reasonable doubt standard in Colorado

2026The court’s instruction said that “reasonable doubt” is a “real possibility that defendant is not guilty” and that proof beyond a reasonable doubt “requires more than proof that something is highly probable.” This definition of reasonable doubt “has been consistently approved by federal courts as an accurate expression 21 of the reasonable doubt standard.” Id. at ¶ 30; see e.g., Victor v. Nebraska, 511 U.S. 1, 24-27 (1994) (Ginsburg, J., concurring in part and concurring in the judgment) (concluding that a similar definition of reasonable doubt “surpasse[d] others . . . in stating the reasonab

2026Duran contends that the jury may convict the defendant if 11 it’s “firmly convinced” of his guilt, and it may also convict if it doesn’t believe there’s a “real possibility” that he’s not guilty. ¶ 23 As Schlehuber explained, however, the “juxtaposition” between these two phrases “has been consistently approved by federal courts as an accurate expression of the reasonable doubt standard.” Schlehuber, ¶ 30; see United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995) (“We agree that the ‘firmly convinced’ language, juxtaposed with the insistence that a jury must acquit in the presence of a ‘r

2026Thus, the court’s instruction clearly informed the jury that, “if the prosecution fails to present sufficient evidence of guilt, it will not have met its burden.” Id. (citing United States v. Petty, 856 F.3d 1306 , 1311 20 (10th Cir. 2017)); see also Rault v. Louisiana, 772 F.2d 117, 137 (5th Cir. 1985) (“These instructions necessarily conveyed the concept that a reasonable doubt would arise in the absence of evidence sufficient to show guilt beyond a reasonable doubt.”). ¶ 40 Second, we reject Duran’s contention that the court undermined the proof beyond a reasonable doubt standard by omittin

2025For three reasons, we 20 conclude that Instruction No. 4 did not misstate the law or the burden of proof. ¶ 43 First, the instruction did not erroneously preclude the jury from drawing inferences from the lack of evidence. “[T]he absence of an express instruction to consider the lack of evidence is not tantamount to a prohibition on doing so.” People v. Melara, 2025 COA 48, ¶ 32 (concluding that a reasonable doubt instruction that did not refer to the lack of evidence did not impermissibly lower the prosecution’s burden of proof); accord People v. Schlehuber, 2025 COA 50, ¶¶ 19-20 (concluding

2026See Castro-Velasquez , ¶ 27 ; see also Bernal v. People , 44 P.3d 184, 200 ( Colo. 2002 ) ( "To be classified as constitutional harmless error, a court must be confident beyond a reasonable doubt that the error did not contribute to the guilty verdict." ) .

2025But we review conduct that “directly offend[s] a defendant’s constitutional rights” for constitutional harmless error, Wend, 235 P.3d at 1097 , which 13 requires reversal unless we are “confident beyond a reasonable doubt that the error did not contribute to the guilty verdict,” Bernal v. People, 44 P.3d 184, 200 (Colo. 2002).

2026Standard of Review ¶ 36 “We review de novo whether a jury instruction impermissibly lowered the prosecution’s burden of proof.” People v. Schlehuber, 2025 COA 50, ¶ 15 (citing Tibbels v. People, 2022 CO 1, ¶ 22 ). 14 “Instructions that lower the prosecution’s burden of proof below the reasonable doubt standard constitute structural error and require automatic reversal.” Tibbels, ¶ 22. 3.

2026Third, the “real possibility” language in the instruction was too confusing for jurors and shifted the burden to the defense. ¶ 38 In Schlehuber, 2025 COA 50 , a division of this court thoroughly considered materially identical arguments and held that the modified 2022 version of the reasonable doubt instruction doesn’t lower the prosecution’s burden of proof or undermine the presumption of innocence.

2026See Winship, 397 U.S. at 364 . ¶ 35 The trial court must properly instruct the jury on the reasonable doubt standard.

2026Johnson v. People, 2019 CO 17, ¶ 8 . 4 ¶ 12 The Due Process Clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23 (quoting In re Winship, 397 U.S. 358, 364 (1970)). ¶ 13 The district court must properly instruct the jury on the reasonable doubt standard.

2026However, a trial court’s instructions that lower the burden of proof below the reasonable doubt standard “constitute[] structural error and require[] automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8 . ¶ 16 When reviewing jury instructions, we consider whether the instructions accurately conveyed the law and whether the instructions were confusing or could have misled the jury.

2026Johnson v. People, 2019 CO 17, ¶ 8 . 4 ¶ 12 The Due Process Clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23 (quoting In re Winship, 397 U.S. 358, 364 (1970)). ¶ 13 The district court must properly instruct the jury on the reasonable doubt standard.

