dissenting.
Because I believe that the instruction defining reasonable doubt used in the guilt-acquittal phase of defendant’s capital case violated statutory law, the Oregon Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and that such error requires reversal of all of defendant’s convictions, I would remand the case to the circuit court for a new trial.
*46Defendant was convicted of four counts of aggravated murder, involving two women, and of other felonies, see 313 Or at 22, and was sentenced to death. In the guilt-acquittal phase of defendant’s trial, the jury was instructed that the prosecution had the burden of proving guilt beyond a reasonable doubt. In its instruction defining reasonable doubt, the court used the phrase “moral certainty,” and the last sentence of that instruction stated: “Reasonable doubt, though, is not every doubt, because everything depending upon moral evidence is open to some possible or imaginary doubt.” (Emphasis added.)
Neither the phrase “moral certainty” nor the term “moral evidence” was defined to the jury. Defendant excepted both to the last sentence of the instruction and to the use of the phrase “moral certainty” earlier in the instruction.
Defendant argues, in essence, that the use of the challenged instruction defining reasonable doubt is prejudicial error because it allowed the jury to base its verdict on moral standards or considerations (or, as the majority states, on “the perceived moral reprehensibility of defendant,” 313 Or at 35, rather than on a dispassionate weighing of the evidence to determine whether the state has proved its case.1 Defendant asserts that a reasonable juror could have interpreted the disputed instruction to permit a finding of guilt on a level of persuasion less than is required by the reasonable doubt standard under state law and the Due Process Clause of the Fourteenth Amendment to the federal constitution.
STATUTORY AND OREGON CONSTITUTIONAL CLAIMS
I shall first consider defendant’s argument based on statutory law and the Oregon Constitution. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim.”). Both Oregon statutory law and the Oregon Constitution *47protect an accused against conviction of a crime except on proof beyond a reasonable doubt. ORS 136.415 provides that ‘ ‘ [a] defendant in a criminal action is presumed tobe innocent until the contrary is proved” and that “[i]n case of a reasonable doubt whether the guilt of the defendant is satisfactorily shown, the defendant is entitled to be acquitted.” ORS 10.095(6) provides that “on all proper occasions,” a trial court should instruct the jury that ‘ ‘in criminal cases a person is innocent of a crime or wrong until the prosecution proves otherwise, and guilt shall be established beyond reasonable doubt.”
In State v. Arenas, 253 Or 215, 217, 453 P2d 915 (1969), this court noted that an adult charged with a crime has a right under then ORS 136.520, now ORS 136.415, “to be found guilty only if the fact finder finds beyond a reasonable doubt that the defendant committed the act charged.” “[S]uch right, [although] not specifically stated in [the Oregon] [C]onstitution[,]” said the court, “is [also] one inherent in the Due Process Clause of both [the state and federal] constitutions.” Id. In later cases, however, this court noted that the phrase “due process” does not appear in the Oregon Constitution, State v. Clark, 291 Or 231, 235 n 4, 630 P2d 810 (1981),2 and that no Oregon constitutional text expressly requires proof beyond a reasonable doubt for a finding of guilt of a crime. State v. Thomas, 311 Or 182, 184, 806 P2d 689 (1991).3
*48Nevertheless, the right not to be convicted of a crime except on proof beyond a reasonable doubt is a right protected by Article I, section 33, of the Oregon Constitution.4 In order to be an Article I, section 33 right, three elements must exist. First, the right must be one that no other Oregon constitutional provision affirmatively addresses. Second, the right must be shown to have been recognized at least in general terms to exist at the time Oregon became a state. Third, the right must be one that the people of Oregon’s founding generation would have considered of constitutional magnitude between government and people, “that is to say, rights specifically against government and ‘so rooted as to be fundamental.’ ” State v. Burrow, 293 Or 691, 713, 653 P2d 226 (1982) (Linde, J., dissenting).
Those three elements exist with respect to the right not to be convicted of a crime except on proof beyond a reasonable doubt. First, no Oregon constitutional provision affirmatively addresses that right. State v. Thomas, supra, 311 Or at 184. Second, it is a right that existed at the time Oregon became a state. See id. at 185 (right to require proof beyond a reasonable doubt for conviction of crime existed before Oregon became a territory or a state).5 Finally, the *49right to require proof beyond a reasonable doubt is of constitutional magnitude between government and people. It is a right that deals directly with the confrontation of government and individuals in an adversary context. In that confrontation, the prosecution’s burden to prove guilt beyond a reasonable doubt represents the degree of confidence that our society thinks that a factfinder must have in the correctness of his or her factual conclusions in a criminal case. The high standard of proof is necessary to ensure against unjust convictions by giving substance to the presumption of innocence.
