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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
Nos. 92-8894 and 92-9049
--------
CLARENCE VICTOR, PETITIONER
92-8894                    v.
NEBRASKA
on writ of certiorari to the supreme court of ne-
braska

ALFRED ARTHUR SANDOVAL, PETITIONER
92-9049                    v.
CALIFORNIA
on writ of certiorari to the supreme court of
california
[March 22, 1994]

  Justice O'Connor delivered the opinion of the Court.
  The government must prove beyond a reasonable doubt
every element of a charged offense.  In re Winship, 397
U. S. 358 (1970).  Although this standard is an ancient
and honored aspect of our criminal justice system, it defies
easy explication.  In these cases, we consider the constitu-
tionality of two attempts to define -reasonable doubt.-
                            I
  The beyond a reasonable doubt standard is a require-
ment of due process, but the Constitution neither
prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course.  Cf. Hopt
v. Utah, 120 U. S. 430, 440-441 (1887).  Indeed, so long
as the court instructs the jury on the necessity that the
defendant's guilt be proven beyond a reasonable doubt,
see Jackson v. Virginia, 443 U. S. 307, 320, n. 14
(1979), the Constitution does not require that any
particular form of words be used in advising the jury of
the government's burden of proof.  Cf. Taylor v. Ken-
tucky, 436 U. S. 478, 485-486 (1978).  Rather, -taken as
a whole, the instructions [must] correctly conve[y] the
concept of reasonable doubt to the jury.-  Holland v.
United States, 348 U. S. 121, 140 (1954).
  In only one case have we held that a definition of
reasonable doubt violated the Due Process Clause.  Cage
v. Louisiana, 498 U. S. 39 (1990) (per curiam).  There,
the jurors were told:
-`[A reasonable doubt] is one that is founded upon
a real tangible substantial basis and not upon mere
caprice and conjecture.  It must be such doubt as
would give rise to a grave uncertainty, raised in your
mind by reasons of the unsatisfactory character of
the evidence or lack thereof.  A reasonable doubt is
not a mere possible doubt.  It is an actual substan-
tial doubt.  It is a doubt that a reasonable man can
seriously entertain.  What is required is not an
absolute or mathematical certainty, but a moral
certainty.'-  Id., at 40 (emphasis added by this
Court in Cage).
We held that the highlighted portions of the instruction
rendered it unconstitutional:
-It is plain to us that the words `substantial' and
`grave,' as they are commonly understood, suggest a
higher degree of doubt than is required for acquittal
under the reasonable doubt standard.  When those
statements are then considered with the reference to
`moral certainty,' rather than evidentiary certainty,
it becomes clear that a reasonable juror could have
interpreted the instruction to allow a finding of guilt
based on a degree of proof below that required by
the Due Process Clause.-  Id., at 41.
  In a subsequent case, we made clear that the proper
inquiry is not whether the instruction -could have- been
applied in unconstitutional manner, but whether there
is a reasonable likelihood that the jury did so apply it.
Estelle v. McGuire, 502 U. S. ___, ___, and n. 4 (1991)
(slip op., at 9, and n. 4).  The constitutional question in
the present cases, therefore, is whether there is a
reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insuffi-
cient to meet the Winship standard.  Although other
courts have held that instructions similar to those given
at petitioners' trials violate the Due Process Clause, see
State v. Bryant, 334 N. C. 333, 432 S. E. 2d 291 (1993),
cert. pending, No. 93-753; Morley v. Stenberg, 828
F. Supp. 1413 (Neb. 1993), both the Nebraska and the
California Supreme Courts held that the instructions
were constitutional.  We granted certiorari, 509 U. S.
