Thursday, December 24, 2020

Now in print!


Check out my new article, now in print, Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. 89 (2020), which you can find here.  This article addresses one of the rare situations when a prosecutor and a defense lawyer will be aligned.  (You can read the abstract after the jump.)  All of my articles, organized by topic, are available here.  My books, including critics' reviews, are here.  Enjoy!

Thursday, December 17, 2020

Free Advice to College Kids: “Don’t be Nuts”

Things have gotten really crazy on most college campuses these days.  And the focal point of the craziness is often race.  To get a taste of what I mean, just read the College Fix for a week.  After you get past the initial shock of what colleges now call racist, you’ll likely conclude that when everything is allegedly racist, then nothing is really racist as the word loses all meaning.  And a recent fiasco at Georgetown University demonstrates this point.

Georgetown—a truly “elite” college, ranked in the top 25 of all colleges—has a “minority fellowship program . . . designed to mentor students of color” and give them a leg up in the real world.  It is one of many such programs at Georgetown, and is housed in the school’s “Center for Multicultural Equity & Access.”  Sidebar: It’s never enough to have programs; the programs also need to be administered by numerous highly-paid bureaucrats, who are usually employed through a “center,” which in turn drives up tuition and fees, which in turn puts most students deeper in debt.

Yet I wonder how much value this minority fellowship program actually delivers.  According to the College Fix article, “every current member” has resigned, citing, among other complaints, that the “minority fellowship program” is guilty of racism, sexism, classism, and elitism.  A phobia was also alleged, but I’ll focus on these complaints.  But before we begin, go ahead: soak in the irony of students at a truly elite college complaining of elitism.  Okay, finish laughing at their expense, and let’s get down to brass tax.

Saturday, December 12, 2020

A Decade of Daubert in Wisconsin: State 134, Defense 0

Knightly can't believe the numbers
(Photo by Amy Kushner)
Knightly and I haven’t been posting much as we’ve been hard at work on a new article, The Daubert Double Standard.  I’ll be submitting it in late January to the law reviews for publication, but here’s a sneak peek.

About a decade ago in 2010, Wisconsin lawyers learned that our state would soon be switching to the Daubert reliability standard for the admissibility of expert testimony at trial.  In criminal cases, the prosecutor (not the defense lawyer) uses the vast majority of expert witnesses, so this change from mere relevance to the more stringent reliability was supposed to benefit the defense.  It was supposed to end the prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.

Despite what was supposed to happen, many of us in the criminal defense bar knew better.  In 2010, I complained aloud to anyone that would listen that this new, more stringent Daubert reliability standard would not limit the prosecutor’s use of “experts” in any way; it would only make it more difficult for defendants to use their own, legitimate experts at trial.

Now that nearly a full decade has passed, what happened?

Friday, October 16, 2020

Recapturing my lost youth: Five underrated Van Halen songs

When Eddie Van Halen died, Electric Agora wrote that “EVH's death has brought back a recurring feeling I've been having since I entered middle age over a decade ago. The world I love is dying bit by bit.”  I’ve often had that sinking realization as well, not only after big events, such as the death of a parent, but also after far less personal events, such Van Halen’s passing.  I didn’t know Eddie Van Halen, of course, but his music is intertwined with my youth, with memories of better days.

The Electric Agora also saw a sliver lining in this reality of dying worlds.  When one’s world dies, “bit by bit,” there’s actually a consolation: when death comes for the individual, that person will be ready to go, ready to leave behind what little is left of his or her world.  That’s true and, at least for me, oddly comforting.  But in the meantime, having just passed a physical and dental exam with flying colors, I’m (most likely) not yet at death’s door.  I am therefore writing this post to enjoy an even better, though admittedly temporary, silver lining: I’m recapturing my lost youth by celebrating and sharing some of Van Halen’s most underrated songs.

Below are five such songs—one from each Van Halen (not Van Hagar) album, except for the band’s two mega hit records: the self-titled debut Van Halen and the band’s sixth album, 1984.  Those records achieved such success on every imaginable level that there are no overlooked gems, no hidden nuggets to unearth.  But their other five albums are goldmines of under-appreciated songs.  Here are my top five:

Friday, October 2, 2020

The next Republican VP candidate?

