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The Sources and Limitations of the Criminal Law

Nor can words better capture the heart of the standard. Since Winship, the Court has continuously questioned attempts to explicate more fully the purport of the words. In Sandoval v. California and Victor v. Nebraska, 511 U.S. 1 (1994), the Court upheld instructions that defined reasonable doubt as “not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt” or as requiring proof beyond a “moral certainty” and an “actual and substantial doubt.” The Court’s opinions, however, clearly demonstrated that the Justices were troubled by any attempt to define the term. Indeed, it has been suggested that trial judges should never try to do so.[31]

Debate has recently arisen about “what” the prosecution must prove beyond a reasonable doubt. One question involves the degree of factual particularity about which the jury must be unanimous. If the charge is carrying a concealed weapon, for example, and eight jurors find that the gun was in the defendant’s right pocket, and four believe that it was in his left pocket, this lack of unanimity does not invalidate the conviction. But if eight jurors believe that the defendant, charged with grand larceny, stole a lamp on Thursday, and four believe that he stole a car worth the same amount of money on Friday, this is a sufficient difference to preclude a conviction.

A second issue has been recently addressed by the Supreme Court in a series of unsatisfying and confusing opinions. Suppose that a statute declares that possession of cocaine is illegal but imposes different sentences depending on the amount of cocaine involved. May a judge decide the question of amount (by a preponderance standard), or must this issue be left to the jury, in which case the standard of proof is beyond a reasonable doubt? In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that the Sixth Amendment required that any fact that increased the potential maximum sentence had to be proved to the jury BRD.[32] Thus, in the above example, if the statutory maximum for 5 grams was a year, but the statutory maximum for 50 grams was 10 years, the amount must be submitted to a jury. On the other hand, suppose that one statute allows a sentence of 1 to 20 years for possession of cocaine but that sentencing guidelines establish the “usual” sentence to be 1 and 10 years, respectively, depending on the amount. In Blakely v. Washington, 542 U.S. 296 (2004), the Court held that even within the statutory framework, if the sentencing guideline maximum were to be increased, Apprendi required the court to submit the issue to the jury. Thus, if kidnapping carried a 10-year statutory maximum, but sentencing guidelines provided for a 2-year cap unless the kidnapping was done “for ransom”—in which case the guideline maximum was 5 years, still below the statutory maximum of 10 years—the jury would have to decide, BRD, whether ransom was involved. Six months later, the Court ruled the federal mandatory sentencing guidelines constitutionally invalid under Apprendi-Blakely. The Court reinterpreted the federal statutes establishing the guidelines as making them advisory, and not mandatory upon judges. If the guidelines are merely mandatory, an issue such as ransom need not be submitted to the jury, because even if the judge found ransom to be a factor, she would be under no compulsion increase the sentence she would otherwise have imposed. United States v. Booker, 543 U.S. 220 (2005). Booker, which involved the interpretation of a federal statute, does not apply to the states; however, Blakely continues to require proof BRD of any fact that would increase the maximum sentence possible.


[31] Note, 108 Harv. L. Rev. 1955 (1995).
[32] The Court recognized one exception—past criminal record—but its reasons for so doing are sui generis and need not detain us here.

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