APA Newsletters
Spring 2000
Volume 99, Number 2

Articles

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The conceptual analyses typically undertaken by epistemologists, such as the definitions of "knowledge" in response to Gettier’s challenge, might strike the bystander as idle intellectual exercises. However, in some contexts conceptual analysis has profound practical consequences and much can turn on a definition. One such debate, currently being played out in courts, legislatures, and legal journals, concerns the definition of "proof beyond a reasonable doubt" for American juries. The definition matters because jury instructions must correctly convey legal concepts to lay jurors in language they readily understand so that they can properly and consistently apply the correct rule of law. And whether or not juries appropriately apply the law is nothing less than the question of whether justice is served, for inappropriate readings of the reasonable doubt standard may result in the conviction of innocent defendants or the acquittal of guilty persons. Further, the social value that underwrites this burden of proof, often summed up in the claim that "it is better to let ten guilty men go free than to convict an innocent man," will be corrupted if jurors systematically apply a standard lower than proof beyond a reasonable doubt. At the same time, trial judges are concerned with the potential for reversal by appellate courts if their instructions on reasonable doubt are legally deficient.

In re Winship (1970)

Cage v. Louisiana (1990)

Victor v. Nebraska and Sandoval v. California (1992)

Victor was convicted of first-degree murder in a Nebraska trial court and sentenced to death; Sandoval was convicted of four counts of first-degree murder in a California court and sentenced to death. Each appealed to his state’s Supreme Court on grounds that the pattern jury instructions defining reasonable doubt used at trial violated Due Process; the respective Courts upheld the lower courts’ convictions. Each then petitioned the U.S. Supreme Court, which joined the cases.

Sandoval’s complaints centered on the use of "moral certainty" in defining reasonable doubt. The jury was instructed, in relevant part, that:

Victor’s complaint likewise alleged that the reasonable doubt jury instruction used in his trial unconstitutionally lowered the prosecution’s burden of proof. The charge read in relevant part:

Victor’s primary argument echoed that in Cage v. Louisiana—to wit, that the equation of reasonable doubt with "substantial doubt" overstated the degree of doubt necessary for acquittal. Again echoing Cage, Victor also challenged the "moral certainty" language of the Nebraska instruction.

Cohen, Jessica, "The Reasonable Doubt Jury Instruction: Giving Meaning to a Critical Concept," 22 Am. J. Crim. L. 677 (1995).

Argues that "reasonable doubt" is a term of art and as such that it should be defined for the jury. Begins with an exploration of the constitutional requirement of proof beyond a reasonable doubt as established in Winship, and briefly surveys the Supreme Court’s commentary on specific definitional phrases in several cases, including Cage and Victor. Concludes from this survey that the Supreme Court has not considered the question as to whether the term should be defined, but rather, whether specific jury instructions provide constitutionally adequate definitions. Analyzes the positions taken by various courts about whether the standard should be defined. Notes those federal and state courts that require definition, those that strongly recommend definition, those that strongly advise against definition, and those that do not allow definition at all. Central argument for necessity of definition is in three parts. First, expounds several reasons for considering "reasonable doubt" as a term of art: the meaning of "reasonable doubt" is not simply derived from a conjunction of the meanings of "reasonable" and of "doubt"; definition of reasonable doubt is necessary to avoid juror misunderstanding—even judges and lawyers have difficulty providing an adequate understanding of the term, and empirical studies suggest that jurors do not understand the term. Second, argues that fairness to defendants requires definition. Notes that jurors are fact finders who must rationally apply the reasonable doubt standard, and claims that rational application of that standard requires uniform definition. Notes that failure to define the term may result in jurors lowering prosecution’s burden of proof. Third, argues that fairness to prosecution requires definition. Claims that reasonable doubt must be distinguished from "fanciful" doubt, "mere possible" doubt, "speculation," and so forth. Argues that without this distinction, jurors may mistakenly elevate the prosecution’s burden of proof. Ends with claim that reasonable doubt can be clearly and simply defined. Urges use of recognized pattern instructions such as Devitt and Blackmar’s model instruction (which defines a reasonable doubt as one that "would cause a reasonable person to hesitate to act in the most important of his affairs"). Notes that pattern instructions are based on Supreme Court decisions and thus are more likely to be upheld on appeal as correct. Provides various (syntactical, rather than substantive) guiding steps for simplifying jury instructions.

