Friday, December 22, 2017
The worst part of Wisconsin's reasonable-doubt jury instruction 140 is its closing mandate telling jurors "not to search for doubt" but instead "to search for the truth." But while that's the most serious of the instruction's offenses, it turns out to be just one of many. You can read all about the instruction's other burden-lowering defects, and learn how jurors should be instructed, in my new article Instructing Jurors on Reasonable Doubt: It's All Relative, 8 California L. Rev. Online 72 (2017).
Responding to more criticisms of the empirical studies on Wisconsin’s reasonable-doubt jury instruction
Prosecutors insist that
jury instruction 140 on the burden of proof — which concludes by telling jurors
“not to search for doubt” but “to search for the truth” — does not lower
the burden of proof. This raises the question:
If it doesn’t lower the burden of proof, then why are you fighting so
vigorously to preserve the offending closing mandate? Why not just join the other 49 states that
don’t use such qualifying language when instructing their juries on reasonable
In 2016 Lawrence T. White and I conducted two controlled studies on
Wisconsin’s burden of
proof jury instruction. Our findings
were published in articles here and here.
Not surprisingly, when you tell participants the
state’s burden is “beyond a reasonable doubt,” but then tell them “not to
search for doubt” and instead “to search for the truth,” you are lowering the burden of proof.
After a long hiatus to write another book, edit some articles, and attend to an unproductive personal “frolic,” I’m now resuming my posts at The Dog — with Knightly’s assistance, of course.
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