Friday, December 22, 2017

Educating Judges and Lawyers in Behavioral Research: A Case Study, 53 Gonzaga L. Rev. __ (2017)

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.

Our research has caused quite an emotional stir among prosecutors who rely on Wisconsin’s unconstitutional language to lower the burden of proof and win convictions.  You can read their attacks, along with my replies, in this pre-publication draft of a U. Pitt. L. Rev. article.  After that article was written, however, a trial judge launched a series of criticisms of the studies and, in the process, demonstrated a complete misunderstanding of behavioral research—an unfortunate state of affairs that is very common among judges and lawyers.  Therefore, Larry White and I wrote an article titled Educating Judges and Lawyers in Behavioral Research: A Case Study, 53 Gonzaga L. Rev. __ (2017).  You can find the pre-publication draft here.

While judges and lawyers hold some truly bizarre misconceptions about the social sciences, our original studies and articles have still made a serious dent in the problem.  At least twenty-one Wisconsin trial court judges have modified jury instruction 140 in some way.  You can see a list of them, and read one judge’s thoughtful written decision to modify the instruction, here

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