[T]he judge placed a rubber band around a glass of water
and told [the jury] that the rubber band represented reasonable doubt. He then
explained metaphorically, the defendant is like a chip of wood in the bottom of
the glass and the prosecution must pour in enough evidence, like water, to
float the defendant to the rubber band to prove his guilt.
I guess the question is this: How high up on the
glass did the judge place the rubber band?
If the jury starts debating merely whether the glass was “half
empty or half full,” the defendant is in real trouble (or, to continue with the judge’s metaphor, deep water). But assuming that the rubber band was placed
sufficiently high up on the glass, it’s better to tell the jury to look for
water than “not to search for doubt,” which is the language used in Wisconsin’s pattern criminal
jury instruction on the burden of proof.
As psychologist Larry White and I have now twice demonstrated here and here (and as many judges understand and one judge has explained at length here, here, and here) such language lowers the burden of proof below the constitutionally-mandated standard. Telling the jurors not to look for the very thing the constitution requires them to look for—well, the problem with that should require no further explanation.
As psychologist Larry White and I have now twice demonstrated here and here (and as many judges understand and one judge has explained at length here, here, and here) such language lowers the burden of proof below the constitutionally-mandated standard. Telling the jurors not to look for the very thing the constitution requires them to look for—well, the problem with that should require no further explanation.
The upshot: this creative Illinois judge came up with a better explanation of reasonable
doubt, possibly off the cuff, than the eight former prosecutors and three other
former government attorneys that comprise Wisconsin ’s eleven-member jury instruction committee. Given the stacked deck of 11-0, we shouldn’t be surprised.
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