” language. Although

representing a minority of jurisdictions, several other states have latched onto

the notion of reasonable doubt as “having a ‘convincing character’ which a

reasonable person ‘would not hesitate to rely and act upon.’ ” See Richard E.

Welch III, “Give Me That Old Time Religion”: The Persistence of the Webster

Reasonable Doubt Instruction and the Need to Abandon It, 48 New Eng. L. Rev.

31, 45 n.73 (2013) (citing state jury instructions using the “convincing character”

language).

In State v. Putz, the Nebraska Supreme Court considered a “firmly

convinced” instruction. 662 N.W.2d 606, 611–15 (Neb. 2003) (per curiam). Like

the Fifth Circuit in United States v. Williams, the Nebraska Supreme Court

acknowledged the critique of the “firmly convinced” language. Putz, 662 N.W.2d

at 613–14 (noting that the Hawaii court’s criticism of the “firmly convinced”

formula was “valid”). Yet, it found the instruction’s overall language acceptable

in large part due to the other amplifications within the instructions. Id. at 614–

15; see also Winegeart v. State, 665 N.E.2d 893, 904–05 (Ind. 1996) (DeBruler,

J., concurring in result) (“I do not believe that ‘firmly convinced’ equates to

‘beyond a reasonable doubt.’ Both objectively and subjectively, ‘firmly convinced’ 52

seems more similar to ‘clear and convincing’ than to beyond a ‘reasonable

doubt.’ ”); State v. Crenshaw, 366 N.E.2d 84, 85 (Ohio Ct. App. 1977) (stating

that the “firmly convinced” language represents an appropriate but lesser

standard of proof than the former “moral certainty” language).

C. Scholarly Commentary. The “firmly convinced” language of the FJC

has been the subject of scholarly criticism. As noted by one commentator, “[a]t

least at a common sense level, it would seem possible to be ‘firmly convinced’ of

something about which we may not have ‘proof beyond a reasonable doubt.’ ”

Miller W. Shealy, Jr., A Reasonable Doubt About “Reasonable Doubt”, 65 Okla. L.

Rev. 251, 253 n.155 (2013). And another commentator observed: “I do not think

it a semantic quibble to say that while ‘firmly convinced’ is a phrase less

sententious and archaic than ‘abiding conviction,’ it does not connote the

emphasis and specificity of ‘subjective state of certitude’ or ‘subjective state of

near certitude.’ ” Stephen J. Fortunato, Jr., Instructing on Reasonable Doubt after

Victor v. Nebraska: A Trial Judge’s Certain Thoughts on Certainty, 41 Vill. L. Rev.

365, 390 n.105 (1996).

Although the meaning of “firmly convinced” is quickly grasped, the standard of proof suggested by the phrase is vague. A juror satisfied by the less rigorous “clear and convincing evidence” standard might also be described as “firmly convinced” of a fact. Determining whether proof has been established beyond a reasonable doubt requires a unique thought process. Simply stating that a juror must be “firmly convinced of the defendant’s guilt” undermines this process.

Paul C. Smith, Note, The Process of Reasonable Doubt: A Proposed Instruction in

Response to Victor v. Nebraska, 41 Wayne L. Rev. 1811, 1839 (1995). 53

V. The Controversial “Hesitate to Act” Language is Not Included in ISBA’s Model Instruction.

The majority emphasizes Justice Ginsburg’s offhand comment in Victor

seemingly to approve of the “firmly convinced” approach. But, the United States

Supreme Court in Holland v. United States declared that a reasonable doubt

instruction “should have been in terms of the kind of doubt that would make a

person hesitate to act.” 348 U.S. 121, 140 (1954).

