The Cicchini and White (CW) studies on Wisconsin's pattern criminal burden of proof jury instruction raise concerns that Wisconsin's citizens may not have the protection against wrongful convictions required by the United States Constitution. While I agree with the authors that the studies provide strong empirical evidence that the instruction is flawed, I disagree (with moderate doubt) about what language compromises the instruction.
CW primarily focuses on "the truth-related language" i.e "You are to search for the truth". They recognize that the part of the instruction that states "you are not to search for doubt" is particularly troubling. I believe the part of the instruction that contradicts the jurors duty to give the defendant the benefit of every reasonable doubt by ordering them not to search for doubt is most likely the offending phrase.
The CW studies test both phrases used together. They tested Wisconsin's instruction that states: "While you are to give the defendant the benefit of every reasonable doubt. You are not to search for doubt. You are to search for the truth." We cannot tease-out from the CW studies whether the offending language is the order not to search for doubt or the order to search for the truth, or both combined. All one can say from the studies, is that the two phrases used together appear to undermine the criminal burden of proof.
As I discussed in previous posts, I believe that the jurors have the duty to search both for truth and the doubt surrounding that truth. Reasonable arguments against retaining the language regarding truth have been made. Reasonable arguments against the language have also been made. Most jurisdictions do not use language regarding truth. Such language is not mandatory. I am somewhat neutral on the issue.
My concern is the admonition to not search for doubt. As stated above, that statement linguistically and logically contradicts the jurors' duty to give the defendant the benefit of every reasonable doubt. It is the statement used by prosecutors at closing to vitiate the reasonable doubt burden of proof. I do not believe that any state that at one time countenanced the phrase "you are not to search for doubt" (Massachusetts, New Jersey, and Minnesota) has retained the phrase in their pattern jury instruction.
The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.
November 16, 2017
November 5, 2017
Epistemological Traditionalism, Rationalism, and Paradigm Shifts
As discussed in
detail in my last couple of posts, I believe controlled experiments
have cast doubt on Wisconsin's pattern jury instruction on reasonable
doubt, specifically that the instruction does not afford those
charged with a crime the protection against wrongful convictions
required by the United States Constitution. The results of those
experiments are corroborated by observations that the admonition “not
to search for doubt” has been used by prosecutors at trial to
undermine the beyond the reasonable doubt burden of proof.i
The question now
is how the legal system will respond. So far the only authority
addressing the two Cicchini and White studies has been the Wisconsin
Criminal Jury Instruction Committee, which has (apparently not
unanimously) rejected the science and maintained the status quo. My
musings on the topic have also been summarily rejected by some (but
not all) on that committee. I have had my doubts that many of those
trained in the law, especially many judges, would be able to
transition between an authority based system of knowledge and a
science based system. (See
https://bauersteven.blogspot.com/2010/07/clash-of-knowledge-culture.html)
One of the
eminent thinkers on the philosophy of science, Karl Popper, discussed
the epistemic differences between authority and science. He called
them epistemological traditionalism and rationalism respectively.ii
Popper wrote:
“For we can interpret traditionalism as the belief that, in the
absence of an objective and discernible truth, we are faced with the
choice between accepting the authority of tradition, and chaos; while
rationalism has, of course, always claimed the right of reason and of
empirical science to criticize, and to reject, any tradition, and any
authority, as being based on sheer unreason or prejudice or
accident.” iii(Popper
was also the person who originated the idea, familiar to most
scientists, of “falsifiability” being the principal demarcating
science from other endeavors. The Cicchini and White study was an
example of research that meets this criterion.)
To maybe better
understand the initial response to the empirical research and my
article regarding the criminal burden of proof, I believe the
insights of another preeminent philosopher of science may be helpful.
Thomas S. Kuhn discussed how science changes through revolutionary
changes in paradigms. He argues that the competing paradigms are
“incommensurable” in that “the proponents of competing
paradigms practice their trades in different worlds....Practicing in
different worlds, the two groups of scientists see different things
when they look from the same point in the same direction. Again, that
is not to say that they can see anything they please. Both are
looking at the world, and what they look at has not changed. But in
some areas they see different things, and they see them in different
relations to one another. That is why a law that cannot even be
demonstrated to one group of scientists may occasionally seem
intuitively obvious to another.”iv
A different
scientific paradigm influences one's understanding of what one
perceives. A fortiori, a different epistemic paradigm, such as
between authority and science, will shape one's response to
evidence.