The prosecution’s burden to prove guilt beyond a reasonable doubt “rank[s] high among those distinctions that are commonly boasted to place our system of justice above those of supposedly less enlightened nations, including some in which a defendant perhaps may be haled before a court, confronted with some modicum of incriminating evidence, and invited to persuade the tribunal that he [or she] has not committed a crime.” State v. Burrow, supra, 293 Or at 714 (Linde, J., dissenting). “[T]he reasonable doubt instruction more than any other is central in preventing the conviction of the innocent.” People v. Brigham, 25 Cal 3d 283, 157 Cal Rptr 905, 599 P2d 100, 104 (1979).
The reasonable doubt standard “plays a vital role in the American scheme of criminal procedure.” In re Winship, 397 US 358, 363, 90 S Ct 1068, 25 L Ed 2d 368 (1970). In his concurring opinion in In re Winship, supra, 397 US at 372, Justice Harlan stated that the reasonable doubt standard is based on a “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
Thus, under both Oregon statutory and constitutional law, defendant’s convictions must have been based on proof beyond a reasonable doubt. The reasonable doubt instruction used in the guilt-acquittal phase of defendant’s trial stated:
“The defendant is innocent unless and until the defendant is proved guilty beyond a reasonable doubt.
“The burden is upon the State to prove the guilt of the defendant beyond a reasonable doubt as to each charged offense or lesser included offense. The defendant has no burden of proof except as to an affirmative defense.
*50“ ‘Reasonable doubt’ means an honest uncertainty as to the guilt of the defendant. It is based on common sense and reason. Reasonable doubt exists when, after careful and impartial consideration of all the evidence in the case, you do not feel convinced to a moral certainty that the defendant is guilty. Proof beyond a reasonable doubt is such as you would be willing to act upon in the most important of your own affairs. Reasonable doubt, though, is not every doubt, because everything depending upon moral evidence is open to some possible or imaginary doubt.” (Emphasis added.)
In construing the instruction defining reasonable doubt in this case, the question is not what this court declares the meaning of the instruction to be. Moreover, the fact that jurors could have interpreted the instruction so as to make it lawful is irrelevant, for we cannot be certain that this is what they did do. Rather, the standard of review in determining whether giving the instruction defining reasonable doubt was error is whether a reasonable juror could have interpreted the instruction to allow either a finding of guilt based on moral standards or considerations, rather than a dispassionate weighing of the evidence to determine guilt or innocence, or a finding of guilt on a degree of proof below that required by statutory law and the Oregon Constitution.
It appears that both the concept of “moral certainty’ ’ and the challenged language in the last sentence of the instruction, including the use of the phrase “moral evidence,” was uniform by the mid-1800s as expressed by language found in Chief Justice Shaw’s “beyond reasonable doubt” instruction in Commonwealth v. Webster, 59 Mass (5 Cush) 295, 320 (1850). Shapiro, “To a Moral Certainty ”: Theories of Knowledge and Anglo-American Juries 1600-1850, 38 Hastings LJ 153, 174-75 (1986).
The last sentence of the instruction tells the jury what is not a reasonable doubt. The jury was told that “Reasonable doubt * * * is not every doubt, because everything depending upon moral evidence is open to some possible or imaginary doubt.” (Emphasis added.) Before hearing this language, the jury was told that there are two kinds of evidence, direct evidence and circumstantial evidence, and that they could base their verdict on either direct evidence, or *51circumstantial evidence, or both.6 The joy was told what each of those types of evidence means. However, on hearing the instruction defining reasonable doubt, the jury was told that there is a third kind of evidence, moral evidence. The jury was not told what moral evidence is. Similar language — “everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt” — was included in an instruction which formed the basis for an appeal to the California Supreme Court in People v. Brigham, supra, 599 P2d at 104 n 9.7 As Justice Mosk stated in his concurring opinion in that case:
“Upon hearing this a contemporary juror might well ask himself, ‘What in the world is moral evidence? Is it different from direct evidence and circumstantial evidence? If so, how? Different in quality? In quantity? Are there three kinds of evidence: Moral, direct, circumstantial? What kind is “moral”? The dictionary synonyms are “pure, righteous, upright.” The antonyms are “immoral, vicious, sinful, depraved.” It simply makes no sense to speak of “pure evidence” or “righteous evidence” or “upright evidence” or “non-sinful evidence.” Is the phrase just an ancient typographical error with the intended term being “mortal evidence,” meaning evidence that man (transient and fallible) *52provides?’ (Fns. omitted.) (Sinetar, A Belated Look at CAL-JIC (1968) 43 State Bar J 546, 553-554 ***.)*** ‘A juror listening to the phrase “moral evidence” is certain to be confused.’ [Id. at 554.]
