26 CO 60 | Omnilex

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reasonable likelihood that the jury understood the 2023 Instruction and the court’s
and prosecution’s statements, taken as a whole, as allowing a conviction based on
a standard lower than beyond a reasonable doubt.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2026 CO 60
Supreme Court Case No. 25SC148
Certiorari to the District Court
Adams County District Court Case No. 24CV30648
Honorable Teri L. Vasquez, Judge
Petitioner:
Alexis Teran Sanchez,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
September 14, 2026
Attorneys for Petitioner:
Gibson, Dunn & Crutcher LLP
John Partridge
Al Kelly
NoahLani Litwinsella
Yama Keshawerz
Denver, Colorado
BTW Legal
Yun Wang
Denver, Colorado
Attorneys for Respondent:
Brian Mason, District Attorney, Seventeenth Judicial District
Todd Bluth, Senior Deputy District Attorney
Brighton, Colorado

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JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

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JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 In 2023, the Model Criminal Jury Instructions Committee published
COLJI-Crim. E:03 (2022), revising Colorado’s model jury instruction on the
presumption of innocence, burden of proof, and reasonable doubt (“2023
Instruction” or “Instruction”). Previously, the Committee’s model instruction
defined reasonable doubt, in part, as “such a doubt as would cause reasonable
people to hesitate to act in matters of importance to themselves.” COLJI-Crim.
E:03 (2021). The 2023 Instruction removed this language and instead defined proof
beyond a reasonable doubt as “proof that leaves you firmly convinced of the
defendant’s guilt.” (Emphasis added.) In addition, the 2023 Instruction provided
that “if you think there is a real possibility that the defendant is not guilty, then the
prosecution has failed to prove the crime charged beyond a reasonable doubt.”
(Emphasis added.)
¶2 These changes form the grounds of Alexis Teran Sanchez’s petition seeking
a reversal of the district court’s judgment, which affirmed his conviction for
various offenses related to alcohol-impaired driving. He argues that the 2023
Instruction—specifically its “firmly convinced” and “real possibility”
language—which the county court used at his trial, impermissibly lowered the
burden of proof, shifted it to the defense, and violated his rights to due process

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and a fair trial. He further argues that the county court and the prosecution made
statements which lowered the prosecution’s burden of proof.1
¶3 We now hold that the 2023 Instruction is constitutional and neither lowers
the burden of proof nor shifts that burden to the defendant. We further hold that
there was no reasonable likelihood that the jury understood the 2023 Instruction
and the court’s and prosecution’s statements, taken as a whole, as allowing a
conviction based on a standard lower than beyond a reasonable doubt.
Accordingly, we affirm the district court’s judgment.
I. Facts and Procedural History
¶4 In May 2023, police officers responded to a reported hit-and-run accident
and approached Teran Sanchez, who was exiting a damaged vehicle in a nearby
parking lot. They observed him behaving nervously, speaking quickly, and
struggling to focus. They noticed his breath smelled like alcohol. Teran Sanchez
admitted that he was driving the vehicle and was involved in a collision, but he
provided conflicting statements about whether he remembered the specific details
of the accident.
1 We granted certiorari to determine the following issue:
Whether the trial court’s jury instruction on burden of proof and
reasonable doubt, based on the 2023 Model Criminal Jury Instruction,
violated petitioner’s federal and constitutional rights to due process
and a fair trial.

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¶5 The People subsequently charged Teran Sanchez with several offenses
related to alcohol-impaired driving, as well as leaving the scene of an accident and
failing to report an accident.
¶6 At trial, the county court gave the 2023 Instruction verbatim:
The burden of proof in this case is upon the prosecution. The
prosecution must prove to the satisfaction of the jury beyond a
reasonable doubt the existence of each and every element necessary
to constitute the crime charged. This burden requires more than proof
that something is highly probable, but it does not require proof with
absolute certainty.
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has proven the crime charged
beyond a reasonable doubt. But if you think there is a real possibility
that the defendant is not guilty, then the prosecution has failed to
prove the crime charged beyond a reasonable doubt.
COLJI-Crim. E:03 (2022) (emphases added).
¶7 Teran Sanchez objected to this Instruction, arguing that its “real possibility”
language impermissibly lowered the burden of proof and shifted it to the defense.
He further contended that the clause, “[b]ut if you think,” put the jury’s focus on
the strength of the prosecution’s case, leaving the defense’s case a secondary
consideration. The county court overruled these objections. The jury ultimately
found Teran Sanchez guilty of leaving the scene of an accident and failing to report
an accident, along with the lesser included offense of driving while ability
impaired.

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¶8 Teran Sanchez appealed to the district court, which affirmed his convictions.
The district court distinguished Tibbels v. People, 2022 CO 1, ¶¶ 10, 51, 501 P.3d 792,
795, 802—which held that the trial court erred when it compared reasonable doubt
to a visible “crack in the foundation” that would cause a prospective homebuyer
to “hesitate to act”—noting that the trial court there devised its own illustration of
reasonable doubt, whereas the county court here gave the 2023 Instruction
verbatim without any further comment on reasonable doubt.
¶9 Moreover, the district court explained that the clause “[b]ut if you think”
was to be read in context with the rest of the sentence: “But if you think there is a
real possibility that the defendant is not guilty, then the prosecution has failed to
prove the crime charged beyond a reasonable doubt.” The court thus concluded
that “the modifier ‘real’ merely indicates that the jury is not to acquit a defendant
if it can conceive of any possibility that the defendant is not guilty.” (Quoting
United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994).) And because the county
court consistently told the jury that Teran Sanchez was presumed innocent and
that the People had the burden of proof beyond a reasonable doubt, the district
court concluded that the 2023 Instruction neither lowered the burden of proof nor
shifted that burden to Teran Sanchez.
¶10 Teran Sanchez sought certiorari review, and we granted his petition. He
now argues that the modern-day and commonsense understanding of “firmly

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convinced” and “real possibility” denotes a burden of proof lower than beyond a
reasonable doubt. In support of his position, he offers, for the first time, two jury
studies which he argues demonstrate that the 2023 Instruction invites juries to
convict defendants based on a standard lower than beyond a reasonable doubt.
Additionally, he argues that statements made by the county court and the
prosecution lowered the burden of proof and shifted that burden to the defense.
He points to an exchange during voir dire, when the court asked a prospective
juror how she would know which of her two children broke a lamp if they
“invoke[d] [the] right to silence.” After the juror said that she would “figure out
[her] best guess,” the court repeated this remark (“Figure out your best guess”).
Teran Sanchez also refers to the prosecution’s statements to the jury in closing
arguments that it “need[ed] to find him guilty of driving while ability impaired.”
II. Analysis
¶11 We begin by setting out the standard of review. We next review the
constitutional principles underpinning reasonable doubt and pattern jury
instructions. After evaluating long-standing judicial endorsement of the phrases
“real possibility” and “firmly convinced” under federal and Colorado law and
their common meanings, we hold that the 2023 Instruction is constitutional and
neither lowers the burden of proof nor shifts that burden to the defendant. Finally,
we discuss and apply the test we adopted in Tibbels to the court’s statements and

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review the prosecution’s statements for plain error. In doing so, we further hold
that there was no reasonable likelihood that the jury understood the 2023
Instruction and the court’s and prosecution’s statements, taken as a whole, as
allowing a conviction based on a standard lower than beyond a reasonable doubt.
A. Standard of Review
¶12 We review de novo both the constitutionality of a jury instruction and
whether a trial court properly instructed the jury. See Garcia v. People, 2023 CO 30,
¶ 9, 531 P.3d 1031, 1033. An instruction that lowers the prosecution’s burden of
proof is unconstitutional, amounting to structural error requiring automatic
reversal. See Tibbels, ¶ 22, 501 P.3d at 797.
B. Applicable Law
¶13 The Due Process Clauses of the United States and Colorado Constitutions
require that every conviction rests on proof by the prosecution of each factual
element of the offense beyond a reasonable doubt. U.S. Const. amend. XIV, § 1;
Colo. Const. art. II, § 25; Pettigrew v. People, 2022 CO 2, ¶ 33, 501 P.3d 813, 821. It
follows that a trial court must correctly define what constitutes a reasonable doubt,
though the court retains reasonable discretion in doing so. Pettigrew, ¶ 35, 501 P.3d
at 821; see also Victor v. Nebraska, 511 U.S. 1, 5 (1994) (“[S]o long as the court
instructs the jury on the necessity that the defendant’s guilt be proved beyond a

9
reasonable doubt, the Constitution does not require that any particular form of
words be used . . . .” (citation omitted)).
¶14 Pattern jury instructions are nonbinding but time-trusted guideposts for
formulating constitutional jury instructions. People v. Flockhart, 2013 CO 42, ¶ 12,
304 P.3d 227, 231. Nevertheless, pattern jury instructions which misstate or lower
the applicable standard of proof are erroneous and unconstitutional. People v.
Hoskin, 2016 CO 63, ¶¶ 19–20, 380 P.3d 130, 136; see also Flockhart, ¶ 12, 304 P.3d at
231.
¶15 In assessing whether a pattern instruction—such as the definition of
reasonable doubt—is constitutional, we may consider whether it mirrors
longstanding expressions of the relevant principle under Colorado and federal
case law. See People v. Schlehuber, 2025 COA 50, ¶¶ 24–33, 572 P.3d 641, 649–51.
Additionally, we may consider jurors’ “commonsense understanding of the
instructions,” because jurors “do not . . . pars[e] instructions for subtle shades of
meaning in the same way that lawyers might.” Boyde v. California, 494 U.S. 370,
380–81 (1990).
¶16 To evaluate whether a trial court’s specific instruction together with its
contextual statements lowered the prosecution’s burden of proof, we ask,
“whether there is a reasonable likelihood that the jury understood the court’s
statements, in the context of the instructions as a whole and the trial record, to

