What is ‘Reasonable Doubt,’ Alex? No, Seriously. What is it?

State v. Levitt, 2016 VT 60

By Andrew Delaney

Mr. Levitt got convicted of simple assault and was put on probation. He appeals his conviction and most of his probation conditions. Ah—another probation-conditions appeal. We’ve already made the eleventy-billionth joke more than once, but why not make it again? There’re a lot of probation-condition cases, mm-kay?

Mr. Levitt was tried for simple assault in front of a jury. The judge’s reasonable-doubt instruction—paraphrased here with my patented bare-minimum-and-potentially-inaccurate system—was: “Nothing in life is 100% certain. ‘Beyond a reasonable doubt’ means that you’re convinced of it with great certainty.” Probably not the greatest instruction, but no objection was made, and the jury came back with a guilty verdict.

There was a sentencing hearing and the State argued for two weeks in the pokey. The defense went with a fine or suspended sentence. The judge went with a short suspended sentence, twenty days of work crew, and a fine. So the trial court placed Mr. Levitt on probation—‘cause that’s what you do with a suspended sentence—and imposed “standard conditions A through N, and also condition P.” The judge didn’t bother naming or describing those conditions, which are reproduced in the opinion if you’re truly curious, but boil down to—again using my patented system—the PO will be your babysitter; you can’t do stuff without permission; and if your PO tells you to do stuff you better do it—also, no drugs, no booze (or no excessive booze), no being violent, and no threatening people. Of course, there’s more to it than that, but that’s the basic gist.

 
Mr. Levitt didn’t object at sentencing, but he does appeal.

Mr. Levitt’s first beef is with the trial court’s reasonable doubt instruction. He argues that the court’s instruction improperly defined reasonable doubt and lowered the standard of proof. On the probation-conditions front, he raises three primary points: (1) the trial court was wrong about the conditions being “standard” and shouldn’t have imposed them; (2) the trial court didn’t tell him about the content of the conditions; (3) many of the conditions are overbroad and vague, impermissibly delegate court authority to his PO, aren’t related to the offense, rehabilitation, or public safety, and weren’t supported by factual findings. Long story short: three of the challenged “standard” conditions and the conviction survive, and one condition gets kicked back to the trial court.

As a preliminary matter, the State concedes that a whole bunch of the conditions aren’t up to snuff. So that’s easy. We’re left with four conditions to argue about, which are (H) tell your PO within two days if you lose or change your job; (I) no leaving the state without a permission slip from your PO; (J) let your PO visit you wherever you’re staying; and (L) no regulated drugs without a prescription. H, J, and L survive, and I gets remanded.

But back to the reasonable-doubt piece—Mr. Levitt more or less argues that “great certainty” is insufficient. It should’ve been “utmost certainty,” and accordingly his conviction is structurally deficient and must be reversed.

The SCOV is not swayed. First, Mr. Levitt didn’t object to the instruction below, which puts us in snowball’s-chance-in-hell aka plain-error territory.

There’s no particular required formulation of the reasonable-doubt concept. As long as—as a whole—the instructions correctly articulate the concept, it’s okay.

In the past, even pretty bad instructions have been good enough to escape reversal on appeal (the hyperlinked case’s jury instructions define reasonable doubt as a “doubt for which you can assign a reason” and doubt “that reasonable people like yourselves would not hesitate to act on in matters of personal importance in your own life”). So, in this case, “great certainty” is going to be enough. The SCOV runs through cases from other jurisdictions, looks at the instruction in context, and slaps a qualified and somewhat begrudging seal of not-plain-error approval on the instruction.

The SCOV is careful to point out that defining reasonable doubt is a “hazardous undertaking,” and suggests that trial judges ought not to be so quick to try such a definition. In closing out the reasonable-doubt discussion, the SCOV observes: “In a different context, with a different instruction, and where defendant has made a cogent objection to the language, a definitional explanation may be error.”

Now we get to the probation conditions. Again, without an objection below, we’re in plain-error land. Mr. Levitt’s leadoff argument is that the trial court screwed up by imposing what it called “standard” conditions without making an evaluation of the circumstances of the case. The SCOV points to this case for the proposition that despite the label “standard”—which taken literally would be wrong—the imposition of these conditions is really a discretionary ruling. The SCOV notes that particularized findings are not required for every condition imposed but are based on the information available to the court overall. I don’t know as that’s clear, so let me be clear: the argument doesn’t work.

Mr. Levitt’s next argument is that because the court just said “Conditions A through N, and also P,” he never knew what was happening. It was all cryptic and stuff. Accordingly, he argues that his challenges to the conditions should be reviewed under an abuse-of-discretion standard rather than a plain-error standard because there’s a First Circuit case that says that’s the remedy. The State says that’s okay, so the SCOV rolls with it.

Courts have pretty broad authority to impose probation conditions, but there are some limits. Probation conditions have to be reasonably related to ensuring that the probationer will lead a law-abiding life or to assist the probationer in doing so.

If you recall, the State had already conceded that a bunch of the challenged conditions aren’t necessary, so we’re only looking at conditions H, I, J, and L.

Condition H requires Mr. Levitt to tell his PO if he changes or loses his job. The SCOV notes that this is an administrative condition, and is reasonable in that it assists the PO in keeping tabs on Mr. Levitt, and assists Mr. Levitt in leading a law-abiding life. Condition H stays.

Condition I is the permission-slip-is-required-to-go-out-of-state condition. Mr. Levitt argues that it’s an unconstitutional restriction on his right to travel and that it gives his PO too much delegated authority. The SCOV takes a hard look at this condition and concludes that the court needs to tell the PO how to administer this condition so that we don’t get into unfettered-discretion territory. Standards have to be provided so that the parameters are clear. Condition I gets kicked back to the trial court for fixin’.

Condition J is the home-visit condition. Mr. Levitt argues that it’s a violation of the search-and-seizure provisions of the Vermont and federal constitutions. The SCOV notes that everybody else says home visits are okay, so condition J stays. But the SCOV does leave open the possibility that evidence obtained during a home visit by a PO might be suppressed. Is that a light at the end of the tunnel or just an oncoming train?

Finally, the SCOV deals with condition L—the no-regulated-drugs provision. In a nutshell, because the condition prohibits criminal conduct, it’s valid.

Nothing earth-shattering here. Personally, I’d like to see the reasonable-doubt definition refined more precisely. As one of my heroes, Gerry Spence, is fond of saying, “We do not guess people into the penitentiary in this country.” I’d hate to think that we might be doing just that with imprecise definitions.