Collignon, Amy K., "Searching for an Acceptable Reasonable Doubt Jury Instruction in Light of Victor v. Nebraska," 40 St. Louis U. L. J. 145 (1996).

Dery, George M. III, "The Atrophying of the Reasonable Doubt Standard: The United States Supreme Court’s Missed Opportunity in Victor v. Nebraska and its Implications in the Courtroom," 99 Dick. L. Rev. 613 (1995).

A scathing attack on the Victor decision. Claims the majority opinion was based on reactive reasoning, deepened existing disorder in the courts, and lacked a reasoned foundation for its holding. Criticizes the Supreme Court for giving a relatively surface linguistic treatment to a handful of challenged phrases rather than an enlightening analysis of core issues. Argues that "reasonable doubt" must be defined, and that the Supreme Court should have provided lower courts more guidance in Victor. Reasons that the Court avoided doing so because of its concern with violating the principles of federalism. Criticizes the Court’s concern with holistic readings of jury instructions, which include defective phrases, arguing that jurors are just as reasonably likely to "cure" good law with bad. Discusses the flaws in several definitional phrases, including "moral certainty," "hesitate to act," "substantial doubt," and "strong probabilities." Concludes that the Victor decision did not make clear which defective phrases are mitigated by context. Ends with the caution that the value of constitutional safeguards (such as the need for proof beyond a reasonable doubt of a defendant’s guilt) cannot by maintained in the absence of meaningful analysis.

Diamond, Henry A. "Reasonable Doubt: to Define or not to Define," (Note) 90 Colum. L. Rev. 1716 (1990).

Argues that jury instructions should always define reasonable doubt and that definition is constitutionally required when requested by the defendant or the jury. Also establishes that refusal to define the term is not subject to harmless error review but instead requires automatic reversal of the convictions. Provides a very good summary of the various attitudes of state and federal courts toward definitional issue. Argument for the constitutional necessity of defining reasonable doubt parallels that of Cohen (above). Claims that due process requires that the jury rationally applies the standard of proof, and that an adequate understanding of reasonable doubt is necessary for the rational application of the rule. Further argues that jurors lack a common understanding of the standard, absent instructions, on several grounds. Notes that judges and lawyers have difficulty construing the meaning of the term, and that knowledge of the meanings of "reasonable" and "doubt" does not entail knowledge of the legal meaning of "reasonable doubt." Cites various studies that show that jurors are often confused about the meaning of various legal terms found in jury instructions (including reasonable doubt). Notes that juries sometimes do request definition of the term. Recognizes that the vague and imprecise nature of the reasonable doubt standard (i.e., it is "far above" a preponderance of the evidence approaching certainty, but not equivalent to absolute certainty) prohibits quantitative definition. Argues that qualitative definition would clarify the jury’s task and focus their attention on the standard of proof, thereby emphasizing its seriousness. Does not, however, recommend a definition.

Summarizes the Supreme Court’s position on "harmless error" review—to wit, that an error made at trial is harmless if it can be established by the reviewing court beyond a reasonable doubt that the trial jury’s decision would be the same in the absence of the impermissible instruction. Notes that this entails that a particular error will not be subject to harmless error review if the court cannot ascertain its effects on the outcome of the trial. Claims that this is the case whenever reasonable doubt is not defined for the jury, and thus that failure to instruct juries on reasonable doubt is never subject to harmless error review. Notes that the Supreme Court held this to be the case in Jackson v. Virginia [443 U.S. 307(1979)].

Ervin, Tom J. "What Does ‘Beyond a Reasonable Doubt’ Really Mean?" 6-AUG S.C. LawRev. 32 (1994).

Provides a brief summary of the Victor decision. Discusses the effects of the Supreme Court’s findings in Victor on South Carolina courts. Lends credence to those (e.g., Cohen) who claim that Victor marks a severe narrowing of the Cage decision. Notes that the S.C. Supreme Court urges trial courts to avoid definition of "reasonable doubt" altogether. Claims that in several cases decided around the time of the Victor decision, the S.C. Supreme Court erroneously applied the "could cause" test (of Cage), while decisions would have been different under Victor. Concludes that the pattern jury instruction of S.C., which includes "hesitate to act" wording and omits the offending "moral certainty," meets with U.S. Supreme Court approval.