10
allow a conviction based on a standard lower than beyond a reasonable doubt.”
Tibbels, ¶ 2, 501 P.3d at 794. We review the prosecution’s remarks for plain error,
asking whether any “error so undermine[d] the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the jury’s verdict.” Domingo-
Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005). We consider “the language used,
[its] context, and whether a contemporaneous objection was made.” Id. at 1048.
C. Constitutionality of the 2023 Instruction
¶17 At bottom, Teran Sanchez has two bones to pick with the 2023 Instruction.
First, he argues that requiring jurors to be “firmly convinced” of the defendant’s
guilt lowers the prosecution’s burden of proof to a more speculative standard.
Second, he contends that asking jurors whether there is a “real possibility” that the
defendant is not guilty flips the burden of proof and compels them to consider
whether the defendant is substantially likely to be innocent. We now examine the
challenged language.
1. Federal and Colorado Case Law Demonstrate a Positive
Consensus on “Firmly Convinced” and “Real
Possibility”
¶18 The 2023 Instruction’s use of “firmly convinced” and “real possibility”
traces to a 1982 pattern instruction of the Federal Judicial Center (“FJC

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Instruction”), which Justice Ginsburg endorsed over three decades ago.2 See
Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and concurring in the
judgment) (“The ‘firmly convinced’ standard . . . is further enhanced by the
juxtaposed prescription that the jury must acquit if there is a ‘real possibility’ that
the defendant is innocent. This model instruction surpasses others I have seen in
stating the reasonable doubt standard succinctly and comprehensibly.”).
¶19 However, even before Victor, several federal circuits had given the “firmly
convinced” language the green light, deeming it similar to other constitutional
expressions of reasonable doubt. In United States v. Hunt, 794 F.2d 1095, 1100 (5th
Cir. 1986), for example, the Fifth Circuit stressed that “‘firmly convinced’ seems
2 The text of the FJC Instruction does not exactly match the 2023 Instruction.
However, the minor differences do not diminish Justice Ginsburg’s endorsement
of the challenged language. In relevant part, the FJC Instruction provides:
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt. There are very few things in this
world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If,
based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you must
find him guilty. If, on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.
Fed. Jud. Ctr., Pattern Criminal Jury Instructions: Report of the Federal Judicial Center
Committee to Study Criminal Jury Instructions 36 (June 1982), https://www.fjc.gov/
sites/default/files/materials/35/Pattern-Criminal-Jury-Instructions-1982.pdf
[https://perma.cc/976A-6NPD].

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little different from ‘a real doubt,’” which it had previously approved. Id. (citing
United States v. Alonzo, 681 F.2d 997, 1002 (5th Cir. 1982)). And because the “firmly
convinced” language “expounded the law accurately and conscientiously,” any
“efforts to base error on abstract semantics must fail.” Id. at 1101.
¶20 Two years before Victor, the Ninth Circuit ratified the “firmly convinced”
language in United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992), noting its
similarity to “hesitate to act.” The court stated that “‘firmly convinced’ and
‘hesitate to act’ are essentially two ways of conveying the same definition of
reasonable doubt.”3 Id.; cf. United States v. Barrera-Gonzales, 952 F.2d 1269, 1273
(10th Cir. 1992) (opining that “‘firmly convinced’ requires more persuasion than
terms such as ‘reasonable certainty’ or ‘abiding conviction as to guilt’”). But see
Cage v. Louisiana, 498 U.S. 39, 40 (1990) (concluding that language which described
proof beyond a reasonable doubt as “doubt as would give rise to a grave uncertainty,”
3 We note, however, that the “hesitate to act” language has fallen out of favor.
Specifically, in the 2023 Instruction, the Model Criminal Jury Instructions
Committee omitted the “hesitate to act” language for three reasons: (1) “[I]t was
phrased in the negative . . . and such phrasing arguably makes juror
comprehension more challenging”; (2) some commentators had criticized the
language, noting that most decisions in life “‘generally involve a very heavy
element of uncertainty and risk taking,’ and are thus ‘wholly unlike the decisions
jurors ought to make in criminal cases’”; and (3) “the prior instruction provided
less context regarding the reasonable doubt standard.” COLJI-Crim. E:03 cmt. 1
(2022) (quoting Victor, 511 U.S. at 24 (Ginsburg, J., concurring in part and
concurring in the judgment)).

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and which required a “moral certainty,” lowered the burden of proof (quoting
State v. Cage, 554 So. 2d 39, 41 (La. 1989))), disapproved of on other grounds by,
Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). In sum, the “firmly convinced”
language has encountered little to no judicial criticism.
¶21 By contrast, the “real possibility” language came under scrutiny in United
States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987). The Fourth Circuit took issue with
the “confusion . . . engendered by attempting to define a reasonable doubt in terms
of a ‘real possibility’ that the accused is not guilty.” Id. Yet it clarified that this
confusion came about because “[t]he district court did not explain the difference
that it perceived between a ‘possibility’ and a ‘real possibility.’” Id. Importantly,
the district court’s instruction “failed to tell the jury that the accused did not have
the burden of showing a ‘real possibility’ of innocence.” Id. But while the Fourth
Circuit stated that the instruction “failed to allocate” the burden of proof, it
concluded that the instruction “did not shift the burden of proof on the question of
a real possibility,” and it held that other instructions—which addressed the
presumption of innocence and stated that the burden was always on the
prosecution—“compensated for this omission.” Id. (emphases added).
¶22 Essentially, the concern arises only when the instruction implies that the
defendant should be the one to supply the “real possibility” of innocence. See
United States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (holding that there was

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no structural error because the court explained the presumption of innocence and
the prosecution’s burden of proof, thereby dispelling the notion that the defendant
must prove a “real possibility” of innocence). But the “real possibility” language
does not shift the burden of proof to the defendant if other parts of the instruction
clarify that the burden rests with the prosecution and the jury must be “firmly
convinced” of the defendant’s guilt to satisfy proof beyond a reasonable doubt.
See FJC Instruction at 36.
¶23 Unsurprisingly, multiple federal circuits have followed Justice Ginsburg’s
clear nod to the twin formulation. See, e.g., United States v. Conway, 73 F.3d 975,
980 (10th Cir. 1995) (holding that “firmly convinced” juxtaposed with “a real
possibility” presents “a correct and comprehensible statement of the reasonable
doubt standard” (citing Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and
concurring in the judgment))); accord Williams, 20 F.3d at 131–32; see also United
States v. Brand, 80 F.3d 560, 566 (1st Cir. 1996) (approving the “firmly convinced”
language together with the “court’s further exposition”); United States v. Petty,
856 F.3d 1306, 1310 (10th Cir. 2017) (concluding that the “‘firmly convinced’
formulation of the reasonable doubt standard did not understate the degree of
certainty”); United States v. Watkins, 66 F.4th 1179, 1187 (8th Cir. 2023) (approving
language describing proof beyond a reasonable doubt as “proof that leave[s] you
firmly convinced of the defendant’s guilt” (quoting Harris v. Bowersox, 184 F.3d

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744, 751 (8th Cir. 1999))). In fact, no circuit court has found that the use of the twin
formulation constitutes reversible error. This overwhelming weight of authority
indicates positive federal consensus about the challenged language.
¶24 More recently, two divisions of our court of appeals in Schlehuber and
People v. Melara, 2025 COA 48, 572 P.3d 619, upheld the constitutionality of the
“firmly convinced” and “real possibility” combination in the 2023 Instruction.
Schlehuber, ¶ 33, 572 P.3d at 651; Melara, ¶ 30, 572 P.3d at 628. The Schlehuber
division adopted the enduring view that the twin phrases complement each other.
¶ 33, 572 P.3d at 651. Specifically, it reasoned that (1) requiring the jury to be
“firmly convinced” of the defendant’s guilt correctly connotes “near certitude,”
which is greater than “‘highly probable’ but stops short of absolute certainty”; and
(2) concordantly, the term “real possibility” informs the jury not to acquit just
because it perceives a “fanciful possibility” that the defendant is not guilty. Id. at
¶ 31, 572 P.3d at 650 (emphases added).
¶25 Likewise, the Melara division characterized the 2023 Instruction’s twin
formulation as “an accurate statement of the law,” noting the Instruction’s
emphasis that “even proof that something is ‘highly probable’ is not sufficient to
satisfy the reasonable doubt burden.” ¶ 30, 572 P.3d at 628.4
4 The Melara division did take issue with the 2023 Instruction’s omission of any
language informing the jury that reasonable doubt can arise from a “lack of
evidence.” ¶ 28, 572 P.3d at 627 (“[T]rial courts should include a statement within

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¶26 Teran Sanchez disagrees, citing decisions to the contrary to argue that the
twin formulation is infirm. Principally, he points to State v. Perez, 976 P.2d 427, 441
(Haw. Ct. App. 1998), aff’d in relevant part, 976 P.2d 379 (Haw. 1999), a Hawaii court
of appeals decision which opined that “advising the jury [that] its verdict of ‘not
guilty’ rests on whether it ‘think[s]’ there is a ‘real possibility’ the defendant is not
guilty invites the jury to abandon the presumption of innocence.” (second
alteration in original). He further cites Perez for the proposition that the “firmly
convinced” language lowered the burden of proof because “it is possible to be
firmly convinced of a fact, yet still retain a reasonable doubt.” Id. at 442. Moreover,
he relies on the Fourth Circuit’s decision in Porter, which described the twin
phrases as “unnecessary concepts” but nonetheless held that they were
“compensated for” by “[t]he instructions taken as a whole.” 821 F.2d at 973. Teran
Sanchez maintains that it is tautological to require the jury to find a “real
possibility that the defendant is not guilty” in order to find that “the prosecution
has failed to prove the crime charged.”
the reasonable doubt instruction that the jury may consider the lack of evidence in
a case when determining whether the prosecution has met its burden.”). But see
Schlehuber, ¶ 20, 572 P.3d at 648 (holding that a trial court does not err by omitting
such language). Teran Sanchez takes no issue with the absence of this language.
See Reply Brief for Petitioner, at 19 (stating that the issue “is not presented in this
case”); cf. COLJI-Crim. E:03 (2025) (current model instruction which includes a
sentence that “[a] reasonable doubt can be based on the evidence presented or the
lack of evidence presented”).

