[The] [Each] defendant has entered a plea of not guilty. That plea puts in issue every element of [the] [each] crime charged. The [State] [City] [County] is the plaintiff and has the burden of proving each element of [the] [each] crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists [as to these elements].
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
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. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]
Criminal defense lawyers usually have difficulty with the ‘abiding belief’ language‘ contained in the above pattern jury instruction, as it allows prosecutors to argue, in essence, if you really believe that the accused is guilty, then you have ‘abiding belief’. Therefore, you are convinced beyond a reasonable doubt. Strange as it may seem, trial judges have unrestricted discretion whether to utilize ‘abiding belief’ language when instructing the jury. If judges give it, it is not error to do so. But, if the judge does not give the language, it is also not error to omit the phrase !
I had a Rape of a Child case in 2024 wherein the judge did not include the abiding belief language. No error, and the State did not take exception, based on State v. Bennett 161 Wn 2d 303, 308-09 (2007).
In Mr. Jackson’s case, he was convicted at jury trial of one felony & two gross misdemeanors. On appeal, he contended that the use of the abiding belief language was erroneous and asked Division III “to urge the Washington Supreme Court to reconsider the issue”. The request fell flat.
….as the State correctly notes, the Washington Supreme Court has expressly upheld the constitutionality of WPIC 4.01, including the “abiding belief” language. Division III quoted Bennett,
[then quickly concluded that] “as an intermediate appellate court, we are bound by decisions of the Washington Supreme Court…..[citations omitted]Accordingly, we conclude that the use of WPIC 4.01in this case was not erroneous”.
It is apparent by the very short discussion by Division III that further legal challenges to the abiding belief language in the standard WPIC jury instruction are not ripe for review and will not be successful, even though there is no guidance to judges when to use the language, and when not to !