Fortunato, Stephen J., Jr. "Instructing on Reasonable Doubt After Victor v. Nebraska: A Trial Judge’s Certain Thoughts on Certainty" 41 Vill. L. Rev. 365 (1996).

Examines the United States Supreme Court’s decision in Victor. Provides in-depth analysis of the Victor decision and the cases that led up to it, particularly In re Winship and Jackson v. Virginia. Argues that both Jackson and Winship make it clear that the Court takes "proof beyond a reasonable doubt" to be equivalent to a subjective state of certitude, or near certitude. Criticizes the Victor decision on several fronts. Claims, first, that Victor departs from the clear tradition leading up to and articulated in Winship, in endorsing the "hesitate to act" language. Shows that contra the Court’s own arguments, the Court has not repeatedly approved this language. Claims, second, that the Victor decision provides no guidance to lower courts. Claims, third, that the holistic technique for reviewing challenged instructions is dangerous. Argues that appellate courts are already using the Victor decision to uphold convictions based on dubious reasonable doubt instructions. Notes that the Court’s result in Victor is without logical or historical precedent.

Argues that courts should instruct on the state’s burden, "proof beyond a reasonable doubt," and not "reasonable doubt." Discusses several problems with standard definitions of reasonable doubt. Argues that reasonable doubt is an effect and not a cause, and thus, that language such as the "hesitate to act" charge (wherein a reasonable doubt is defined as one which would "cause a reasonable person to hesitate to act") endorsed by the Victor court is mistaken. Further notes that it is both possible and to be expected, given the trial process, that different juries faced with the same facts and the same standards might return different verdicts. Claims that if the jury has followed the court’s directive to consider only the evidence presented in court, then any doubt about whether the State has proved an element of the crime will be a reasonable doubt. Concludes that instructions that differentiate reasonable doubt from fanciful doubt, speculation, and the like are unnecessary at best, and insulting at worst. Recommends a jury instruction on burden of proof that is more in keeping with Winship and that avoids these criticisms. Charge reads, in part: "[proof beyond a reasonable doubt] is a very high burden of proof. . . . you are convinced in your mind that it is just about certain—or nearly certain—that the defendant committed the crime."

Gabriel, Henry D., and Barski, Katherine A., "Reasonable Doubt Jury Instructions: the Supreme Court Struggles to Live by its Principles," 11 St. John’s J. Legal Comment. 73 (1995).

Argues that the United States Supreme Court’s concerns for federalism, finality of convictions, and conservation of judicial resources are in conflict with the fundamental constitutional right that a defendant must be found guilty beyond a reasonable doubt, and that the Court has allowed its countervailing interests to dilute the essence of the principle established in Winship. Reviews the courts findings in light of Teague v. Lane [489 U.S. 288 (1990)], which held that a new rule cannot be applied retroactively on collateral review where a conviction was final prior to the announcement of the new rule. Notes that this finding results in the anomalous situation in which a defendant will stand convicted (as per Teague) although there has been no legitimate conviction (as per Cage). Argues that the Court resolved this conflict in Sullivan v. Louisiana [113 S. Ct. 2078 (1993)], where it found that deficient reasonable doubt jury instructions are not subject to harmless error review and thus, that Sullivan circumscribes exceptions to the Teague bar on retroactive application.

Notwithstanding Sullivan, the authors argue that all is not well. In Cage the Court endorsed a standard of review based on how "reasonable jurors could have understood the charge as a whole"; yet, in Victor the Court strengthened the standard to a consideration as to whether there is "a reasonable likelihood" that the jury applied the instruction as a whole in an unconstitutional manner. The authors argue that this usurps the jury’s function, supplanting the judge’s determination for that of the jury. Further, by holding that surrounding text can neutralize defective jury instructions, the Court narrowed the basis for appeal, thus diminishing the reasonable doubt standard itself. Finally, examines recent restrictions on statutes governing writs of habeas corpus, arguing that these restrictions make it nearly impossible for defendants with complaints based on defective reasonable doubt instructions to meet the current standards of review. Concludes that these limitations threaten the continued viability of the reasonable doubt standard.

Kenney, Shelagh "Fifth Amendment—Upholding the Constitutional Merit of Misleading Reasonable Doubt Jury Instructions," 85 J. Crim. L. & Criminology 989 (1995).