2025To be constitutionally harmless, the court must be “confident beyond a reasonable doubt that the error did not contribute to the verdict obtained.” Id. at 9 .

2020Griego v. People, 19 P.3d 1, 7 (Colo. 2001). “[I]f the trial court properly instructed the jury on the law — even with ‘objectionable language . . . [in] the trial court’s 16 elaboration of the reasonable doubt instruction’ — then there is no violation of due process.” Johnson, ¶ 14 (quoting People v. Sherman, 45 P.3d 774, 779 (Colo. App. 2001)). ¶ 34 We conclude that the trial court improperly instructed the jury on the reasonable doubt standard, and that, for the following four reasons, reversal of Knobbe’s conviction is required. ¶ 35 First, the court’s improvised description of the standar

2025The inquiry is not whether “a guilty verdict would surely have been rendered” in a trial 4 While legal error is necessarily an abuse of discretion, we recognize that (1) the trial court’s decision was likely informed by the cases that caution against crafting jury instructions from caselaw, see, e.g., People v. Espinosa, 2020 COA 63, ¶ 15 ; and (2) the court did not have the benefit of this opinion when it issued its ruling. 18 without the error but whether “the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. (quoting Blecha v. People, 962 P.2d 931,

2012"To be classified as constitutional harmless error, a court must be confident beyond a reasonable doubt that the error did not contribute to the guilty verdict." Id.

2025Instructions that lower the prosecution’s burden of proof below the reasonable doubt standard constitute structural error and require automatic reversal.” Tibbels v. People, 2022 CO 1, ¶ 22 (citation omitted). ¶ 64 We use a functional test to determine whether a trial court’s statements to the jury lowered the prosecution’s burden of proof; we assess “whether there is a reasonable likelihood that the jury understood the court’s statements, in the context of the instructions as a whole and the trial record, to allow a conviction 32 based on a standard lower than beyond a reasonable doubt.” Id.

2025See Pettigrew v. People, 2022 CO 2, ¶ 44 . ¶ 28 But notwithstanding our concerns with the illustration itself, we do not think there is a reasonable likelihood that the jury understood the court’s comments, in the context of the instructions and record as a whole, to lower the prosecution’s burden of proof below the reasonable doubt standard.

2026Thus, the court’s instruction clearly informed the jury that, “if the prosecution fails to present sufficient evidence of guilt, it will not have met its burden.” Id. (citing United States v. Petty, 856 F.3d 1306 , 1311 20 (10th Cir. 2017)); see also Rault v. Louisiana, 772 F.2d 117, 137 (5th Cir. 1985) (“These instructions necessarily conveyed the concept that a reasonable doubt would arise in the absence of evidence sufficient to show guilt beyond a reasonable doubt.”). ¶ 40 Second, we reject Duran’s contention that the court undermined the proof beyond a reasonable doubt standard by omittin

2026See, e.g., United States v. Petty, 856 F.3d 1306, 1310 (10th Cir. 2017) (“[T]he court’s ‘firmly convinced’ formulation of the reasonable doubt standard did not understate the degree of certainty a jury must reach to find a criminal defendant guilty.”); United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992) (“Considering the instruction given as a whole, the use of the ‘firmly convinced’ language did not indicate to the jury that the prosecutor had a lesser burden than that implied by the use of the term ‘reasonable doubt’ standing alone.”); see also Berumen, ¶ 22 (“While some of the l

2006Miller, 113 P.3d at 745; see People v. Fry, 92 P.3d 970, 973 (Colo.2004) (reviewing the erroneous admission of testimonial evidence under the harmless beyond a reasonable doubt standard where at trial the defendant had objected on Confrontation Clause grounds).

2006Miller, 113 P.3d at 745; see People v. Fry, 92 P.3d 970, 973 (Colo.2004) (reviewing the erroneous admission of testimonial evidence under the harmless beyond a reasonable doubt standard where at trial the defendant had objected on Confrontation Clause grounds).

2026Standard of Review ¶ 36 “We review de novo whether a jury instruction impermissibly lowered the prosecution’s burden of proof.” People v. Schlehuber, 2025 COA 50, ¶ 15 (citing Tibbels v. People, 2022 CO 1, ¶ 22 ). 14 “Instructions that lower the prosecution’s burden of proof below the reasonable doubt standard constitute structural error and require automatic reversal.” Tibbels, ¶ 22. 3.

2026Johnson v. People, 2019 CO 17, ¶ 8 . 4 ¶ 12 The Due Process Clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23 (quoting In re Winship, 397 U.S. 358, 364 (1970)). ¶ 13 The district court must properly instruct the jury on the reasonable doubt standard.

