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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

November 16, 2017

A Criticism of the Cicchini and White Studies on the Criminal Burden of Proof Instruction

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 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

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.

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.
v Holmes, Oliver Wendell. "The Path of Law", 10 Harvard Law Review 457 (1897).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.