Begins by reviewing the concept of reasonable doubt and its historical development, both in case law and in treatises, placing special emphasis on the Supreme Court’s relatively recent history of interpreting the reasonable doubt standard. Notes that the Court’s involvement since Winship has largely been to define how and to what extent the standard needs explaining. Examines the Court’s decisions leading up to Victor, including the precedents that established the "could have" and "reasonable likelihood that" tests for reviewing jury instructions. Finds fault with the Court’s holding in both Sandoval and Victor. Argues that the Court, in the Victor decision, improperly narrowed the important constitutional safeguards upheld in Cage to the facts of Cage alone, leaving the states with no valuable guidance as to how to instruct on the concept of reasonable doubt. Also contends that the Court lowered the standard of proof necessary to convict a defendant by upholding the Victor and Sandoval convictions, even though the juries received ambiguous and misleading definitions of reasonable doubt. Speculates as to the court’s motivation in these findings. Concludes that the court was concerned that reversal would lead to too many appeals by state prisoners, and the possible release of violent offenders. Suggests that Court contented itself with warnings about the pitfalls of certain definitional phrases in the hope of spurring reform of questionable jury instructions. Claims that Victor leaves no clear future for reasonable doubt instructions. Ends with plea for those responsible for reforming jury instructions to recognize the shortcomings of the charges upheld in Victor and to revise instructions with the lay juror in mind.

Mulrine, Thomas V. "Reasonable Doubt: How in the World is it Defined?" 12 Am. U. J. Int’l L. & Pol’y 195 (1997).

Examines the origins of the reasonable doubt concept and traces its development to the present. Joins others in criticizing the Victor decision for failing to provide lower courts with guidance. Surveys arguments for and against defining the concept. Notes that regardless of whether the standard is ill defined or not defined jurors may not rationally apply the standard. Argues that legally correct instructions may not be comprehensible to average juror. Unique among other commentators in providing survey of other countries’ approaches to the determination of guilt. Briefly describes the practices in Germany, France, Italy, Sweden, Japan, Canada, England, and Australia regarding determinations of guilt and standards of proof. Concludes that the jury instruction utilized by the British Columbia Court of Appeals is most helpful in that the average juror readily understands it. Formulates a jury instruction based on the Canadian model, which he claims captures the concept while remaining comprehensible to the average juror. Recommended charge reads in part: "It is the sort of doubt which, if you asked yourself, ‘Why do I doubt?’—you can assign a logical reason by way of an answer." Claims that jurors should be able to explain to themselves, but not necessarily to others, the reasons for their doubts, and thus, that this instruction states the correct standard.

Newman, Jon O. "Beyond ‘Reasonable Doubt’" 68 N.Y.U. L. Rev. 979 (1993).

Reprint of the 25th James Madison lecture on constitutional law at NYU School of Law, by Chief Judge of the 2nd Circuit Court of Appeals. Argues that the constitutional jurisprudence of the U.S. has accepted the reasonable doubt standard as a verbal formulation to be conveyed to juries but has failed to take the standard seriously as a rule of law against which the validity of convictions is to be judged. Urges appellate court judges to use the reasonable doubt standard as a measure of the sufficiency of evidence. Claims that tendency of appellate courts has been to lower the reasonable doubt standard by upholding convictions based on insufficient evidence. Argues that reviewing courts should at the very least order new trials in cases of doubtful sufficiency. Suggests several ways in which appellate courts could make the standard an enforceable rule of law. First, suggests a clarification of jury instructions and recommends the Federal Judicial Center’s "firmly convinced" language. Second, urges courts to use "reasonable jury" standard for assessing sufficiency of evidence (rather than the lower "any rational trier" standard).

Argues that Courts’ unwillingness to vigorously apply the reasonable doubt standard is having the paradoxical effect of unwarranted acquittals. Crux of argument is that lower courts have the expectation that jury verdicts of guilt are extremely unlikely to be upset on appeal for insufficient evidence and are therefore reluctant to admit some evidence that is relevant to guilt but that also has a tendency to be prejudicial. Argues that judges would be more willing to broaden categories of evidence if they were more confident that appellate courts would scrutinize insufficiency of evidence claims with care. Notes that foreign courts, including those of Israel, England, and Russia, vigorously enforce sufficiency rule of law. Speculates that American courts resist overturning convictions based on insufficient evidence for fear of invading the province of the jury. Ends with argument that enforcement of constitutional standards such as proof beyond a reasonable doubt override that concern.

