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