Burden of Proof

The following instructions explain the various burdens of proof that may be applicable in a criminal trial.

CR04-021.  Proof of Essential Elements (06/02/03).  This instruction, or one like it, is appropriately included after the substantive instructions on the elements of the charge.  The court must instruct the jury that one of the possible verdicts is that the defendant is not guilty of any crime.  See State v. Camley, 140 Vt. 483 (1981) (plain error found where judge failed to list a general not guilty verdict along with the other possibilities).

CR04-041.  Separate Counts (07/28/03).  In a complicated case, this instruction may help to emphasize that multiple counts must be considered separately.  In most cases, it will help to tailor the instruction to the circumstances.

CR04-051.  Multiple Defendants (09/18/20).  This instruction, which derives from the jury instructions given in State v. White, Nos. 661/662-6-16 Rdcr (Zonay, J.), aims to prevent guilt by association in cases involving more than one defendant. The bracketed language applies when there is evidence admitted against one defendant but not the other.

CR04-061.  Presumption of Innocence (01/10/05).  The Vermont Supreme Court discussed the presumption of innocence in State v. Duff, 150 Vt. 329 (1988), and clarified the doctrine in State v. Powell, 158 Vt. 280 (1992).  The presumption of innocence is a piece of evidence which the jury should consider in the defendant’s favor.  It works in two ways, as a presumption with regard to each essential element, and as a presumption with regard to the degree of offense.  However, “[a]s long as a court specifically instructs the jury as to each offense charged that it must not convict unless it is convinced of the defendant’s guilt beyond a reasonable doubt, the ‘reasonable doubt between offenses’ instruction is not required.”  Id. at 286.  While the trial court should instruct on the presumption of innocence both preliminarily and in its final instructions, the failure to repeat this instruction as part of the final instructions by itself does not necessarily constitute reversible error. See State v. Redmond, 2020 VT 36, ¶¶ 41–49, 212 Vt. 242. 

CR04-081.  Unanimous Verdict (07/25/02).  This instruction addresses a potential problem with jury unanimity.  The problem may appear in various forms.  For examples, see Woodmansee v. Stoneman, 133 Vt. 449 (1975), where the jury was presented with two separate theories of accomplice liability, and State v. Couture, 146 Vt. 268 (1985), where the jury was told it could convict the defendant of kidnapping, for confining any one of five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person.

The problem appeared again when the State introduced evidence of three separate sexual acts in support of one count of sexual assault.  State v. Martel, 164 Vt. 501 (1995).  The court instructed the jury that each juror had to agree as to which of the three sexual acts constituted the “sexual act” element of the crime, and that they would have to look to the evidence of that individual act in order to convict.  The defendant was convicted of sexual assault, and the Supreme Court affirmed, noting that the instruction eliminated much of the potential prejudice that had existed because of the absence of an election.  Id. at 504.

The instruction on jury unanimity, CR04-081, represents an attempt to deal with the Couture problem by giving an instruction.  It is still preferable for the State to make an election.  If the instruction is used, it should be tailored to fit the circumstances of the case.

The instructions on accomplice liability, CR09-301 and -305, comply with the constitutional requirement of jury unanimity.  The State may prove that the defendant committed the crime either as an accomplice or as the principal actor.  State v. Green, 2006 VT 64, 180 Vt. 544.  The jury must still reach a unanimous verdict on the essential elements of the crime. 

For further, more recent discussion of juror unanimity instructions, see State v. Nicholas, 2016 VT 92, ¶¶ 25, 28 n.6, 203 Vt. 1; State v. Albarelli, 2016 VT 119, ¶¶ 25-30, 203 Vt. 551; State v. Robitille, 2019 VT 36, ¶¶ 47–50, 210 Vt. 202; State v. Redmond, 2020 VT 36, ¶¶ 25–34, 40, 212 Vt. 242; State v. Blanchard, 2021 VT 13, ¶ 34.

CR04-101.  Proof Beyond a Reasonable Doubt (05/25/05).  In a criminal case, the state must prove each of the essential elements of the offense beyond a reasonable doubt.  State v. Derouchie, 140 Vt. 437, 442 (1981) (citing In re Winship, 397 U.S. 358, 364 (1970)).  When describing the standard of proof beyond a reasonable doubt, brevity is a virtue.  State v. Francis, 151 Vt. 296 (1989).  Unless there is a request for elaboration, the instruction should be brief, and the words will carry their plain meaning.  State v. McMahon, 158 Vt. 640 (1992); see also State v. Redmond, 2020 VT 36, ¶ 39, 212 Vt. 242 (“we have recognized that ‘attempting to define reasonable doubt is a hazardous undertaking,’ and we ‘discourage trial judges from trying such an explanation.’”) (quoting State v. Levitt, 2016 VT 60, ¶ 14, 202 Vt. 193).  The jury’s role is to determine whether the state has proven the charge beyond a reasonable doubt.  The instruction tells the jury that, if the jury has a reasonable doubt, then it must find the defendant not guilty even if it thinks that the charge is probably true.  State v. Giroux, 151 Vt. 361, 365 (1989).

In 2005, the committee modified its instruction in two ways: First, the instruction was redrafted to avoid using the phrase “(Def)__________’s guilt,” which might suggest that he or she is in fact guilty.  Second, it was simplified by eliminating the word “real” from the sentence that begins, “A reasonable doubt is a real doubt based on reason . . .”  This change responds to a suggestion in State v. Carr, No. 2004-304 (Vt. April 2005) (unpub. mem.).  The Court approved the instruction on reasonable doubt, but suggested that it would be better to avoid using the word “real.”

The last sentence of the instruction states that if the jury is convinced of the defendant’s guilt beyond a reasonable doubt, then it must find the defendant guilty.  The committee rejected suggestions that the jury be told it should find the defendant guilty, or that it may find the defendant guilty.  Vermont follows the majority rule that jurors are not given instructions on jury nullification.  State v. Findlay, 171 Vt. 594 (2000).  Jurors are told that they must apply the law as it is given to them in the instructions.

There may be circumstances where the jury should acquit even where the state has proven the essential elements beyond a reasonable doubt, such as where the defendant proves the elements of an affirmative defense.  That issue is dealt with in the instructions concerning the affirmative defense.  The jury will be told that if the defendant proves the elements of an affirmative defense by a preponderance of the evidence, then the jury must find the defendant not guilty 

CR04-121.  Proof by a Preponderance of the Evidence (07/29/05).  This instruction applies to issues that are to be decided by a preponderance of the evidence.  In most cases, it should suffice to instruct that proof by a preponderance of the evidence means that the defense is more likely true than not true, and that this burden of proof is less than the burden of proof beyond a reasonable doubt.  The instruction also includes a paragraph analogizing this burden to a balance scale, for use when the judge believes the analogy would help with the explanation.

CR04-151.  Burden of Proof on Self-Defense (06/09/03).  “Once evidence raising the issue of self-defense appears in the case, the burden is on the State to prove, beyond a reasonable doubt, that appellant’s actions were not in self-defense.”  State v. Bartlett, 136 Vt. 142, 144 (1978) (assault context).  In a homicide case, the State’s burden of proving that the killing was unlawful may also require proof beyond a reasonable doubt that the defendant did not act in self-defense.  State v. Rounds, 104 Vt. 442, 450-51 (1932).

CR04-201.  Burden of Proof on Affirmative Defense (By Preponderance of the Evidence) (06/09/03).  This instruction provides a framework for introducing a defense to the jury.  When an affirmative defense is presented, the defendant bears the burden of proving it by a preponderance of the evidence.  The court need not tell the jury that the defense is an “affirmative” defense.