Sanchez v. People: Colorado Upholds COLJI-Crim. E:03 (2022) “Firmly Convinced/Real Possibility” Reasonable-Doubt Instruction

1. Introduction

In Sanchez v. People, 2026 CO 60, the Colorado Supreme Court addressed a constitutional challenge to the revised model reasonable-doubt instruction, COLJI-Crim. E:03 (2022) (the “2023 Instruction” as described by the court). The petitioner, Alexis Teran Sanchez, had been convicted in county court of offenses arising from an alcohol-impaired driving incident (including leaving the scene and failing to report an accident, plus the lesser included offense of driving while ability impaired). On appeal, he argued that the revised language—requiring jurors to be “firmly convinced” of guilt and to acquit if they believe there is a “real possibility” of non-guilt—(1) lowered the prosecution’s burden of proof, (2) shifted the burden to the defense, and (3) violated due process and fair-trial rights. He also argued that certain comments by the trial court during voir dire and by the prosecutor during closing argument further diluted the burden of proof.

The case thus presented a high-stakes question of statewide importance: whether Colorado’s updated model reasonable-doubt instruction is constitutionally sound and, if so, how reviewing courts should evaluate surrounding trial statements alleged to erode the beyond-a-reasonable-doubt standard.

2. Summary of the Opinion

The Colorado Supreme Court affirmed the district court’s judgment and held:

  • The 2023 Instruction (COLJI-Crim. E:03 (2022)) is constitutional; it neither lowers the prosecution’s burden of proof nor shifts that burden to the defendant.
  • Considering the instructions and record as a whole, there was no “reasonable likelihood” the jury understood the instruction—or the trial court’s and prosecutor’s additional statements—as allowing conviction on a standard lower than beyond a reasonable doubt.
  • Jury studies offered for the first time on appeal did not warrant altering the constitutional analysis; they were not proper subjects for judicial notice and, in any event, would require trial-level evidentiary development.

3. Analysis

A. Precedents Cited

The court’s reasoning is built around a cluster of U.S. Supreme Court, Colorado, and federal circuit authorities governing (i) the minimum constitutional content of reasonable-doubt instructions, (ii) how to review allegedly burden-lowering statements, and (iii) the role of model instructions.

1) Constitutional baseline for reasonable doubt

  • Victor v. Nebraska, 511 U.S. 1 (1994): The court relied on Victor for the proposition that “the Constitution does not require that any particular form of words be used” so long as jurors are instructed that guilt must be proved beyond a reasonable doubt. The opinion also drew on Justice Ginsburg’s concurrence endorsing the Federal Judicial Center’s “firmly convinced” and “real possibility” formulation as “succinct and comprehensible.”
  • Boyde v. California, 494 U.S. 370 (1990): Used to emphasize that jurors apply “commonsense understanding” rather than parsing instructions like lawyers for “subtle shades of meaning.”
  • Cage v. Louisiana, 498 U.S. 39 (1990), and Estelle v. McGuire, 502 U.S. 62 (1991): Cited as a contrast—Cage condemned “grave uncertainty”/“moral certainty” phrasing that risked lowering the standard, underscoring that not all attempts to define reasonable doubt are safe.

2) Colorado’s burden-of-proof jurisprudence and review framework

  • Pettigrew v. People, 2022 CO 2: Reaffirmed that due process requires proof beyond a reasonable doubt and that a trial court must “correctly define” reasonable doubt while retaining “reasonable discretion” in phrasing.
  • Garcia v. People, 2023 CO 30: Supplied the de novo standard for reviewing constitutionality and the correctness of jury instructions.
  • Tibbels v. People, 2022 CO 1: Central to the opinion. Tibbels held that burden-lowering instructions are structural error and adopted the “reasonable likelihood” test for whether jurors understood trial court statements, in context, to permit conviction on less than beyond a reasonable doubt.
  • Johnson v. People, 2019 CO 17: Used as a comparative example—confusing or offhand embellishments do not necessarily amount to reversible error where correct instructions are repeatedly and properly given.
  • Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005): Provided the plain-error framework for reviewing unobjected-to prosecutorial remarks: reversal only if fundamental fairness is undermined and the verdict reliability seriously doubted.

3) Model instructions as guideposts, not constitutional guarantees

  • People v. Flockhart, 2013 CO 42: Pattern jury instructions are “nonbinding” but “time-trusted guideposts.”
  • People v. Hoskin, 2016 CO 63: Pattern instructions can still be unconstitutional if they misstate or lower the standard of proof.
  • People v. Schlehuber, 2025 COA 50, and People v. Melara, 2025 COA 48: Recent Colorado Court of Appeals decisions upholding the same “firmly convinced”/“real possibility” formulation. The Supreme Court expressly aligned with their reasoning that the two phrases operate together and are not tautological.

