Wednesday, March 23, 2016

Truth or Doubt?

Here is the link to my latest Wisconsin Law Journal post, which discusses my recent article (coauthored with Larry White, Ph.D.) on Wisconsin's jury instruction 140.  This instruction covers the burden of proof in criminal cases.  In short, the Wisconsin instruction tells the jury to disregard their search for reasonable doubt in favor of a search for what they think the truth is.  Multiple other state courts have warned trial courts not to give this instruction because, quite obviously, it diminishes the burden of proof.  Our article explains this from a logical perspective, and also uses a controlled study to empirically test our hypothesis that jurors who receive Wisconsin's instruction will convict at a higher rate than jurors who receive a standard reasonable doubt instruction.  Spoiler alert: We were right.  You can find the pre-publication version of our article, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. ___ (forthcoming, May 2016) on the Social Science Research Network.    

Friday, March 18, 2016

State bar confuses silence with loyalty (again)

The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases.  You can find our petition and supporting documents here.  You can find the state bar's article here.  And reproduced below is my comment to the article:

This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client."