2022Id. ; accord Sullivan v. Louisiana , 508 U.S. 275, 281-82 (1993). 17 ¶32 We note that the People argue that the trial court's statements to the jury in this case did not amount to instructions and instead were merely comments to the venire that we should review for plain error because Pettigrew did not object to them.

2022Id. ; accord Sullivan v. Louisiana , 508 U.S. 275, 281-82 (1993). 11 B.

2025See, e.g., United States v. Dingle, 862 F.3d 607, 611-12 (7th Cir. 2017) (rejecting the defendant’s argument that the elemental instructions, which used “should” instead of “must,” lowered the prosecution’s burden of proof); see also Willingham v. Mullin, 296 F.3d 917, 929 (10th Cir. 2002) (“[T]he Supreme Court has never indicated that the mandatory force inherent in the term ‘should’ is insufficient to properly guide a jury’s application of the reasonable doubt standard.”).1 ¶ 12 Second, Hammond says that Munoz is distinguishable because, in that case, the initial reasonable doubt instruction

2025See, e.g., United States v. Dingle, 862 F.3d 607, 611-12 (7th Cir. 2017) (rejecting the defendant’s argument that the elemental instructions, which used “should” instead of “must,” lowered the prosecution’s burden of proof); see also Willingham v. Mullin, 296 F.3d 917, 929 (10th Cir. 2002) (“[T]he Supreme Court has never indicated that the mandatory force inherent in the term ‘should’ is insufficient to properly guide a jury’s application of the reasonable doubt standard.”).1 ¶ 12 Second, Hammond says that Munoz is distinguishable because, in that case, the initial reasonable doubt instruction

2021If, given the context of the entire 15 record, “the trial court properly instructed the jury on the law — even with ‘objectionable language . . . [in] the trial court’s elaboration of the reasonable doubt instruction’ — then there is no violation of due process.” Johnson, ¶ 14 (quoting People v. Sherman, 45 P.3d 774, 779 (Colo. App. 2001)); People v. Avila, 2019 COA 145, ¶ 45 .

2021If, “[i]n the context of the entire r ecord, . . . the trial court properly instructed the jury on the law — even with ‘objectionable language . . . [in] the trial court’s elaboration of the reasonable doubt instruction’ — then there is no violation of due process.” Johnson , ¶ 14, 436 P.3d at 533 (alt erations in original) (quoting People v. Sherman , 45 P.3d 774 , 7 79 (Colo. App. 2001)). b.

2021Se e People v. Vialpando , 2020 COA 42 , ¶¶ 55- 56 ( cert. granted Oct. 12, 2020) (“ The danger is that, by using iconic, easily recognizable images, the jury may conclude that guilt beyond a reasonable doubt is easy to determine and, thus, t hat the reasonable doubt standard is a low burden of proof. ”); Pe ople v. Van Meter , 2018 COA 13, ¶ 31 (“[T] he prosecutor ’ s use of a puzzl e analogy, including the display of an incomplete puzzle of t he iconic and easily recognizable space shuttle image, was improper. ”); People v. Camarigg , 2017 COA 115M , ¶ 47 (“[P] uzzle analogies are problemati

2020We do not think that people 18 customarily make private decisions according to this standard nor may it even be possible to do so.”); see also, State v. Walker, 265 P.3d 191, 196 (Wash. Ct. App. 2011) (prosecutor erroneously described the reasonable doubt standard as “a common standard that you apply every day” and compared it to having surgery and leaving children with a babysitter); cf. People v. Van Meter, 2018 COA 13, ¶ 32 (concluding that prosecutor’s description of beyond a reasonable doubt standard using analogy to partially completed jigsaw puzzle with image of space shuttle was improp

2020And it cautioned that “[a]ttempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury . . . .” Id. (quoting Holland v. United States, 348 U.S. 121, 140 (1954), in turn quoting Miles v. United States, 103 U.S. 304, 312 (1880)). ¶ 23 As we discuss below, in this case, the trial court’s description of the reasonable doubt standard improperly added additional commentary on what “reasonable doubt” is. 10 2.