4) Federal circuit “consensus” on “firmly convinced”/“real possibility”

A major move in Sanchez is its synthesis of a broad body of federal circuit authority treating the twin formulation as acceptable:

  • United States v. Hunt, 794 F.2d 1095 (5th Cir. 1986), and United States v. Alonzo, 681 F.2d 997 (5th Cir. 1982): Approved “firmly convinced” as substantively similar to other acceptable formulations and warned against “abstract semantics.”
  • United States v. Velasquez, 980 F.2d 1275 (9th Cir. 1992): Treated “firmly convinced” as essentially equivalent in function to “hesitate to act.”
  • United States v. Barrera-Gonzales, 952 F.2d 1269 (10th Cir. 1992): Suggested “firmly convinced” conveys strong persuasion, arguably stronger than some alternative phrases.
  • United States v. Porter, 821 F.2d 968 (4th Cir. 1987): The key “skeptical” case. It criticized potential “confusion” from “real possibility” where the court failed to explain it and did not expressly clarify the defendant had no burden to show a “real possibility” of innocence—yet it still found no burden shift and held that other instructions cured the problem.
  • United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993): Found no structural error where presumption of innocence and the prosecution’s burden were properly explained, dispelling any implication the defendant must prove “real possibility.”
  • Cases approving the formulation post-Victor: United States v. Conway, 73 F.3d 975 (10th Cir. 1995); United States v. Williams, 20 F.3d 125 (5th Cir. 1994); United States v. Brand, 80 F.3d 560 (1st Cir. 1996); United States v. Petty, 856 F.3d 1306 (10th Cir. 2017); United States v. Watkins, 66 F.4th 1179 (8th Cir. 2023) (quoting Harris v. Bowersox, 184 F.3d 744 (8th Cir. 1999)).

5) Out-of-state critiques and partial endorsements

  • State v. Perez, 976 P.2d 427 (Haw. Ct. App. 1998): Cited by Sanchez to argue “real possibility” and “if you think” language invites abandonment of the presumption of innocence and that “firmly convinced” is compatible with lingering reasonable doubt. The Colorado Supreme Court acknowledged the critique but declined to adopt it.
  • State v. Jackson, 925 A.2d 1060 (Conn. 2007), and State v. Putz, 662 N.W.2d 606 (Neb. 2003): Cited as state courts approving similar language when viewed in the context of the charge as a whole.
  • United States v. Artero, 121 F.3d 1256 (9th Cir. 1997): Approved the twin formulation relying on Justice Ginsburg’s approval in Victor.

6) Record development, judicial notice, and expert-evidence “gatekeeping”

  • Mun. Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701 (Colo. 1999): Cited for the limits of judicial notice under CRE 201(b).
  • Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993): Used to explain that trial courts, not appellate courts, are the proper “gatekeeper” for expert evidence like jury studies.
  • Hines v. Oliver, 291 P.2d 693 (Colo. 1955) (quoting Davis v. Pursel, 134 P. 107 (Colo. 1913)): Invoked for the principle that trial courts weigh evidence and find facts, including interpreting statistical studies.
  • Petition of Edilson, 637 P.2d 362 (Colo. 1981): Reinforced that evidence not presented below will not be considered on review.

B. Legal Reasoning

1) The core holding: the 2023 Instruction does not lower or shift the burden

The court framed Sanchez’s challenge as attacking two phrases: (i) “firmly convinced” allegedly dilutes the required certainty; and (ii) “real possibility” allegedly shifts the burden by asking jurors to assess whether non-guilt is “substantially” likely.

The court rejected both arguments through a combined doctrinal and linguistic approach:

  • Doctrinal validation through precedent: The court emphasized the “overwhelming weight” of federal authority approving the twin formulation and noted that no federal circuit has found it to be reversible error. It also relied on Colorado appellate approval in People v. Schlehuber and People v. Melara.
  • Textual “whole instruction” analysis: The court repeatedly returned to the opening sentences of the 2023 Instruction: “The burden of proof in this case is upon the prosecution,” and the prosecution must prove “each and every element necessary.” That allocation, in the court’s view, defeats the “burden shift” narrative that concerned courts in cases like United States v. Porter.
  • Complementarity rather than tautology: The court endorsed the Court of Appeals’ view that “firmly convinced” sets a high threshold for conviction while “real possibility” prevents acquittal based on fanciful, imaginary, or merely possible doubts.

2) Commonsense meaning: “firmly convinced” and “real possibility” are ordinary and stringent

Sanchez attempted to reframe the case as an empirical/modern-language dispute, offering pop-culture examples and jury studies. The court answered by anchoring meaning in everyday dictionary definitions:

  • “Firmly” = “strongly” or “steadfastly.”
  • “Real” = “genuine” or having “objective independent existence.”

Applying Boyde v. California, the court reasoned that jurors can apply commonsense meanings without the instruction insinuating a lesser standard. It also pointed out that Sanchez’s own examples could be rewritten with “strongly” and “genuine” without changing the core meaning—undercutting the claim that modern usage necessarily implies a lower proof threshold.

