¶21 (dissenting) — Despite forbidding our trial courts from using the Castle12 instruction to define “reasonable doubt,” the majority incongruously affirms Bruce Bennett’s conviction, claiming the deficient instruction did not violate his due process rights. I disagree. If a reasonable doubt instruction is so lacking in its description of the burden of proof that we disavow its use, then surely we cannot be convinced the jury properly understood the concept of reasonable doubt. Without that assurance, we must reverse Bennett’s conviction and remand for a new trial with a properly instructed jury.
Sanders, J.*319¶22 The presumption of innocence is the most fundamental aspect of our criminal justice system. This presumption cannot be overcome unless the State proves beyond a reasonable doubt a defendant is guilty. But reasonable doubt is an esoteric concept, not always well understood by lawyers and judges, let alone by a lay jury, without competent instruction. The United States Supreme Court recognizes the integral importance of reasonable doubt and has held if the State is relieved of its burden because the court failed to properly instruct as to reasonable doubt, then this is structural error and requires reversal. Sullivan v. Louisiana, 508 U.S. 275, 280-81, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). Without assurance the jury properly understood the burden of proof, the entire framework of the trial is affected:
But the essential connection to a “beyond a reasonable doubt” factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings. A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, “the wrong entity judge [s] the defendant guilty.”
Id. at 281 (alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)).
¶23 Our pattern jury instruction is clear: “ ‘A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence.’ ” Majority at 308 (quoting 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 79 (2d ed. Supp. 2005). The Castle instruction begins in a similar fashion but then adds additional qualifiers that clearly lower the State’s burden:
“There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on *320your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.”
Majority at 309 (quoting Clerk’s Papers at 27) (emphasis omitted). This instruction clearly suggests a lower standard than our pattern jury instruction. Here the trial court discussed how the State did not have to overcome “every possible doubt” or, most distressing, how a juror must think there is a “real possibility’ the defendant is not guilty in order to have reasonable doubt. This instruction lowers the standard of proof from any “doubt as would exist in the mind of a reasonable person” to a “real possibility” Bennett was not guilty.
¶24 The majority relies on a United States Supreme Court case to claim the instruction is not constitutionally deficient. Majority at 317. But while the instructions given in Victor v. Nebraska, 511 U.S. 1, 16, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), were similar, the Court was careful to note any ambiguities were cured because of the context of the instruction as a whole. Concerned about whether the jury would misunderstand the phrases “moral certainty” and “moral evidence,” the Court said, “[b]ut the moral certainty language cannot be sequestered from its sur-roundings____The instruction thus explicitly told the jurors that their conclusion had to be based on the evidence in the case. Other instructions reinforced this message.” Id..; see id. at 5 (noting “ ‘taken as a whole, the instructions [must] correctly conve [y] the concept of reasonable doubt to the jury’ ” (alterations in original) (quoting Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 99 L. Ed. 150 (1954))); id. at 20 (“Any ambiguity, however, is removed by reading the phrase in the context of the sentence in which it appears .. . .”). Here, there is no curative context to save Bennett’s instruction. The inappropriate language was not clarified by another part of the instruction; the jury could not be expected to develop a better understanding of rea*321sonable doubt when the entire explanatory portion of the instruction was faulty.
¶25 Rather, the facts before us are more similar to Cage v. Louisiana where “jurors were simply told that they had to be morally certain of the defendant’s guilt; there was nothing else in the instruction to lend meaning to the phrase.” Victor, 511 U.S. at 16 (discussing the Court’s holding in Cage v. Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (per curiam)). In Cage, the Court held:
It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard. . . . [I]t [is] clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.
Cage, 498 U.S. at 41. Here too it is plain that telling a jury they must find a “real possibility” Bennett is not guilty suggests a higher degree of doubt than is required for acquittal under the reasonable doubt standard. And unlike the instruction in Victor, these sentences form the bulwark of the instruction; no other explanations or clarifications were rendered. In other words, we cannot look to the instruction’s context because these ambiguous and misleading statements are the instruction’s context — in its entirety
¶26 The majority both recognizes the fault of this instruction and the immense import of the reasonable doubt standard.
The presumption of innocence is the bedrock upon which the criminal justice system stands. The reasonable doubt instruction defines the presumption of innocence. The presumption of innocence can be diluted and even washed away if reasonable doubt is defined so as to be illusive or too difficult to achieve.
Majority at 315-16. But the majority fails to apply these eloquent words to reach a just result. Despite admitting this instruction is “problematic” and exercising its supervi*322sory power not to use the Castle instruction, id. at 317, the majority somehow holds the Castle instruction still meets Bennett’s minimum due process rights. Specifically the majority says, “While the instruction may meet constitutional muster, it does not mean that it is a good or even desirable instruction.” Id. at 315. But in the context of a criminal trial, passing constitutional muster must be synonymous with a reasonable doubt instruction that both correctly and clearly explains the concept. Anything less than that and we cannot be sure the jury properly understood or applied the right standard, and therefore we cannot be sure the presumption of innocence, “the bedrock upon which the criminal justice system stands,” was overcome. Majority at 315.
¶27 “[T]he presumption of innocence is simply too fundamental, too central to the core of the foundation of our justice system not to require adherence to a clear, simple, accepted, and uniform instruction.” Id. at 317-18. Clearly, the Castle instruction given at Bennett’s trial was not such an instruction. It lowered the State’s burden of proof by equating a reasonable doubt with a “real possibility” of innocence. Because of the gravity of the proceeding and the importance of our reasonable doubt standard, Bennett’s conviction should be reversed.
¶28 I dissent.
Alexander, C.J., and C. Johnson and Madsen, JJ., concur with Sanders, J.
State v. Castle, 86 Wn. App. 48, 935 P.2d 656 (1997).