Prosecutors insist that Wisconsin ’s
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
doubt?
You can see my latest Wisconsin Law Journal post, here,
where I respond to Michael Griesbach’s complaints—a collection of misstatements
and ad hominem attacks. Due to the journal’s word limitations, I did not respond to one of his criticisms: his claim that,
unlike real-life criminal trials, our studies told jurors only once that
the burden of proof is “beyond a reasonable doubt.” An astute reader at Reddit noticed my omission
and questioned me about it. This anonymous
poster agreed with Griesbach that the studies would be seriously flawed unless
we provided the test participants with a complete set of Wisconsin ’s
criminal jury instructions. These, it is contended, would have mentioned “reasonable doubt” in two or three additional
places which would have impacted the findings.
Of course, I would not wish for my worst enemy, let alone an
innocent test subject, to have to sit through a reading of the entire set of Wisconsin ’s
lengthy and cumbersome jury instructions. But I left that issue aside and replied to the
anonymous critic as follows:
Sorry for the delay in my response. I was
away from the computer and don't like typing on the phone.
Of
course, I'm very happy to share that information. (It's nice, but rare, to get
serious questions about these studies as they have whipped up a lot of
emotion.) I'll use MG's references in his article (hopefully you have read
that) as a framework to answer your questions.
First,
our fact pattern did not raise issues like lesser included offenses or self
defense. (Most cases don't.) So no, those instructions were therefore not
included, nor would they have been in real-life cases.
Second,
as far as reasonable doubt (RD) being mentioned several times right before the
objectionable language in JI 140, yes, we tested the entire instruction. So all
of these RD references, definitions, examples, etc., were included. The only
difference was that, in one test group, we removed the "you are not to
search for doubt . . ." closing mandate from the lengthy instruction.
Everything else was the same. (I'm referring to the Richmond study; more on the Columbia study at the end of
this post.)
Third, it
is true that RD is explained at the very beginning of a real-life case, which
we did not do in the controlled study. In real life it is unlikely, however,
that jurors would remember that language days later when they begin
deliberations; rather, they would begin deliberations with JI 140 fresh in
their minds (from closing jury instructions) and literally in their hands (as
judges give them a copy of JI 140 to take into the deliberation room). Also, I
think (but can't swear to it right now) that when judges mention RD in the
beginning of a case, they do it by reading JI 140 -- the exact instruction we
tested.
Fourth,
yes, [in real-life cases] RD is mentioned, but not explained or discussed, in
the substantive instruction on the charged crime. The purpose there is to
communicate that the state's burden applies to all elements of the crime, not
just some or most of the elements. We did not include it at that point in the
study, but neither did we include the statement "not to search for doubt .
. ." in the most damaging part of trial: the prosecutor's closing
argument.
In
real-life cases, juries may be told as many as five times "not to search
for doubt" but "to search for the truth." (We gave them that
instruction only once.) The language is especially damaging in the prosecutor's
rebuttal closing, where he/she invariably says: "The defense lawyer was
trying to raise doubt in your minds, but look what the judge just told you: you
must not search for doubt, you must search for the truth." (For more on
this, see p. 1157 of the Richmond study.) Had this been included in the study
as part of the prosecutor's closing, I'd expect the gap in conviction rates to
be even greater. But we wanted to include it only once and did not repeat or
dramatize it the way it is repeated and dramatized in real-life trials. (Just
imagine the prosecutorial criticisms had we done it that way.)
Judge Bauer explains it in a blog post like
this: "the prosecutor, on rebuttal, says 'Defense counsel read you only
part of the jury instruction on reasonable doubt. What counsel left out were
these two lines: you are not to search for doubt. You are to search for the
truth.’ Prosecutors make this argument because [it] makes it easier for the
State to obtain a conviction. I have had these lines used against me as a defense
attorney, and mea culpa, mea culpa, I have used them against defense counsel as
district attorney." http://bauersteven.blogspot.com/2017/10/why-wisconsins-criminal-burden-of-proof.html
Remember,
no study is perfect. (We identified five potential areas for improvement in our
first study, and three in our second study.) When researchers try to strengthen
a study in one area, another aspect of it may be weakened. Rather, these
studies are two pieces of evidence that support the very logical claim that,
when you explain RD, and then instruct the jury (even if just once) not to
search for doubt, you are diminishing the BOP. (Logically, if it didn't
diminish the BOP, prosecutors wouldn't fight so vigorously to preserve JI 140
in its current form.)
Finally,
I mentioned the Columbia study (second
study) above. That one is a bit different because it was a conceptual
replication, i.e., we intentionally varied a lot of aspects of the study
design. Therefore, most of the specifics in this post refer to the Richmond study. However, I
think the Columbia study is more
powerful and even less complex. One of our findings was that mock jurors who
received the offending closing mandate were nearly twice as likely (p = .01,
meaning that the near doubling is highly statistically significant) to
misunderstand the burden of proof, i.e., they thought they could convict even
if they had RD. (This was determined through a post-verdict question.)
This is
powerful, but again, really shouldn't surprise anyone. It's a direct
contradiction to explain RD, and then say "don't search for doubt."
Thanks
for your excellent questions and your interest in the studies.
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