“He [or she] is confused, of course, because the phrase ‘moral evidence’ has no currency in this last quarter of the 20th century. Indeed, while its meaning may have been known to legal scholars in 1850, it does not appear to have been understood by laypersons even at that time. We may so infer from the fact that in the same instructions in which Chief Justice Shaw propounded his definition of reasonable doubt, he also found it necessary to explain to the jurors at great length what he meant by ‘moral evidence. ’ According to this explanation, ‘moral evidence’ was to be distinguished from ‘physical evidence’; the latter served to prove external facts such as cause of death or identity of the criminal, and could be ‘so decisive as to leave no doubt; as where human footprints are found on the snow,... the conclusion is certain, that a person has passed there; because we know, by experience, that that is the mode in which such footprints are made.’ (59 Mass, at p. 314.) By contrast, ‘moral evidence’ was said to be evidence of internal facts such as a person’s intent or motive, as implied by his conduct. The latter evidence could not furnish absolute proof, for ‘this intent is a secret of the heart, which can only be directly known to the searcher of all hearts ....’ (Id. at p. 316.) Yet from his acts the person’s state of mind could often be ‘safely inferred’ by the jurors in light of their knowledge of human nature. (Ibid.)
“The contemporary juror, however, knows none of all this. The phrase ‘moral evidence’ has passed out of the common idiom * * (Footnotes omitted.)
599 P2d at 107-08.
The majority recognizes that the phrase “moral evidence” is archaic, obscure, and confusing and disapproves of its use. 313 Or at 39. Searches in Lexis and Westlaw fail to disclose a single decision of this court in which the phrase “moral evidence” is used. The phrase “moral evidence” is not listed in West’s Words and Phrases. In ordinary usage, “ ‘[t]he word moral suggests a distinction between good and evil in relation to the actions or character of responsible beings.’ ” People v. Brigham, supra, 599 P2d at 112 (Mosk, J., concurring) (quoting McBaine, Burden of Proof: Degrees of Belief, 32 Calif L Rev 242, 258 n 35 (1944)). Given the nature *53of the instruction here, a reasonable juror could have been misled and could have interpreted the use of the undefined phrase “moral evidence” to allow a verdict of guilt based on moral considerations or standards, rather than on a dispassionate weighing of the evidence, or on a degree of proof below proof beyond a reasonable doubt.
Even without the archaic, obscure, confusing, and misleading phrase “moral evidence,” the last sentence of the instruction is ambiguous.
“Its message to the jury is that reasonable doubt is not a ‘possible’ doubt. Whether this statement helps or hinders, however, depends entirely on how each juror understands the key word ‘possible.’ Unfortunately the word has many meanings, and the instruction does not define it. If the juror were to take it in the sense of ‘potential’ — as opposed to ‘actual’ — the statement would perhaps be intelligible. But that is not the primary meaning of ‘possible’; much more commonly it simply denotes that which can be or can become — as opposed to ‘impossible.’ Yet if it is so understood, the instruction again mystifies the juror; it begins by informing him [or her] that he [or she] must vote to acquit if he [or she] has a reasonable doubt, then it tells him that such a doubt is not possible.”
People v. Brigham, supra, 599 P2d at 109 (Mosk, J., concurring). Conversely, a reasonable juror could believe that a doubt which is only “possible” is also not a reasonable one.
This court has no way of knowing which of the various meanings of the word “possible” the jurors applied in reaching their guilty verdict in this case.
As previously stated, defendant also objected to the use of the phrase “moral certainty” in the instruction defining reasonable doubt. Historically, the insertion of the concept of moral certainty in the reasonable doubt instruction “reflected the desire to make legal language consistent with the philosophical terminology of the day.” Shapiro, supra, at 175. In the mid-1800s, the terminology “moral certainty” “was part of the language and discourse of the educated classes in both England and America.” Id. “Moral certainty” was a widely used concept that was found in moral, theological, historical, and philosophical, as well as legal, discourse. Id.