Nichols, Matt, "Victor v. Nebraska: The ‘Reasonable Doubt’ Dilemma", 73 N.C. L. Rev. 1709 (1995).

Reviews findings in Victor and criticizes decision on grounds that the Court overestimated juror ability to comprehend instructions. Claims that Court created a paradox: while emphasizing that the language of jury instructions must be judged in context of whole instruction, the Court ignores the fact that those instructions are often so far removed from the context of the trial that they are rendered meaningless. Notes that neither the majority nor the concurring or dissenting opinions addressed the issue of actual juror comprehension of jury instructions. Cites empirical studies which suggest that jury instructions which include definition of reasonable doubt actually lowered juror understanding; yet, argues that case law suggests some type of explanation of the term is necessary. Joins other commentators in noting that the Supreme Court’s lack of guidance on the definition issue has resulted in disorder among both state and federal courts. Surveys courts’ positions on the issue.

Claims that Supreme Court in Victor introduced a "text/context" distinction. Criticizes that distinction as confusing at best. Argues that text and its context are intertwined and not as easily separated as Court indicates. Endorses Justice Blackmun’s dissent, noting that to the layperson or lawyer no significant difference in meaning exists between the Cage instruction and the Victor instruction. Concludes that Victor decision leaves it unclear whether certain phrases may be impermissible in one instruction, yet permissible in others because other language salvages the instruction as a whole. Cites two cases that support the interpretation that each phrase criticized by the Court in Cage is enough to overturn instructions on review. Concludes that the only thing clear after Victor is that the confusion surrounding the reasonable doubt standard is unlikely to dissipate.

[Note], "Winship on Rough Waters: the Erosion of the Reasonable Doubt Standard," 106 Harv. L. Rev. 1093 (1993).

Argues that legislatures and prosecutors have eroded Winship’s substantive import through an array of statutes, procedures, and techniques that allow the government to impose punishment without proving beyond a reasonable doubt all of the elements of the charged crime. Claims that Winship requires that the government must (1) prove all necessary elements of a crime (2) in certain adjudicatory proceedings (3) beyond a reasonable doubt. Details the various ways in which government has correspondingly undermined Winship’s import by reducing the number of necessary elements of a crime, by narrowing the range of proceedings to which Winship applies, and by reducing the burden of proof in "beyond a reasonable doubt" in the minds of jurors. Provides examples of each type of "erosion," including the changing of elements of crime statutes to affirmative defenses, requiring different (and lower) standards in sentencing hearings and parole hearings, and allowing evidence of defendant’s past conduct (e.g., in organized crime trials). Examines some of the motivating factors behind this movement, arguing that the erosion of the reasonable doubt standard stems from a lack of social consensus regarding the premise upon which Winship was based—to wit, the presumption of innocence of all persons of a crime charged. Concludes that some strategies (e.g., RICO, which is aimed at organized crime) are actually necessary for the proper functioning of the criminal justice system in response to emerging forms of criminality, while others (i.e., those that erode the presumption of innocence for repeat offenders) present a troubling challenge to fundamental tenets of the criminal justice system.

[Note], "Reasonable Doubt: an Argument Against Definition" 108 Harv. L. Rev. 1955 (1995).

Discusses constitutional and policy arguments for and against defining reasonable doubt. Concludes that courts should not attempt to define the term for juries. After a survey of the various state and federal court positions on the issue, argues against definition on three counts. First, argues that definition is not constitutionally mandated. Second, argues that empirical evidence does not demonstrate a need to define reasonable doubt (and may, in fact, weigh in favor of leaving the term undefined). Third, argues that refraining from definition both promotes deliberation and allows juries to apply community standards in determining the meaning of the standard.

On the constitutional issue, responds to arguments by those (e.g., Cohen and Diamond, above) who claim that trial courts have a duty to instruct juries on basic constitutional principles such as the reasonable doubt standard. Argues that failure to provide clarifying instructions is not a constitutional violation, citing the fact that the Supreme Court does not even require trial courts to inform every jury of the presumption of innocence. Further, notes that to show that a constitutional violation has occurred, defendants have the heavy burden of showing that there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard. Argues that the Supreme Court has claimed that jurors have an "original understanding" of the standard, and that misleading or undefined instructions do not necessarily corrupt that understanding. On the empirical issue, finds fault with many studies that others cite in support of the need for definition. Claims many studies do not concern reasonable doubt instructions, and that others fail to compare juror comprehension with definition against comprehension without definition.

