dissenting.
As the majority notes, “[tjoday we again reaffirm the holding in [State v.] Cotton, [100 Idaho 573, 577, 602 P.2d 71, 75 (1979) ] that the only appropriate instruction on reasonable doubt is the California jury instruction.” It should be remembered, however, that the adoption of the California reasonable doubt instruction in Cotton was not at all unanimous.
Chief Justice Bakes, at that time an Associate Justice of the Court, specially concurred in Cotton, writing what this one member of the Court viewed as being more of a dissent than it was a concurrence:
I question, however, ... the Court’s carte blanche approval of the California jury instruction____ That instruction has its own problems. As an example, the instruction states that everything relating to human affairs, and depending on ‘moral evidence,’ is open to some possible or imaginary doubt. I have always thought that the use of word ‘moral’ in that part of the instruction was a typographical error which had been blindly perpetuated throughout the years. I was surprised to find the phrase ‘moral evidence’ defined in Black’s Law Dictionary (5th ed.), p. 909, as:
‘As opposed to “mathematical” or “demonstrative” evidence, this term denotes that kind of evidence which, without developing an absolute and necessary certainty, generates a high degree of probability or persuasive force. It is founded on analogy or induction, experience of the ordinary course of nature, and the testimony of men.’
We do not instruct the jury on the definition of ‘moral evidence’ and it is well we don’t; otherwise the jury might conclude that a reasonable doubt can be raised by ‘moral evidence’ and not by other kinds, i.e., ‘mathematical’ or ‘demonstrative’ evidence. If we are going to adopt the California jury instruction in Idaho, we ought to excise the word ‘moral’ in front of the word ‘evidence.’
The instruction then goes on to advise the jury that there is a reasonable doubt if the evidence ‘leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction, to a “moral certainty, of the truth of the charge.” ’ There is certainly a question whether the jury is any better informed by equating a lack of reasonable doubt with ‘an abiding conviction, to a moral certainty, of the truth of the charge,’ as the California jury instruction provides, rather than by defining reasonable doubt as ‘the same kind of doubt interposed in the graver transactions of life [which] would cause a reasonable and prudent man to hesitate and pause,’ as the trial court instructed in this case.
It is problematic whether a jury would be helped any more by giving one than the other, and it may well be that the words themselves, ‘reasonable doubt,’ have a clearer meaning than the definition set out in either instruction. This no doubt accounts for those cases [cited by the majority], which state that either it is error for a trial judge to attempt to define reasonable doubt, or that it is not error to fail to define the term. As the Wyoming Supreme Court recently observed:
‘[T]he term “reasonable doubt” need not be defined and a trial court would be well-advised to avoid instructions on reasonable doubt. Therefore an in*84struction purporting to define reasonable doubt should not be given.
‘We again reviewed the matter of giving a reasonable doubt instruction in Bentley v. State, Wyo., 502 P.2d 203, 206. In that case we said the phrase “reasonable doubt” is self explanatory and definitions do not clarify its meaning but rather tend to confuse the jury.’ Cosco v. State, 521 P.2d 1345, 1346 (Wyo.1974).
Cotton, 100 Idaho at 579-80, 602 P.2d at 77-78.
Another member of that Court, (Bistline, J., specially concurring) observed:
On the one hand we have the Court holding that it was error for the trial court to refuse defendant’s instruction on reasonable doubt, the Court having in the year 1970 given that instruction the stamp of approval. On the other hand we have one member of the Court casting doubt on that instruction. There is much to what Justice Bakes writes. ‘Beyond a reasonable doubt’ may be sufficient without further explanation and attempts at further refinements to the definition may cause confusion where perhaps none existed.
It does seem that, the question having been raised by Justice Bakes, some further discussion by the Court might have been in order. Frankly, as with Justice Bakes, I do not see much in the California jury instruction to commend it. Sitting as the new member of a court which has allowed itself to become deeply involved in the making of rules, some of which I fear transcend into the substantive law, it seems that we could take time to delve more deeply into the validity of the instruction now brought in question.
Criticism of the California instruction means little, however, unless it is constructive. Accordingly, I offer up for semantic dissection the following suggested instruction on reasonable doubt:
‘The law gives a defendant in a criminal action a presumption of innocence which presumption remains with the defendant throughout the trial. The law places upon the State the burden of proving the defendant guilty. This is not the burden of proving that the defendant is more likely guilty than innocent, but requires that the evidence presented prove the defendant’s guilt beyond a reasonable doubt. Doubt is a word of common usage and needs no further definition. A reasonable doubt is simply a doubt which you would entertain because it is reasonable. If, however, to you the doubt is not reasonable, then you will not entertain it, but cast it out.’
‘Beyond is equally a word of common usage. Hence you are simply instructed that the evidence presented must convince you at least beyond a reasonable doubt that the defendant is guilty. In reaching a verdict you should be mindful that “beyond a reasonable doubt” is the same quality of proof which you would want required were you a defendant charged with a crime.’
Cotton, 100 Idaho at 580, 602 P.2d at 78 (Bistline, J., concurring specially).
The words of Justice Bakes were well chosen then and are still applicable. The California instruction is confusing and, in all likelihood, unnecessary. Here, however, the majority starts from the erroneous assumption that the two paragraph California instruction so clearly informs the jury as to the law that the additional of two more perplexing paragraphs “was not so confusing and argumentative as to mislead the jury.” That is like saying four swift kicks to the head cause no more confusion than just two.
In fact, the instruction here furnished to the Rhoades jury is nothing more than a compilation of vague terms one piled upon another. Reasonable doubt, in one part of the instruction, is not “mere possible doubt” or an “imaginary doubt.” Rather it is “an abiding belief, to a moral certainty,” “an actual doubt,” “an actual doubt based upon the evidence or lack of evidence,” “such doubt as you are conscious of after going over in your minds the entire case,” and it is the “uncertain” and “not fully convinced” feeling, and the belief that *85would cause a reasonable man (but not woman) to hesitate to act. One worry is that ordinarily reasonable persons performing jury duty on seeing such an abundance of “doubt” may well turn into twelve doubting Thomases. Conversely, the ill-conceived attempt to define what constitutes reasonable doubt could cause the jury to actually lower the state’s burden of proof. It is impossible to conclude that the above compilation of ambiguous terms served any purpose other than to confuse the jury.
Moreover, the “moral certainty” language of the instruction has been criticized on high for denigrating the requirement of “evidentiary certainty,” mandated by the due process clause of the fourteenth amendment. The United States Supreme Court wrote in Cage v. Louisiana, — U.S. -, 111 S.Ct. 328, 330, 112 L.Ed.2d 339 (1990):
When those statements [requiring ‘substantial doubt’ and ‘grave uncertainty’] are then considered with the reference to ‘moral certainty’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that was required by the Due Process Clause.
In light of these considerations of the instruction as given, there is now one justice’s certain vote that the better and proper course would be to reverse and remand for a new trial, where, hopefully, an improved instruction, if one is to be given, would be of some aid to the jury.