Of course, as the majority correctly points out, the “hesitate to act”

language in a reasonable doubt instruction has been subject to criticism. See,

e.g., Gilday v. Callahan, 59 F.3d 257, 264 (1st Cir. 1995) (noting that “hesitate

to act” language is arguably unhelpful); United States v. O’Brien, 972 F.2d 12,

15–16 (1st Cir. 1992) (per curiam) (asserting that “hesitate to act” instruction

undermines the constitutionally required burden of proof). But so has the “firmly

convinced” language. And, the criticism of “hesitate to act” instruction often

focuses on the comparison of “conviction” in a criminal trial to important private

decisions, a comparison notably not made in the ISBA’s model instruction.14

14The Iowa State Bar Association’s model instruction provides, in part: The burden is on the State to prove (name of defendant) guilty beyond a reasonable doubt. A reasonable doubt is one that fairly and naturally arises from the evidence in the case, or from the lack or failure of evidence produced by the State. A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt. 54

VI. Overview of Choices.

I am concerned that there has been a general erosion of the concept of

reasonable doubt. In the past, instructions were often based upon the concept

of moral certainty but now tend to embrace secular language in an effort to

update the language. But any substituted “firmly convinced” language may imply

a lesser burden. See Crenshaw, 366 N.E.2d at 85 (characterizing “firmly

convinced” as providing less of a burden than the old definition of “moral

certainty” and thus giving an advantage to the state).

I would hesitate to act in this case to endorse the clipped version of the

“firmly convinced” language given the advisory posture of the case, the limited

briefing, and the wide variety of considerations that might be brought to bear on

the question. If there is a need to address a reasonable doubt instruction yet

again, I would instead engage in a rulemaking-type process on the question that

can consider the issue more broadly. Empirical research showed that what

definition is used makes a “significant difference” in the outcome of a case.

Horowitz, 3 Psychol. Pub. Pol’y & L. at 292. Any rush decision on this important

matter would be ill advised.

If, after a full and fair consideration of all the evidence, you are firmly convinced of the defendant’s guilt, then you have no reasonable doubt and you should find the defendant guilty. But if, after a full and fair consideration of all the evidence in the case, or from the lack or failure of evidence produced by the State, you are not firmly convinced of the defendant’s guilt, then you have a reasonable doubt and you should find the defendant not guilty. Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.10 (2020). 55

If forced to choose today, however, I would not warmly embrace the old

Frei language but would likely follow the ISBA’s model instruction until we come

up with something better. In the alternative, I’d give strong consideration to the

formulation of reasonable doubt in the trial court’s instruction approved by the

First Circuit in Cleveland, 106 F.3d at 1062–63,15 and to the Eighth Circuit’s

model instruction. But the majority makes its choice with a truncated analysis

that gives insufficient attention to the crosscurrents implicated by the

15In Cleveland, the instruction read: As I have said, the burden is upon the Government to prove beyond a reasonable doubt that a defendant is guilty of the charge made against the defendant. It is a strict and heavy burden, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. It does require that the evidence exclude any reasonable doubt concerning a defendant’s guilt. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, jurors cannot say that they have a settled conviction of the truth of the charge. Of course, a defendant is never to be convicted on suspicion or conjecture. If, for example, you view the evidence in the case as reasonably permitting either of two conclusions—one that a defendant is guilty as charged, the other that the defendant is not guilty—you will find the defendant not guilty. It is not sufficient for the Government to establish a probability, though a strong one, that a fact charged is more likely to be true than not true. That is not enough to meet the burden of proof beyond reasonable doubt. On the other hand, 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 overcomes every possible doubt. Concluding my instructions on the burden, then, I instruct you that what the Government must do to meet its heavy burden is to establish the truth of each part of each offense charged by proof that convinces you and leaves you with no reasonable doubt, and thus satisfies you that you can, consistently with your oath as jurors, base your verdict upon it. If you so find as to a particular charge against a defendant, you will return a verdict of guilty on that charge. If, on the other hand, you think there is a reasonable doubt about whether the defendant is guilty of a particular offense, you must give the defendant the benefit of the doubt and find the defendant not guilty of that offense. 106 F.3d at 1062–63. 56

reasonable doubt instruction. As a result, I cannot join the opinion on the

reasonable doubt instruction question.16

16Davis does not challenge the constitutionality of the Frei instruction. There can be no

abuse of discretion for giving a constitutionally valid instruction absent some other infirmity. So here, given the advocacy, it is not possible to find an abuse of discretion in this case.