34
Opinion of Blackmun, J.
Court instead endorsed the universal opinion of the Courts of Appeals that equating reasonable doubt with "substantial doubt" is improper and potentially misleading in that it overstates the degree of doubt required for acquittal under the reasonable-doubt standard. See, e. g., Smith v. Bordenkircher, 718 F. 2d 1273, 1276 (CA4 1983) (noting agreement with the "uniformly disapproving" view of the appellate courts regarding the use of the "substantial doubt" language), cert. denied, 466 U. S. 976 (1984); see also Taylor v. Kentucky, 436 U. S. 478, 488 (1978) ("[Equating 'substantial doubt' with reasonable doubt], though perhaps not in itself reversible error, often has been criticized as confusing").*
In a final effort to distinguish the use of the phrase "substantial doubt" in this case from its use in Cage, the majority states: "In any event, the instruction provided an alternative definition of reasonable doubt: a doubt that would cause a reasonable person to hesitate to act." Ante, at 20. The Court reasons that since this formulation has been upheld in other contexts, see Holland v. United States, 348 U. S. 121, 140 (1954), this "alternative" statement makes it unlikely that the jury would interpret "substantial" to mean "to a large degree."
To begin with, I note my general agreement with Justice Ginsburg's observation that the "hesitate 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. See ante, at 24 (opinion
*Despite the overwhelming disapproval of the use of the phrase "substantial doubt" by appellate courts, some state trial courts continue to employ the language when instructing jurors. See Bordenkircher, 718 F. 2d, at 1279 (dissenting opinion) ("As the majority has forthrightly pointed out, a 'good and substantial doubt' instruction has evoked a 'uniformly disapproving' response from appellate courts . . . . Evidently the slight slaps on the wrist followed by affirmance of the convictions have not served the hoped for end of correction of the error in futuro").
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