reasonable doubt standard in Oregon

2020In making that argument, defendant relies on the harmlessness standard for federal constitutional error set out in Chapman v. California, 386 US 18 , 87 S Ct 824 , 17 L Ed 2d 705 (1967), which requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24 .

2020An error is harmless beyond a reasonable doubt if the reviewing court is satisfied “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 US at 24 .

2026See Burton, 373 Or at 759-60 (observing that a court’s exercise of discretion regarding control of jury argument may be informed by the defendant’s constitutional rights); State v. Chitwood, 370 Or 305, 316-17 , 518 P3d 903 (2022) (concluding that prosecutor’s argument incorrectly characterizing the reasonable doubt standard was improper); State v. Perez, 373 Or 591, 619 , 568 P3d 940 (2025) (Bushong, J., concurring) (explaining that a prosecutor’s comment suggesting that a defendant bears any burden, except where defendant has burden of proving affirmative defense, “undermines the presumption

2026See Burton, 373 Or at 759-60 (observing that a court’s exercise of discretion regarding control of jury argument may be informed by the defendant’s constitutional rights); State v. Chitwood, 370 Or 305, 316-17 , 518 P3d 903 (2022) (concluding that prosecutor’s argument incorrectly characterizing the reasonable doubt standard was improper); State v. Perez, 373 Or 591, 619 , 568 P3d 940 (2025) (Bushong, J., concurring) (explaining that a prosecutor’s comment suggesting that a defendant bears any burden, except where defendant has burden of proving affirmative defense, “undermines the presumption

2025Because the failure to submit a required element of an offense to the jury is a federal constitutional error, “[t]he test ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (quoting Neder v. United States, 527 US 1, 15 , 119 S Ct 1827 , 144 L Ed 2d 35 (1999)).

2025Because the failure to submit a required element of an offense to the jury is a federal constitutional error, “[t]he test ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (quoting Neder v. United States, 527 US 1, 15 , 119 S Ct 1827 , 144 L Ed 2d 35 (1999)).

2022In re Winship, 397 US 358, 363-64 , 90 S Ct 1068 , 25 L Ed 368 (1970); Mahorney v. Wallman, 917 F2d 469, 472 (10th Cir 1990) (describing the reasonable doubt standard as a “constitutionally rooted * * * basic right”); State v. Rosasco, 103 Or 343, 357 , 205 P 290 (1922) (“The presumption of innocence is not a mere form, but a substantial part of the law.”).

2022In re Winship, 397 US 358, 363-64 , 90 S Ct 1068 , 25 L Ed 368 (1970); Mahorney v. Wallman, 917 F2d 469, 472 (10th Cir 1990) (describing the reasonable doubt standard as a “constitutionally rooted * * * basic right”); State v. Rosasco, 103 Or 343, 357 , 205 P 290 (1922) (“The presumption of innocence is not a mere form, but a substantial part of the law.”).

2025See State v. Wyatt, 331 Or 335, 341 , 15 P3d 22 (2000) (stating the general rule that “an issue not preserved in the trial court will not be considered on appeal”); ORAP 5.45(1) (we have discretionary authority to correct “plain” errors).

2025See State v. Wyatt, 331 Or 335, 341 , 15 P3d 22 (2000) (stating the general rule that “an issue not preserved in the trial court will not be considered on appeal”); ORAP 5.45(1) (we have discretionary authority to correct “plain” errors).

2009Sec., 219 Ariz. 331, ¶ 16 , 198 P.3d 1203, 1207 (2009) ("We do not believe that Congress [in enacting ICWA] intended to apply the reasonable doubt standard to state-law findings.").

2009Sec., 219 Ariz 331, ¶ 16, 198 P3d 1203, 1207 (2009) (‘We do not believe that Congress [in enacting ICWA] intended to apply the reasonable doubt standard to state-law findings.”).

2006Reaffirming its decision in Patterson v. New York, 432 US 197 , 97 S Ct 2319 , 53 L Ed 2d 281 (1977), the McMillan Court reasoned that, “[w]hile there are obviously constitutional limits beyond which the States may not go in this regard, the applicability of the reasonable doubt standard * * * has always been dependent on how a State defines the offense that is charged in any given case[.]” 477 US at 85 (internal quotation marks omitted).

2006“Reaffirming its decision in Patterson v. New York, 432 US 197 , 97 S Ct 2319 , 53 L Ed 2d 281 (1977), the McMillan Court reasoned that, ‘[w]hile there are obviously constitutional limits beyond which the States may not go in this regard, the applicability of the reasonable doubt standard * * * has always been dependent on how a State defines the offense that is charged in any given case[.]’ 477 US at 85 (internal quotation marks omitted).

