Friday, May 19, 2017

Wisconsin's Unconstitutional Burden of Proof

The Constitution requires the jury in a criminal case to evaluate the state's evidence for reasonable doubt.  After this evaluation, even if the jury concludes that the criminal charge is "probably true," it must find the defendant not guilty.  The reason, of course, is the high burden of proof: "proof beyond a reasonable doubt."  Standards like "might be guilty," "could be guilty," "is possibly guilty," and even "is probably guilty," just doesn't cut it when the state is trying to strip you of your liberty.  But this high burden of proof is only as strong as the burden of proof jury instruction.  And the way that most Wisconsin judges instruct their juries might surprise you.

Wednesday, May 10, 2017

Dassey's Details: Unprompted or Extracted?

I've heard Ken Kratz, on several occasions, complain that "Making a Murderer" left out important details. But I've always dismissed this complaint as just a minor variation on the common prosecutorial refrain that we defense lawyers hear all the time: "He's quoting out of context!"

But in their book, "Avery," Kratz and coauthor Peter Wilkinson criticize the documentary for leaving out Dassey's May 13 interrogation. They claim that, in this interrogation, Dassey provided unprompted details about seeing Halbach's purse, camera, and phone. The problem, however, is that Dassey's statement was not unprompted. More accurately, his interrogators extracted it from him. Read more, including an excerpt from the actual interrogation transcript, in my newest Wisconsin Law Journal column.  

(Warning to prosecutors: The column does include a quotation, and the quotation is taken out of its context. But by definition, a quotation necessarily is out of context.)