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.

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.

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, 4^th 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.

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 7^th 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.

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;

[v]Wisconsin Innocence Project,  http://law.wisc.edu/fjr/clinicals/ip/client_profiles.html

[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, 7^th Edition, 1980, p. 66.

[xv] United States v. Harper, 662 F.3d 958, 961  (7^th 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.

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.

The End of Something

I will be discontinuing regular posts to this blog. I will post intermittently when something moves me. I have written what I needed to write and have learned much. However, empirical science moves slowly. It takes time to complete an empirical study and much more time to verify the study with other studies to discern any truth. (Not to mention that there are studies that are just plain nonsense from a methodological perspective and from the conclusions drawn from the statistics.)

I desire not to waste your time or mine with writing things because I feel compelled to write a blog entry rather than because I have something I feel worth communicating. Therefore, if you are interested, you may want to have the blog sent to you via e-mail. I will now spend the rest of my summer free-time reading, riding my bicycle, and playing music. Have a great summer.

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.

To Win an Argument or to Find the Truth

A recent theory of argumentation that has been generating considerable discussion states that the human reason has so many cognitive biases and other flaws because reason evolved for the purpose of winning arguments through persuasion and not as a means of discovering knowledge and making better decisions.[i] These researchers argue that the existence of such cognitive biases, most powerfully represented by confirmation bias, the tendency to view evidence in way that confirms one’s prior views, makes sense only if one views the evolution of human reason for the purpose of winning arguments rather than discovering knowledge. If discovering knowledge was the primary purpose, our reasoning ability would not be as flawed as it is.

The paper is worth the read for anyone interested in the process of reasoning. As for confirmation bias, unfortunately it appears that this error in thought has been elevated to a creed within our political system. One only has to ask a devout Republican and a Democrat (or those associated with each party) to explain their perspective on an issue to see confirmation bias in full action. To allow even the potential correctness of the other side’s position is considered weakness and rejection for being an apostate—a logical result of a system driven by a hypercompetitive desire to prevail at a ballot box rather than to solve problems.

The authors explain that all hope for an actual conversation leading to knowledge is not lost. These researchers state that “people are quite capable of reasoning in an unbiased manner, or at least when they are evaluating arguments rather than producing them, and when they are after the truth rather than trying to win a debate.”[ii] Those of us in decision making positions that affect others would better serve our society by really listening to others, and not only to find the errors in other’s arguments, but to also find any potential truths that expose the errors in our perceptions and thoughts.

---

[i] Mercier, Hugo, and Dan Sperber, BEHAVIORAL AND BRAIN SCIENCES (2011) 34, 57 –111; http://www.dan.sperber.fr/wp-content/uploads/2009/10/MercierSperberWhydohumansreason.pdf

[ii] Ibid. p. 72.

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.

Psychology and Confessions

Neuroscientist David Eagleman, in his book Incognito, describes the human brain as a team of rivals in which various parties in the brain can compete with each other to create a sense of being “conflicted”. He also discusses research that shows that keeping secrets is unhealthy for the brain. Simply stated, he says, a secret is a competition within the brain between telling someone something or not telling them it. This tension is what makes something a secret. He states that secret agents and spies are probably equipped with a strong module for withholding secrets. In contrast, based on the high percentages of confessions in juvenile delinquent cases, it doesn’t appear to me that juveniles have much ability to keep a secret.

Which brings me to the law of confessions. I never believed that the law regarding whether or not a confession was voluntary made much sense. What does it mean to say that “pressures brought to bear on the defendant by representatives of the State exceeded the defendant’s ability to resist”? Except for those defendants who turn themselves into police and actually volunteer a report of their transgressions, almost any confession is the result of pressures brought to bear on the defendant by the police that exceeded the defendant’s ability to resist. That is why they confessed.

Asking some defendants the question, “Did they commit the crime?” is sufficient pressure to exceed their ability to resist, so they confess. That statement would not and should not be considered “involuntary”.

Further, it is stated that the confession must be “a product of a free and unconstrained will.” This formulation requires that there is some entity (apparently called the “will”) that operates as a cause without a cause or as the “ghost in the machine” or the “soul.”