Under a science
paradigm, potential evidence should be examined and explicitly
critiqued. Challenges to the evidence is part of the scientific
process and is encouraged. Scientific conclusions are always only
tentative, and valid only until further studies undermine them.
Under an
authority paradigm, the defining feature is obedience to the
authority. An authoritative pronouncement is considered correct and
final. Evidence to the contrary is irrelevant and not of interest.
Questioning an authoritarian decision is considered defiance.
Back in 1897,
Oliver Wendell Holmes Jr. wrote: “For the rational study of law the
blackletter man may be the man of the present, but the man of the
future is the man of statistics and the master of economics." v
I believe Justice Holmes overstated the case for statistics and
economics in the law. Regardless, the future is not yet here,
although some in the legal profession are allowing decisions to be
informed by statistical evidence in what is now called
“evidence-based” practices.
As a judge, I
fully understand that legal decisions are, and must be, mostly about knowledge from authority to differentiate them from ad hoc decision making. I must obey
binding authority: the statutes and constitutions, and the rulings
from the Wisconsin Court of Appeals, the Wisconsin Supreme Court, and
the United States Supreme Court. None of these authorities mandate the use of
the objected to language in the jury instruction. Ultimately, the decision to modify the pattern jury instruction involves a choice between two authorities--the United States Constitution and its interpretation by the United States Supreme Court, and the Wisconsin pattern jury instruction. In the end, I follow authority.
I also believe that science can inform some legal decisions, and whether or not the current Wisconsin criminal burden of proof jury instruction clearly conveys to jurors their duties related to reasonable doubt is one of them.
I also believe that science can inform some legal decisions, and whether or not the current Wisconsin criminal burden of proof jury instruction clearly conveys to jurors their duties related to reasonable doubt is one of them.
iOne
of the tenets of the field of linguistics called Pragmatics is one
can devine the meaning of a phrase from the context in which it is
used.
iiPopper,
Karl R., On the Sources of Knowledge and of Ignorance,
Encounter, September 1962, pp. 42-57
iiiIbid.
p.44.
ivKuhn,
Thomas S., The Structure of Scientific Revolutions, 4th
Ed., University of Chicago Press 1962, 2012., p. 149.
October 30, 2017
Second Study Casts Reasonable Doubt on Wisconsin’s Criminal Burden of Proof Instruction
The results of a second study has provided further empirical
proof that Wisconsin’s pattern criminal burden of proof jury instruction may
not afford those accused of a crime the protection against wrongful convictions
required by the United States Constitution.[i]
This study, also done by Cicchini and
White, replicates the first study. This study was published in a peer reviewed
rather than a refereed journal.
In this study, the pattern jury instruction on the criminal
burden of proof for the Seventh Circuit was compared with the same instruction but
with the last lines of Wisconsin’s pattern instruction added--“While it is your duty to give the defendant
the benefit of every reasonable doubt, you are not to search for doubt. You are
to search for the truth.”
The jurors who received the instruction without the last two
lines of Wisconsin’s pattern instruction had a group conviction rate of 22.6%
while those receiving the same instruction with the last two lines included
convicted at a rate of 33.1%. This difference was statistically significant.
After returning the verdict, study participants were asked
to choose only one answer regarding the burden of proof:
A. If I have a reasonable doubt about the defendant’s
guilt, I must not convict the defendant.
B. Even if I have a reasonable doubt about the
defendant’s guilt, I may still convict the defendant, if, in my search for the
truth, the evidence shows the defendant is guilty.
Fifteen percent of those jurors who received the 7th
Circuit pattern jury instruction believed the incorrect answer, B, to be
correct. Twenty-eight percent of those who received the same instruction but
with Wisconsin’s last two lines believed incorrect answer “B” was the correct
response. The difference between these percentages was statistically
significant.