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¶27 Despite his position, Teran Sanchez recognizes that other state courts have
blessed the challenged language in similar instructions. See State v. Jackson,
925 A.2d 1060, 1068 (Conn. 2007) (“The instruction properly informed the jury that
the standard in criminal cases mandates a ‘firm conviction’ of guilt that is devoid
of any rational basis for questioning the truth of the allegations.”); State v. Putz,
662 N.W.2d 606, 613 (Neb. 2003) (acknowledging Perez’s criticism of the twin
formulation but holding that the language within Nebraska’s reasonable-doubt
instruction did not lessen the burden of proof when “taken as a whole”); see also
United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997) (holding that the twin
language is permissible, relying on Justice Ginsburg’s approval in Victor, 511 U.S.
at 24 (Ginsburg, J., concurring in part and concurring in the judgment)). And while
the court in Putz unearthed “valid criticism” of this language, it emphasized that
courts must not judge such language “in artificial isolation”; instead, they must
examine it “in the context of the overall charge to the jury.” 662 N.W.2d at 614.
¶28 Our review of the 2023 Instruction, taken as a whole, reveals no concern that
it lowers the burden of proof. The Instruction begins by directing the jury that the
“burden of proof in th[e] case is upon the prosecution” to prove “each and every
element necessary” of the charged offense, COLJI-Crim. E:03 (2022), thus
unequivocally allocating the burden of proof to the prosecution. And it goes on to
sufficiently describe the standard that the prosecution must meet—proving each

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and every element beyond a reasonable doubt until the jury is “firmly convinced”
of the defendant’s guilt—while also recognizing that the prosecution has failed to
meet this burden if the jury thinks that there is a “real possibility” that the
defendant is not guilty. See Schlehuber, ¶ 33, 572 P.3d at 651; Melara, ¶ 30, 572 P.3d
at 628. In this regard, we particularly agree with the reasoning of our court of
appeals: “firmly convinced” and “real possibility” combine to direct the jury to
(1) demand significant evidence on the part of the prosecution before finding the
defendant guilty, and (2) not seek some “fanciful,” “‘imaginary,’” or “‘mere[ly]
possible’” doubt in order to return a not-guilty verdict. Schlehuber, ¶ 31, 572 P.3d
at 650 (quoting Victor, 511 U.S. at 17). Both phrases work in tandem to describe
proof beyond a reasonable doubt; they are neither redundant nor tautological.
2. Common Meanings of “Firmly Convinced” and “Real
Possibility” Comport with Case Law
¶29 Teran Sanchez insists that even if courts have approved the challenged
language, case law fails to grapple with the common meanings of the challenged
language, i.e., how “ordinary, non-lawyer jurors” understand the language. Teran
Sanchez offers two jury studies to demonstrate that the language of the 2023
Instruction causes jurors to return convictions on a standard lower than beyond a
reasonable doubt. First, he presents a 1996 jury study, which found that one-third
of mock jurors who used jury instructions containing the “real possibility”
language, including the FJC Instruction, returned guilty verdicts. Irwin A.

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Horowitz & Laird C. Kirkpatrick, A Concept in Search of a Definition: The Effects of
Reasonable Doubt Instructions on Certainty of Guilt Standards and Jury Verdicts, 20 L.
& Hum. Behav. 655, 663 (1996). Teran Sanchez claims that this study spurred a
federal district court to recommend abandoning the FJC Instruction, citing
Stoltie v. California, 501 F. Supp. 2d 1252, 1261 (C.D. Cal. 2007), aff’d sub nom.,
Stoltie v. Tilton, 538 F.3d 1296 (9th Cir. 2008). Second, he offers his attorneys’ self-
funded jury study, which found that mock jurors returned a greater percentage of
guilty verdicts using the 2023 Instruction (62.8%), compared to the instructions
used in Tibbels (59.8%) and Cage (52.2%). E. Paige Lloyd & Abigail J. Langeberg,
The Effect of Jury Instructions on Verdict Thresholds and Guilt Perception, at 25 (2025),
https://doi.org/10.31234/osf.io/vrfs7_v1 [https://perma.cc/NNX5-AWD5].
¶30 Teran Sanchez then aggregates some recent usages of the challenged
language in newspapers and popular culture in an attempt to show that modern
jurors would interpret “firmly convinced” more commonly as “some lower level
of certainty” and a “real possibility” as a “substantial possibility.” For “firmly
convinced,” he provides some examples, such as, “I am pretty firmly convinced
that Succession is not going to let any of the Roy kids walk away happy,”5 and “I
5 Opening Brief for Petitioner, at 31 (quoting Judy Berman, Succession’s ‘Church and
State’ Was a Funeral for Kendall’s Soul, TIME (May 21, 2023), https://time.com/
6281255/succession-season-4-episode-9-recap/ [https://perma.cc/JH9L-P9H4]).

20
am firmly convinced that our firm will emerge well-positioned to help our clients
and communities recover.”6 For “real possibility,” his examples include, “That
price isn’t final . . . but it’s a real possibility,”7 and “[b]ut you should know there
is a very real possibility that this program fails.”8
¶31 However, nothing in the 2023 Instruction precludes jurors from considering
and applying a commonsense meaning of the contested language. See Melara, ¶ 31,
572 P.3d at 628 (noting that the Instruction did not “dissuade the jurors from
applying their common sense when considering the evidence”). Importantly, the
ordinary meanings of “firmly convinced” and “real possibility” comport with
those espoused in case law. To be “firmly” convinced (of the defendant’s guilt) is
to be “strongly” or “steadfastly” convinced. Firmly, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/firmly [https://perma.cc/
X8M4-XBVY]. And a “real” possibility (that the defendant is not guilty) is
6 Id. at 32 (quoting Meghan Roos, Economy Will Rebound in Second Half of 2020 as
States Reopen for Business, Goldman Sachs Report Predicts, Newsweek (Apr. 15, 2020),
https://www.newsweek.com/economy-will-rebound-second-half-2020-states-
reopen-business-goldman-sachs-report-predicts-1498107 [https://perma.cc/
S38L-CGGF]).
7 Id. at 29 (omission in original) (quoting Mitchell Clark, Pebble Might Be Coming
Back—as a Small Android Phone, The Verge (Mar. 22, 2023), https://
www.theverge.com/2023/3/22/23595159/pebble-small-android-phone-project-
crowdfunding-migicovsky).
8 Id. (quoting Stranger Things: The Monster and the Superhero, at 55:41 (Netflix,
accessed Sep. 8, 2026).

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“genuine” or “ha[s] objective independent existence.” Real, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/real [https://
perma.cc/AX4J-CURM]. These familiar definitions in no way suggest a lower
burden than proof beyond a reasonable doubt.
¶32 Indeed, one could substitute these definitions for the challenged language
in some of Teran Sanchez’s examples, and the meaning would not change. Take
“firmly convinced,” whose common definition, “strongly convinced,” would fit
into Teran Sanchez’s examples: “I am pretty [strongly] convinced that Succession
is not going to let any of the Roy kids walk away happy”; “I am [strongly]
convinced that our firm will emerge well-positioned to help our clients and
communities recover.” Or consider “real possibility” for example, which could be
swapped with “genuine possibility” and the meaning would still square with case
law: “That price isn’t final . . . but it’s a [genuine] possibility”; “But you should
know there is a very [genuine] possibility that this program fails.” Hence, we note
that even Teran Sanchez’s examples do not support the strained interpretation of
the challenged language that he urges us to adopt.
¶33 Addressing the presented jury studies, the findings and methodologies of
these studies do not indicate conclusively that the 2023 Instruction lowers the
burden of proof. As to the Horowitz & Kirkpatrick jury study, it in fact found that
the FJC Instruction—which had both the “firmly convinced” and “real possibility”

22
language—“produced lower guilt scores in the weak [evidence] case” compared to
the remaining kinds of jury instructions used by mock jurors. Horowitz &
Kirkpatrick, supra, at 662–63 (emphasis added). The FJC Instruction was the most
defendant-friendly instruction among the instructions used in the study, despite
there being some avenue for clearer language in all of the instructions. Id. at 667
(“[O]nly the [FJC] juries interpreted the 50/50 split in evidentiary strength as
failing to sustain the burden of proof.”); cf. Stoltie, 501 F. Supp. 2d at 1261 (“The
‘firmly convinced’ formulation, while outperforming others in helping jurors
differentiate between strong and weak cases, still leaves something to be
desired.”).
¶34 Regarding defense counsels’ self-funded study, even assuming the truth of
its finding—that online participants returned relatively higher rates of conviction
using the 2023 Instruction compared to an instruction that did not contain the “real
possibility” language, Lloyd & Langeberg, supra, at 25—this does not indicate
conclusively that the 2023 Instruction communicates a lower burden of proof than
beyond a reasonable doubt in an actual courtroom setting, as the authors admit.9
9 Inter alia, the authors of counsels’ self-funded jury study recognized that
participants “[r]eading jury instructions in the comfort of [their] home or office . . .
likely doesn’t fully mimic the courtroom experience—where perspective [sic]
jurors receive instructions directly from a judge and have an opportunity to
deliberate.” Lloyd & Langeberg, supra, at 28.

23
Mock jurors individually responding to online surveys do not equate to an actual
jury deliberation with the benefit of a trial judge’s additional instructions. Nor can
online jury surveys replicate the group dynamics of a real jury room where jurors
aid one another in reaching a common understanding of the instructions during
in-person deliberations.
¶35 Moreover, neither of these jury studies was presented to the trial judge, nor
were the People given a full opportunity to confront the studies with their own
expert evidence. In effect, the defense would have us take judicial notice of these
jury studies. Judicial notice may be taken of facts “not subject to reasonable
dispute” that are “either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” CRE 201(b); see also
Mun. Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701,
711 (Colo. 1999). These jury studies do not meet these requirements.
¶36 What’s more, the trial judge is the appropriate “gatekeep[er]” for expert
evidence ensuring that “expert[] testimony both rests on a reliable foundation and
is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
580, 597 (1993). It is for trial courts to “pass upon the weight of their evidence[]
and find the facts,” or to interpret the results of statistical studies like these jury
studies, which may require an evidentiary hearing with cross examination.

