Sunday, December 30, 2018

Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cin. L. Rev. 489 (2018)

Readers of The Dog may remember from previous posts that Wisconsin's pattern jury instruction on the burden of proof concludes by telling jurors "not to search for doubt" but "to search for the truth."  It's difficult to imagine how this language could do anything except lower the burden of proof.  The Fifth Circuit Court of Appeals has said that telling jurors "to search for the truth," even without explicitly telling them "not to search for doubt," lowers the burden to a mere preponderance of evidence standard, i.e., if the charge is merely probably true, and if the jury is searching for the truth, it would be obligated to convict even if there is reasonable doubt about guilt.  And in response to a prosecutor's argument that the jury should search for truth instead of doubt, a Washington Court of Appeals stated that "truth is not the jury's job."  Rather, the jurors' duty is to evaluate the evidence for reasonable doubt -- the exact thing Wisconsin's instruction tells them not to do.

The Supreme Court of Wisconsin (SCOW) has decided to take this issue up on appeal.  You can find the legal briefs and other case details on this public database.  And you can also read my latest article on the topic, Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cincinnati L. Rev. 489 (2018).  For my previous work on this issue, including my empirical studies demonstrating that Wisconsin's jury instruction (1) causes mock jurors to convict at a higher rate and (2) leads mock jurors to believe that conviction is proper even if they have a reasonable doubt about guilt, go to my JI 140 resource page.  Let's hope SCOW gets this right and rules that trial courts may no longer instruct jurors not to perform their constitutionally-mandated duty.