Further, 21% of those who correctly
understood the burden of proof found the defendant guilty. Fifty-four percent
of those that incorrectly understood the burden of proof found the defendant
guilty. The difference was statistically significant. It would appear that a
correct understanding of the burden of proof is consequential, and refutes
those who say that jury instructions are meaningless to jurors.
I believe how the court system
handles this burden of proof issue in light of this research will provide great
insight on a concern that I had voiced earlier (See https://bauersteven.blogspot.com/2010/07/clash-of-knowledge-culture.html)
regarding the differences between the
functional theory of knowledge of the legal profession and of those trained in
scientific methods. I plan on writing more on this important topic of the burden of proof shortly.
On a related issue, Mr. Cicchini wrote a paper, that
appears to be quite cogent to me, that discusses and defends attacks on his and
Dr. White’s previous study.[ii]
[i] Cicchini, Michael D, and
White, Lawrence T., Testing the Impact of
Criminal Jury Instructions on Verdicts: A conceptual Replication, 117 Columbia
Law Review Online 22 (2017).
The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.
October 24, 2017
Why Wisconsin's Criminal Burden of Proof Instruction Had to Be Changed
People with even a glancing understanding of our
criminal justice system are familiar with the quote of the English jurist
William Blackstone: “For the law holds
it is better that ten guilty persons escape than that one innocent suffer".[i]
American jurists have also voiced a similar view as
Blackstone. Justice John Marshall Harlan saw the criminal burden of proof of
beyond a reasonable doubt as a primary bulwark against wrongful convictions.
Justice Harlan wrote: “I view the
requirement of proof beyond a reasonable doubt in a criminal case as bottomed
on a fundamental value determination of our society that it is far worse to
convict an innocent man than to let a guilty man go free.”[ii]
Justice William Brennan, with a statistically slant, understood
the protections of the criminal burden of proof in the same way: “There is
always in litigation a margin of error, representing error in fact finding,
which both parties must take into account. Where one party has at stake an
interest of transcending value—as a criminal defendant his liberty—this margin
of error is reduced as to him by the process of placing on the other party the
burden of producing a sufficiency of proof in the first instance, and of
persuading the factfinder at the conclusion of the trial of his guilt beyond a
reasonable doubt.”[iii]
We sing that the United States of America is “the land
of the free”. Locking up an innocent person is certainly antithetical to the
value of liberty. However, people with a working knowledge of the criminal law know
that on occasion, a jury gets it wrong and convicts an innocent person. Few
would argue that convicting an innocent person isn’t a tragedy for that person
and his or her family.
The National Registry of Exonerations has documented
that since 1989 over fifty people who had been convicted of a crime in
Wisconsin courts, have been exonerated based on new evidence of innocence.[iv]
The Wisconsin Innocence Project has also documented wrongful convictions.[v]
Many of the cases the Wisconsin Court of Appeals and Wisconsin Supreme Court
have reversed on the grounds of insufficiency of the evidence raise the issue
of a wrongful conviction. The question arises as to how many innocent people
are now staring at a prison wall grasping at imaginary threads of hope that new
evidence may turn up in their case to exonerate them too.
A recent research article provides empirical evidence
that Wisconsin’s pattern jury instruction on reasonable doubt[vi]
may contribute to wrongful convictions by reducing the beyond a reasonable
doubt burden of proof that was formulated to protect against convicting the
innocent. In Truth or Doubt? An Empirical
Test of Criminal Jury Instructions,[vii]
Cicchini and White tested three jury instructions. Three randomly selected
groups of approximately 100 individuals were assigned to read the same fact
pattern of a criminal case along with the prosecutor’s and defense counsel’s
closing arguments. The three groups of mock jurors were then given three
different jury instructions.
The mock jurors in the first group were instructed that
the State had the burden of proving every fact necessary to constitute guilt,
but were not given an instruction regarding the beyond a reasonable doubt
burden of proof. Instead they were instructed, “In reaching your verdict, you are not to search for doubt. You are to
search for the truth.” With this instruction, 29.6% of the mock jurors
voted to convict.