___ (1993), and now affirm both judgments.

                           II
  On October 14, 1984, petitioner Sandoval shot three
men, two of them fatally, in a gang-related incident in
Los Angeles.  About two weeks later, he entered the
home of a man who had given information to the police
about the murders and shot him dead; Sandoval then
killed the man's wife because she had seen him murder
her husband.  Sandoval was convicted on four counts of
first degree murder.  The jury found that Sandoval
personally used a firearm in the commission of each
offense, and found the special circumstance of multiple
murder.  Cal. Penal Code Ann. 12022.5 (West 1992)
and Cal. Penal Code Ann. 190.2(a)(3) (West 1988).  He
was sentenced to death for murdering the woman and to
life in prison without possibility of parole for the other
three murders.  The California Supreme Court affirmed
the convictions and sentences.  4 Cal. 4th 155 (1992),
modified, 4 Cal. 4th 928a, 841 P. 2d 862 (1993).
  The jury in Sandoval's case was given the following
instruction on the government's burden of proof:
      -A defendant in a criminal action is presumed to
be innocent until the contrary is proved, and in case
of a reasonable doubt whether his guilt is satisfacto-
rily shown, he is entitled to a verdict of not guilty.
This presumption places upon the State the burden
of proving him guilty beyond a reasonable doubt.
      -Reasonable doubt is defined as follows: It is not
a mere possible doubt; because everything relating to
human affairs, and depending on moral evidence, is
open to some possible or imaginary doubt.  It is that
state of the case which, after the entire comparison
and consideration of all the evidence, leaves the
minds of the jurors in that condition that they
cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge.-  App. in
No. 92-9049, p. 49 (emphasis added) (Sandoval
App.).
The California Supreme Court rejected Sandoval's claim
that the instruction, particularly the highlighted pas-
sages, violated the Due Process Clause.  4 Cal. 4th, at
185-186, 841 P. 2d, at 878.
  The instruction given in Sandoval's case has its
genesis in a charge given by Chief Justice Shaw of the
Massachusetts Supreme Judicial Court more than a
century ago:
      -[W]hat is reasonable doubt?  It is a term often
used, probably pretty well understood, but not easily
defined.  It is not mere possible doubt; because
every thing relating to human affairs, and depending
on moral evidence, is open to some possible or
imaginary doubt.  It is that state of the case, which,
after the entire comparison and consideration of all
the evidence, leaves the minds of jurors in that
condition that they cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the
charge.  The burden of proof is upon the prosecutor.
All the presumptions of law independent of evidence
are in favor of innocence; and every person is
presumed to be innocent until he is proved guilty.
If upon such proof there is reasonable doubt remain-
ing, the accused is entitled to the benefit of it by an
acquittal.  For it is not sufficient to establish a
probability, though a strong one arising from the
doctrine of chances, that the fact charged is more
likely to be true than the contrary; but the evidence
must establish the truth of the fact to a reasonable
and moral certainty; a certainty that convinces and
directs the understanding, and satisfies the reason
and judgment, of those who are bound to act consci-
entiously upon it.  This we take to be proof beyond
reasonable doubt.-  Commonwealth v. Webster, 59
Mass. 295, 320 (1850).
  The Webster charge is representative of the time when
-American courts began applying [the beyond a reason-
able doubt standard] in its modern form in criminal
cases.-  Apodaca v. Oregon, 406 U. S. 404, 412, n. 6
(1972) (plurality opinion).  See also Perovich v. United
States, 205 U. S. 86, 92 (1907) (approving Webster
charge).  In People v. Strong, 30 Cal. 151, 155 (1866),
the California Supreme Court characterized the Webster
instruction as -probably the most satisfactory definition
ever given to the words `reasonable doubt' in any case
known to criminal jurisprudence.-  In People v. Paulsell,
115 Cal. 6, 12, 46 P. 734 (1896), the court cautioned
state trial judges against departing from that formula-
tion.  And in 1927, the state legislature adopted the
bulk of the Webster instruction as a statutory definition
of reasonable doubt.  Cal. Penal Code Ann. 1096 (West
1985); see California Jury Instructions, Criminal, No.
2.90 (4th ed. 1979).  Indeed, the California Legislature
has directed that -the court may read to the jury section
1096 of this code, and no further instruction on the
subject of the presumption of innocence or defining
reasonable doubt need be given.-  1096a.  The statu-
tory instruction was given in Sandoval's case.
  The California instruction was criticized in People v.