I don't pretend to know what's going to happen on November 3rd.  Although, I do expect and have braced for the worst-case scenario: A Harris-Biden administration.  Why?  Because if things go south for the GOP, you won't catch me sniveling and reaching for the bubbles and Play-Doh.  But regardless of what happens in 2020, the next Republican presidential candidate might want to take a long, hard look at Kim Klacik as a potential running mate.  She's loaded for bear -- or, in this case, for donkey -- with straight-talk and no political gibberish.  This woman is streets ahead.

Wednesday, September 9, 2020

Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results

Ever wonder how Wisconsin prosecutors and judges turn a statute that reads "convicted on 2 or more separate occasions" into merely "2 or more convictions" in order to brand more defendants as repeat offenders?  Well, okay, unless you're a Wisconsin criminal defense lawyer, you probably haven't.  But if you are a Wisconsin criminal defense lawyer, or if you just want to learn how prosecutors and judges torture the plain meaning of ordinary words to get what they want, read my hot-off-the-press article, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Online 1 (2020).  And for all of my articles, including this one, go to my articles page.  Enjoy! 

Tuesday, September 1, 2020

Will Kenosha ever recover from Trump’s visit?


Recently, President Trump sent Federal resources to my city, Kenosha, to put an end to the fires, looting, and violence.  He then announced a planned visit to survey the destruction and meet with law enforcement and others.  Predictably, our Governor and other Democratic politicians tried to stop his visit.  They uttered the usual weak, buzzword-laden blather that masquerades as political discourse today.  Governor Evers wrote, “I am concerned your presence will only hinder our healing. I am concerned your presence will only delay our work to overcome division and move forward together.”

What?!  That’s incredibly childish nonsense.  “Hinder our healing”?  What does that even mean?  And how, exactly, are we currently “overcom[ing] division” to “move forward together”?  And how would Trump’s visit “delay” that?  This is just nonsensical word vomit—that's the most accurate way to put it.

Friday, August 28, 2020

A Tour of Kenosha


Check out this citizen's driving tour of Kenosha, showcasing some of the destruction including a couple of the buildings that were burned to the ground by rioters.  And check out Terry Rose's speech (at the 6:15 mark) outside of a decimated building in Kenosha.  Rose rightfully gives some credit to the Governor for accepting President Trump's offer of federal assistance -- while pointing out that politics initially got in the way of truly swift and timely action.  Wisconsin's Governor waited too long, but, as Rose accurately points out, better late than never.  

Other than Fox, major news outlets won't be covering this accurately, or at all, so for those who don't know, a woman called 911 on a man called Jacob Blake.  Completely unrelated to that incident, Blake also a had an outstanding warrant for felony sexual assault.  Police arrived, and Blake resisted and obstructed officers causing them to use a taser gun, which had no impact.  Blake then got up off the ground and walked from the passenger side of his SUV to the driver's side.  After officers drew their guns, Blake again refused to comply with their commands and went into his vehicle.  Blake also had a large knife, although it was unclear if he had it with him or if he was going to retrieve it -- it was found on the driver's side of his SUV's floorboard.  The end result: the police shot Blake multiple times in the back as he was getting into the vehicle.

There is a legitimate debate about whether the police should have done something differently, such as tackling Blake as he walked around the car to the driver's side door or even letting him drive away to do whatever it is he might do next.  But the mob descended on Kenosha and began rioting.  Some of the facts I've outlined above weren't known at the time the rioting started.  Nonetheless, I suspect they wouldn't have mattered.  Why not?  Because rioters riot for any or no reason.  In Minneapolis, for example, rioting started up again over reports of cops shooting another black man.  Problem is, there was no police shooting.  The man actually killed himself as the police were about to arrest him for murder.

Facts, I suppose, be damned.  At least in Kenosha there was a real-life (rather than imaginary) shooting by police that triggered the rioters.  In either case, as Attorney Rose said in the above clip, "Kenosha isn't going to be another Portland."

Thursday, August 27, 2020

Does character matter?

If you're charged with a crime, it's very possible that the prosecutor will find some way to use -- either directly or indirectly -- your prior criminal record as evidence of your bad character.  This, of course, is likely to make you look guilty in the eyes of the jury.  But what if you've got a squeaky-clean record and have never even been accused of -- let alone arrested for, charged with, or convicted of -- a crime?  Can you use your clean record as evidence of your good, law-abiding character?  The law actually (generally) prohibits you from doing so.  Talk about double standards!  In my new article, I debunk the prosecutorial and judicial justifications for hiding your clean record from the jury, argue for legal reform, and provide defense lawyers with a possible strategy under the existing rules: A Clean Record as Character Evidence, 90 Mississippi Law Journal __ (forthcoming, 2021).  Or read the abstract after the jump.