*54In his instruction to the jury in Commonwealth v. Webster, supra, Chief Justice Shaw attempted to define “moral certainty” as “a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it.” 59 Mass at 320. Both the phrase “moral certainty” and Chief Justice Shaw’s attempted definition of that phrase have been acutely criticized. See, e.g., 9 Wigmore, Evidence § 2497 (Chadbourn rev 1981); People v. Brigham, supra, 599 P2d at 107-20 (Mosk, J., concurring). One commentator who has examined the intellectual history of the phrase “moral certainty” has concluded that the phrase does not convey to contemporary jurors what it was intended to convey when it was introduced and that the history of that phrase suggests that it ought to be dropped. Shapiro, supra, at 154.8
This court has upheld the use of the phrase “moral certainty” in an instruction defining reasonable doubt. See, e.g., State v. Robinson, 235 Or 524, 385 P2d 754 (1963). However, I agree with language in the recent decision of the Supreme Court of the United States in Cage v. Louisiana, 498 US 39, 111 S Ct 328, 330, 112 L Ed 2d 339, 342 (1990), that suggests that the use of the phrase “moral certainty” is to be avoided. In Cage, the Supreme Court rejected a state court’s effort to explain the concept of reasonable doubt. A jury instruction that defined “reasonable doubt” as “an actual substantial doubt” and one that “would give rise to a grave uncertainty,” and that told the jury that “[w]hat is required is not an absolute or mathematical certainty, but a moral certainty,” violated the Due Process Clause of the United States Constitution as interpreted in In re Winship, supra, 397 US at 364. The common understanding of “substantial” and “grave,” the Supreme Court said, “suggests a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Cage v. Louisiana, supra, 111 S Ct at 329-30. “When those statements are then considered with the reference to ‘moral certainty, ’ rather than evidentiary *55certainty, 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 required by the Due Process Clause.” Id. at 330. (Emphasis added.) Accordingly, the Supreme Court reversed the state court decision upholding the instruction. Id.9
This review of the deficiencies in the challenged language in the last sentence of the instruction and the use of the phrase “moral certainty” illuminates why the inclusion of the challenged language in the instruction defining reasonable doubt does not comport with statutory law and the Oregon Constitution. When the language of the last sentence of the instruction, which includes the use of the undefined phrase “moral evidence,” is considered with the reference to the undefined term “moral certainty,” “rather than evidenti-ary certainty,” see Cage v. Louisiana, supra, 111 S Ct at 330 (emphasis added), a reasonable juror could have interpreted the instruction to find defendant guilty either on moral standards or considerations rather than evidentiary certainty, or on a threshold of proof lower than proof beyond a reasonable doubt. Viewing the instruction defining reasonable doubt as a whole, several confusing and misleading components cannot combine to make a clear and satisfactory instruction. Thus, the instruction violated statutory law and the Oregon Constitution.
Having determined that giving the instruction defining reasonable doubt was error, the next inquiry is to determine whether the instructional error requires reversal of all of defendant’s convictions.
ORS 138.230 provides:
“After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below orto technical errors, defects or *56exceptions which do not affect the substantial rights of the parties.”
This court has stated that a substantial right of a party is not affected if there is (1) “substantial and convincing evidence of guilt” and (2) “little, if any, likelihood that the error affected the verdict.” State v. Miller, 300 Or 203, 220-21, 709 P2d 225 (1985). This test of when a substantial right of a party is affected is consistent with the standard for reversible error set forth in Article VII (Amended), section 3, of the Oregon Constitution. Error is harmless under Article VII (Amended), section 3, of the Oregon Constitution, if there is “(1) substantial and convincing evidence of guilt in a criminal case, and (2) little, if any likelihood that the error affected the verdict. ’ ’ State v. Walton, 311 Or 223, 230, 809 P2d 81 (1991) (quoting State v. Isom, 306 Or 587, 595-96, 761 P2d 524 (1988)). In State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987), this court declared that both criteria of the test of when a substantial right of a party is affected are fully expressed by the second criterion.10 The issue, then, is whether there is “little likelihood” that the erroneous instruction defining reasonable doubt “affected the verdict.”