2026Concerning the definition of reasonable doubt specifically, the Supreme Court has held that trial courts are not obligated to give any particular definition, and a reviewing court will find error only if the instruction given affirmatively “misleads the jury to believe that it can convict on a lesser degree of proof than that required.” See State v. Williams, 313 Or 19, 38-39 , 828 P2d 1006 , cert den, 506 US 858 (1992) (“Unless a reasonable doubt instruction misleads the jury to believe that it can convict on a lesser 66 State v. Melling degree of proof than that required, the court will not

2026Concerning the definition of reasonable doubt specifically, the Supreme Court has held that trial courts are not obligated to give any particular definition, and a reviewing court will find error only if the instruction given affirmatively “misleads the jury to believe that it can convict on a lesser degree of proof than that required.” See State v. Williams, 313 Or 19, 38-39 , 828 P2d 1006 , cert den, 506 US 858 (1992) (“Unless a reasonable doubt instruction misleads the jury to believe that it can convict on a lesser 66 State v. Melling degree of proof than that required, the court will not

2024See State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003) (an error is harmless, and thus not a basis for reversal, where there is “little likelihood that the error affected the jury’s verdict”); State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (a federal constitutional error is harmless, and thus not a basis for reversal, if the state proves beyond a reasonable doubt that the error did not contribute to the verdict).2 We are unpersuaded that the error was harmless.

2024See State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003) (an error is harmless, and thus not a basis for reversal, where there is “little likelihood that the error affected the jury’s verdict”); State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (a federal constitutional error is harmless, and thus not a basis for reversal, if the state proves beyond a reasonable doubt that the error did not contribute to the verdict).2 We are unpersuaded that the error was harmless.

2025Because the failure to submit a required element of an offense to the jury is a federal constitutional error, “[t]he test ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (quoting Neder v. United States, 527 US 1, 15 , 119 S Ct 1827 , 144 L Ed 2d 35 (1999)).

2025Because the failure to submit a required element of an offense to the jury is a federal constitutional error, “[t]he test ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023) (quoting Neder v. United States, 527 US 1, 15 , 119 S Ct 1827 , 144 L Ed 2d 35 (1999)).

2018However, "[t]he burden of proof is on the state to prove beyond a reasonable doubt that this defense does not apply." UCrJI 1227; see Oliphant , 347 Or. at 194 , 218 P.3d 1281 (with respect to the defendant's claim of self-defense, the defendant "had a right to have the jury consider the circumstances surrounding the event from his own point of view" because "the burden of proof was on the state to disprove the existence of that defense beyond a reasonable doubt").

2018However, "[t]he burden of proof is on the state to prove beyond a reasonable doubt that this defense does not apply." UCrJI 1227; see Oliphant , 347 Or. at 194 , 218 P.3d 1281 (with respect to the defendant's claim of self-defense, the defendant "had a right to have the jury consider the circumstances surrounding the event from his own point of view" because "the burden of proof was on the state to disprove the existence of that defense beyond a reasonable doubt").

2026Citing State v. Worth, 231 Or App 69, 75-77 , 218 P3d 166 (2009), rev den, 347 Or 718 (2010), defendant argues that that argument undermined and distorted the presumption of innocence and the reasonable doubt standard and was so prejudicial as to be incurable.

2026Citing State v. Worth, 231 Or App 69, 75-77 , 218 P3d 166 (2009), rev den, 347 Or 718 (2010), defendant argues that that argument undermined and distorted the presumption of innocence and the reasonable doubt standard and was so prejudicial as to be incurable.

2026Concerning the definition of reasonable doubt specifically, the Supreme Court has held that trial courts are not obligated to give any particular definition, and a reviewing court will find error only if the instruction given affirmatively “misleads the jury to believe that it can convict on a lesser degree of proof than that required.” See State v. Williams, 313 Or 19, 38-39 , 828 P2d 1006 , cert den, 506 US 858 (1992) (“Unless a reasonable doubt instruction misleads the jury to believe that it can convict on a lesser 66 State v. Melling degree of proof than that required, the court will not

2025The Supreme Court has explained that “[u]nless a reasonable doubt instruction mis- leads the jury to believe that it can convict on a lesser degree of proof than that required, the court will not find error.” State v. Williams, 313 Or 19, 38 , 828 P2d 1006 , cert den, 506 US 858 (1992).

2024State v. Owen, 369 Or 288, 323 , 505 P3d 953 (2022). 1 In State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023), which involved a preserved error, we explained that the failure to submit a required element of the offense is harmless under the federal constitutional standard if the state proves beyond a reasonable doubt that the error did not contribute to the verdict.

2024State v. Owen, 369 Or 288, 323 , 505 P3d 953 (2022). 1 In State v. Perkins, 325 Or App 624, 630-31 , 529 P3d 999 (2023), which involved a preserved error, we explained that the failure to submit a required element of the offense is harmless under the federal constitutional standard if the state proves beyond a reasonable doubt that the error did not contribute to the verdict.