24
Hines v. Oliver, 291 P.2d 693, 694 (Colo. 1955) (quoting Davis v. Pursel, 134 P. 107,
109 (Colo. 1913)). As a result, under these facts, we do not give much credence to
these jury studies presented for the first time before us. Petition of Edilson, 637 P.2d
362, 364 (Colo. 1981) (“Evidence which was not presented to the trial court will not
be considered on review.”).
¶37 Accordingly, we hold that the 2023 Instruction is constitutional and neither
lowers the burden of proof nor shifts that burden to the defendant.
D. Additional Statements
¶38 Teran Sanchez alternatively argues that even if the 2023 Instruction is
constitutional, additional statements made by the county court and the
prosecution combined with the Instruction to lower the burden of proof.
1. Applicable Law
¶39 To evaluate the county court’s statements, we ask, “whether there is a
reasonable likelihood that the jury understood a contested instruction, in the
context of the instructions as a whole and the trial record, to allow a conviction
based on a standard lower than beyond a reasonable doubt.” Tibbels, ¶ 36, 501 P.3d
at 799. This inquiry turns on “the nature of the statements, the context in which
they were made, any other explanations or instructions that the court may have
provided, and, of course, the court’s final jury charge.” Id. at ¶ 41, 501 P.3d at 800.

25
¶40 For instance, in Tibbels, the trial court first supplied the then-extant pattern
reasonable-doubt jury instruction, COLJI-Crim. E:03 (2021), which defined
reasonable doubt in part as “a doubt as would cause reasonable people to hesitate
to act in matters of importance to themselves.” Tibbels, ¶ 9, 501 P.3d at 795. But
the court then immediately diminished its significance: “Now, you’re all sitting
there saying what the hell does that mean. It’s a lengthy definition, okay. And
don’t lose heart. I’ll give you an example and see if we can put some teeth and
make this concrete.” Id.
¶41 After so diminishing the pattern instruction, the court then supplied its own
formulation. Specifically, it analogized reasonable doubt to a “crack in the
foundation from the floor to the ceiling” visible to a prospective homebuyer taking
a tour of the property, one “that’s causing you to hesitate”—i.e., “something that
you can kind of touch or feel,” as distinct from “aliens coming down and telling
you don’t buy the house.” Id. at ¶¶ 10, 12, 501 P.3d at 795–96. We deemed this
reversible error, holding that it was “reasonably likely that the jury understood
the court’s statements to allow a conviction based on a standard lower than
beyond a reasonable doubt.” Id. at ¶ 53, 501 P.3d at 802. We reasoned that (1) by
immediately directing the jury’s focus away from the pattern instruction and
supplying its own illustration, the trial court “undermin[ed] the pattern
instruction”; (2) the illustration “established a higher degree of doubt than is

26
required for an acquittal” because it erroneously “suggested that a reasonable
doubt was one that was so obvious that it would give every reasonable person
pause and cause them to hesitate to act”;10 and (3) the analogy suggested “that [the
defense] had some obligation to present evidence to create a reasonable doubt in
the jurors’ minds.” Id. at ¶¶ 50–52, 501 P.3d at 801.
¶42 Contrast the foregoing case with Johnson v. People, 2019 CO 17, ¶ 4, 436 P.3d
529, 530–31, in which the trial court first gave the same pattern jury instruction but
then went on to embellish this definition:
[Y]ou would find Ms. Johnson guilty only if, after hearing all of that
evidence, you just can’t bring yourself to do it. You just have to
hesitate. It’s not there. You can’t find her guilty because the quality
or quantity of evidence just doesn’t let you. That’s when you’ve
hesitated to act.
We held that this remark did not prejudice Johnson because (1) it was “nonsensical
and simply too confusing for the jury to follow” and was made only once, (2) the
court read “the correct definitions of reasonable doubt and the burden of proof
immediately” beforehand, and (3) the court “correctly instructed the jury
10 The then-extant reasonable-doubt jury instruction defined reasonable doubt as
“such a doubt as would cause reasonable people to hesitate to act in matters of
importance to themselves.” COLJI-Crim. E:03 (2021). Thus, our use of “hesitate
to act” referred to the trial court’s paraphrasing, which portrayed reasonable
doubt as a crack in the foundation “causing you to hesitate.” See Tibbels, ¶¶ 12, 51,
501 P.3d at 795, 801.

27
numerous times regarding the presumption of innocence, reasonable doubt, and
the burden of proof.” Id. at ¶ 18, 436 P.3d at 534.
¶43 Besides the trial court’s instructions to which we apply the Tibbels inquiry,
Teran Sanchez claims that the prosecution made improper statements during the
trial, which prejudiced him. If such statements were “few in number [and]
momentary in length” and not objected to contemporaneously, they do not require
reversal unless they constitute “plain error” which “undermines the fundamental
fairness of the trial itself as to cast serious doubt on the reliability of the jury’s
verdict.” Domingo-Gomez, 125 P.3d at 1053.
¶44 With these principles in mind, we now turn to Teran Sanchez’s case.
2. The County Court’s Additional Statements During Voir
Dire and the Prosecution’s Statements During Closing
Arguments Did Not Lower the Burden of Proof
¶45 Teran Sanchez argues that even if the pattern 2023 Instruction did not
violate his due process rights, certain statements made by the court and the
prosecution to the jury did. He asserts that these statements caused his conviction
despite what he characterizes as “remarkably weak” evidence. Specifically, he
points to a statement during closing argument—when the prosecutor told the jury
that it “need[ed] to find him guilty of driving while ability impaired”—and
contends that this lowered the burden of proof because it conveyed that the jury
was required to convict him. Teran Sanchez also points to an exchange during voir

28
dire, when the court asked a prospective juror how she would know which of her
two children broke a lamp if they “invoke[d] [the] right to silence” and after the
juror said that she would “figure out [her] best guess,” the court repeated this
remark:
The court: So you go to the little one and she says, “Mom, I
appreciate the question, but I’m going to invoke my right
to silence at this time.” What’s—what’s your response,
besides putting her in law school?
Juror: I just assess the situation and figure out my best guess.
The court: Figure out your best guess. And so, as—as a juror today, if
you’re selected to sit on this panel, you may be charged
with assessing somebody’s credibility and determining
what the facts were. And that burden will be entirely on the
[p]rosecution to present the evidence to you. The burden never
shifts over to the [d]efense at any point. I don’t know, again,
what evidence you’ll hear today, but [defense attorneys]
could put their feet up, pull out a deck of cards, and start
playing Go Fish, and the burden would never shift to them to
disprove anything in this case.
(Emphases added.)
¶46 Teran Sanchez maintains that because the court did not explicitly correct the
juror and instead repeated the comment, jurors might have believed they could
apply their “best guess.”
¶47 We disagree that these stray remarks lowered the prosecution’s burden of
proof. This is not a case like Tibbels, in which the trial court undermined the model
instruction and provided its own lengthy, improper definition of “reasonable

29
doubt.” ¶ 51, 501 P.3d at 801. To the contrary, this case is closer to Johnson, in
which the court repeatedly gave the “exact” definition of reasonable doubt in the
pattern instruction (which we have already deemed constitutional). ¶¶ 16, 18,
436 P.3d at 533–34.
¶48 Moreover, the court here repeatedly informed the jury that the prosecution
bore the burden of proving Teran Sanchez’s guilt beyond a reasonable doubt.
Almost immediately after the court repeated the juror’s remark to “[f]igure out
your best guess,” it stated that the “burden [would] be entirely on the
[p]rosecution” and that the defense had no duty to present evidence.
Additionally, during voir dire, after asking another prospective juror if she would
have any “discomfort” about the prosecution’s burden, the court emphasized that
this burden never shifted to the defense:
So again, as I sort of instructed a little bit ago, the burden of proof in this
case to prove each and every element of the offense beyond a reasonable doubt
rests with the People.
They’ll be the ones calling the witnesses at the start of this trial, and
the [d]efense never has to present any evidence. The [d]efense can remain
silent, they don’t have to call any witnesses. Again, they don’t have
to do anything over the course of this trial and the burden never shifts
over to them. We never ask ourselves, “We heard from this person so
now they need to disprove anything.” The burden rests entirely with the
prosecution to prove this case beyond a reasonable doubt.
(Emphases added.)

30
¶49 At another point during voir dire, after a third prospective juror expressed
concern about “only getting one side of the story,” the court reiterated the law
about the burden of proof:
And, again, that burden never shifts over to the [d]efense for them to
disprove anything. If you did not hear from the [d]efense, it sounds
like you’re hoping that they’ll fill in gaps or present their story, but
do you understand that even if they don’t present any witnesses, that’s
not something that you can consider in your deliberations? And that they
don’t have any burden of proof in a criminal case?
(Emphases added.)
¶50 And at the close of trial, the court gave the 2023 Instruction—which correctly
explains reasonable doubt—verbatim. In light of these accurate statements, the
“best guess” remark cited by Teran Sanchez holds no water. And absent any
infirmity with the court’s instruction, we decline to step into the shoes of the trial
court and weigh the strength or weakness of the prosecution’s evidence. See
Oliver, 291 P.2d at 694.
¶51 Nevertheless, even the prosecution, in its closing argument, reminded the
jury that it needed “to be firmly convinced” that Teran Sanchez had committed
the charged crimes. Thus, although the prosecution told the jury that it “need[ed]
to find [Teran Sanchez] guilty of driving while ability impaired,” the jury was well
aware that it needed to be “firmly convinced” to do so. Moreover, this was a short,
passing comment to which no contemporaneous objection was made. Thus, it did
nothing to diminish the correct definition of the burden of proof beyond a

31
reasonable doubt, which was present in the jurors’ minds. Thus, in this case, we
see no avenue wherein the jury’s verdict was undermined by the prosecution’s
momentary comment that the jury needed to find Teran Sanchez guilty, which was
shortly followed by the “firmly convinced” language. See Domingo-Gomez,
125 P.3d at 1053.
¶52 Accordingly, we hold that there was no reasonable likelihood that the jury
understood the 2023 Instruction and the court’s and prosecution’s statements,
taken as a whole, as allowing a conviction based on a standard lower than beyond
a reasonable doubt.
III. Conclusion
¶53 For the foregoing reasons, we affirm the district court’s judgment.

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
September 14, 2026

2026 CO 60

No. 25SC148, Teran Sanchez v. People-Pattern Jury Instructions - Reasonable
Doubt-"Firmly Convinced" and "Real Possibility."