The question whether defendant has been convicted on inadequate evidence is central to the basic question of guilt or innocence. Defendant has the right to require the state to persuade the trier of fact of his guilt of the crime(s) charged by “proof beyond a reasonable doubt.” The instruction is an error that skews the framework and the entire conduct of the trial and defies meaningful appellate harmless error analysis. We can never know with any certainty whether the erroneous instruction caused inaccuracy in the guilt determination by the jury. To condone such an error is an affront to the notion of justice and renders the trial fundamentally unfair. To *57condone such an inaccurate, misleading, and confusing instruction as to the meaning of reasonable doubt denigrates the vital role that the standard “proof beyond a reasonable doubt” plays in our criminal justice adversary system. The reasonable doubt instruction provides the yardstick by which the jury in a criminal case measures the evidence to determine guilt or innocence. If the yardstick is inaccurate, misleading, or confusing, it is utterly impossible to determine whether the jury found guilt on a proper measurement.
In sum, the instruction at issue here could have been interpreted by the jury to allow its verdict to rest on an improper basis, i.e., moral standards or considerations, rather than on evidentiary certainty. The deficient instruction permitted the jury to use an inappropriate burden of persuasion. The likelihood of misunderstanding and misapplication by the jury was substantial. This is particularly so because in the guilt-acquittal phase of an aggravated murder trial, it takes only one unconvinced juror to prevent a finding of guilt.11
Because there is more than a “little likelihood” that the erroneous instruction defining reasonable doubt “affected the verdict,” the instruction violated statutory law and the Oregon Constitution, and is harmful, prejudicial error.
FEDERAL FOURTEENTH AMENDMENT DUE PROCESS CLAIM
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.” In re Winship, supra, 397 US at 364, quoted with approval in Cage v. Louisiana, supra, 111 S Ct at 329. This fundamental principle prohibits the state from using an instruction defining reasonable doubt that has the effect of allowing a finding of guilt on a degree of proof less than proof beyond a reasonable doubt.
*58In construing the instruction defining reasonable doubt given to the jury in this case, the question is not what a court declares the meaning of the instruction to be. Francis v. Franklin, 471 US 307, 315, 105 S Ct 1965, 85 L Ed 2d 344 (1985). Moreover, the fact that jurors could have interpreted the instruction so as to make it lawful is irrelevant, for “we cannot be certain that this is what they did do.” Sandstrom v. Montana, 442 US 510, 526, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (emphasis in original). Rather, the standard of review in determining whether this is a federal constitutional error is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the constitution.” Estelle v. McGuire,_US _, 112 S Ct 475, 482, 116 L Ed 2d 385 (1991) (quoting Boyde v. California, 494 US 370, 380, 110 S Ct 1190, 108 L Ed 2d 316 (1990)).12 Applying that standard of review, I believe that there is a reasonable likelihood that the jury in this case applied the disputed language in the instruction to allow a finding of guilt on a degree of proof below that required by the Due Process Clause of the federal constitution. As previously stated, when the language of the last sentence of the instruction defining reasonable doubt, which includes the use of the undefined term “moral evidence,” is considered with reference to the undefined term “moral certainty,” rather than “evidentiary certainty,” it is reasonably likely that a juror interpreted the instruction to find defendant guilty either on moral standards or considerations rather than evidentiary certainty, or on a threshold of proof lower than proof beyond a reasonable doubt. Thus, the instruction, taken as a whole, violated the Due Process Clause of the federal constitution.
The next inquiry, then, is whether the federal constitutionally erroneous instruction defining reasonable doubt *59used in the guilt-acquittal phase of defendant’s capital case requires reversal or is merely harmless error.
“Whether a conviction for crime should stand when a [s]tate has failed to accord federal constitutionally guaranteed rights is * * * a federal question.” Chapman v. California, 386 US 18, 21, 87 S Ct 824, 17 L Ed 2d 705 (1967). “Trial errors” are subject to harmless error analysis. Arizona v. Fulminante,_US_, 111 S Ct 1246, 1264, 113 L Ed 2d 302 (1991).13 “Structural errors” (“structural defects in the constitution of the trial mechanism”), on the other hand, require automatic reversal. Id., 111 S Ct at 1265.14
A “trial error” is one that “occur[s] during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt.” Id., 111 S Ct at 1264. A “structural error,” by contrast, is not subject to the harmless error analysis primarily because “[t]he entire conduct of the trial from beginning to end is obviously affected.” Id., 111 S Ct at 1265. With “structural errors,” the trial court “cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Id. (quoting Rose v. Clark, 478 US 570, 577-78, 106 S Ct 3101, 92 L Ed 2d 460 (1986)). “[A] trial error seems to be one for which we can sometimes know for sure whether it has caused inaccuracy in the trial outcome, and a structural error seems to be one for which we can never know with any certainty.” Ogletree, Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 Harv L Rev 152, 162 (1991).