Claims that because definition is not constitutionally required, the issue is one of policy. Argues that not defining reasonable doubt is both simpler than definition, and more flexible —i.e., that instructions without definition allow for evolution of the standard with changing community standards. Claims further that the jury is the proper locus for construction of the term. Argues for this claim on grounds that jurors are community representatives and thus have the authority to make the value judgment required and impose criminal sanctions.

O’Neill, Timothy P., "Instructing Illinois Juries on the Definition of ‘Reasonable Doubt’: The Need for Reform," 27 Loy. U. L. J. 921 (1996).

Discusses situation in Illinois, one of a minority of American jurisdictions that refuses to define reasonable doubt in jury instructions. Contends that Illinois’ policy shortchanges defendants. Reviews recent Supreme Court decisions (including Winship, Cage, and Victor) and over a century of Illinois case law on the propriety of defining the term for jurors. Claims that the reality is quite different from the stated policy in Illinois and that not all parties are forbidden from defining the term. Cites case law showing that while policy prevents judges and defense attorneys from instructing juries on reasonable doubt, the prosecution is often allowed to define the term in closing arguments. Notes that pro-prosecution definitions have been upheld on review as "harmless error."

Further, reviews empirical evidence suggesting that reasonable doubt is not a self-defining term and that without a definition jurors may underestimate the quantum of evidence needed for a conviction. Cites two very different methodologies used to estimate laypersons’ standard of proof in criminal trials without benefit of definition of the reasonable doubt standard. Reports that when asked to distribute guilt-innocence options on a scale from 0 to 100 (with 0 being certainty of innocence and 100 being certainty of guilt), subjects’ initial inclination was to distribute uncertainty in a 50-50 manner. Concludes that it would be risky at best, foolish at worst, to entrust the definition of beyond a reasonable doubt to the gut reactions of laypersons. Recommends defining reasonable doubt and endorses Federal Judicial Center’s charge (cited favorably by Ginsburg in her concurrence in Victor).

Smith, Paul C. "The Process of Reasonable Doubt: A Proposed Instruction in Response to Victor v. Nebraska," 41 Wayne L. Rev. 1811 (1995).

Notes

This research was supported by grants from the National Endowment for the Humanities and California State University, Los Angeles.

1. See Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley, Calif.: University of California Press, 1991), 1–41.

2. 397 U.S. 358, 90 S.Ct. 1068.

3. A survey of the pattern jury instructions of the state courts reveals more than twenty different definitions of the phrases "proof beyond a reasonable doubt" and "reasonable doubt" among those courts that do define the terms. Further, several courts (AL, AK, DE, ID, MS, MT, NH, NJ, SC, UT, and WV) do not have pattern jury instructions for criminal trials at all, while others either recommend that no definition of these terms be given (AZ, KS, KY) or explicitly prohibit definition (IL, OK, TX, and WY). Although there is more consensus among the Federal circuit courts, the second and seventh circuits do not allow definition. For more information, see the "Report of the Committee on Standard Jury Instructions–Criminal of the Los Angeles Superior Court to the California Legislature on Alternatives to the Reasonable Doubt Definition," Los Angeles Daily Journal Report, 87–10 (1987).

4. Ibid., at 364, 90 S.Ct. 1068, at 1073.

5. 554 So.2d 39, 41 (La. 1989), cited at 498 U.S. 39, 40, 111 S.Ct. 328, 329.

6. Ibid., at 41; 111 S.Ct. 328, at 330.

7. Cited in 511 U.S. 1, 7; 114 S.Ct. 1239, 1244.

8. Ibid., at 14; 114 S.Ct. 1239, at 1247, 1248.

9. Quoted in Victor v. Nebraska, 511 U.S. 1, 18, 114 S.Ct. 1239, 1249.

10. Hopt v. Utah, 120 U.S. 430, 440-441, 7 S.Ct. 614, 618-20, 30 L.Ed. 708 (1887).

11. Jackson v. Virginia, 443 U.S. 307, 320, n. 14, 99 S.Ct. 2781, 2789, n. 14, 61 L.Ed.2d 560 (1979).

12. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).