The supreme court assesses the constitutionality of COLJI-Crim. E:03 (2022),
the 2023 pattern jury instruction on the presumption of innocence, burden of
proof, and reasonable doubt ("2023 Instruction"). In particular, the court considers
whether the 2023 Instruction's "firmly convinced" and "real possibility" language
and the county court's and prosecution's statements impermissibly lowered the
burden of proof and shifted that burden to the defendant.

After evaluating long-standing judicial endorsement of "real possibility"
and "firmly convinced" under federal and Colorado law and their common
meanings, the supreme court holds that the 2023 Instruction is constitutional and
neither lowers the burden of proof nor shifts that burden to the defendant. In
addition, the supreme court considers the county court's statements in the context
of the instructions as a whole and the trial record and reviews the prosecution's
statement for plain error. In doing so, the court further holds that there was no

reasonable likelihood that the jury understood the 2023 Instruction and the court's
and prosecution's statements, taken as a whole, as allowing a conviction based on
a standard lower than beyond a reasonable doubt.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 60

Supreme Court Case No. 25SC148
Certiorari to the District Court
Adams County District Court Case No. 24CV30648
Honorable Teri L. Vasquez, Judge

Petitioner:
Alexis Teran Sanchez,

Respondent:

The People of the State of Colorado.

Judgment Affirmed
en banc
September 14, 2026

Attorneys for Petitioner:

Gibson, Dunn & Crutcher LLP

John Partridge

Al Kelly

NoahLani Litwinsella

Yama Keshawerz

Denver, Colorado

BTW Legal

Yun Wang

Denver, Colorado

Attorneys for Respondent:

Brian Mason, District Attorney, Seventeenth Judicial District

Todd Bluth, Senior Deputy District Attorney

Brighton, Colorado

JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

JUSTICE BOATRIGHT delivered the Opinion of the Court.

11 In 2023, the Model Criminal Jury Instructions Committee published
COLJI-Crim. E:03 (2022), revising Colorado's model jury instruction on the
presumption of innocence, burden of proof, and reasonable doubt ("2023
Instruction" or "Instruction"). Previously, the Committee's model instruction
defined reasonable doubt, in part, as "such a doubt as would cause reasonable
people to hesitate to act in matters of importance to themselves." COLJI-Crim.
E:03 (2021). The 2023 Instruction removed this language and instead defined proof
beyond a reasonable doubt as "proof that leaves you firmly convinced of the
defendant's guilt." (Emphasis added.) In addition, the 2023 Instruction provided
that "if you think there is a real possibility that the defendant is not guilty, then the
prosecution has failed to prove the crime charged beyond a reasonable doubt."
(Emphasis added.)

12 These changes form the grounds of Alexis Teran Sanchez's petition seeking
a reversal of the district court's judgment, which affirmed his conviction for
various offenses related to alcohol-impaired driving. He argues that the 2023
Instruction-specifically its "firmly convinced" and "real possibility"
language-which the county court used at his trial, impermissibly lowered the
burden of proof, shifted it to the defense, and violated his rights to due process

and a fair trial. He further argues that the county court and the prosecution made
statements which lowered the prosecution's burden of proof.1

[3 We now hold that the 2023 Instruction is constitutional and neither lowers
the burden of proof nor shifts that burden to the defendant. We further hold that
there was no reasonable likelihood that the jury understood the 2023 Instruction
and the court's and prosecution's statements, taken as a whole, as allowing a
conviction based on a standard lower than beyond a reasonable doubt.
Accordingly, we affirm the district court's judgment.

## I. Facts and Procedural History

94 In May 2023, police officers responded to a reported hit-and-run accident
and approached Teran Sanchez, who was exiting a damaged vehicle in a nearby
parking lot. They observed him behaving nervously, speaking quickly, and
struggling to focus. They noticed his breath smelled like alcohol. Teran Sanchez
admitted that he was driving the vehicle and was involved in a collision, but he
provided conflicting statements about whether he remembered the specific details
of the accident.

1 We granted certiorari to determine the following issue:

Whether the trial court's jury instruction on burden of proof and
reasonable doubt, based on the 2023 Model Criminal Jury Instruction,
violated petitioner's federal and constitutional rights to due process
and a fair trial.

15
The People subsequently charged Teran Sanchez with several offenses
related to alcohol-impaired driving, as well as leaving the scene of an accident and
failing to report an accident.

16
At trial, the county court gave the 2023 Instruction verbatim:

The burden of proof in this case is upon the prosecution. The
prosecution must prove to the satisfaction of the jury beyond a
reasonable doubt the existence of each and every element necessary
to constitute the crime charged. This burden requires more than proof
that something is highly probable, but it does not require proof with
absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt. If you are firmly convinced of the
defendant's guilt, then the prosecution has proven the crime charged
beyond a reasonable doubt. But if you think there is a real possibility
that the defendant is not guilty, then the prosecution has failed to
prove the crime charged beyond a reasonable doubt.

COLJI-Crim. E:03 (2022) (emphases added).

17
Teran Sanchez objected to this Instruction, arguing that its "real possibility"
language impermissibly lowered the burden of proof and shifted it to the defense.
He further contended that the clause, "[b]ut if you think," put the jury's focus on
the strength of the prosecution's case, leaving the defense's case a secondary
consideration. The county court overruled these objections. The jury ultimately
found Teran Sanchez guilty of leaving the scene of an accident and failing to report
an accident, along with the lesser included offense of driving while ability
impaired.

18
Teran Sanchez appealed to the district court, which affirmed his convictions.
The district court distinguished Tibbels v. People, 2022 CO 1, 11 10, 51, 501 P.3d 792,
795, 802 - which held that the trial court erred when it compared reasonable doubt
to a visible "crack in the foundation" that would cause a prospective homebuyer
to "hesitate to act" - noting that the trial court there devised its own illustration of
reasonable doubt, whereas the county court here gave the 2023 Instruction
verbatim without any further comment on reasonable doubt.

19
Moreover, the district court explained that the clause "[b]ut if you think"
was to be read in context with the rest of the sentence: "But if you think there is a
real possibility that the defendant is not guilty, then the prosecution has failed to
prove the crime charged beyond a reasonable doubt." The court thus concluded
that "the modifier 'real' merely indicates that the jury is not to acquit a defendant
if it can conceive of any possibility that the defendant is not guilty." (Quoting
United States v. Williams, 20 F.3d 125, 131 (5th Cir. 1994).) And because the county
court consistently told the jury that Teran Sanchez was presumed innocent and
that the People had the burden of proof beyond a reasonable doubt, the district
court concluded that the 2023 Instruction neither lowered the burden of proof nor
shifted that burden to Teran Sanchez.

110 Teran Sanchez sought certiorari review, and we granted his petition. He
now argues that the modern-day and commonsense understanding of "firmly

convinced" and "real possibility" denotes a burden of proof lower than beyond a
reasonable doubt. In support of his position, he offers, for the first time, two jury
studies which he argues demonstrate that the 2023 Instruction invites juries to
convict defendants based on a standard lower than beyond a reasonable doubt.
Additionally, he argues that statements made by the county court and the
prosecution lowered the burden of proof and shifted that burden to the defense.
He points to an exchange during voir dire, when the court asked a prospective
juror how she would know which of her two children broke a lamp if they
"invoke[d] [the] right to silence." After the juror said that she would "figure out
[her] best guess," the court repeated this remark ("Figure out your best guess").
Teran Sanchez also refers to the prosecution's statements to the jury in closing
arguments that it "need[ed] to find him guilty of driving while ability impaired."

## II. Analysis

111 We begin by setting out the standard of review. We next review the
constitutional principles underpinning reasonable doubt and pattern jury
instructions. After evaluating long-standing judicial endorsement of the phrases
"real possibility" and "firmly convinced" under federal and Colorado law and
their common meanings, we hold that the 2023 Instruction is constitutional and
neither lowers the burden of proof nor shifts that burden to the defendant. Finally,
we discuss and apply the test we adopted in Tibbels to the court's statements and

review the prosecution's statements for plain error. In doing so, we further hold
that there was no reasonable likelihood that the jury understood the 2023
Instruction and the court's and prosecution's statements, taken as a whole, as
allowing a conviction based on a standard lower than beyond a reasonable doubt.

## A. Standard of Review

112 We review de novo both the constitutionality of a jury instruction and
whether a trial court properly instructed the jury. See Garcia v. People, 2023 CO 30,
1 9, 531 P.3d 1031, 1033. An instruction that lowers the prosecution's burden of
proof is unconstitutional, amounting to structural error requiring automatic
reversal. See Tibbels, 1 22, 501 P.3d at 797.

## B. Applicable Law

113 The Due Process Clauses of the United States and Colorado Constitutions
require that every conviction rests on proof by the prosecution of each factual
element of the offense beyond a reasonable doubt. U.S. Const. amend. XIV, § 1;
Colo. Const. art. II, § 25; Pettigrew v. People, 2022 CO 2, 1 33, 501 P.3d 813, 821. It
follows that a trial court must correctly define what constitutes a reasonable doubt,
though the court retains reasonable discretion in doing so. Pettigrew, 1 35, 501 P.3d
at 821; see also Victor v. Nebraska, 511 U.S. 1, 5 (1994) ("[S]o long as the court
instructs the jury on the necessity that the defendant's guilt be proved beyond a

reasonable doubt, the Constitution does not require that any particular form of
words be used . .. . " (citation omitted)).

114 Pattern jury instructions are nonbinding but time-trusted guideposts for
formulating constitutional jury instructions. People v. Flockhart, 2013 CO 42, 1 12,
304 P.3d 227, 231. Nevertheless, pattern jury instructions which misstate or lower
the applicable standard of proof are erroneous and unconstitutional. People v.
Hoskin, 2016 CO 63, T1 19-20, 380 P.3d 130, 136; see also Flockhart, 1 12, 304 P.3d at
231.

