When used as a mandate, ‘should’ is immediate---this is the legal consensus.

Defendant argues that the use of the word “should” in the court's instructions to the jury left the issue of whether the prosecution proved defendant's guilt beyond a reasonable doubt to the jury's discretion rather than informing the jury that it was obligated to return a not guilty verdict if the prosecution failed to present sufficient proof. Defendant characterizes the word “should” as a permissive request rather than a mandatory command and argues that the use of the word rendered the instructions erroneous under the Due Process Clause. Further, defendant contends that the instructions unconstitutionally lowered the prosecution's burden of proof. Consequently, defendant argues, his conviction must be reversed.

Because we conclude that the common meaning of “should” conveys an obligatory command and not a permissive request and after considering the use of the term in the context of all of the court's instructions, we conclude that the instructions using that word adequately informed the jury of its obligation to adhere to the reasonable doubt standard in deciding defendant's guilt. Further, when the instructions are read in context with the court's general instruction on reasonable doubt, it is evident that the jury was adequately informed of its duty to decide the case based on the law and the evidence offered at trial.

Initially, we note that the challenged instruction was authorized for use by the supreme court in 1983. See CJI-Crim page V. We also note that it has been used in many, if not most, criminal trials since that time without a challenge in the appellate courts.

“Should” is “used…to express duty, obligation, propriety, or expediency.” Webster's Third New International Dictionary 2104 (2002). Courts interpreting the word in various contexts have drawn conflicting conclusions, although the weight of authority appears to favor interpreting “should” in an imperative, obligatory sense. A number of courts, confronted with the question of whether using the word “should” in jury instructions conforms with the Fifth and Sixth Amendment protections governing the reasonable doubt standard, have upheld instructions using the word. In the courts of other states in which a defendant has argued that the word “should” in the reasonable doubt instruction does not sufficiently inform the jury that it is bound to find the defendant not guilty if insufficient proof is submitted at trial, the courts have squarely rejected the argument. They reasoned that the word “conveys a sense of duty and obligation and could not be misunderstood by a jury.” See State v. McCloud, 257 Kan. 1, 891 P.2d 324, 335 (Kan.1995); see also Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690, 691-92 (Ga.Ct.App.1995) (finding argument that “should” is directional but not instructional to be without merit); Commonwealth v. Hammond, 350 Pa.Super. 477, 504 A.2d 940, 941-42 (Pa.Super.Ct.1986).