2009Contrary to Robb's assertions: ® informing the jury that reasonable doubt "arise[s] from ... the evidence, or lack of evidence," does not undermine the presumption of innocence, see Conner v. State, 711 N.E.2d 1238, 1246-47 (Ind. 1999); see also Johnson v. Louisiana, 406 U.S. 356, 360-61 , 92 S.Ct. 1620, 1624 , 32 L.Ed.2d 152 (1972) ("Numerous cases *1263 have defined a reasonable doubt as one 'based on reason which arises from the evidence or lack of evidence."" (quoting United States v. Johnson, 348 F.2d 5 , 6 n. 1 (2d Cir.1965)) ). ® a reasonable doubt instruction need not be phrased in ter

2005Initially, I adopt the majority’s formulation of both standards: plain error review requires reversal “only if the error so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the conviction”; under constitutional harmless error review, “reversal is required unless we are convinced beyond a reasonable doubt that the error is harmless beyond a reasonable doubt.” See, e.g., People v. Harlan, 8 P.3d 448 (Colo.2000).

2005Initially, I adopt the majority's formulation of both standards: plain error review requires reversal "only if the error so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the conviction"; under constitutional harmless error review, "reversal is required unless we are convinced beyond a reasonable doubt that the error is harmless beyond a reasonable doubt." See, e.g., People v. Harlan, 8 P.3d 448 (Colo.2000).

2026Duran contends that the jury may convict the defendant if 11 it’s “firmly convinced” of his guilt, and it may also convict if it doesn’t believe there’s a “real possibility” that he’s not guilty. ¶ 23 As Schlehuber explained, however, the “juxtaposition” between these two phrases “has been consistently approved by federal courts as an accurate expression of the reasonable doubt standard.” Schlehuber, ¶ 30; see United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995) (“We agree that the ‘firmly convinced’ language, juxtaposed with the insistence that a jury must acquit in the presence of a ‘r

2026Id. at ¶¶ 26-30 (majority opinion); see also United States v. Petty, 856 F.3d 1306, 1310 (10th Cir. 2017) (concluding that a similar definition of reasonable doubt that instructed the jury that it must acquit the defendant if there existed a “real possibility” that the defendant wasn’t guilty was “a correct and comprehensible statement of the reasonable doubt standard” (quoting United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995))). ¶ 30 Fourth, we disagree with Simms’s contention that the “firmly convinced” phrase in the court’s instruction improperly asks jurors to base their conclusio

2026See, e.g., United States v. Petty, 856 F.3d 1306, 1310 (10th Cir. 2017) (“[T]he court’s ‘firmly convinced’ formulation of the reasonable doubt standard did not understate the degree of certainty a jury must reach to find a criminal defendant guilty.”); United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992) (“Considering the instruction given as a whole, the use of the ‘firmly convinced’ language did not indicate to the jury that the prosecutor had a lesser burden than that implied by the use of the term ‘reasonable doubt’ standing alone.”); see also Berumen, ¶ 22 (“While some of the l

2026And the court’s instruction, including the phrase “firmly convinced,” has been “consistently approved by federal courts as an accurate expression of the reasonable doubt standard.” Id. at ¶ 30; see, e.g., Victor, 511 U.S. at 24-27 (Ginsburg, J., concurring in part and concurring in the judgment) (endorsing a similarly worded instruction as “surpass[ing] others . . . in stating the reasonable doubt standard succinctly and comprehensibly”); Petty, 856 F.3d at 1310 (holding that a court’s use of the “firmly convinced” language to describe the reasonable doubt standard “did not understate the degr

2026Id. at ¶¶ 30-31. ¶ 11 Moreover, “equating reasonable doubt with a ‘real possibility’ [doesn’t] shift the burden to the defendant to establish that real possibility” because nothing about that phrase suggests that evidence from the defendant must be “the source of the ‘real possibility.’” Schlehuber, ¶ 34 (quoting United States v. Taylor, 997 F.2d 1551, 1557 (D.C.

2026Id. at ¶¶ 30-31; see Victor, 511 U.S. at 24-27 (Ginsburg, J., concurring in part and concurring in the judgment) (concluding that similar model instruction language stated the reasonable doubt standard “succinctly and comprehensibly”). ¶ 28 Moreover, “equating reasonable doubt with a ‘real possibility’ [doesn’t] shift the burden to the defendant to establish that real possibility” because nothing about that phrase suggests that evidence from the defendant must be “the source of the ‘real possibility.’” Schlehuber, ¶ 34 (quoting United States v. Taylor, 997 F.2d 1551, 1557 (D.C.

1991In light of these countervailing implications in the United States Supreme Court rulings, we are unable to conclude whether denial of a defendant’s right to testify under the United States Constitution should be subject to the harmless error beyond a reasonable doubt doctrine of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

1991In light of these countervailing implications in the United States Supreme Court rulings, we are unable to conclude whether denial of a defendant’s right to testify under the United States Constitution should be subject to the harmless error beyond a reasonable doubt doctrine of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

2020“A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict obtained.” Id. at 8-9 (citing Neder v. United States, 527 U.S. 1, 15 (1999)).