115 In assessing whether a pattern instruction-such as the definition of
reasonable doubt-is constitutional, we may consider whether it mirrors
longstanding expressions of the relevant principle under Colorado and federal
case law. See People v. Schlehuber, 2025 COA 50, 11 24-33, 572 P.3d 641, 649-51.
Additionally, we may consider jurors' "commonsense understanding of the
instructions," because jurors "do not ... pars[e] instructions for subtle shades of
meaning in the same way that lawyers might." Boyde v. California, 494 U.S. 370,
380-81 (1990).

116 To evaluate whether a trial court's specific instruction together with its
contextual statements lowered the prosecution's burden of proof, we ask,
"whether there is a reasonable likelihood that the jury understood the court's
statements, in the context of the instructions as a whole and the trial record, to

allow a conviction based on a standard lower than beyond a reasonable doubt."
Tibbels, 1 2, 501 P.3d at 794. We review the prosecution's remarks for plain error,
asking whether any "error so undermine[d] the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the jury's verdict." Domingo-
Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005). We consider "the language used,
[its] context, and whether a contemporaneous objection was made." Id. at 1048.

## C. Constitutionality of the 2023 Instruction

117 At bottom, Teran Sanchez has two bones to pick with the 2023 Instruction.
First, he argues that requiring jurors to be "firmly convinced" of the defendant's
guilt lowers the prosecution's burden of proof to a more speculative standard.
Second, he contends that asking jurors whether there is a "real possibility" that the
defendant is not guilty flips the burden of proof and compels them to consider
whether the defendant is substantially likely to be innocent. We now examine the
challenged language.

## 1. Federal and Colorado Case Law Demonstrate a Positive Consensus on "Firmly Convinced" and "Real Possibility"

118 The 2023 Instruction's use of "firmly convinced" and "real possibility"
traces to a 1982 pattern instruction of the Federal Judicial Center ("FJC

Instruction"), which Justice Ginsburg endorsed over three decades ago.2 See
Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and concurring in the
judgment) ("The 'firmly convinced' standard ... is further enhanced by the
juxtaposed prescription that the jury must acquit if there is a 'real possibility' that
the defendant is innocent. This model instruction surpasses others I have seen in
stating the reasonable doubt standard succinctly and comprehensibly.").

119 However, even before Victor, several federal circuits had given the "firmly
convinced" language the green light, deeming it similar to other constitutional
expressions of reasonable doubt. In United States v. Hunt, 794 F.2d 1095, 1100 (5th
Cir. 1986), for example, the Fifth Circuit stressed that "firmly convinced' seems

2 The text of the FJC Instruction does not exactly match the 2023 Instruction.
However, the minor differences do not diminish Justice Ginsburg's endorsement
of the challenged language. In relevant part, the FJC Instruction provides:

Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant's guilt. There are very few things in this
world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If,
based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you must
find him guilty. If, on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.

Fed. Jud. Ctr., Pattern Criminal Jury Instructions: Report of the Federal Judicial Center
Committee to Study Criminal Jury Instructions 36 (June 1982), https://www.fjc.gov/
sites/default/files/materials/35/Pattern-Criminal-Jury-Instructions-1982.pdf
[https://perma.cc/976A-6NPD].

little different from 'a real doubt,"" which it had previously approved. Id. (citing
United States v. Alonzo, 681 F.2d 997, 1002 (5th Cir. 1982)). And because the "firmly
convinced" language "expounded the law accurately and conscientiously," any
"efforts to base error on abstract semantics must fail." Id. at 1101.

120 Two years before Victor, the Ninth Circuit ratified the "firmly convinced"
language in United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992), noting its
similarity to "hesitate to act." The court stated that "'firmly convinced' and
'hesitate to act' are essentially two ways of conveying the same definition of
reasonable doubt."3 Id .; cf. United States v. Barrera-Gonzales, 952 F.2d 1269, 1273
(10th Cir. 1992) (opining that "'firmly convinced' requires more persuasion than
terms such as 'reasonable certainty' or 'abiding conviction as to guilt'"). But see
Cage v. Louisiana, 498 U.S. 39, 40 (1990) (concluding that language which described
proof beyond a reasonable doubt as "doubt as would give rise to a grave uncertainty,"

3 We note, however, that the "hesitate to act" language has fallen out of favor.
Specifically, in the 2023 Instruction, the Model Criminal Jury Instructions
Committee omitted the "hesitate to act" language for three reasons: (1) "[I]t was
phrased in the negative ... and such phrasing arguably makes juror
comprehension more challenging"; (2) some commentators had criticized the
language, noting that most decisions in life "generally involve a very heavy
element of uncertainty and risk taking,' and are thus 'wholly unlike the decisions
jurors ought to make in criminal cases'"; and (3) "the prior instruction provided
less context regarding the reasonable doubt standard." COLJI-Crim. E:03 cmt. 1
(2022) (quoting Victor, 511 U.S. at 24 (Ginsburg, J., concurring in part and
concurring in the judgment)).

and which required a "moral certainty," lowered the burden of proof (quoting
State v. Cage, 554 So. 2d 39, 41 (La. 1989))), disapproved of on other grounds by,
Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). In sum, the "firmly convinced"
language has encountered little to no judicial criticism.

121 By contrast, the "real possibility" language came under scrutiny in United
States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987). The Fourth Circuit took issue with
the "confusion . . . engendered by attempting to define a reasonable doubt in terms
of a 'real possibility' that the accused is not guilty." Id. Yet it clarified that this
confusion came about because "[t]he district court did not explain the difference
that it perceived between a 'possibility' and a 'real possibility."" Id. Importantly,
the district court's instruction "failed to tell the jury that the accused did not have
the burden of showing a 'real possibility' of innocence." Id. But while the Fourth
Circuit stated that the instruction "failed to allocate" the burden of proof, it
concluded that the instruction "did not shift the burden of proof on the question of
a real possibility," and it held that other instructions-which addressed the
presumption of innocence and stated that the burden was always on the
prosecution-"compensated for this omission." Id. (emphases added).

122 Essentially, the concern arises only when the instruction implies that the
defendant should be the one to supply the "real possibility" of innocence. See
United States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (holding that there was

no structural error because the court explained the presumption of innocence and
the prosecution's burden of proof, thereby dispelling the notion that the defendant
must prove a "real possibility" of innocence). But the "real possibility" language
does not shift the burden of proof to the defendant if other parts of the instruction
clarify that the burden rests with the prosecution and the jury must be "firmly
convinced" of the defendant's guilt to satisfy proof beyond a reasonable doubt.
See FJC Instruction at 36.

123 Unsurprisingly, multiple federal circuits have followed Justice Ginsburg's
clear nod to the twin formulation. See, e.g., United States v. Conway, 73 F.3d 975,
980 (10th Cir. 1995) (holding that "firmly convinced" juxtaposed with "a real
possibility" presents "a correct and comprehensible statement of the reasonable
doubt standard" (citing Victor, 511 U.S. at 27 (Ginsburg, J., concurring in part and
concurring in the judgment))); accord Williams, 20 F.3d at 131-32; see also United
States v. Brand, 80 F.3d 560, 566 (1st Cir. 1996) (approving the "firmly convinced"
language together with the "court's further exposition"); United States v. Petty,
856 F.3d 1306, 1310 (10th Cir. 2017) (concluding that the "'firmly convinced'
formulation of the reasonable doubt standard did not understate the degree of
certainty"); United States v. Watkins, 66 F.4th 1179, 1187 (8th Cir. 2023) (approving
language describing proof beyond a reasonable doubt as "proof that leave[s] you
firmly convinced of the defendant's guilt" (quoting Harris v. Bowersox, 184 F.3d

744, 751 (8th Cir. 1999))). In fact, no circuit court has found that the use of the twin
formulation constitutes reversible error. This overwhelming weight of authority
indicates positive federal consensus about the challenged language.

124 More recently, two divisions of our court of appeals in Schlehuber and
People v. Melara, 2025 COA 48, 572 P.3d 619, upheld the constitutionality of the
"firmly convinced" and "real possibility" combination in the 2023 Instruction.
Schlehuber, 1 33, 572 P.3d at 651; Melara, 1 30, 572 P.3d at 628. The Schlehuber
division adopted the enduring view that the twin phrases complement each other.
T 33, 572 P.3d at 651. Specifically, it reasoned that (1) requiring the jury to be
"firmly convinced" of the defendant's guilt correctly connotes "near certitude,"
which is greater than ""highly probable' but stops short of absolute certainty"; and
(2) concordantly, the term "real possibility" informs the jury not to acquit just
because it perceives a "fanciful possibility" that the defendant is not guilty. Id. at
T 31, 572 P.3d at 650 (emphases added).

125 Likewise, the Melara division characterized the 2023 Instruction's twin
formulation as "an accurate statement of the law," noting the Instruction's
emphasis that "even proof that something is 'highly probable' is not sufficient to
satisfy the reasonable doubt burden." | 30, 572 P.3d at 628.4

4 The Melara division did take issue with the 2023 Instruction's omission of any
language informing the jury that reasonable doubt can arise from a "lack of
evidence." [ 28, 572 P.3d at 627 ("[T]rial courts should include a statement within

T26
Teran Sanchez disagrees, citing decisions to the contrary to argue that the
twin formulation is infirm. Principally, he points to State v. Perez, 976 P.2d 427, 441
(Haw. Ct. App. 1998), aff'd in relevant part, 976 P.2d 379 (Haw. 1999), a Hawaii court
of appeals decision which opined that "advising the jury [that] its verdict of 'not
guilty' rests on whether it 'think[s]' there is a 'real possibility' the defendant is not
guilty invites the jury to abandon the presumption of innocence." (second
alteration in original). He further cites Perez for the proposition that the "firmly
convinced" language lowered the burden of proof because "it is possible to be
firmly convinced of a fact, yet still retain a reasonable doubt." Id. at 442. Moreover,
he relies on the Fourth Circuit's decision in Porter, which described the twin
phrases as "unnecessary concepts" but nonetheless held that they were
"compensated for" by "[t]he instructions taken as a whole." 821 F.2d at 973. Teran
Sanchez maintains that it is tautological to require the jury to find a "real
possibility that the defendant is not guilty" in order to find that "the prosecution
has failed to prove the crime charged."

the reasonable doubt instruction that the jury may consider the lack of evidence in
a case when determining whether the prosecution has met its burden."). But see
Schlehuber, 1 20, 572 P.3d at 648 (holding that a trial court does not err by omitting
such language). Teran Sanchez takes no issue with the absence of this language.
See Reply Brief for Petitioner, at 19 (stating that the issue "is not presented in this
case"); cf. COLJI-Crim. E:03 (2025) (current model instruction which includes a
sentence that "[a] reasonable doubt can be based on the evidence presented or the
lack of evidence presented").