3) The jury studies: why the Supreme Court refused to rely on them

The opinion is notable for how it cordons off social science evidence offered for the first time on appeal. The court gave multiple, mutually reinforcing reasons:

  • Not part of the trial record: Under Petition of Edilson, evidence not presented below is not considered on review.
  • Not appropriate for judicial notice: Under CRE 201(b) and Mun. Subdistrict, N. Colo. Water Conservancy Dist. v. OXY USA, Inc., the studies were “subject to reasonable dispute” and not the kind of indisputable fact suitable for notice.
  • Requires trial-court gatekeeping and adversarial testing: Citing Daubert v. Merrell Dow Pharms., Inc., the court stressed that evaluating methodology, reliability, and relevance is a trial-court task; the People had no opportunity to confront the studies with competing experts.
  • Limited ecological validity: Particularly for the defense-funded online study, the court emphasized that survey conditions do not replicate live instruction by a judge and collective deliberation dynamics.

Importantly, the court did not say that empirical research can never matter. Rather, it held that on this record and posture, it would not treat appellate-filed studies as dispositive of constitutional meaning.

4) Additional statements: applying the Tibbels “reasonable likelihood” test and plain-error review

Sanchez also argued that comments during voir dire (“figure out your best guess”) and a closing remark that the jury “need[ed] to find him guilty” diluted the standard.

  • Trial court’s voir dire exchange: The Supreme Court treated the “best guess” remark as a stray phrase immediately followed by emphatic, repeated correct statements that the prosecution bears the burden, the burden never shifts, and the defense need not present evidence. Unlike Tibbels v. People, the trial court did not undermine the model instruction or replace it with a concrete but misleading analogy (like the “crack in the foundation” example). The record instead resembled Johnson v. People, where correct instructions and repetition neutralized any confusing aside.
  • Prosecutor’s closing remark: Because there was no contemporaneous objection, the court reviewed only for plain error under Domingo-Gomez v. People. It found no plain error given the remark’s brevity and the surrounding correct instructions and statements—including the prosecutor’s own reminder that jurors needed to be “firmly convinced.”

The unifying theme is contextualism: the court refused to isolate single phrases and instead asked whether the trial record made it reasonably likely the jury convicted on less than beyond a reasonable doubt.

C. Impact

1) Statewide validation of Colorado’s revised model instruction

Sanchez effectively settles—at the Colorado Supreme Court level—the constitutionality of the 2023 Instruction’s signature language. Trial courts can give COLJI-Crim. E:03 (2022) “verbatim” with strong confidence that it will withstand due process challenge, so long as the instructions and court statements clearly allocate the burden to the prosecution and maintain the beyond-a-reasonable-doubt requirement.

2) A practical ceiling on “semantic” attacks

By emphasizing ordinary dictionary definitions, juror commonsense (per Boyde), and a large body of approving authority, the court signaled skepticism toward challenges that depend primarily on abstract semantics divorced from the instruction’s full context.

3) How future litigants must build records for empirical challenges

The opinion also draws a clear procedural roadmap: if a defendant wishes to use jury comprehension studies to attack an instruction, the effort likely must begin in the trial court, with expert disclosures, admissibility litigation, and an evidentiary record that permits adversarial testing and findings. Appellate attachment of studies—particularly defense-funded ones—will not substitute for trial-level Daubert gatekeeping.

4) Reinforcing contextual review under Tibbels

Sanchez strengthens Tibbels as Colorado’s governing framework for evaluating whether a trial court’s comments, in context, created a reasonable likelihood of a lowered standard. But it simultaneously narrows Tibbels factually: improper, vivid “real life” analogies that displace the instruction remain dangerous, while fleeting remarks followed by repeated correct burden statements are unlikely to warrant reversal.

4. Complex Concepts Simplified

  • “Beyond a reasonable doubt”: The highest burden of proof in law. It does not require absolute certainty, but it does require a very high level of confidence before convicting.
  • “Burden shifting”: An unconstitutional move where jurors are led to believe the defendant must prove innocence (or prove some level of doubt) rather than the prosecution proving guilt.
  • Structural error: A fundamental constitutional error affecting the framework of the trial. If a jury instruction actually lowers the burden of proof, reversal is automatic (as referenced via Tibbels v. People).
  • “Reasonable likelihood” test: A contextual inquiry asking whether it is reasonably likely jurors took the court’s statements and instructions to allow conviction on less than the proper standard.
  • Plain error: A demanding appellate standard when no timely objection was made at trial; reversal occurs only if the error undermined fundamental fairness and casts serious doubt on the verdict’s reliability (per Domingo-Gomez v. People).
  • Judicial notice (CRE 201(b)): A mechanism allowing courts to accept indisputable facts without proof. Disputed, method-dependent social science findings typically do not qualify.
  • Daubert gatekeeping: The trial judge’s role in ensuring expert testimony rests on reliable methods and is relevant—one reason appellate courts resist deciding empirical disputes in the first instance.

5. Conclusion

Sanchez v. People establishes a clear Colorado rule: the “firmly convinced” and “real possibility” language in COLJI-Crim. E:03 (2022) is constitutional and does not, by itself, lower or shift the burden of proof. The decision also demonstrates how Colorado will evaluate alleged burden dilution from surrounding trial statements: courts will apply Tibbels’ contextual “reasonable likelihood” inquiry to judicial comments and will apply Domingo-Gomez plain-error review to unobjected-to prosecutorial remarks. Finally, the opinion signals that empirical challenges to jury comprehension must be built in the trial court record, not introduced for the first time on appeal.