The mock jurors in the second group were given the
Wisconsin pattern jury instruction on the burden of proof but with the last
paragraph that states: “While it is your
duty to give the defendant the benefit of every reasonable doubt, you are not
to search for doubt. You are to search
for the truth” replaced with: “It is
your duty to give the defendant the benefit of every reasonable doubt”. With
this instruction, 16% of the mock jurors voted to convict.
The third group of individuals were given the Wisconsin
pattern jury instruction with the pattern final paragraph which read: “While it is your duty to give the defendant
the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth.” With
this instruction, 29% of the mock jurors voted to convict.
The percentage of mock jurors who voted to convict was
almost twice as high (29% compared to 16%)
for those jurors who received Wisconsin’s pattern jury instruction
compared to those jurors who received the same instruction but without the last phrases, “you are not to search for doubt. You are to
search for the truth.” The difference between the 16% conviction rate and
the 29% conviction rate was statistically significant.
In the Cicchini and White study, the group of jurors
given Wisconsin’s pattern jury instruction for the criminal burden of proof
convicted at about the same rate (29% compared to 29.6%) as those that didn’t
receive any instruction at all on reasonable doubt, but only the charge to not
search for doubt but to search for the truth, essentially the same instruction
given a jury in a civil case. The United
States Supreme Court warned against such a result when it held that the State
must prove every element of a crime beyond a reasonable doubt. “[A] person accused of a crime would be at a
severe disadvantage, a disadvantage amounting to a lack of fundamental
fairness, if he could be adjudged guilty and imprisoned for years on the
strength of the same evidence as would suffice in a civil case.”[viii]
The results of the Cicchini and White study alarmed me,
and should alarm all in the criminal justice system. As discussed above, the
beyond a reasonable doubt burden of proof is designed to minimize the risk of a wrongful
conviction with the acceptance of a concomitant increase in risk that a guilty
person will be found not guilty. It is designed with the implicit assumption
that it is better that a guilty person go free than an innocent person be
convicted. The results of the Cicchini
and White study provides empirical evidence that the protection of the beyond a
reasonable doubt burden of proof has been degraded in the pattern instruction.
Cicchini and White argue that the problem with the
instruction is “that the truth-related language at the end of an otherwise
proper reasonable doubt instruction actually diminishes the burden of proof.”[ix]
They argue that trials are not a search for the truth, and are only about
whether the government has met its burden of proof.[x]
Although I believe
Cicchini and White have identified something important regarding the Wisconsin
pattern jury instruction on reasonable doubt, I think they misidentify the
problem. The instruction that the jury should search for the truth is not what
diminishes the beyond a reasonable doubt burden of proof. What diminishes the burden of proof is the
part of the instruction that says: “… you are not to search for doubt.” Any
critical analysis of evidence requires a search for both truth and doubt.
In a criminal trial, the jurors are first instructed: “It is your duty to follow all of these
instructions.”[xi]
They are instructed that they are to give the defendant the benefit of every
reasonable doubt, but then at the end, the jurors are ordered that they are not
to search for doubt. The instruction is a court order to jurors to not identify
and critically evaluate the doubt around the evidence presented at trial. Without
this thought process, jurors cannot determine if a crime was proved beyond a
reasonable doubt. Jurors must search for the truth and must search for the
doubt surrounding any possible truth.
Further proof that the
prohibition on searching for doubt vitiates the criminal burden of proof is
provided by experience in the courtroom. Anyone who has had any experience with
criminal trials knows the importance of these last two sentences. The meaning
of this phrase is made clear by its use. [xii]
During closing arguments, the defense attorney often argues the burden of proof
instruction, many times not mentioning the last phrases, and then the prosecutor,
on rebuttal, says “Defense counsel read you only part of the jury instruction
on reasonable doubt. What counsel left out were these two lines: ‘you are not
to search for doubt. You are to search for the truth.’”
Prosecutors make this
argument because they know that the order prohibiting the search for doubt
diminishes the beyond a reasonable doubt burden of proof and makes it easier
for the State to obtain a conviction.[xiii]
I have had these lines used against me as a defense attorney, and mea culpa, mea culpa, I have used them against defense counsel as
district attorney.