Brigham, 25 Cal. 3d 283, 292-316, 599 P. 2d 100,
106-121 (1979) (Mosk, J., concurring).  Justice Mosk
apparently did not think the instruction was unconstitu-
tional, but he -urge[d] the Legislature to reconsider its
codification.-  Id., at 293, 599 P. 2d, at 106.  The
California Assembly and Senate responded by requesting
the committee on jury instructions of the Los Angeles
Superior Court -to study alternatives to the definition of
`reasonable doubt' set forth in Section 1096 of the Penal
Code, and to report its findings and recommendations to
the Legislature.-  Cal. Assem. Con. Res. No. 148, 1986
Cal. Stats. 5634.  The committee recommended that the
legislature retain the statutory definition unmodified, see
Alternative Definitions of Reasonable Doubt: A Report of
the Committee on Standard Jury Instructions-Criminal
to the California Legislature (May 22, 1987), and 1096
has not been changed.

                            A
  Sandoval's primary objection is to the use of the
phrases -moral evidence- and -moral certainty- in the
instruction.  As noted, this part of the charge was lifted
verbatim from Chief Justice Shaw's Webster decision;
some understanding of the historical context in which
that instruction was written is accordingly helpful in
evaluating its continuing validity.
  By the beginning of the Republic, lawyers had bor-
rowed the concept of -moral evidence- from the philoso-
phers and historians of the 17th and 18th centuries.
See generally B. Shapiro, -Beyond Reasonable Doubt-
and -Probable Cause-: Historical Perspectives on the
Anglo-American Law of Evidence, ch. 1 (1991).  James
Wilson, who was instrumental in framing the Constitu-
tion and who served as one of the original Members of
this Court, explained in a 1790 lecture on law that
-evidence . . . is divided into two species-demonstrative
and moral.-  1 Works of James Wilson 518 (J. Andrews
ed. 1896).  Wilson went on to explain the distinction
thus:
      -Demonstrative evidence has for its subject ab-
stract and necessary truths, or the unchangeable
relations of ideas.  Moral evidence has for its subject
the real but contingent truths and connections,
which take place among things actually existing. . . .
             .        .        .       .        .
      -In moral evidence, there not only may be, but
there generally is, contrariety of proofs: in demon-
strative evidence, no such contrariety can take
place. . . .  [T]o suppose that two contrary demon-
strations can exist, is to suppose that the same
proposition is both true and false: which is mani-
festly absurd.  With regard to moral evidence, there
is, for the most part, real evidence on both sides.
On both sides, contrary presumptions, contrary
testimonies, contrary experiences must be balanced.-
Id., at 518-519.
A leading 19th century treatise observed that -[m]atters
of fact are proved by moral evidence alone; . . . [i]n the
ordinary affairs of life, we do not require demonstrative
evidence, . . . and to insist upon it would be unreason-
able and absurd.-  1 S. Greenleaf, Law of Evidence 3-4
(13th ed. 1876).
  The phrase -moral certainty- shares an epistemological
pedigree with moral evidence.  See generally Shapiro,
-To A Moral Certainty-: Theories of Knowledge and
Anglo-American Juries 1600-1850, 38 Hastings L. J. 153
(1986).  Moral certainty was the highest degree of
certitude based on such evidence.  In his 1790 lecture,
James Wilson observed:
-In a series of moral evidence, the inference drawn
in the several steps is not necessary; nor is it
impossible that the premises should be true, while
the conclusion drawn from them is false.
      -. . . In moral evidence, we rise, by an insensible
gradation, from possibility to probability, and from
probability to the highest degree of moral certainty.-
1 Works of James Wilson, supra, at 519.
At least one early treatise explicitly equated moral
certainty with proof beyond a reasonable doubt:
      -Evidence which satisfies the minds of the jury of
the truth of the fact in dispute, to the entire exclu-
sion of every reasonable doubt, constitutes full proof
of the fact. . . .  Even the most direct evidence can
produce nothing more than such a high degree of
probability as amounts to moral certainty.  From the
highest degree it may decline, by an infinite number
of gradations, until it produce in the mind nothing
more than a mere preponderance of assent in favour
of the particular fact.-  T. Starkie, Law of Evidence
478 (2d ed. 1833).
