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.
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