Truth and doubt are
separate concepts in a criminal trial. The search for truth has been part of
the jury system since its inception. “Verdict” is derived from the latin words
“verus”, which means “truth”, and “dictum” which means “saying”. The “truth” in a jury trial is a social
construct of a social institution—the jury. The jury says the truth when it
delivers a verdict.
Jurors “search for the truth” when they inductively
formulate coherent, probabilistic explanations about a historical event (reasonable
hypotheses) from the evidence presented to them at trial, explanations that are
based on reasonable inferences from the evidence. Ultimately, the search for
the truth involves a judgment as to whether any of the reasonable hypotheses
about what happened encompasses a secondary hypothesis that all elements of the
crime have been proven and that the defendant may be guilty.
Doubt is the amount of confidence one has about the
probabilistic hypothesis that all elements of the crime were proven. If the jurors
unanimously find that the probabilistic hypothesis that all elements of the
crime were proven, then for the jurors to complete their jobs, they must still
grapple with the doubt around that hypothesis. They must determine what doubts
they have, and if any of the doubts are reasonable doubts as compared to
unreasonable doubts. If they unanimously believe the hypothesis that all the
elements of the crime have been proved beyond a reasonable doubt then they have
found the “truth” in a criminal trial. If they don’t unanimously find such a
hypothesis beyond a reasonable doubt, then they have found another “truth”—that
the elements of the crime have not been proved beyond a reasonable doubt. The
jury speaks the truth through its verdict.
That truth and doubt are two separate concepts is made
clear when considering the various burdens of proof. The law has three burdens of proof for a jury
trial. The elements that the jury is
tasked to find, in other words the jury’s
search for the truth, may be the same in
each case. For example, the jury may be asked whether or not a battery had
occurred. The question asked is the same , however the acceptable level of
doubt is different with each different burden of proof, and the acceptable
level of doubt determines if “the truth” is found to support a verdict.
In a civil case,
the burden of proof is to the greater weight of the credible evidence. The jurors
are instructed that if they are convinced that one side had more convincing
proof of what historically happened, then that side should win. If the
plaintiff’s version of events was more convincing than the defendant’s version,
then the jury has found “the truth” and the verdict should be for the
plaintiff.
In other civil cases, such as civil forfeiture cases,
the burden of proof is clear satisfactory and convincing evidence. If the
evidence supporting the plaintiff’s version of events is not clear,
satisfactory, and convincing then the defendant should prevail, even if the
jury thought that the plaintiff’s version of what happened was more convincing
than the defendant’s version.
In criminal cases
the burden of proof is beyond a reasonable doubt. If the evidence supporting the State’s
version of events is not beyond a reasonable doubt, then the defendant should
prevail, even if the jury believed that the State’s version of what happened
was more probable.
In classical statistics terms, convicting an innocent
person is a “false positive” and called a type I error. Not convicting a guilty
person is a “false negative” and called a type II error.[xiv]
All burden of proof instructions apportion the risks between these two types of
error.[xv]
The beyond a reasonable doubt burden of proof accepts less type I error but
with the cost of an increase in type II error. This apportionment of risk has
been set by the United States Supreme Court and has been part of our
jurisprudence from the beginning of our nation.[xvi]
Using the classical statistics paradigm, “what happened”
is akin to the expected value or mean. The burden of proof is akin to the
confidence interval around the mean. For
example, if the question is whether or not a large, opaque jar of marbles
contains more black marbles than red marbles (greater than 50%) and I blindly
reached into it and randomly make four selections, and three of the marbles are
black and one red, I could say: “Based
on a rational consideration of the evidence my best estimate is that this jar
contains 75% black marbles which means it contains more black marbles than red
marbles.” But I would also say: “I am not certain of that. I have my doubts. It
may have just been chance that I selected three black marbles. I may be way
off.”
But, if I blindly reached into a large opaque jar of
marbles and randomly made four hundred selections, and three hundred of the
marbles were black and one hundred of them were red, I could say: “Based on a rational
consideration of the evidence, my best estimate is that this jar contains 75%
black marbles which means it contains more black marbles than red marbles.” But now I would also say: “I am quite certain that
it contains more than 50% black marbles.”