I could never figure out how one would evaluate whether or not another person's confession was the product of a free and unconstrained will. How does one get access to another’s will, except by projecting one’s own conception of their own “will” onto another?

The concept of having a “will” is a cultural and religious construct. For example, some Christian denominations believe in the possibility of “free-will” while others don’t. Buddhists view the concept of having a self as an error in thought.

Instead of looking into some metaphysical conception such as someone’s will, the law would be clearer if the inquiry would be simply reduced to two formulations that encompass the law regarding confessions. The first question is: Were the tactics the State used to obtain the confession incompatible with the values of our society as they relate to a citizen’s relationship with the State? For example, the intentional infliction of physical pain or the threatening of harm to force a confession is clearly incompatible with what we believe is proper behavior a State actor should take toward a citizen. If the tactics were incompatible with societal values, the confession is suppressed.

The second question is: Was the confession obtained unduly unreliable? If it is, the confession is suppressed. In many instances, an unreliable confession will be the result of coercive police conduct with a defendant who is susceptible to providing a false confession. However, Courts have found confessions to be “involuntary” under circumstances where the confession was obtained from an inordinately susceptible individual with very little police encouragement. See for example, State v. Hoppe, 2003 WI 43. The focus should be an evaluation of the unreliability of the confession. The exclusion of unreliable confessions increases the accuracy of the determination of guilt within our criminal justice system.

A focus on proper police conduct and on a statement’s reliability would get the Courts out of pretending to be able to divine what someone’s “will” was (what about that defendant whose will was to confess but other demons in the mind were not allowing him to do so—could any amount of coercion make his statement “involuntary?) and when that “will” was overcome by police pressure resulting in a confession that is not the product of a free and unconstrained will.

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.

David Eagleman Speaks on Neurolaw

Here are a couple of videos of David Eagleman speaking about law and neuroscience.

http://eaglemanlab.net/neurolaw

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.

The Brain as a Team of Rivals

David Eagleman, in his recent book, Incognito, The Secret Lives of the Brain, argues that the brain is composed of various modules, some with competing objectives, comprising a “team of rivals”.

Eagleman, a neuroscientist at Baylor College of Medicine and director of the Initiative on Neuroscience and the Law, further argues that “blame-worthiness” in the criminal justice system is the wrong question. He persuasively argues that as the understanding of the brain advances, including our understanding of the neurological bases for much deviant behavior, behavior for which defendants had been considered “blameworthy” now lead to legal findings of “not-blameworthy.”

Eagleman argues that the only question is whether the behavior of the defendant can be modified. If it can, then rehabilitation, sometimes in the form of punishment, is appropriate. If the behavior is not modifiable, then a defendant should be warehoused in a place where he or she cannot harm the public.

Eagleman’s perspective on the criminal justice system is purely scientific, and his conclusions logically flow from this perspective. However, as I have argued in other entries in this blog, the criminal justice system is not merely a treatment system, but a social and political institution built on a society’s history and beliefs including religious beliefs—many of which are antithetical to scientific findings and the scientific method. The use of science in the law has sociological limits.

Eagleman’s book addresses many of questions involved in deciphering human behavior and is a must read for anyone involved in the criminal justice system or engaged in any undertaking that involves the modification of human behavior.

Looks Matter

Several studies have examined the relationship between the physical attractiveness of a defendant and jury verdicts. One study found that defendants who were considered physically attractive by the jurors were treated more leniently by the jurors and those that were considered physically unattractive were treated more harshly by the jurors.[i]

Another study found that defendants who were considered physically attractive were almost twice as likely to be acquitted than those considered unattractive.[ii]

Finally, a researcher looked at the effect of the physical attractiveness of a victim on a jury’s verdict in a car theft case. His research showed that a defendant was judged more harshly when the victim was physically attractive than when the victim was physically unattractive provided the victim was also careful in attempting to prevent the theft.[iii]

Now all of the above studies involved the use of mock juries. Whether or not these same patterns would hold in an actual trial is another question. However, the studies do indicate yet another potential prejudice of which we need to be vigilant.

---

[i] Izzett, R.E. & Leginski, W. (1974). Group discussion and the influence of defendant characteristics in a simulated jury setting. The Journal of Social Psychology, 93, 271-279.