127 Despite his position, Teran Sanchez recognizes that other state courts have
blessed the challenged language in similar instructions. See State v. Jackson,
925 A.2d 1060, 1068 (Conn. 2007) ("The instruction properly informed the jury that
the standard in criminal cases mandates a 'firm conviction' of guilt that is devoid
of any rational basis for questioning the truth of the allegations."); State v. Putz,
662 N.W.2d 606, 613 (Neb. 2003) (acknowledging Perez's criticism of the twin
formulation but holding that the language within Nebraska's reasonable-doubt
instruction did not lessen the burden of proof when "taken as a whole"); see also
United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997) (holding that the twin
language is permissible, relying on Justice Ginsburg's approval in Victor, 511 U.S.
at 24 (Ginsburg, J., concurring in part and concurring in the judgment). And while
the court in Putz unearthed "valid criticism" of this language, it emphasized that
courts must not judge such language "in artificial isolation"; instead, they must
examine it "in the context of the overall charge to the jury." 662 N.W.2d at 614.

128 Our review of the 2023 Instruction, taken as a whole, reveals no concern that
it lowers the burden of proof. The Instruction begins by directing the jury that the
"burden of proof in th[e] case is upon the prosecution" to prove "each and every
element necessary" of the charged offense, COLJI-Crim. E:03 (2022), thus
unequivocally allocating the burden of proof to the prosecution. And it goes on to
sufficiently describe the standard that the prosecution must meet -proving each

and every element beyond a reasonable doubt until the jury is "firmly convinced"
of the defendant's guilt - while also recognizing that the prosecution has failed to
meet this burden if the jury thinks that there is a "real possibility" that the
defendant is not guilty. See Schlehuber, 1 33, 572 P.3d at 651; Melara, 1 30, 572 P.3d
at 628. In this regard, we particularly agree with the reasoning of our court of
appeals: "firmly convinced" and "real possibility" combine to direct the jury to
(1) demand significant evidence on the part of the prosecution before finding the
defendant guilty, and (2) not seek some "fanciful," "'imaginary," or "mere[ly]
possible" doubt in order to return a not-guilty verdict. Schlehuber, 1 31, 572 P.3d
at 650 (quoting Victor, 511 U.S. at 17). Both phrases work in tandem to describe
proof beyond a reasonable doubt; they are neither redundant nor tautological.

## 2. Common Meanings of "Firmly Convinced" and "Real Possibility" Comport with Case Law

129
Teran Sanchez insists that even if courts have approved the challenged
language, case law fails to grapple with the common meanings of the challenged
language, i.e., how "ordinary, non-lawyer jurors" understand the language. Teran
Sanchez offers two jury studies to demonstrate that the language of the 2023
Instruction causes jurors to return convictions on a standard lower than beyond a
reasonable doubt. First, he presents a 1996 jury study, which found that one-third
of mock jurors who used jury instructions containing the "real possibility"
language, including the FJC Instruction, returned guilty verdicts. Irwin A.

Horowitz & Laird C. Kirkpatrick, A Concept in Search of a Definition: The Effects of
Reasonable Doubt Instructions on Certainty of Guilt Standards and Jury Verdicts, 20 L.
& Hum. Behav. 655, 663 (1996). Teran Sanchez claims that this study spurred a
federal district court to recommend abandoning the FJC Instruction, citing
Stoltie v. California, 501 F. Supp. 2d 1252, 1261 (C.D. Cal. 2007), aff'd sub nom.,
Stoltie v. Tilton, 538 F.3d 1296 (9th Cir. 2008). Second, he offers his attorneys' self-
funded jury study, which found that mock jurors returned a greater percentage of
guilty verdicts using the 2023 Instruction (62.8%), compared to the instructions
used in Tibbels (59.8%) and Cage (52.2%). E. Paige Lloyd & Abigail J. Langeberg,
The Effect of Jury Instructions on Verdict Thresholds and Guilt Perception, at 25 (2025),
https://doi.org/10.31234/osf.io/vrfs7_v1 [https://perma.cc/NNX5-AWD5].

130 Teran Sanchez then aggregates some recent usages of the challenged
language in newspapers and popular culture in an attempt to show that modern
jurors would interpret "firmly convinced" more commonly as "some lower level
of certainty" and a "real possibility" as a "substantial possibility." For "firmly
convinced," he provides some examples, such as, "I am pretty firmly convinced
that Succession is not going to let any of the Roy kids walk away happy,"5 and "I

5 Opening Brief for Petitioner, at 31 (quoting Judy Berman, Succession's 'Church and
State' Was a Funeral for Kendall's Soul, TIME (May 21, 2023), https://time.com/
6281255/succession-season-4-episode-9-recap/ [https://perma.cc/JH9L-P9H4]).

am firmly convinced that our firm will emerge well-positioned to help our clients
and communities recover."6 For "real possibility," his examples include, "That
price isn't final .. . but it's a real possibility,"7 and "[b]ut you should know there
is a very real possibility that this program fails."8

131 However, nothing in the 2023 Instruction precludes jurors from considering
and applying a commonsense meaning of the contested language. See Melara, 1 31,
572 P.3d at 628 (noting that the Instruction did not "dissuade the jurors from
applying their common sense when considering the evidence"). Importantly, the
ordinary meanings of "firmly convinced" and "real possibility" comport with
those espoused in case law. To be "firmly" convinced (of the defendant's guilt) is
to be "strongly" or "steadfastly" convinced. Firmly, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/firmly
[https://perma.cc/
X8M4-XBVY]. And a "real" possibility (that the defendant is not guilty) is

6 Id. at 32 (quoting Meghan Roos, Economy Will Rebound in Second Half of 2020 as
States Reopen for Business, Goldman Sachs Report Predicts, Newsweek (Apr. 15, 2020),
https://www.newsweek.com/economy-will-rebound-second-half-2020-states-
reopen-business-goldman-sachs-report-predicts-1498107
[https://perma.cc/

S38L-CGGF]).

7 Id. at 29 (omission in original) (quoting Mitchell Clark, Pebble Might Be Coming
Back - as a Small Android Phone, The Verge (Mar. 22, 2023), https://
www.theverge.com/2023/3/22/23595159/pebble-small-android-phone-project-
crowdfunding-migicovsky).

8 Id. (quoting Stranger Things: The Monster and the Superhero, at 55:41 (Netflix,
accessed Sep. 8, 2026).

"genuine" or "ha[s] objective independent existence." Real, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/real [https://
perma.cc/ AX4J-CURM]. These familiar definitions in no way suggest a lower
burden than proof beyond a reasonable doubt.

132 Indeed, one could substitute these definitions for the challenged language
in some of Teran Sanchez's examples, and the meaning would not change. Take
"firmly convinced," whose common definition, "strongly convinced," would fit
into Teran Sanchez's examples: "I am pretty [strongly] convinced that Succession
is not going to let any of the Roy kids walk away happy"; "I am [strongly]
convinced that our firm will emerge well-positioned to help our clients and
communities recover." Or consider "real possibility" for example, which could be
swapped with "genuine possibility" and the meaning would still square with case
law: "That price isn't final . . . but it's a [genuine] possibility"; "But you should
know there is a very [genuine] possibility that this program fails." Hence, we note
that even Teran Sanchez's examples do not support the strained interpretation of
the challenged language that he urges us to adopt.

133 Addressing the presented jury studies, the findings and methodologies of
these studies do not indicate conclusively that the 2023 Instruction lowers the
burden of proof. As to the Horowitz & Kirkpatrick jury study, it in fact found that
the FJC Instruction - which had both the "firmly convinced" and "real possibility"

language-"produced lower guilt scores in the weak [evidence] case" compared to
the remaining kinds of jury instructions used by mock jurors. Horowitz &
Kirkpatrick, supra, at 662-63 (emphasis added). The FJC Instruction was the most
defendant-friendly instruction among the instructions used in the study, despite
there being some avenue for clearer language in all of the instructions. Id. at 667
("[O]nly the [FJC] juries interpreted the 50/50 split in evidentiary strength as
failing to sustain the burden of proof."); cf. Stoltie, 501 F. Supp. 2d at 1261 ("The
'firmly convinced' formulation, while outperforming others in helping jurors
differentiate between strong and weak cases, still leaves something to be
desired.").

134 Regarding defense counsels' self-funded study, even assuming the truth of
its finding - that online participants returned relatively higher rates of conviction
using the 2023 Instruction compared to an instruction that did not contain the "real
possibility" language, Lloyd & Langeberg, supra, at 25-this does not indicate
conclusively that the 2023 Instruction communicates a lower burden of proof than
beyond a reasonable doubt in an actual courtroom setting, as the authors admit.9

9 Inter alia, the authors of counsels' self-funded jury study recognized that
participants "[r]eading jury instructions in the comfort of [their] home or office . . .
likely doesn't fully mimic the courtroom experience-where perspective [sic]
jurors receive instructions directly from a judge and have an opportunity to
deliberate." Lloyd & Langeberg, supra, at 28.

Mock jurors individually responding to online surveys do not equate to an actual
jury deliberation with the benefit of a trial judge's additional instructions. Nor can
online jury surveys replicate the group dynamics of a real jury room where jurors
aid one another in reaching a common understanding of the instructions during
in-person deliberations.

135 Moreover, neither of these jury studies was presented to the trial judge, nor
were the People given a full opportunity to confront the studies with their own
expert evidence. In effect, the defense would have us take judicial notice of these
jury studies. Judicial notice may be taken of facts "not subject to reasonable
dispute" that are "either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned." CRE 201(b); see also
Mun. Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701,
711 (Colo. 1999). These jury studies do not meet these requirements.

