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.

Kudos to NACDL on its stance.  First, it contends, a criminal conviction requires proof beyond a reasonable doubt.  And second, conviction for a crime “requires both a criminal act and criminal intent, nothing less. NACDL is committed to ensuring that this principle remains vital whether the matter concerns conduct in the street or conduct in the C-suite."

I’m not sure what a C-suite is.  (Wouldn’t it be the E-suite for executive suite?)  Nonetheless, while corporate executives still—at least for the moment—enjoy the protection of a high burden of proof and the mens rea requirement, those two safeguards have already been decimated in the state of Wisconsin.

Let’s start with the mens rea requirement.  Wisconsin has numerous crimes for which a person can be convicted without any criminal intent.  They range from disorderly conduct (no intent required; an actual disturbance is not even required) to the life-ruining third-degree sexual assault (knowledge of complaining witness’s lack of consent not an element) to the life-obliterating, strict-liability sexual assault of a child (even the child’s affirmative misrepresentation of age combined with defendant’s reasonable belief child was an adult is not a defense).  There is also an array of other strict liability crimes, as well as negligence-based crimes and recklessness-based crimes.  Mens rea is out the window.

Second, the burden of proof is only as formidable as the judge’s instruction to the jury.  Wisconsin’s pattern jury instruction explains reasonable doubt in ways that lower the burden of proof.  (See this article for these defects.)  Then it concludes by telling the jury “not to search for doubt,” but instead “to search for the truth.”

Many courts, including the 5th Circuit Court of Appeals, have warned that telling the jury “to search for the truth” implies the lower preponderance of evidence standard.  Even worse is Wisconsin’s mandate “not to search for doubt.”  As a Washington Court of Appeals noted, “The question for any jury is whether the burden of proof has been carried by the party who bears it. In a criminal case . . . [t]he jury cannot discern whether that has occurred without examining the evidence for reasonable doubt.”  And telling the jury not to search for doubt “impermissibly portray[s] the reasonable doubt standard as a defense tool for hiding the truth . . .”

Not only is that sound, logical legal reasoning, but Wisconsin’s jury instruction defects have twice been empirically tested (here and here).  The results in controlled experiments were as expected: when you define reasonable doubt, and then tell the jury not to search for doubt but to search for truth instead, conviction rates rise.  This issue of Wisconsin’s unconstitutional, burden-lowering jury instruction has also been litigated at the trial court level throughout the state, and it is now pending before the state supreme court (here).

NACDL is right to oppose the hyper-liberal democrat’s legislation; the white-collar types among us deserve the same constitutional protections as everyone else.  However, while NACDL admirably seeks to preserve the mens rea requirement and the high burden of proof for corporate executives, Wisconsin’s criminal defendants lost those important protections a long time ago.