See also Greenleaf, supra, at 4 (-The most that can be
affirmed of [things proven by moral evidence] is, that
there is no reasonable doubt concerning them-).
  Thus, when Chief Justice Shaw penned the Webster
instruction in 1850, moral certainty meant a state of
subjective certitude about some event or occurrence.  As
the Massachusetts Supreme Judicial Court subsequently
explained:
      -Proof `beyond a reasonable doubt' . . . is proof `to
a moral certainty,' as distinguished from an absolute
certainty.  As applied to a judicial trial for crime,
the two phrases are synonymous and equivalent;
each has been used by eminent judges to explain the
other; and each signifies such proof as satisfies the
judgment and consciences of the jury, as reasonable
men, and applying their reason to the evidence
before them, that the crime charged has been
committed by the defendant, and so satisfies them
as to leave no other reasonable conclusion possible.-
Commonwealth v. Costley, 118 Mass. 1, 24 (1875).
Indeed, we have said that -[p]roof to a `moral certainty'
is an equivalent phrase with `beyond a reasonable
doubt.'-  Fidelity Mut. Life Assn. v. Mettler, 185 U. S.
308, 317 (1902), citing Commonwealth v. Costley, supra.
See also Wilson v. United States, 232 U. S. 563, 570
(1914) (approving reasonable doubt instruction cast in
terms of moral certainty); Miles v. United States, 103
U. S. 304, 309, 312 (1881).
  We recognize that the phrase -moral evidence- is not
a mainstay of the modern lexicon, though we do not
think it means anything different today than it did in
the 19th century.  The few contemporary dictionaries
that define moral evidence do so consistently with its
original meaning.  See, e.g., Webster's New Twentieth
Century Dictionary 1168 (2d ed. 1979) (-based on
general observation of people, etc. rather than on what
is demonstrable-); Collins English Dictionary 1014 (3d
ed. 1991) (similar); 9 Oxford English Dictionary 1070 (2d
ed. 1989) (similar).
  Moreover, the instruction itself gives a definition of
the phrase.  The jury was told that -everything relating
to human affairs, and depending on moral evidence, is
open to some possible or imaginary doubt--in other
words, that absolute certainty is unattainable in matters
relating to human affairs.  Moral evidence, in this
sentence, can only mean empirical evidence offered to
prove such matters-the proof introduced at trial.
  This conclusion is reinforced by other instructions
given in Sandoval's case.  The judge informed the jurors
that their duty was -to determine the facts of the case
from the evidence received in the trial and not from any
other source.-  Sandoval App. 38.  The judge continued:
-Evidence consists of testimony of witnesses, writings,
material objects, or anything presented to the senses
and offered to prove the existence or non-existence of a
fact.-  Id., at 40.  The judge also told the jurors that
-you must not be influenced by pity for a defendant or
by prejudice against him,- and that -[y]ou must not be
swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling.-  Id.,
at 39.  These instructions correctly pointed the jurors'
attention to the facts of the case before them, not (as
Sandoval contends) the ethics or morality of Sandoval's
criminal acts.  Accordingly, we find the reference to
moral evidence unproblematic.
  We are somewhat more concerned with Sandoval's
argument that the phrase -moral certainty- has lost its
historical meaning, and that a modern jury would
understand it to allow conviction on proof that does not
meet the beyond a reasonable doubt standard.  Words
and phrases can change meaning over time: a passage
generally understood in 1850 may be incomprehensible
or confusing to a modern juror.  And although some
contemporary dictionaries contain definitions of moral
certainty similar to the 19th century understanding of
the phrase, see Webster's Third New International
Dictionary 1468 (unabridged 1981) (-virtual rather than
actual, immediate, or completely demonstrable-); 9
Oxford English Dictionary, supra, at 1070 (-a degree of
probability so great as to admit of no reasonable doubt-),
we are willing to accept Sandoval's premise that -moral
certainty,- standing alone, might not be recognized by
modern jurors as a synonym for -proof beyond a reason-
able doubt.-  But it does not necessarily follow that the
California instruction is unconstitutional.