2016See, e.g. , United States v. Guyon , 717 F.2d 1536, 1548 (6th Cir. 1983) (“The Supreme Court itself admonished against giving undue weight to even overwhelming evidence of guilt, stating that errors affecting the substantial rights of defendants cannot be considered harmless.” (citing Harrington v. California , 395 U.S. 250, 254 (1969))); Commonwealth v. Rasheed , 640 A.2d 896, 898 (Pa. 1994) (“[A] conclusion that the properly admitted evidence is ‘so overwhelming’ and the prejudicial effect of the . . . error is ‘so insignificant’ by comparison, that it is clear beyond a reasonable doubt that

2021See People v. Knobee, 2020 COA 7, ¶¶ 18, 45 , ___ P.3d ___, ___ (concluding that the trial court improperly instructed the jury on reasonable doubt by analogizing the reasonable doubt standard to buying a home or choosing doctors) (cert. granted June 29, 2020); see also People v. Vialpando, 2020 COA 42, ¶¶ 112-115 , ___ P.3d ___, ___ (Fox, J., concurring in part and dissenting in part) (assuming that the prosecutor’s analogy of a folded American flag to describe reasonable doubt was improper, but concluding it was not plain error) (cert. granted Oct. 12. 2020). ¶ 89 Divisions of this court hav

2021You use it every[ ]day[,] you just don’t know it.” But becau se “[f]ew decisions that people make have the gravity of deciding whether to convict an accused person of a crime,” saying that jurors frequently apply the reasonable doubt standard is “sim ply untrue.” People v. Knobee , 13 2020 COA 7, ¶¶ 38-39 , 490 P.3d 543 , 549-50 ( cert. granted June 29, 2020). ¶ 27 Trial courts improperly trivialize t he prosecution’s burden of proof when they compare it to an everyday or routine decision.

2016See, e.g. , United States v. Guyon , 717 F.2d 1536, 1548 (6th Cir. 1983) (“The Supreme Court itself admonished against giving undue weight to even overwhelming evidence of guilt, stating that errors affecting the substantial rights of defendants cannot be considered harmless.” (citing Harrington v. California , 395 U.S. 250, 254 (1969))); Commonwealth v. Rasheed , 640 A.2d 896, 898 (Pa. 1994) (“[A] conclusion that the properly admitted evidence is ‘so overwhelming’ and the prejudicial effect of the . . . error is ‘so insignificant’ by comparison, that it is clear beyond a reasonable doubt that

2016See, e.g., United States v. Guyon, 717 F.2d 1536, 1548 (6th Cir.1983) (“The Supreme Court itself admonished against giving undue weight to even overwhelming evidence of guilt, stating that errors affecting the substantial rights of defendants cannot be considered harmless.” (citing Harrington v. California, 395 U.S. 250, 254 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969))); Commonwealth v. Rasheed, 536 Pa. 567 , 640 A.2d 896, 898 (1994) (“[A] conclusion that the properly admitted evidence is ‘so overwhelming’ and the prejudicial effect of the ... error is ‘so insignificant’ by comparison, that it is

1982In determining whether the admission of constitutionally tainted evidence is harmless, the critical inquiry is whether the prosecution, as the beneficiary of the constitutional error, is able to establish “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 825 , 828, 17 L.Ed.2d 705, 710 (1967); see also Germany v. People, 198 Colo. 337 , 599 P.2d 904 (1979).

1982In determining whether the admission of constitutionally tainted evidence is harmless, the critical inquiry is whether the prosecution, as the beneficiary of the constitutional error, is able to establish “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 825 , 828, 17 L.Ed.2d 705, 710 (1967); see also Germany v. People, 198 Colo. 337 , 599 P.2d 904 (1979).

2025Thus, a trial court must “properly instruct the jury on — and, as the fact finder, the jury must apply — the reasonable doubt standard.” Tibbels v. People, 2022 CO 1, ¶ 25 , 501 P.3d 792 , 797. “[A]ny jury instruction on reasonable doubt that creates ‘an improper lessening of the prosecution’s burden of proof’ violates ‘a defendant’s constitutional right to due process.’” Johnson, ¶ 13, 436 P.3d at 532-33 (quoting People v. Garcia, 113 P.3d 775, 784 (Colo. 2005)). ¶ 28 “While the [reasonable doubt] standard’s application is universally mandated, courts retain some flexibility in defining what

2019People v. Garcia, 113 P.3d 775, 784 (Colo. 2005).