The best estimate of the contents of the jar in both
cases is the simple mean. In both scenarios the simple mean was 75% black
marbles and 25% red marbles. The calculation of the mean is the search for the truth
of what actually is in the jar. The certainty of that estimate of the mean is
calculated using a different statistic called the standard error. The larger
the sample size, the smaller the standard error all other things remaining
equal.
The standard of error is used to calculate a confidence interval.
For example, one could say in the scenario with four observations, “I am 95%
sure that the jar holds between 12% and 99%
black marbles.” The difference between the two numbers is the confidence
interval. The 95% confidence interval is wide in this scenario, 87 percentage
points, and the lower number (12%) is well below the 50% threshold. I would not
feel very certain that the jar contains more black marbles than red marbles.
In the second scenario with 400 observations, one could
say: “I am 95% sure that the jar holds between 70% and 79% black marbles.” In
this scenario, the 95% confidence interval is only 9 percentage points and the
lower number (70%) is well above the 50% threshold. I would feel quite certain
that the jar contains more black marbles than red marbles.
As you can see, the possible “truth” is the same under
both scenarios, the jar holds 75% black marbles. However, the certainty (and
its opposite, doubt) of the possible “truth” of the situation is very
different. Not searching for doubt is the same as saying don’t consider that a
difference exists between the 75% black marble estimate with a sample size of
four marbles and the 75% black marble estimate with a sample size of four
hundred marbles. One must search for the truth and one must search for doubt.
For a rational and critical analysis of the evidence, a
juror must evaluate the evidence for the possible “truth” and for the doubt
surrounding this possible truth in light of the burden of proof for the type of
trial. If the possible truth is proven to the requisite burden of proof, then
“the truth” has been found, and a verdict for the plaintiff rendered. In a
criminal trial, for jurors to completely fulfill their responsibilities, they
need to identify and evaluate the doubts surrounding the possible truth. They
must determine if any of these doubts are “reasonable”. The jury instruction for the criminal burden
of proof that orders the jurors that they “…are not to search for doubt” is
clearly incorrect as it orders the jury not to critically examine doubt.
The lines that
instruct the jurors not to search for doubt but to search for the truth was
included in 1962 in the first pattern jury instruction on the criminal burden
of proof. Apparently the questionable
phrase in the pattern instruction was picked-up from a 1923 case in which the
judge instructed the jury “You are not to search for doubt, but you are to
search for the truth.” The Wisconsin
Supreme Court found no error with the instruction because the jury was
repeatedly warned that they should not find the defendant guilty unless they
were convinced beyond a reasonable doubt. The Court also stated: “It is
undoubtedly true that the aim of the jury should be to ascertain the truth…that
the purpose of a trial is to ascertain facts, and not the ascertainment of
doubt, which is the negation of a fact.”[xvii][xviii]
Doubt is a not a
negation of a fact or the truth. A mistake
of fact, a falsehood, an untruth, or a lie is a negation of the truth. A fact
is not a negation of a doubt. Confidence, or certainty is the negation of
doubt. Doubt is a measurement of one’s lack of confidence that something is or
is not the truth. Doubt is a separate concept from truth.
The Wisconsin Supreme
Court again addressed a claim of error regarding the two sentences in 1995. The
Court stated when the burden of proof instruction is challenged, the Court’s
duty is to examine the objected to language within the context of the entire
jury instruction to determine whether there is a reasonable likelihood that the
jury understood the instructions to allow conviction based below that of beyond
a reasonable doubt. And then after
analyzing the entire burden of proof instruction held: “In the context of the
entire instruction, we conclude that Wis. J.I.—Criminal 140 (1991), which was
read to the jury, did not dilute the State's burden of proving guilt beyond a
reasonable doubt.” [xix]
The Supreme Court had to
cloak the objected to language in the entire reasonable doubt jury instruction
to not find that there was a reasonable likelihood that the jury understood the
instructions to allow a conviction on proof less than beyond a reasonable
doubt. No argument was made that the objectionable language was somehow
supported by the law. The reasonable doubt jury instruction was found to pass
constitutional muster despite the offending language.