  Sandoval first argues that moral certainty would be
understood by modern jurors to mean a standard of
proof lower than beyond a reasonable doubt.  In support
of this proposition, Sandoval points to contemporary
dictionaries that define moral certainty in terms of
probability.  E.g., Webster's New Twentieth Century
Dictionary, supra, at 1168 (-based on strong probabil-
ity-); Random House Dictionary of the English Language
1249 (2d ed. 1983) (-resting upon convincing grounds of
probability-).  But the beyond a reasonable doubt
standard is itself probabilistic.  -[I]n a judicial proceed-
ing in which there is a dispute about the facts of some
earlier event, the factfinder cannot acquire unassailably
accurate knowledge of what happened.  Instead, all the
factfinder can acquire is a belief of what probably
happened.-  In re Winship, 397 U. S., at 370 (Harlan, J.,
concurring) (emphasis in original).  The problem is not
that moral certainty may be understood in terms of
probability, but that a jury might understand the phrase
to mean something less than the very high level of
probability required by the Constitution in criminal
cases.
  Although in this respect moral certainty is ambiguous
in the abstract, the rest of the instruction given in
Sandoval's case lends content to the phrase.  The jurors
were told that they must have -an abiding conviction, to
a moral certainty, of the truth of the charge.-  Sandoval
App. 49.  An instruction cast in terms of an abiding
conviction as to guilt, without reference to moral
certainty, correctly states the government's burden of
proof.  Hopt v. Utah, 120 U. S., at 439 (-The word
`abiding' here has the signification of settled and fixed,
a conviction which may follow a careful examination and
comparison of the whole evidence-); see Criminal Jury
Instructions: District of Columbia 46 (3d H. Greene & T.
Guidoboni ed. 1978).  And the judge had already
informed the jury that matters relating to human affairs
are proven by moral evidence, see supra, at 9; giving the
same meaning to the word moral in this part of the
instruction, moral certainty can only mean certainty
with respect to human affairs.  As used in this instruc-
tion, therefore, we are satisfied that the reference to
moral certainty, in conjunction with the abiding convic-
tion language, -impress[ed] upon the factfinder the need
to reach a subjective state of near certitude of the guilt
of the accused.-  Jackson v. Virginia, 443 U. S., at 315.
Accordingly, we reject Sandoval's contention that the
moral certainty element of the California instruction
invited the jury to convict him on proof below that
required by the Due Process Clause.
  Sandoval's second argument is a variant of the first.
Accepting that the instruction requires a high level of
confidence in the defendant's guilt, Sandoval argues that
a juror might be convinced to a moral certainty that the
defendant is guilty even though the government has
failed to prove his guilt beyond a reasonable doubt.  A
definition of moral certainty in a widely used modern
dictionary lends support to this argument, see The
American Heritage Dictionary of the English Language
1173 (3d ed. 1992) (-Based on strong likelihood or firm
conviction, rather than on the actual evidence-), and we
do not gainsay its force.  As we have noted, -[t]he
constitutional standard recognized in the Winship case
was expressly phrased as one that protects an accused
against a conviction except on `proof beyond a reasonable
doubt.'-  Jackson v. Virginia, supra, at 315 (emphasis in
original).  Indeed, in Cage we contrasted -moral cer-
tainty- with -evidentiary certainty.-  498 U. S., at 41.
  But the moral certainty language cannot be seques-
tered from its surroundings.  In the Cage instruction,
the jurors were simply told that they had to be morally
certain of the defendant's guilt; there was nothing else
in the instruction to lend meaning to the phrase.  Not
so here.  The jury in Sandoval's case was told that a
reasonable doubt is -that state of the case which, after
the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction, to
a moral certainty, of the truth of the charge.-  Sandoval
App. 49 (emphasis added).  The instruction thus explic-
itly told the jurors that their conclusion had to be based
on the evidence in the case.  Other instructions rein-
forced this message.  The jury was told -to determine
the facts of the case from the evidence received in the
trial and not from any other source.-  Id., at 38.  The
judge continued that -you must not be influenced by pity
for a defendant or by prejudice against him. . . .  You
must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public
feeling.-  Id., at 39.  Accordingly, there is no reasonable
likelihood that the jury would have understood moral
certainty to be disassociated from the evidence in the
case.
