Wednesday, August 1, 2018

Spin Doctors: Prosecutor Sophistry and the Burden of Proof

Defense lawyers have long complained about Wisconsin's defective, burden-lowering jury instruction (J.I. 140) on the "beyond a reasonable doubt" standard of proof.  Prosecutors replied that our complaints were nothing more than mere "opinion," unsupported by actual evidence.  So in response, psychology professor Lawrence T. White and I provided them with the evidence they supposedly wanted: two controlled experiments testing the effect of J.I. 140's closing mandate ("not to search for doubt" but "to search for the truth") on mock juror decision-making.  (Prosecutors never really wanted this evidence; they just demanded it because they never imagined anyone would actually produce it.)  Not surprisingly, telling jurors "not to search for doubt" creates misconceptions about the burden of proof and produces higher conviction rates.  These studies were published in law reviews at Richmond and Columbia.
Since then, more than twenty trial judges across the state have modified J.I. 140 to more accurately describe the state's high burden of proof.  This has thrown many prosecutors into a tizzy; they've desperately launched some truly bizarre and poorly thought-out criticisms of the published research.  But these criticisms are like manna from heaven to a writer: prosecutors have given me the chance to debunk their illogical arguments and, in the process, hopefully educate the handful of them who are interested in their duty as a "minister of justice" and aren't merely trying to rack-up convictions.

My first two articles debunking prosecutors' arguments were published in law reviews at Pittsburgh and Gonzaga.  My latest article in the series has just been accepted for publication at Cincinnati, which is featuring practitioner-written articles in its forthcoming issue.  (Kudos to the editors at Cincinnati for their commitment to publishing useful scholarship, as many law professor-written articles are of little use to the bench and bar.)  So for a thorough debunking of the newest round of prosecutor attacks, read the pre-publication draft of Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cincinnati L. Rev. __ (forthcoming, 2019).

Finally, for a discussion of all of J.I. 140's numerous flaws -- its problems run much deeper than merely telling jurors "not to search for doubt" -- see my recent article published at California.  And if you happen to be litigating this issue in the trial court or on appeal, see my J.I. 140 resource page for other links and downloads, including sample briefs in support of a motion to modify J.I. 140.  

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