Examples of structural errors include the denial of the right to counsel at trial, the denial of the right to a trial conducted by an impartial judge, the denial of the right to self-representation, the unlawful exclusion of members of the defendant’s race from the grand jury, and the denial of the *60right to a public trial. Arizona v. Fulminante, supra, 111 S Ct at 1265. In Jackson v. Virginia, 443 US 307, 320 n 14, 99 S Ct 2781, 61 L Ed 2d 560 (1979), the Supreme Court stated that its cases have indicated that “failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error.”
Applying the Fulminante distinction to those errors subject to harmless error analysis (trial errors) and those errors subject to automatic reversal (structural errors), the jury instruction at issue in this case that allowed the jury to make a finding of guilt on less persuasion than is required by the reasonable doubt standard mandated by the federal constitution is a structural error that calls for automatic reversal. This is so for the same reasons that I stated in my discussion of whether, under statutory law and the Oregon Constitution, the instructional error requires reversal. See ante, 313 Or at 56-57. It is a constitutional deprivation that affects the framework within which the trial proceeds, rather than simply an error in the trial process itself. It is an error that defies harmless error analysis. Without the basic protection of the right not to be convicted of a crime except on proof beyond a reasonable doubt, “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Arizona v. Fulminante, supra, 111 S Ct at 1265 (quoting Rose v. Clark, supra, 478 US at 577-78).
Even if the trial court’s deficient instruction as to the meaning of reasonable doubt were to be treated as a “trial error” and thereby subject to harmless error analysis, the deficient instruction may not be excused as harmless error, and reversal is required. In Yates v. Evatt, 500 US_, 111 S Ct 1884, 114 L Ed 2d 432 (1991), the Supreme Court endeavored to clarify the standard of review in testing unconstitutional burden-shifting presumptions in a criminal case for harmlessness. To be considered harmless beyond a reasonable doubt, as Chapman v. California, supra, 386 US at 24, requires, the Yates court declared that a reviewing court must be satisfied beyond a reasonable doubt that the effect of the erroneous instruction, as compared to that of the evidence, was so minimal or unimportant that it did not contribute to the verdict obtained. Yates v. Evatt, supra, 111 S Ct at 1892. *61To make that determination, two inquiries are required. First, the reviewing court must determine what evidence the jury actually considered in reaching its verdict. Id. at 1893. This calls for an objective rather than a subjective determination, so it must be made by examining the instructions given the jury. Id. Next, the reviewing court must make a judgment about the significance of the instruction to reasonable jurors, when measured against what the jury actually considered independently of the instruction in reaching its verdict. Id. Again, subjective inquiry is impossible; therefore, the question must be “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the [instruction].” Id. “It is only when the effect of the [deficient instruction] is comparatively minimal to this degree that it can be said * * * that the [instruction] did not contribute to the verdict.” Id. at 1894. The oft-stated rule “that the harmlessness of an error is to be judged after a review of the entire record” is applicable only if it can be safely assumed that the jury considered everything in the record. Id. at 1893-94.
Applying the Yates standard and viewing the instruction defining reasonable doubt as a whole, I find the deficient instruction defining reasonable doubt not harmless. The majority’s review of the facts, even in the light most favorable to the state, demonstrates that this case is close on the facts. Stated differently, although the commission of a crime may be proved solely by circumstantial evidence, the state’s case, which is based entirely on circumstantial evidence, is not so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the erroneous instruction defining reasonable doubt. The instruction at issue here conveyed to the jury that it may base its verdict on an improper basis, i.e., moral considerations or standards, or, to put the point differently, the deficient instruction permitted the jury to use a lesser burden of proof than proof beyond a reasonable doubt. The force of the evidence presumably considered by the jury in accordance with the trial court’s instruction is not “so overwhelming [in this case] as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have *62been the same in the absence of the [deficient instruction].” This is particularly so because, as previously stated,15 in the guilt-acquittal phase of an aggravated murder trial, it takes only one unconvinced juror to prevent a finding of guilt.16
For the foregoing reasons, I respectfully dissent. Peterson, J., joins in this dissenting opinion in part. Fadeley, J., joins in this dissenting opinion.
