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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.

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