136 What's more, the trial judge is the appropriate "gatekeep[er]" for expert
evidence ensuring that "expert[] testimony both rests on a reliable foundation and
is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
580, 597 (1993). It is for trial courts to "pass upon the weight of their evidence[]
and find the facts," or to interpret the results of statistical studies like these jury
studies, which may require an evidentiary hearing with cross examination.

Hines v. Oliver, 291 P.2d 693, 694 (Colo. 1955) (quoting Davis v. Pursel, 134 P. 107,
109 (Colo. 1913)). As a result, under these facts, we do not give much credence to
these jury studies presented for the first time before us. Petition of Edilson, 637 P.2d
362, 364 (Colo. 1981) ("Evidence which was not presented to the trial court will not
be considered on review.").

137 Accordingly, we hold that the 2023 Instruction is constitutional and neither
lowers the burden of proof nor shifts that burden to the defendant.

## D. Additional Statements

138
Teran Sanchez alternatively argues that even if the 2023 Instruction is
constitutional, additional statements made by the county court and the
prosecution combined with the Instruction to lower the burden of proof.

## 1. Applicable Law

139
To evaluate the county court's statements, we ask, "whether there is a
reasonable likelihood that the jury understood a contested instruction, in the
context of the instructions as a whole and the trial record, to allow a conviction
based on a standard lower than beyond a reasonable doubt." Tibbels, 1 36, 501 P.3d
at 799. This inquiry turns on "the nature of the statements, the context in which
they were made, any other explanations or instructions that the court may have
provided, and, of course, the court's final jury charge." Id. at | 41, 501 P.3d at 800.

140
For instance, in Tibbels, the trial court first supplied the then-extant pattern
reasonable-doubt jury instruction, COLJI-Crim. E:03 (2021), which defined
reasonable doubt in part as "a doubt as would cause reasonable people to hesitate
to act in matters of importance to themselves." Tibbels, 1 9, 501 P.3d at 795. But
the court then immediately diminished its significance: "Now, you're all sitting
there saying what the hell does that mean. It's a lengthy definition, okay. And
don't lose heart. I'll give you an example and see if we can put some teeth and
make this concrete." Id.

141 After so diminishing the pattern instruction, the court then supplied its own
formulation. Specifically, it analogized reasonable doubt to a "crack in the
foundation from the floor to the ceiling" visible to a prospective homebuyer taking
a tour of the property, one "that's causing you to hesitate" -i.e., "something that
you can kind of touch or feel," as distinct from "aliens coming down and telling
you don't buy the house." Id. at 11 10, 12, 501 P.3d at 795-96. We deemed this
reversible error, holding that it was "reasonably likely that the jury understood
the court's statements to allow a conviction based on a standard lower than
beyond a reasonable doubt." Id. at 1 53, 501 P.3d at 802. We reasoned that (1) by
immediately directing the jury's focus away from the pattern instruction and
supplying its own illustration, the trial court "undermin[ed] the pattern
instruction"; (2) the illustration "established a higher degree of doubt than is

required for an acquittal" because it erroneously "suggested that a reasonable
doubt was one that was so obvious that it would give every reasonable person
pause and cause them to hesitate to act";10 and (3) the analogy suggested "that [the
defense] had some obligation to present evidence to create a reasonable doubt in
the jurors' minds." Id. at 11 50-52, 501 P.3d at 801.

142 Contrast the foregoing case with Johnson v. People, 2019 CO 17, 1 4, 436 P.3d
529, 530-31, in which the trial court first gave the same pattern jury instruction but
then went on to embellish this definition:

[Y]ou would find Ms. Johnson guilty only if, after hearing all of that
evidence, you just can't bring yourself to do it. You just have to
hesitate. It's not there. You can't find her guilty because the quality
or quantity of evidence just doesn't let you. That's when you've
hesitated to act.

We held that this remark did not prejudice Johnson because (1) it was "nonsensical
and simply too confusing for the jury to follow" and was made only once, (2) the
court read "the correct definitions of reasonable doubt and the burden of proof
immediately" beforehand, and (3) the court "correctly instructed the jury

10 The then-extant reasonable-doubt jury instruction defined reasonable doubt as
"such a doubt as would cause reasonable people to hesitate to act in matters of
importance to themselves." COLJI-Crim. E:03 (2021). Thus, our use of "hesitate
to act" referred to the trial court's paraphrasing, which portrayed reasonable
doubt as a crack in the foundation "causing you to hesitate." See Tibbels, 11 12, 51,
501 P.3d at 795, 801.

numerous times regarding the presumption of innocence, reasonable doubt, and
the burden of proof." Id. at | 18, 436 P.3d at 534.

143 Besides the trial court's instructions to which we apply the Tibbels inquiry,
Teran Sanchez claims that the prosecution made improper statements during the
trial, which prejudiced him. If such statements were "few in number [and]
momentary in length" and not objected to contemporaneously, they do not require
reversal unless they constitute "plain error" which "undermines the fundamental
fairness of the trial itself as to cast serious doubt on the reliability of the jury's
verdict." Domingo-Gomez, 125 P.3d at 1053.

144 With these principles in mind, we now turn to Teran Sanchez's case.

## 2. The County Court's Additional Statements During Voir Dire and the Prosecution's Statements During Closing Arguments Did Not Lower the Burden of Proof

145
Teran Sanchez argues that even if the pattern 2023 Instruction did not
violate his due process rights, certain statements made by the court and the
prosecution to the jury did. He asserts that these statements caused his conviction
despite what he characterizes as "remarkably weak" evidence. Specifically, he
points to a statement during closing argument - when the prosecutor told the jury
that it "need[ed] to find him guilty of driving while ability impaired" -and
contends that this lowered the burden of proof because it conveyed that the jury
was required to convict him. Teran Sanchez also points to an exchange during voir

dire, when the court asked a prospective juror how she would know which of her
two children broke a lamp if they "invoke[d] [the] right to silence" and after the
juror said that she would "figure out [her] best guess," the court repeated this
remark:

The court: So you go to the little one and she says, "Mom, I
appreciate the question, but I'm going to invoke my right
to silence at this time." What's- what's your response,
besides putting her in law school?

Juror:
I just assess the situation and figure out my best guess.

The court:
Figure out your best guess. And so, as- as a juror today, if
you're selected to sit on this panel, you may be charged
with assessing somebody's credibility and determining
what the facts were. And that burden will be entirely on the
[p]rosecution to present the evidence to you. The burden never
shifts over to the [d]efense at any point. I don't know, again,
what evidence you'll hear today, but [defense attorneys]
could put their feet up, pull out a deck of cards, and start
playing Go Fish, and the burden would never shift to them to
disprove anything in this case.

(Emphases added.)

146 Teran Sanchez maintains that because the court did not explicitly correct the
juror and instead repeated the comment, jurors might have believed they could
apply their "best guess."

147 We disagree that these stray remarks lowered the prosecution's burden of
proof. This is not a case like Tibbels, in which the trial court undermined the model
instruction and provided its own lengthy, improper definition of "reasonable

doubt." [ 51, 501 P.3d at 801. To the contrary, this case is closer to Johnson, in
which the court repeatedly gave the "exact" definition of reasonable doubt in the
pattern instruction (which we have already deemed constitutional). 11 16, 18,
436 P.3d at 533-34.

148 Moreover, the court here repeatedly informed the jury that the prosecution
bore the burden of proving Teran Sanchez's guilt beyond a reasonable doubt.
Almost immediately after the court repeated the juror's remark to "[f]igure out
your best guess," it stated that the "burden [would] be entirely on the
[p]rosecution" and that the defense had no duty to present evidence.
Additionally, during voir dire, after asking another prospective juror if she would
have any "discomfort" about the prosecution's burden, the court emphasized that
this burden never shifted to the defense:

So again, as I sort of instructed a little bit ago, the burden of proof in this
case to prove each and every element of the offense beyond a reasonable doubt
rests with the People.

They'll be the ones calling the witnesses at the start of this trial, and
the [d]efense never has to present any evidence. The [d]efense can remain
silent, they don't have to call any witnesses. Again, they don't have
to do anything over the course of this trial and the burden never shifts
over to them. We never ask ourselves, "We heard from this person so
now they need to disprove anything." The burden rests entirely with the
prosecution to prove this case beyond a reasonable doubt.

(Emphases added.)

149
At another point during voir dire, after a third prospective juror expressed
concern about "only getting one side of the story," the court reiterated the law
about the burden of proof:

And, again, that burden never shifts over to the [d]efense for them to
disprove anything. If you did not hear from the [d]efense, it sounds
like you're hoping that they'll fill in gaps or present their story, but
do you understand that even if they don't present any witnesses, that's
not something that you can consider in your deliberations? And that they
don't have any burden of proof in a criminal case?

(Emphases added.)

150 And at the close of trial, the court gave the 2023 Instruction - which correctly
explains reasonable doubt- verbatim. In light of these accurate statements, the
"best guess" remark cited by Teran Sanchez holds no water. And absent any
infirmity with the court's instruction, we decline to step into the shoes of the trial
court and weigh the strength or weakness of the prosecution's evidence. See
Oliver, 291 P.2d at 694.

151 Nevertheless, even the prosecution, in its closing argument, reminded the
jury that it needed "to be firmly convinced" that Teran Sanchez had committed
the charged crimes. Thus, although the prosecution told the jury that it "need [ed]
to find [Teran Sanchez] guilty of driving while ability impaired," the jury was well
aware that it needed to be "firmly convinced" to do so. Moreover, this was a short,
passing comment to which no contemporaneous objection was made. Thus, it did
nothing to diminish the correct definition of the burden of proof beyond a

reasonable doubt, which was present in the jurors' minds. Thus, in this case, we
see no avenue wherein the jury's verdict was undermined by the prosecution's
momentary comment that the jury needed to find Teran Sanchez guilty, which was
shortly followed by the "firmly convinced" language. See Domingo-Gomez,
125 P.3d at 1053.

152 Accordingly, we hold that there was no reasonable likelihood that the jury
understood the 2023 Instruction and the court's and prosecution's statements,
taken as a whole, as allowing a conviction based on a standard lower than beyond
a reasonable doubt.

## III. Conclusion

153
For the foregoing reasons, we affirm the district court's judgment.

26 CO 60, 25SC148 Terran Sanchez v. People

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