Aguirre, Erik

DateGranted

PD-0257-26

  1. "Does an appellant have a waivable-only right that prohibits a trial judge from explaining the beyond a reasonable doubt standard?”
  2. “Should an appellate court review a judge’s voir dire comments as if they constituted jury charge error?”
  3. “Does the Rule 44.2(a) constitutional harm standard apply to a trial judge’s attempt to explain the beyond a reasonable doubt standard in voir dire?”

During jury selection, the trial judge explained the beyond-a-reasonable-doubt burden as, “99 percent and another person’s beyond a reasonable doubt is 60 percent or a gut feeling or whatever else it is . . . .” Aguirre did not object to the statement.

Aguirre raised this claim for the first time on appeal, arguing that the comment violated his right to due process by lessening the State’s burden. The court held that the right to be free from commentary that lessens the State’s burden is a category-two, waivable-only Marin right, and that Aguirre had not affirmatively waived it.

Turning to the merits, the court compared the 60 percent figure to the clear-and-convincing standard used in civil cases, which reflects a “near certitude,” and concluded that 60 percent falls short of that—"it’s not even a high probability.” The statement was therefore erroneous because it functioned as a “‘judicial endorsement or imprimatur’ of an invalid standard."

On harm, the court rejected Aguirre’s characterization of the error as structural and applied the constitutional-harm standard instead. Though the comment was an isolated statement and the jury charge included the correct instruction, the court concluded that it nonetheless threatened the integrity of the adjudicatory process.

The State contends that due-process complaints require an objection to preserve error. Here, the lower court shoehorned Aguirre’s complaint into Marin category two without identifying any duty requiring a trial court to avoid giving a hypothetical example. The federal constitution does not prohibit a judge from defining the standard, and the state constitution does not preclude a trial court from discussing the law of the case. Further, taken as a whole, the commentary did not lessen the State’s burden.

On the merits, the State argues that the decision below effectively means only the parties may educate prospective jurors about the burden. But a trial judge is generally authorized to inquire into a juror’s ability to understand the burden, and the limitations that do apply typically involve matters that impinge on the presumption of innocence or the jury’s impartiality.

Last, the State contends that the non-constitutional harm standard applies because neither constitution was violated.