Monday, June 17, 2019

JI 140, Post-Trammell

Over at the JI 140 Resource Page of my website, I've added a new, post-Trammell "brief" asking Wisconsin trial courts to change the burden of proof jury instruction (JI 140).  The document is located at the very bottom / end of the page.  The document is a requested modification of JI 140, and I'll be submitting it in all of my cases that get set for trial.  Wisconsin criminal defense lawyers are free to use it in their cases, subject to the cover page / disclaimer page.  What's in the new document?

First, citing Trammell, it spells out the trial court's authority to change JI 140, and the reminds the trial court of its objective, which is not to adopt an instruction just because it will later be upheld (at least in state court).  Rather, the goal of the trial judge (and of any jury instruction) is to clearly, accurately, and succinctly explain the relevant legal concept.

Monday, June 3, 2019

SCOW flops on JI 140; rejects behavioral research in the process

Predictably, SCOW flopped on its chance to change our defective jury instruction on the burden of proof, JI 140.  As the concurrence in the SCOW opinion points out, the instruction engages in a sort of burden-shifting by focusing jurors on the type of doubt the defense must produce (with numerous warnings about what kinds of doubts are not reasonable) rather than what constitutes proof beyond a reasonable doubt.  Worse yet, as most of The Dog’s readers know by now, JI 140 concludes with language that other courts (e.g., Fifth Circuit Ct. App. and Washington Ct. App., among others) have held to be constitutionally defective.  It tells jurors “you are not to search for doubt.  You are to search for the truth.” 

Here’s a summary of the case by SPD’s On Point blog, which also links to the decision itself.  (The post also has a helpful practice tip for defense lawyers, so be sure to read it.)  I’ll have plenty to say about this case in the future—possibly in another law review article.  But for now, I’ll limit my comments to the very small part of the court’s decision discussing the studies I conducted and published with my coauthor Larry White.  These studies demonstrated, unsurprisingly, that when you tell jurors not to search for doubt but instead to search for truth, it will lower the state’s burden of proof.  You can find the studies, along with other JI 140 resources, on my JI 140 resource page (which I’ll be updating soon).   After the jump, I’ll respond to the softballs that SCOW has thrown me. 

Saturday, May 11, 2019

Inmates running the asylum (and the demise of higher education)

Ronald Sullivan is a law professor at Harvard who also works as “Winthrop House faculty dean”—which, apparently, is an undergraduate residence hall at Harvard College.  Sullivan is quite an impressive guy.  He is the first African-American to have obtained this “faculty dean” title at Harvard.  (They used to call them “masters” but that was changed because it was insensitive or non-inclusive or in some way upset the students.)  Even more impressive, Sullivan makes quite an impact in the real world—a rare occurrence among modern law professors, most of whom have never or barely practiced law even before they entered the academy.  According to his bio: “Professor Sullivan, to be sure, spends the lion’s share of his work . . . in service of underserved communities around the country and world. In fact, the Huffington Post dubbed him ‘The Man Who Dealt the Biggest Blow to Mass Incarceration,’ noting that several media reported that Professor Sullivan won the release of more wrongfully incarcerated persons . . . than anyone in U.S. history.”

Saturday, May 4, 2019

Already Gone: Mens rea and the burden of proof in Wisconsin


Liberals are just as likely to take away our freedoms and violate our rights as conservatives.  Many years ago, I wrote an article (here) arguing there was no discernible correlation between a judge’s political party and respect for our constitutional rights.  

When it comes to the legislature, one recent example of a liberal’s expansive, intrusive reach is Sen. Elizabeth Warren’s proposal to ensnare corporate executives in the criminal justice system.  According to this NACDL news release, her Corporate Executive Accountability Act (here) would convict a defendant without a mens rea requirement (guilty mind, intent, knowledge, etc.) and by the lower, civil burden of proof known as the preponderance of the evidence standard.

Tuesday, March 12, 2019

JI 140 in the News and in the Courts [Updated]

As readers of The Dog likely know, Wisconsin's jury instruction 140 on the burden of proof concludes by telling jurors "not to search for doubt" but "to search for the truth."  Only in Wisconsin!  Other states and federal jurisdictions have warned that such language is highly defective in a burden of proof jury instruction.  Why?  First, it is a jury's duty to examine the evidence for reasonable doubt.  Second, telling the jury to search for the truth implies a much lower preponderance of evidence standard.  That is, in a search for the truth, if the jury thinks a charge is merely probably true, it would be obligated to convict.

Things are now heating up on this issue.  Less than three years after Larry White and I published our first empirical study demonstrating the burden-lowering effect of JI 140's closing mandate, the issue is now in the mainstream media and is pending before the Supreme Court of Wisconsin (SCOW) in State v. Trammell.  You can find a recent Milwaukee Journal-Sentinel article here.  You can find the Trammell appellate briefs, including WACDL's amicus brief, here.  I have also incorporated all of this new information into my JI 140 resource page.  We're expecting a SCOW decision sometime this summer.  Let's hope SCOW joins the rest of the country and condemns this blatantly unconstitutional, burden-lowering language in JI 140.

Update: The Wisconsin State Public Defender's amicus brief has now been added to the supreme court and appellate court access system.  See here