  We do not think it reasonably likely that the jury
understood the words moral certainty either as suggest-
ing a standard of proof lower than due process requires
or as allowing conviction on factors other than the
government's proof.  At the same time, however, we do
not condone the use of the phrase.  As modern diction-
ary definitions of moral certainty attest, the common
meaning of the phrase has changed since it was used in
the Webster instruction, and it may continue to do so to
the point that it conflicts with the Winship standard.
Indeed, the definitions of reasonable doubt most widely
used in the federal courts do not contain any reference
to moral certainty.  See Federal Judicial Center, Pattern
Criminal Jury Instructions 28 (1988); 1 E. Devitt & C.
Blackmar, Federal Jury Practice and Instructions 11.14
(3d ed. 1977).  But we have no supervisory power over
the state courts, and in the context of the instructions
as a whole we cannot say that the use of the phrase
rendered the instruction given in Sandoval's case
unconstitutional.

                            B
  Finally, Sandoval objects to the portion of the charge
in which the judge instructed the jury that a reasonable
doubt is -not a mere possible doubt.-  The Cage instruc-
tion included an almost identical reference to -not a
mere possible doubt,- but we did not intimate that there
was anything wrong with that part of the charge.  See
498 U. S., at 40.  That is because -[a] `reasonable doubt,'
at a minimum, is one based upon `reason.'-  Jackson v.
Virginia, supra, at 317.  A fanciful doubt is not a
reasonable doubt.  As Sandoval's defense attorney told
the jury: -[A]nything can be possible . . . . [A] planet
could be made out of blue cheese.  But that's really not
in the realm of what we're talking about.-  Sandoval
App. 79 (excerpt from closing argument).  That this is
the sense in which the instruction uses -possible- is
made clear from the final phrase of the sentence, which
notes that everything -is open to some possible or
imaginary doubt.-  We therefore reject Sandoval's
challenge to this portion of the instruction as well.

                           III
  On December 26, 1987, petitioner Victor went to the
Omaha home of an 82 year-old woman for whom he
occasionally did gardening work.  Once inside, he beat
her with a pipe and cut her throat with a knife, killing
her.  Victor was convicted of first degree murder.  A
three-judge panel found the statutory aggravating
circumstances that Victor had previously been convicted
of murder, Neb. Rev. Stat. 29-2523(1)(a) (1989), and
that the murder in this case was especially heinous,
atrocious, and cruel, 29-2523(1)(d).  Finding none of
the statutory mitigating circumstances, the panel
sentenced Victor to death.  The Nebraska Supreme
Court affirmed the conviction and sentence.  State v.
Victor, 235 Neb. 770, 457 N. W. 2d 431 (1990), cert.
denied, 498 U. S. 1127 (1991).
  At Victor's trial, the judge instructed the jury that
-[t]he burden is always on the State to prove beyond a
reasonable doubt all of the material elements of the
crime charged, and this burden never shifts.-  App. in
No. 92-8894, p. 8 (Victor App.).  The charge continued:
-`Reasonable doubt' is such a doubt as would cause
a reasonable and prudent person, in one of the
graver and more important transactions of life, to
pause and hesitate before taking the represented
facts as true and relying and acting thereon.  It is
such a doubt as will not permit you, after full, fair,
and impartial consideration of all the evidence, to
have an abiding conviction, to a moral certainty, of
the guilt of the accused.  At the same time, absolute
or mathematical certainty is not required.  You may
be convinced of the truth of a fact beyond a reason-
able doubt and yet be fully aware that possibly you
may be mistaken.  You may find an accused guilty
upon the strong probabilities of the case, provided
such probabilities are strong enough to exclude any
doubt of his guilt that is reasonable.  A reasonable
doubt is an actual and substantial doubt arising
from the evidence, from the facts or circumstances
shown by the evidence, or from the lack of evidence
on the part of the state, as distinguished from a
doubt arising from mere possibility, from bare
imagination, or from fanciful conjecture.-  Id., at 11
(emphasis added).
