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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

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).
[ii]  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3043907

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.

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