Unpreserved Error, but No Reversal, Where Trial Court Omitted from Reasonable Doubt Instruction Red Book Language Contrasting Burdens of Proof in Civil and Criminal Cases

Daniel Griffin v. United States (decided August 4, 2016)

Players: Associate Judges Fisher & McLeese, and Senior Judge Steadman. Opinion by Judge Fisher. Enid Hinkes for Mr. Griffin. Trial Judge: John McCabe.

Facts: Mr. Griffin was charged with various weapons offenses. Near the end of trial, the court circulated proposed jury instructions. The reasonable doubt instruction was taken verbatim from Red Book Instruction 2.108, except it omitted three lines comparing the burden of proof in civil and criminal cases: In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Defense counsel indicated approval of the proposed instructions. When the trial court read the instructions to the jury, it also omitted the opening line of the reasonable doubt instruction: The government has the burden of proving the defendant guilty beyond a reasonable doubt. The defense did not object, and Mr. Griffin was convicted on all counts.

Issue: Did the omissions from the reasonable doubt instruction require reversal?

Holding: On plain error review, the Court of Appeals found instructional error, but held that it did not require reversal. It was clearly error for the trial court to omit language from the Red Book instruction, which replicates the reasonable doubt instruction adopted by the en banc Court in Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc), because the Smith court advised “in the strongest terms” that trial courts are not to alter or embellish the language it crafted. Id. at 82-83. Nevertheless, the instructions as a whole — which contained the bulk of Red Book Instruction 2.108 along with several other statements that the government must prove each element of the charged offenses beyond a reasonable doubt — “correctly convey[ed] the concept of reasonable doubt” and did “not inaccurately describe that concept or lessen the government’s burden.” As such, the court’s error was not structural in nature and did not affect Mr. Griffin’s substantial rights. Because Mr. Griffin did not satisfy this third prong of plain error review, the Court of Appeals affirmed his conviction.

Of Note:

• The Court emphasized that it continues “to discourage, ‘in the strongest terms,’ any deviation from the instruction prescribed in Smith.

• The Court noted that where the trial court’s jury instructions misdescribe the burden of proof, a structural error results. When preserved by timely objection, such a structural error requires automatic reversal without the traditional harmlessness analysis. When unpreserved, such an error remains subject to plain error review, though the third prong of plain error review is automatically satisfied. FT

Read full opinion here.