dissenting.
The appellate courts of this state must at long last tell this recalcitrant trial judge, who appears to be the only trial judge in Arizona to follow this practice, that the procedure she insists upon utilizing results in reversible error.
This is at least the fifth time in the last eight years that appellate courts have been required to review and comment on the practice of refusing to reinstruct juries in criminal cases after the close of evidence on basic legal principles that must guide the jury in performing its duties. A review of this frustrating appellate exercise is in order.
This practice was first subject to published appellate review in State v. Marquez, 135 Ariz. 316, 660 P.2d 1243 (App.1983). In *571that case, defense counsel objected to the trial court’s failure to reinstruct the jury after the close of all the evidence and argument of counsel. The trial court overruled the objection. This court held that the refusal to reinstruct the jury on reasonable doubt was reversible error and commented:
In order that there be no further confusion, we hold that the preliminary instruction of the jury, authorized by Rule 18.6(c), Rules of Criminal Procedure, is for the purpose of preparing the jury for the trial and constitutes an orientation process by which the jury is made to understand its duties and responsibilities. Where elementary legal principles that will govern the proceedings are given to the jury as a part of the orientation, the trial judge must repeat all such legal principles in its charge to the jury, where such legal principles include matters of law vital to the rights of a defendant.
Id. at 322, 660 P.2d at 1249.
The following year, in State v. Jackson, 139 Ariz. 213, 677 P.2d 1321 (App.1984), we again reviewed this practice, but in the context of defense counsel’s failure to object to the procedure. We held that, “[Wjhile it is error not to reinstruct the jury at the end of the trial on the state’s burden of proof, it was not reversible error under the circumstances of this case.” Id. at 217, 677 P.2d at 1325.
In 1984, the Arizona Supreme Court examined the practice of not reinstructing at the close of evidence in State v. Kinkade, 140 Ariz. 91, 680 P.2d 801 (1984). Again, counsel had failed to object, and, under the circumstances of that case, the court held:
It does not appear that the failure to reread this instruction affected the jury’s understanding of the burden of proof placed on the state. Though we think it would avoid error for trial courts to repeat the reasonable doubt and other instructions at the end of the case, in this specific set of facts we do not find fundamental error.
Id. at 94-95, 680 P.2d at 804-05 (emphasis added).
In State v. Jackson, 144 Ariz. 53, 695 P.2d 742 (1985), although again finding this practice error, but harmless, the Arizona Supreme Court commented:
We granted the petition for review to reaffirm in a published opinion, for the guidance of all judges in the state, our position that certain basic instructions, including a reasonable doubt instruction, must be given by the court following closing arguments even though the jury had been previously instructed prior to the receipt of evidence.
Id. at 54, 695 P.2d at 743.
Here we are again, eight years after Marquez, still expending judicial resources, monies, and energies, reviewing a discredited, criticized, and in my opinion, fundamentally unfair practice. I realize that, under certain circumstances, the practice has been held by our supreme court to constitute harmless error rather than reversible error. The reasons advanced for this position are set forth in the majority opinion: (1) the trial is not lengthy, (2) the jury is given proper reasonable doubt instruction when trial begins, (3) counsel reminds the jury of the state’s burden in closing arguments, and (4) the jury is provided with a written copy of the instructions for review during deliberations. In the hope that the supreme court will revisit this issue, I offer the following observations.
First, an argument can be made that the preparatory instructions are given at a time in the trial when jurors do not realize the legal significance of the information they are receiving. The responsibility they are undertaking, that is, the final determination of guilt or innocence based on the evidence, has not yet been brought home to them. Retention of legal instructions during this “settling in” period is doubtful. Thus, I would argue that the length of the trial is immaterial.1
*572Second, the majority’s position assumes that counsel will inform the jury during closing arguments of the reasonable doubt burden borne by the state. However, in the same instruction given at the beginning of trial, which is supposed to comply with the fundamental right to have the jury instructed on reasonable doubt, the jury is also informed: “Arguments, statement and comments of counsel are not evidence ... you are to disregard any comment which has no basis in the evidence.” (Emphasis in the written instruction submitted to the jury in this case.) Which concept do jurors best remember: the concept of reasonable doubt, or the admonition that they are to disregard the arguments of counsel as evidence?
Finally, while the mandatory practice of allowing the written instructions to be taken into the jury room is desirable, there is no evidence that in those cases where no follow-up instructions are given, the jury in fact reviews those written instructions.
In short, the supposition that it is harmless error to fail to instruct jurors at a time when the full weight of their responsibilities are upon them is based upon unproven speculation. Guilt or innocence should not rest upon such a frail foundation. I would therefore argue that fundamental, reversible error occurs in failing to reinstruct the jury on reasonable doubt without further consideration.
But in this case there is more. After failing to give a proper instruction on reasonable doubt at the close of evidence and argument, the trial judge compounded the error by giving an instruction that was clearly improper. In closing instructions, this jury heard from the judge, who is supposed to know the law, that “your decision of guilty or not guilty must be based upon your conviction beyond a reasonable doubt.” This is a misstatement of the law and erroneously shifts the burden to defendant to prove his innocence. The majority again contends this is harmless based upon the correct statement of reasonable doubt given at the beginning of the trial. I have adequately rejected the supposition that the jury remembered this correct instruction. Rather, I presume the jury remembered the more recent incorrect instruction, which cast upon defendant the impermissible burden of proving his innocence beyond a reasonable doubt.
I would reverse.
. The majority rationale assumes that information recently conveyed is more readily retrievable. I would argue, with at least the same amount of empirical data (none), that pretrial jury “jitters" make the average juror remember little of preparatory information, especially complex concepts such as reasonable doubt.