If one desires to maintain fidelity to the
constitutional apportionment of type 1 and type 2 error embodied in requirement
that the State must prove every element of a criminal offense beyond a
reasonable doubt, there is no benefit in using the offending language. Retaining
this language adds nothing to the juror’s understanding of their duties. The
offending language only has the cost of vitiating the beyond a reasonable doubt
burden of proof.
Instructing the jury to not search for doubt, after
spending the entire first part of the jury instruction on giving the defendant
the benefit of every reasonable doubt, is like giving a traveler instructions
on how to get from Juneau to Beaver Dam and providing multiple warnings to be
careful of farm equipment pulling out of fields on blind curves and on blind
hills on the road between Juneau and Beaver Dam, only to then order the
traveler that they are not to not look for farm equipment but only look for the
road between Juneau and Beaver Dam. Such an instruction would be nonsense and
everyone would immediately recognize it as nonsense.
I
changed the last two lines of the criminal burden of proof instruction. I believe
the following change enhances the criminal justice system by more clearly
instructing jurors to adhere to our Constitution’s requirement that the State be
required to prove a criminal charge beyond a reasonable doubt. I believe this change
will decrease the chance that an innocent person will be convicted. The last
two lines of this instruction should be changed to: “It is your duty to give the defendant the benefit of every reasonable
doubt while you search for the truth.”
As judges sworn to uphold the Constitution of the United
States to the best of our ability, we are not fulfilling our duty by retaining extraneous
language in a jury instruction that has a non-zero probability of violating the
Constitution. I believe the results of
the Cicchini and White study coupled with the way the offending clause has been
and is used by prosecutors at trial, should make one doubt whether the current
pattern jury instruction on the criminal burden of proof affords the citizens
of the State of Wisconsin with the protection against wrongful convictions that
the beyond a reasonable doubt burden of proof is designed to give. The pattern
jury instruction must be corrected.
[i] 4 William Blackstone, Commentaries;
Chapter 27, Of Trial, and Conviction
[ii] In re Winship, 397
U.S. 358, 372, 90 S. Ct. 1068, 1077, 25 L. Ed. 2d 368 (1970), Justice Harlan
concurring.
[iii] Speiser v. Randall,
357 U.S. 513, 525–26, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460 (1958).
[iv] National Registry of
Exonerations, A Project of the University of California Irvine Newkirk Center
for Science & Society, University of Michigan Law School, and Michigan
State University College of Law; www.law.umich.edu/special/exoneration/Pages/about.aspx;
[vi] Wis. J.I. – Criminal 140
(2000).
[vii] Michael D. Cicchini
& Lawrence T. White, Truth or Doubt?
An Empirical Test of Criminal Jury Instructions, Univ. 50Rich. L. Rev.1139
(May 2016)
[viii] In re Winship,
397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970)
[ix] Cicchini and White, p.
1155
[x] Cicchini and White p 1139.
[xi] Wis. J.I. – Criminal 100
(2000)
[xii] Pragmatics instructs that the contextual use
of a statement in a culture reveals the statement’s meaning. See for
example,
https://www.linguisticsociety.org/resource/meaning-semantics-and-pragmatics.
[xiii] Is it ethical for a
prosecutor to make such an argument?
[xiv] Snedecor and Cochran, Statistical Methods, 7th
Edition, 1980, p. 66.
[xv] United States v.
Harper, 662 F.3d 958, 961 (7th
Cir. 2011).
[xvi] “The requirement that
guilt of a criminal charge be established by proof beyond a reasonable doubt
dates at least from our early years as a Nation. The ‘demand for a higher
degree of persuasion in criminal cases was recurrently expressed from ancient
times, (though) its crystallization into the formula ‘beyond a reasonable
doubt’ seems to have occurred as late as 1798. “ In re Winship, 397 U.S. 358,
361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970)
[xvii] Manna v. State,
179 Wis. 384 (1923).
[xviii] The phrase was probably originated from a case from another
state as it appears both Massachusetts and New Jersey at one time or another
also used this phrase.
[xix] State v. Avila,
192 Wis. 2d 870, 890, 532 N.W.2d 423, 430 (1995) overruled by State
v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765 on other grounds.
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