model instruction in Colorado

2026That ambiguity is clearly illustrated in this case by the prosecutor’s closing argument explaining at length the meaning of “real possibility” without emphasizing the prosecution’s burden of proof to establish guilt beyond a reasonable doubt. ¶ 58 I believe that the 2022 model instruction was motivated by the supreme court’s rejection of a hypothetical used by a trial judge in Tibbels v. People, 2022 CO 1, ¶¶ 49-53 , 501 P.3d 792 , 801-02, to 27 explain the “hesitate to act” language in the previous model instruction.

2025See, e.g., People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253 , 1262- 63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long-established pattern instructions”). ¶9 In 2022, the model instruction was substantially revised to read as follows: Every person charged with a crime is presumed innocent.

2025E.g., United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994); United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997); United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); see 12 also Victor, 511 U.S. at 27 (Ginsburg, J., concurring) (approving of a model instruction with the “real possibility” language). ¶ 25 Against this backdrop, we reject Martinez’s argument that the “real possibility” language was improper.

2025See Schlehuber, ¶ 27; see also Victor v. 6 Nebraska, 511 U.S. 1, 24-25 (1994) (Ginsburg, J., concurring in part and concurring in the judgment). • Defining reasonable doubt as a “real possibility” that the defendant is not guilty and proof beyond a reasonable doubt as proof that leaves jurors “firmly convinced” of the defendant’s guilt is consistent with similar language approved by federal courts; the two phrases “work together to give the jury a complete picture of the reasonable doubt standard.” Schlehuber, ¶ 33. • Considering the reasonable doubt instruction as a whole and “in the context

2025See People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long-established pattern instructions”). ¶9 In 2022, the model instruction concerning the presumption of innocence, burden of proof, and reasonable doubt was substantially revised to read, in its entirety, as follows: Every person charged with a crime is presumed innocent.

2025See, e.g., People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253 , 1262- 63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long-established pattern instructions”). ¶9 In 2022, the model instruction was substantially revised to read as follows: Every person charged with a crime is presumed innocent.

2026See People v. Berumen, 2025 COA 93, ¶¶ 1, 14-33 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack of evidence” instructional language); People v. Schlehuber, 2025 COA 50, ¶¶ 1-2, 7-35 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack 16 of evidence” and “hesitate to act” instructional language, and rejecting the defendant’s assertion that, if not individually problematic, the c

2025Accordingly, we are persuaded by the Schlehuber division’s conclusion that the instruction provided “an accurate expression of the reasonable doubt standard.” Schlehuber, ¶ 30; see also People v. Melara, 2025 COA 48, ¶ 32 (upholding the same model instruction as not unconstitutionally lowering the burden of proof).

2026Nor does adherence to a model instruction provide a “safe harbor that insulates instructional error from reversal.” Garcia v. People, 2019 CO 64, ¶ 22 .

2025Thus, using a model instruction does not provide trial courts with “a safe harbor that insulates instructional error from reversal.” Melara, ¶ 21 (quoting Garcia v. People, 2019 CO 64, ¶ 22 ). 27 ¶ 62 In criminal cases, the prosecution has the burden of proving every element of the crime charged beyond a reasonable doubt.

2025See People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long-established pattern instructions”). ¶9 In 2022, the model instruction concerning the presumption of innocence, burden of proof, and reasonable doubt was substantially revised to read, in its entirety, as follows: Every person charged with a crime is presumed innocent.

2025See, e.g., People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253 , 1262- 63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long-established pattern instructions”). ¶9 In 2022, the model instruction was substantially revised to read as follows: Every person charged with a crime is presumed innocent.

2026See People v. Berumen, 2025 COA 93, ¶¶ 1, 14-33 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack of evidence” instructional language); People v. Schlehuber, 2025 COA 50, ¶¶ 1-2, 7-35 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack 16 of evidence” and “hesitate to act” instructional language, and rejecting the defendant’s assertion that, if not individually problematic, the c

2025People v. Schlehuber, 2025 COA 50, ¶ 14 . ¶ 15 Although our supreme court has not yet considered the instruction at issue here, two divisions of this court recently addressed challenges to the same model instruction.

2025Cf. id. at ¶ 23 (holding that tracking model instruction isn’t always enough to avoid even plain error); Auman v. People, 109 P.3d 647, 660-61 (Colo. 2005) (concluding that the felony-murder instruction that the court gave was erroneous notwithstanding the fact that it tracked the model instruction in effect at the time).

2019Instead of relying on the language of the model instruction, we reasoned that, despite any error, the instruction's language "was well within the comprehension of the jury." See id. at 660 .

2026See People v. Berumen, 2025 COA 93, ¶¶ 1, 14-33 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack of evidence” instructional language); People v. Schlehuber, 2025 COA 50, ¶¶ 1-2, 7-35 (rejecting the defendant’s challenges to the inclusion of the “firmly convinced” and “real possibility” instructional language and to the omission of the “lack 16 of evidence” and “hesitate to act” instructional language, and rejecting the defendant’s assertion that, if not individually problematic, the c

2025E.g., United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994); United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997); United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); see 12 also Victor, 511 U.S. at 27 (Ginsburg, J., concurring) (approving of a model instruction with the “real possibility” language). ¶ 25 Against this backdrop, we reject Martinez’s argument that the “real possibility” language was improper.

