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.

Wisconsin's pattern jury instruction (JI 140) on the burden of proof, read to juries by most of our state's trial judges, is blatantly unconstitutional.  After defining reasonable doubt, it instructs the jurors "not to search for doubt."  Instead, it tells them "to search for the truth."  Other states have held that this is language is unconstitutional as it instructs the jury not to perform its constitutionally-mandated search for doubt, and further invites them to convict the defendant on a mere "preponderance of evidence" standard.  After all, if you are "searching for the truth," and you think the charge is "probably true," you would be obligated to convict.

I've petitioned Wisconsin's jury instruction committee to change JI 140.  My request is based on plain language, case law from other states, simple logic, and now the empirical evidence in my two published studies-turned-articles coauthored with Lawrence T. White.  We won't know for sure what the committee decided to do until the updated jury instructions are released next month.  (The committee never replied to the letter I sent to it nearly a year ago, and I've heard rumors that they will be maintaining the status quo -- but we'll soon find out.)

Fortunately, however, individual trial judges have the power and the duty to independently evaluate JI 140 and other instructions.  And at least twelve different judges across the state have modified our state's unconstitutional JI 140.  Kudos to them!  These judges respect due process and value one of our most fundamental principles in American criminal law: the state must prove its case beyond a reasonable doubt.

I've listed these judges and also collected all available resources to aid criminal defense lawyers in our battle over the burden of proof.  All of the information is on the JI 140 resource page of my website.  If you are a defense lawyer, visit the web page and take advantage of the material, including a legal brief in support of modifying JI 140.  And if you are a Wisconsin citizen, check out the web page and learn just how easy it is to be convicted of a crime in Wisconsin.       


  1. how has this not been challenged on civil rights grounds and not thrown out?

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    2. I don't know how a civil rights lawsuit would work. But this has been challenged on appeal once or twice, and the courts uphold it. I've asked the jury instruction committee to change the instruction going forward, and the members declined. (The members are all current trial court judges, most of whom are former prosecutors.) Many individual judges are changing the instruction, however, since our studies have been published.