“A reasonable juror might believe,” defendant asserts, “that * * * [he] was guilty in a moral sense even if the state has failed to prove [his] guilt in a legal sense.”
Before the trial court, defendant’s lawyer asserted that, “because almost every criminal case has great immorality involved,” he was “afraid a lay person, when hearing [the challenged] language, would say, ‘Well, morally I know he is guilty,’ whereas if you put it otherwise a juror might say, ‘Well, legally I guess he is not guilty, but morally he certainly is guilty.’ ”
See also State v. Wagner, 305 Or 115, 145-46, 752 P2d 1136 (1988) (this court rejected the invitation to construe Article I, section 10, of the Oregon Constitution, which guarantees injured persons a remedy in due course of law, as a due process clause); State v. Hart, 299 Or 128, 140, 699 P2d 1113 (1985) (Article I, section 10, of the Oregon Constitution is not a “due process” clause); Linde, Without “Due Process”: Unconstitutional Law in Oregon, 49 Or L Rev 125 (1969).
I recognize that this court has stated that “[a]s a constitutional premise, the phrase ‘due process’ must refer to [the] federal clause and must be supported by interpretations of the clause in decisions of the United States Supreme Court or of other courts based on such decisions, since the phrase does not appear in the Oregon Constitution.” State v. Clark, 291 Or 231, 235 n 4, 630 P2d 810 (1981). However, because in State v. Arenas, 253 Or 215, 217, 453 P2d 915 (1969), this court recognized that there is no express Oregon constitutional source of its holding that an adult charged with a crime has the right not to be convicted except on proof beyond a reasonable doubt, but did identify that right as part of “due process,” I consider defendant’s state law and due process arguments, in the unique circumstances of this case, to raise a state constitutional claim under Article I, section 33, of the Oregon Constitution. In so doing, I do not suggest any disagreement with this court’s prior statements concerning the existence of a “due process” clause in the *48Oregon Constitution. See supra note 2.
Article I, section 33, of the Oregon Constitution provides:
“This enumeration of rights, and privileges [in Oregon’s Bill of Rights, Article I, sections 1 through 32,] shall not be construed to impair or deny others retained by the people.”
On August 14, 1848, the Oregon Territory was organized. Oregon was admitted as a state on February 14, 1859. Oregon Blue Book 416 (1991-92).
This court has discussed the history of the requirement of proof beyond a reasonable doubt:
“Proof beyond a reasonable doubt was uniformly required in Oregon near the time of statehood. See General Laws of Oregon, ch 9, § 835(5), p 356 (Deady 1845-1864) (‘that in criminal cases, guilt shall be established beyond reasonable doubt’); cf. Statutes of Oregon [Territory] 1855, ch XXXVI, § 1, p 276 (if ‘reasonable ground of doubt, in which degree of a public offence [sic] ’ a defendant is guilty, he can be convicted of the lower degree only).”
State v. Thomas, 311 Or 182, 185 n 2, 806 P2d 689 (1991). An earlier version of the Statutes of Oregon stated:
“When it appears that a defendant has committed a public offence [sic], and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of these degrees only.”
Statutes of Oregon [Territory] 1853, ch XXXVI, § 1, p 251.
The trial judge instructed the jury in the language of what is now Uniform Criminal July Instruction 1019:
“There are two types of evidence. One is direct evidence — such as the testimony of an eyewitness. The other is circumstantial evidence — the proof of a chain of circumstances pointing to the existence or nonexistence of a certain fact. You may base your verdict [on] direct evidence, or circumstantial evidence, or both.”
The majority correctly notes that, in People v. Brigham, 25 Cal 3d 283, 157 Cal Rptr 905, 599 P2d 100 (1979), the California Supreme Court “held that the giving of an instruction on reasonable doubt that contained this wording was harmless, not prejudicial, in the circumstances” of that case. See 313 Or at 39 n 17. To reach that conclusion, however, the California court applied a standard of review in determining harmless error that is different than the standard of review this court is required to apply in determining harmless error under ORS 138.230 and Article VII (Amended), section 3, of the Oregon Constitution, and pointed to overwhelming evidence of guilt. In People v. Brigham, supra, the court said:
“[A] close review of the record reveals that it is not ‘reasonably probable that a result more favorable to the appealing party would, have been reached in the absence of the error.’ * * * [Defendant] was convicted on two counts of robbery and one count of attempted robbery. All three counts involved the same store with one or more employees providing positive eyewitness identification of [defendant] as the robber. Under these facts, it is clear that the error in giving [the instruction defining reasonable doubt] was harmless.” 599 P2d at 106 (emphasis added).
