CBA Record November 2015

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Pro Bono Support
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connect you to meaningful pro bono volunteer
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Increasing Energy &Managing Stress:Join
the Alliance for a December committeemeeting
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Alliance for Women Holiday Gift Card
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donations are for small denomination cards from
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Angie Cruz, The Chicago Bar Association, 321 S.
Plymouth Court, Chicago, IL 60604.
34 NOVEMBER 2015
contended that at some point a judge
must step in when a jury expresses a basic
misunderstanding of the reasonable doubt
standard. He illustrated his point with
a hypothetical jury question, asking a
judge, “What is your definition of reason-
able doubt? Can we flip a coin?” People v.
Downs, 2015 IL 117934, oral argument
(see
on_demand.asp).
The Court did not address the hypo-
thetical during oral argument or in its opin-
ion. But until the Court says otherwise, it
appears a safe bet that every jury inquiry
about reasonable doubt will be answered
in the manner approved in Downs: “We
cannot give you a definition of reasonable
doubt; it is your duty to decide.”
Raymond J. McKoski, is a retired Lake
County, Illinois, Circuit Judge and currently
serves as an adjunct professor at The John
Marshall Law School.
own definition would lead the jury down
the erroneous path of defining reasonable
doubt in terms of percentages–and low
percentages at that.
The Court answered the appellate court’s
concern in two ways. First, trial and review-
ing courts should avoid “attempting to
divine anything about the jury deliberative
process” from questions about reasonable
doubt. Second, if the trial judge told the
jury that reasonable doubt is not defined in
terms of percentages, that response would
have, in effect, impermissibly provided a
definition of reasonable doubt.” People v.
Downs, 2015 IL 117934, ¶¶ 29-31.
The message sent by the Illinois Supreme
Court in Downs is unmistakable. Neither
judges nor attorneys should attempt to
define, explain, or illustrate the concept
of reasonable doubt in jury instructions,
in voir dire, in answer to jury questions,
or during any other part of a trial.
During oral argument in Downs, the
defendant’s attorney, Jeffrey B. Kirkham,