On state postconviction review, the Nebraska Supreme
Court rejected Victor's contention that the instruction,
particularly the emphasized phrases, violated the Due
Process Clause.  242 Neb. 306, 310-311, 494 N. W. 2d
565, 569 (1993).  Because the last state court in which
review could be had considered Victor's constitutional
claim on the merits, it is properly presented for our
review despite Victor's failure to object to the instruction
at trial or raise the issue on direct appeal.  See, e.g.,
Ylst v. Nunnemaker, 501 U. S. ___, ___ (1991) (slip op.,
at 3-4).
  The instruction given in Victor's case can be traced to
two separate lines of cases.  Much of the charge is taken
from Chief Justice Shaw's Webster instruction.  See Carr
v. State, 23 Neb. 749, 752-753, 37 N. W. 630, 631-632
(1888) (approving the use of Webster).  The rest derives
from a series of decisions approving instructions cast in
terms of an -actual doubt- that would cause a reason-
able person to hesitate to act.  See, e.g., Whitney v.
State, 53 Neb. 287, 298, 73 N. W. 696, 699 (1898); Willis
v. State, 43 Neb. 102, 110-111, 61 N. W. 254, 256
(1894); Polin v. State, 14 Neb. 540, 546-547, 16 N. W.
898, 900-901 (1883).  In 1968, a committee appointed by
the Nebraska Supreme Court developed model jury
instructions; a court rule in effect at the time Victor was
tried directed that those instructions were to be used
where applicable.  Nebraska Jury Instructions ix (1969)
(N. J. I.).  The model instruction on reasonable doubt,
N. J. I. 14.08, is the one given at Victor's trial.  (Since
Victor was tried, a revised reasonable-doubt instruction,
N. J. I. 2d Crim. 2.0 (1992), has been adopted, although
the prior version may still be used.)

                            A
  Victor's primary argument is that equating a reason-
able doubt with a -substantial doubt- overstated the
degree of doubt necessary for acquittal.  We agree that
this construction is somewhat problematic.  On the one
hand, -substantial- means -not seeming or imaginary-;
on the other, it means -that specified to a large degree.-
Webster's Third New International Dictionary, supra, at
2280.  The former is unexceptionable, as it informs the
jury only that a reasonable doubt is something more
than a speculative one; but the latter could imply a
doubt greater than required for acquittal under Winship.
Any ambiguity, however, is removed by reading the
phrase in the context of the sentence in which it
appears:  -A reasonable doubt is an actual and substan-
tial doubt . . . as distinguished from a doubt arising
from mere possibility, from bare imagination, or from
fanciful conjecture.-  Victor App. 11 (emphasis added).
  This explicit distinction between a substantial doubt
and a fanciful conjecture was not present in the Cage
instruction.  We did say in that case that -the words
`substantial' and `grave,' as they are commonly under-
stood, suggest a higher degree of doubt than is required
for acquittal under the reasonable doubt standard.-  498
U. S., at 41.  But we did not hold that the reference to
substantial doubt alone was sufficient to render the
instruction unconstitutional.  Cf. Taylor v. Kentucky, 436
U. S., at 488 (defining reasonable doubt as a substantial
doubt, -though perhaps not in itself reversible error,
often has been criticized as confusing-) (emphasis
added).  Rather, we were concerned that the jury would
interpret the term -substantial doubt- in parallel with
the preceding reference to -grave uncertainty,- leading
to an overstatement of the doubt necessary to acquit.  In
the instruction given in Victor's case, the context makes
clear that -substantial- is used in the sense of existence
rather than magnitude of the doubt, so the same concern
is not present.