2025E.g., United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994); United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997); United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); see 12 also Victor, 511 U.S. at 27 (Ginsburg, J., concurring) (approving of a model instruction with the “real possibility” language). ¶ 25 Against this backdrop, we reject Martinez’s argument that the “real possibility” language was improper.

2025Accordingly, our inquiry isn’t whether we agree with the trial court’s decision, id. (citing Streu v. City of Colorado Springs, 239 P.3d 1264, 1268 (Colo. 2010)); instead, “our role is simply to review the trial court’s decision to ensure that it did not ‘exceed[] the bounds of the rationally available choices,’” id. (quoting Streu, 239 P.3d at 1268 ). ¶ 119 Here, I would conclude that the trial court’s denial of Melara’s request to include the “or lack of evidence” language, though understandable based on the then-recent change to the model instruction, nevertheless lacked a rational basis.

2025Accordingly, our inquiry isn’t whether we agree with the trial court’s decision, id. (citing Streu v. City of Colorado Springs, 239 P.3d 1264, 1268 (Colo. 2010)); instead, “our role is simply to review the trial court’s decision to ensure that it did not ‘exceed[] the bounds of the rationally available choices,’” id. (quoting Streu, 239 P.3d at 1268 ). ¶ 119 Here, I would conclude that the trial court’s denial of Melara’s request to include the “or lack of evidence” language, though understandable based on the then-recent change to the model instruction, nevertheless lacked a rational basis.

2025See id. at 1095 (holding that no multiple assailants instruction was required based on similar model instruction). ¶ 48 We recognize that Roberts-Bicking concluded that the model instruction on self-defense “alone fails to adequately instruct the jury to consider the totality of the circumstances in a multiple assailant scenario.” Roberts-Bicking, ¶ 26.

2025See, e.g., Victor v. Nebraska, 511 U.S. 1 , 18- 23 (1994); People v. Robles, 302 P.3d 269, 280-81 (Colo. App. 2011) (collecting cases), aff’d on other grounds, 2013 CO 24 ; People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long- established pattern instructions”). 40

2025See Petty, 856 F.3d at 1311 ; 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.”). ¶ 23 Indeed, although the prior version of the model instruction referred to “the lack of evidence” in defining reasonable doubt, other portions of the instruction did not.

2025E.g., United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994); United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997); United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); see 12 also Victor, 511 U.S. at 27 (Ginsburg, J., concurring) (approving of a model instruction with the “real possibility” language). ¶ 25 Against this backdrop, we reject Martinez’s argument that the “real possibility” language was improper.

2025Another noted that an attorney-witness “may be perceived by the trier of distorting the truth for the sake of his client.” Jones v. City of Chicago, 610 F. Supp. 350, 357 (N.D.

2025See Petty, 856 F.3d at 1311 ; 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.”). ¶ 23 Indeed, although the prior version of the model instruction referred to “the lack of evidence” in defining reasonable doubt, other portions of the instruction did not.

2022In Bogdanov , 941 P.2d at 256, however, our supreme court explained that this language applies to “the fact pattern wherein the principal and at least one other person, possibly the defendant, together commit t he essential elements of the crime .” By contrast, when the defendant ha s committed none of the elements of the crime and one principal alone has committed them all, the Bogdanov court saw “ no need ” for the instruction to contain the “ all or part of ” language.

2021H:51 (2008). ¶ 20 In Carbajal, the supreme court considered whether a trial court erred by adding the following italicized clause to the model instruction: “It is an affirmative defense to the charge of possession of a weapon by a previous offender that the defendant possessed a firearm for the purpose of defending himself, home, or property from 7 what he reasonably believed to be a threat of imminent harm.” Carbajal, ¶ 7, 328 P.3d at 106 (emphasis added). ¶ 21 The supreme court held that the trial court did not err by adding the requirements of reasonableness and imminence to the model instr

2021See id. at ¶¶ 10-21, 328 P.3d at 106-09 .

2015People v. Manzanares, 942 P.2d 1235, 1241 (Colo. App. 1996). 45 In Wells v. People, 197 Colo. 350, 357-58 , 592 P.2d 1321, 1326-27 (1979), an aggravated robbery case, our supreme court approved a model instruction on unexplained, exclusive possession of property recently stolen.

2015People v. Manzanares, 942 P.2d 1235, 1241 (Colo. App. 1996). 45 In Wells v. People, 197 Colo. 350, 357-58 , 592 P.2d 1321, 1326-27 (1979), an aggravated robbery case, our supreme court approved a model instruction on unexplained, exclusive possession of property recently stolen.

2015People v. Manzanares, 942 P.2d 1235, 1241 (Colo. App. 1996). 45 In Wells v. People, 197 Colo. 350, 357-58 , 592 P.2d 1321, 1326-27 (1979), an aggravated robbery case, our supreme court approved a model instruction on unexplained, exclusive possession of property recently stolen.