[ii] MacCoun, R.J. (1990). The emergence of extralegal bias during jury deliberations. Criminal Justice and Behavior, 17, 303-314.

[iii] Kerr, Norbert L., (1978), Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors’ Verdicts, Personality and Social Psychology Bulletin, Vol. 4, No. 3.

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.

Racial Bias and Judicial Decisions

Racial bias and prejudice should have no place in a judicial decision. How good are judges at excluding this pernicious tendency from their deliberations? Researchers attempted to evaluate this question.[i]

These researchers explain that two types of potential bias exist can exist in the courtroom. The first is explicit bias which is bias that people are aware of and sometimes openly acknowledge. With cultural change, explicit bias has decreased and is certainly unacceptable within the judiciary.

The second type of bias is implicit bias which is bias that one may not be aware of and that operates at the unconscious level. Various techniques have been designed to measure implicit bias. One such technique is the Implicit Association Test (IAT) which measures the association between a race and words such as good/bad. (For several such tests see for example, https://implicit.harvard.edu/implicit/demo/ )

The Rachlinski study showed the judges who were tested (from various geographical locations around the U.S.) had a strong white preference on the IAT test. The black judges showed no strong racial preference.

These researchers that attempted to discover whether measures of strong white preference in the IAT impact judicial decision making. The judges were asked to make judicial decisions involving the criminal justice system in three different cases. These questions involved a determination of the guilt of the individual as well as the appropriate disposition. The judges were primed to understand the race of the defendant. The results of this test showed that the judges’ decisions, on the average, were not affected with the race of the defendant.

However, the researchers discovered that judges who had a white preference in the IAT test gave higher sentences to black defendants and judges who had a black preference in the IAT test gave higher sentences to white defendants.

These researchers came to the following conclusions. “First, judges, like the rest of us, carry implicit biases concerning race. Second, these implicit biases can affect judges’ judgment, at least in context where judges are unaware of a need to monitor their decisions for racial bias. Third, and conversely, when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, are motivated to suppress that bias, they appear able to do so.”[ii]

A judicial decision (or any decision within the criminal justice system) should never be affected by racial bias. Those of us in within the justice system must never tolerate explicit bias, and must be alert to, and guard against, implicit bias. The research would indicate if we are aware of our biases, and are committed to an unbiased decision, we have a reasonable likelihood at being successful in making unbiased decisions.

---

[i] Rachlinski, Jeffrey J., Sheri Lynn Johnson, Andrew J. Wistrich, and Chris Guthrie, 2009, Notre Dame Law Review, Vol. 84:3 pp. 1195-1246

[ii] Ibid, p. 1221

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.

Thoughts of Death May Increase Desire to Punish

Terror management theory (TMT) posits that fear of death can strongly influence human behavior, including behavior within the courtroom. The theory starts with the hypothesis that when humans confront their own mortality, they are comforted by a belief that they share with others a stable world-view of various values. This world-view may be a transcendent religious view, or a this-world, shared sense of community values.

Multiple studies have been completed that show that when humans are reminded of their death, they have a tendency to want to protect, defend, and enforce their world-views. This tendency holds for decisions made in a courtroom—generally resulting in more punitive decisions.

Research has shown that when judges are reminded of their mortality, they will impose higher bail than judges who have not been reminded of their own mortality. Juries will have a greater tendency to convict on lesser evidence and recommend more severe sentences after being reminded of their mortality. People also can become more physically aggressive against those who threaten their world-views when they are reminded of their own mortality.

Research has shown that TMT can lead people being more lenient rather than punitive when it is the victim of the crime that threatens one’s world-view—any experienced criminal defense attorney understands this.

Terror management theory is another mechanism that those in the criminal justice system must be aware of. While advocates may attempt to exploit this phenomenon, judges must be on guard to protect against any undue influence on their or a jury’s decision from thoughts of one’s mortality.[i]

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.

---

[i] Arndt, Jamie, Joel Lieverman, Alison Cook, (2005), Terror Management In the Courtroom: Exploring the Effects of Mortality Salience on Legal Decision Making, 11 Psychology, Public Policy and Law 407, pp. 407-437/