What is the test for common sense in the context of the reasonable doubt standard?

California, United States of America


The following excerpt is from People v. Hernandez, F069174 (Cal. App. 2017):

"To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror's background, experience and reasoning must necessarily provide the backdrop for the juror's decision making, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses' credibility should be evaluated is common sense and experience. ... CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses' credibility." (People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)

The prosecutor did not misstate the reasonable doubt standard, equate the reasonable doubt standard with common sense, or attempt to undermine the People's burden of proving defendant's guilt beyond a reasonable doubt. Instead, the prosecutor properly urged the jury to use common sense in determining whether defendant's claim that he felt threatened by the victim was credible, when compared to the testimony of the witnesses that defendant shot the prone victim in the back. (See, e.g., People v. Romero (2008) 44 Cal.4th 386, 416 [prosecutor's argument urging jury "to 'decide what is reasonable to believe versus unreasonable' " and to " 'accept the reasonable and reject the unreasonable' " did not lessen prosecution's burden of proof].) The prosecutor did not urge the jury to use its common sense as a substitute for evidence of defendant's guilt. (Cf. People v. Centeno (2014) 60 Cal.4th 659, 671-672 [argument urging jury to accept what was reasonable but not informing the jury it must be convinced that all the necessary facts were proven beyond a reasonable doubt lessened the People's burden of proof because it "left the jury with the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden."].)

Page 43

2. "Most Guilty"

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