Does the term "moral evidence" need to be changed?

^32. Respondent asserts that petitioner did not raise the allegations concerning "moral evidence" in the state court. (ECF 106 at 86.) However, in claim one of petitioner's state supplemental habeas petition, he quotes Justice Kennedy's concurrence in Victor v. Nebraska, 511 U.S. 1, 23 (1994), which discusses the use of the term "moral evidence": "Though the reference to 'moral certainty' is not much better, California's use of 'moral evidence' is the most troubling, and to me seems quite indefensible." (LD No. 20 at 17.) This court deems petitioner to have sufficiently raised the "moral evidence" argument.

^33. Thereafter, California revised CALJIC No. 2.90 to delete all references to "moral certainty" and "moral evidence." See Esparza v. Lockyer, No. C 99-3781 CRB (PR), 2001 WL 1528384, at *9 (N.D. Cal. Nov. 20, 2001).