32
Opinion of Blackmun, J.
and refer to "moral certainty" rather than "evidentiary certainty." And although Victor's instruction does not contain the phrase "grave uncertainty," the instruction contains language that has an equal potential to mislead, including the invitation to the jury to convict based on the "strong probabilities" of the case and the overt effort to dissuade jurors from acquitting when they are "fully aware that possibly they may be mistaken." Nonetheless, the majority argues that "substantial doubt" has a meaning in Victor's instruction different from that in Cage's instruction, and that the "moral certainty" language is sanitized by its context. The majority's approach seems to me to fail under its own logic.
B
First, the majority concedes, as it must, that equating reasonable doubt with substantial doubt is "somewhat problematic" since one of the common definitions of "substantial" is " 'that specified to a large degree.' " Ante, at 19. But the majority insists that the jury did not likely interpret the word "substantial" in this manner because Victor's instruction, unlike Cage's instruction, used the phrase "substantial doubt" as a means of distinguishing reasonable doubt from mere conjecture. According to the majority, "[t]his explicit distinction between a substantial doubt and a fanciful conjecture was not present in the Cage instruction," and thus, read in context, the use of "substantial doubt" in Victor's instruction is less problematic. Ante, at 20.
A casual reading of the Cage instruction reveals the majority's false premise. The Cage instruction plainly states that a reasonable doubt is a doubt "founded upon a real tangible substantial basis and not upon mere caprice and conjecture." See 498 U. S., at 40. The Cage instruction also used the "substantial doubt" language to distinguish a reasonable doubt from "a mere possible doubt." Ibid. (" 'A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt' "). Thus, the reason the Court condemned the
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007