2002See State v. Alexander, 26 Or App 943 , 554 P2d 524 (1976) (holding, under a reasonable doubt standard, evidence insufficient to support commitment where the only evidence about dangerousness to self was that the allegedly mentally ill person once said she would like to be dead and another witness believed there would be a problem with suicide if the person lived alone); cf. State v. Brungard, 101 Or App 67 , 789 P2d 683 , mod on recons 102 Or App 509 (1990), rev den 311 Or 427 (1991) (upholding a commitment based on “rapid” changes to eating and sleeping patterns, intense social isolation, an

2002See State v. Alexander, 26 Or App 943 , 554 P2d 524 (1976) (holding, under a reasonable doubt standard, evidence insufficient to support commitment where the only evidence about dangerousness to self was that the allegedly mentally ill person once said she would like to be dead and another witness believed there would be a problem with suicide if the person lived alone); cf. State v. Brungard, 101 Or App 67 , 789 P2d 683 , mod on recons 102 Or App 509 (1990), rev den 311 Or 427 (1991) (upholding a commitment based on “rapid” changes to eating and sleeping patterns, intense social isolation, an

1998There, however, the court relied on Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990), which was overruled by Victor . [3] For example, if Oregon passed a law that explicitly provided that a criminal defendant may be convicted by a preponderance of the evidence, that would be, per se, a violation of due process because the reasonable doubt standard is a fundamental right.

1998There, however, the court relied on Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990), which was overruled by Victor . [3] For example, if Oregon passed a law that explicitly provided that a criminal defendant may be convicted by a preponderance of the evidence, that would be, per se, a violation of due process because the reasonable doubt standard is a fundamental right.

1992See, e.g., State v. Monk, supra, 199 Or. at 195 , 260 P.2d 474 (although "[p]ossibly nothing was gained by way of clarity through incorporating into the attacked instruction all of its terms," the instruction was nonetheless adequate); State v. Morey, supra, 25 Or. at 259 , 35 P. 655 (upholding a reasonable doubt instruction where the disputed language was "subject to the criticism that it does not define, but needs defining," because the instruction as a whole was not misleading).

1992See, e.g., State v. Monk, supra, 199 Or at 195 (although “[pjossibly nothing was gained by way of clarity through incorporating into the attacked instruction all of its terms,” the instruction was nonetheless adequate); State v. Morey, supra, 25 Or at 259 (upholding a reasonable doubt instruction where the disputed language was “subject to the criticism that it does not define, but needs defining,” because the instruction as a whole was not misleading).

1992See, e.g., State v. Monk, supra, 199 Or. at 195 , 260 P.2d 474 (although "[p]ossibly nothing was gained by way of clarity through incorporating into the attacked instruction all of its terms," the instruction was nonetheless adequate); State v. Morey, supra, 25 Or. at 259 , 35 P. 655 (upholding a reasonable doubt instruction where the disputed language was "subject to the criticism that it does not define, but needs defining," because the instruction as a whole was not misleading).

1992See, e.g., State v. Monk, supra, 199 Or at 195 (although “[pjossibly nothing was gained by way of clarity through incorporating into the attacked instruction all of its terms,” the instruction was nonetheless adequate); State v. Morey, supra, 25 Or at 259 (upholding a reasonable doubt instruction where the disputed language was “subject to the criticism that it does not define, but needs defining,” because the instruction as a whole was not misleading).

1993See, e.g., State v. Robinson, [235 *207 Or 524, 528, 385 P2d 754 (1963)] (‘reasonable doubt’ is a term so commonly known and understood that it requires no embellishment); State of Oregon v. Monk, 199 Or 165, 193 , 260 P2d 474 (1953) (quoting People v. Klein, 305 Ill 141[, 137 NE 145 (1922),] that ‘[t]here is no more lucid definition of the term “reasonable doubt” than the term itself); State v. Morey, [ 25 Or 241, 257 , 35 P 655 (1894)] (reasonable doubt is within the comprehension of every person capable of understanding common English and further definition cannot make it plainer).” In this

1992If the instruction is correct as to the law and is not couched in phraseology which is, by chance, misleading, the court has committed no error in giving [the instruction].” State v. Robinson, supra, 235 Or at 527 Unless a reasonable doubt instruction misleads the jury to believe that it can convict on a lesser degree of proof than that required, the court will not find error.

2026See Burton, 373 Or at 759-60 (observing that a court’s exercise of discretion regarding control of jury argument may be informed by the defendant’s constitutional rights); State v. Chitwood, 370 Or 305, 316-17 , 518 P3d 903 (2022) (concluding that prosecutor’s argument incorrectly characterizing the reasonable doubt standard was improper); State v. Perez, 373 Or 591, 619 , 568 P3d 940 (2025) (Bushong, J., concurring) (explaining that a prosecutor’s comment suggesting that a defendant bears any burden, except where defendant has burden of proving affirmative defense, “undermines the presumption