In rejecting the California formulation of “reasonable doubt,” which includes the phrase “moral certainty” and the language in the last sentence of the instruction given in this case, the Comments to the Model Penal Code state: “No effort is made to define ‘reasonable doubt,’ in the view that definition can add nothing helpful to the phrase.” American Law Institute: Model Penal Code, Tent Draft No. 4, § 1.13, p 109 (1955).
See State v. Manning, 409 SE2d 372 (SC 1991), cert den_US_, 112 S Ct 1282, 117 L Ed 2d 507 (1992) (murder conviction reversed; trial judge’s instruction on reasonable doubt, which referred to a “moral certainty” and to “a doubt for which you can give real reason,” was so confusing that a reasonable juror could have interpreted the charge as a whole to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause of the Fourteenth Amendment to the federal constitution).
In State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987), this court said:
“Although this court has in the past analyzed these two criteria separately, see, e.g., State v. Van Hooser, 266 Or 19, 25-27, 511 P2d 359 (1973), there is no justification for doing so, because it is apparent that the constitutional and statutory standards are fully expressed by the second criterion. Whether there was substantial and convincing evidence of guilt is not the issue; the issue is whether the error was likely to have affected the result. Of course, the less substantial the evidence of guilt, the more likely it is that an error affected the result, but that is an additional reason not to bifurcate the standard so as to require two independent inquiries.”
A first degree murder charge requires a unanimous verdict of guilty for conviction. Or Const, Art I, § 11.
In Estelle v. McGuire,_US_, 112 S Ct 475, 482 n 4, 116 L Ed 2d 385 (1991), the Supreme Court of the United States acknowledged that, in cases decided after Boyde v. California, 494 US 370, 380, 110 S Ct 1190, 108 L Ed 2d 316 (1990), it had used different phrasing to describe the standard of review for jury instructions. See, e.g., Cage v. Louisiana, 498 US 39, 111 S Ct 328, 329, 112 L Ed 2d 339 (1990) (“In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole”); Yates v. Evatt, 500 US_, 111 S Ct 1884, 1892, 114 L Ed 2d 432 (1991) (“We think a reasonable juror would have understood the [instruction] to mean ...”). To “speak with one voice on this issue,” the Supreme Court, in Estelle v. McGuire, supra, 112 S Ct at 482 n 4, rejected standards that required examination of what a reasonable juror either “could” have done or “would” have done, and reaffirmed the standard set out in Boyde v. California, supra, 494 US at 380.
A federal constitutional “harmless error” is simply an error that, beyond a reasonable doubt, has not contributed to the determination of guilt. Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967) (recently reconfirmed as the proper test in Yates v. Evatt, supra note 12, at 1892.)
This distinction was developed after the Supreme Court’s decision in Cage v. Louisiana, supra, note 12.
See supra note 11.
The instruction defining reasonable doubt given in this case also stated that ‘ ‘ [plroof beyond a reasonable doubt is such as you would be willing to act upon in the most important of your own affairs.” In Holland v. United States, 348 US 121, 140, 75 S Ct 127, 99 L Ed 150 (1954), the Supreme Court of the United States was presented with a jury instruction that defined reasonable doubt as “the kind of doubt * ** * which you folks in the more serious and important affairs of your own lives might be willing to act upon.” The Supreme Court stated that “this section of the [instruction] should have been in terms of the kind of doubt that would make a person hesitate to act * * *ratherthanthekindonwhichheiswillmgtoact.”Id. The Ninth Circuit Court of Appeals has made it clear that it “preferís] Holland’s ‘hesitate to act’ formulation to an instruction requiring proof ‘such as you would be willing to act upon in the most important and vital matters relating to your own affairs.’ ” United States v. Jaramillo-Suarez, 950 F2d 1378, 1386 (9th Cir 1991). See also United States v. Robinson, 546 F2d 309, 313 (9th Cir 1976) (original statement of this preference).