  In any event, the instruction provided an alternative
definition of reasonable doubt: a doubt that would cause
a reasonable person to hesitate to act.  This is a
formulation we have repeatedly approved, Holland v.
United States, 348 U. S., at 140; cf. Hopt v. Utah, 120
U. S., at 439-441, and to the extent the word substan-
tial denotes the quantum of doubt necessary for acquit-
tal, the hesitate to act standard gives a common-sense
benchmark for just how substantial such a doubt must
be.  We therefore do not think it reasonably likely that
the jury would have interpreted this instruction to
indicate that the doubt must be anything other than a
reasonable one.

                            B
  Victor also challenges the -moral certainty- portion of
the instruction.  In another case involving an identical
instruction, the Nebraska Supreme Court distinguished
Cage as follows: -[U]nder the Cage instruction a juror is
to vote for conviction unless convinced to a moral
certainty that there exists a reasonable doubt, whereas
under the questioned instruction a juror is to vote for
acquittal unless convinced to a moral certainty that no
reasonable doubt exists.-  State v. Morley, 239 Neb. 141,
155, 474 N. W. 2d 660, 670 (1991); see also 242 Neb., at
310-311, 494 N. W. 2d, at 569 (relying on Morley).  We
disagree with this reading of Cage.  The moral certainty
to which the Cage instruction referred was clearly
related to the defendant's guilt; the problem in Cage was
that that the rest of the instruction provided insufficient
context to lend meaning to the phrase.  But the Ne-
braska instruction is not similarly deficient.
  Instructing the jurors that they must have an abiding
conviction of the defendant's guilt does much to alleviate
any concerns that the phrase moral certainty might be
misunderstood in the abstract.  See supra, at 11-12.
The instruction also equated a doubt sufficient to
preclude moral certainty with a doubt that would cause
a reasonable person to hesitate to act.  In other words,
a juror morally certain of a fact would not hesitate to
rely on it; and such a fact can fairly be said to have
been proven beyond a reasonable doubt.  Cf. Hopt v.
Utah, supra, at 439-440.  The jurors were told that they
must be convinced of Victor's guilt -after full, fair, and
impartial consideration of all the evidence.-  Victor App.
11.  The judge also told them: -In determining any
issues of fact presented in this case, you should be
governed solely by the evidence introduced before you.
You should not indulge in speculation, conjectures, or
inferences not supported by the evidence.-  Id., at 2.
There is accordingly no reasonable likelihood that the
jurors understood the reference to moral certainty to
allow conviction on a standard insufficient to satisy
Winship, or to allow conviction on factors other than the
government's proof.  Though we reiterate that we do not
countenance its use, the inclusion of the moral certainty
phrase did not render the instruction given in Victor's
case unconstitutional.

                            C
  Finally, Victor argues that the reference to -strong
probabilities- in the instruction unconstitutionally
understated the government's burden.  But in the same
sentence, the instruction informs the jury that the
probabilities must be strong enough to prove the
defendant's guilt beyond a reasonable doubt.  We upheld
a nearly identical instruction in Dunbar v. United
States, 156 U. S. 185, 199 (1895): -While it is true that
[the challenged instruction] used the words `probabilities'
and `strong probabilities,' yet it emphasized the fact that
those probabilities must be so strong as to exclude any
reasonable doubt, and that is unquestionably the law-
(citing Hopt v. Utah, supra, at 439).  That conclusion
has lost no force in the course of a century, and we
therefore consider Dunbar controlling on this point.


                           IV
  The Due Process Clause requires the government to
prove a criminal defendant's guilt beyond a reasonable
doubt, and trial courts must avoid defining reasonable
doubt so as to lead the jury to convict on a lesser
showing than due process requires.  In these cases,
however, we conclude that -taken as a whole, the
instructions correctly conveyed the concept of reasonable
doubt to the jury.-  Holland v. United States, 348 U. S.,
at 140.  There is no reasonable likelihood that the jurors
who determined petitioners' guilt applied the instructions
in a way that violated the Constitution.  The judgments
in both cases are accordingly
                                              Affirmed.