That's Absurd!

Assume you're a sheriff's deputy and you arrest a mail-carrier pursuant to an outstanding murder warrant.  Can you be charged criminally for "interfering with the delivery of the mail"?  What if you rescue a baby squirrel from certain death by giving it food and water -- are you guilty of a crime for "keeping a game quadruped" in your home?  What if you are convicted of a crime that has nothing to do with sex and isn't related to sex in any imaginable way -- can the government still make you register as a sex offender?  Technically, yes.  But a legal principle called "the absurdity doctrine" is supposed to protect you when statutes would otherwise produce an absurd result, like the ones discussed above.  Unfortunately, the doctrine doesn't always work.  Read about my proposed legal reform in The New Absurdity Doctrine, 125 Penn State Law Review __ (forthcoming, 2021).  Or read the abstract after the jump.

Wordplay

In Wisconsin, you could be a "domestic abuse repeater" if you have been convicted, "on 2 or more separate occasions," of domestic abuse crimes.  Yet prosecutors are branding defendants as repeaters, thus transforming misdemeanors into felonies and increasing jail sentences to prison sentences, whenever defendants have been convicted only on ONE prior occasion.  How is this possible?  Read my new article explaining this governmental wordplay, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Online 1 (2020).  Or read the abstract after the jump.

Sunday, July 12, 2020

Strickland’s IAC standard and Brendan Dassey


When a defendant is convicted of a crime, his or her appellate lawyer will often attack the defendant’s trial counsel for ineffective assistance of counsel (IAC) in an attempt to win a new trial.  The applicable legal standard is (usually) found in Strickland v. Washington.  However, Strickland’s IAC standard is both too broad and too narrow.

Strickland is too broad in the sense that it’s often used to go after the defendant’s trial counsel not for his or her own conduct, decisions, and errors, but rather for failing to correct the trial judge’s errors or to properly monitor the prosecutor’s misconduct during trial.  In other words, it unfairly requires the defense lawyer to do three jobs in one.

But on the other hand, Strickland is too narrow, as the standard often fails to provide any remedy for true defense-lawyer ineffectiveness, such as failing to consult with the client, showing up to trial drunk, or even falling asleep in court (which, in fairness, could be due to being drunk).

Friday, July 10, 2020

The Left's Message to the Right: No Speech for You!

Most people I know and with whom I associate embrace free speech, even when they disagree with its message.  It’s a founding value on which the country is based.  People are free to verbally bash the president, praise socialism or communism, and basically say whatever they want with limited exceptions.  I would never dream of trying to shut down such speech, even when I think it’s nonsensical. 

Yet that’s not the view of the Left.  The Left loves to suppress speech that doesn’t conform precisely to today’s “woke” messaging, and they’re doing it in corporations, on sports teams, at universities, and, perhaps most alarmingly, even in government.  (And you might even be punished for someone else’s speech.)  Let’s take a look across our land to see what’s happening at a couple of colleges and in one west coast city. 

Sunday, June 21, 2020

The Police: Systemic Crookedness and Systemic Stupidity

In calling for defunding of the police, many Democrats claim—usually without argument—that the police across our country are “systemically racist.”  Instead of trying to convince us of this claim, proponents just condemn or shout-down anyone who dares to question it.  But outside of fantasy land, this claim is a nonstarter.  In other words, there’s virtually no chance of it being true.

First, there are dozens if not many hundreds of police departments in every state, and every department is different.  Therefore, it would be one thing to point to a specific, department-wide practice, and then argue that the particular department employing the practice is systemically racist.  But even if you could make such a case without further evidence, it says absolute nothing about “the police,” i.e., the other 99.99 percent of police departments across the country. 

Second, the individual police departments under fire right now are nearly always under the control of Democratic police chiefs, mayors, and governors—and in many cases these bureaucrats and politicians are themselves black—which makes this Democratic claim of systemic racism even more bizarre.  If the police department in Minneapolis, for example, is systemically racist, then voters should not reelect the Democratic “leadership” that is crying about systemic racism. 

But all of this focus on systemic racism is detracting from a real problem.  Regardless of your race, when it comes to your individual rights the police are systemically crooked.  They are literally trained, often by national consultants and trainers, to lie, cheat, and bully their way to get what they want at your expense.  When it comes to the laws that protect your rights, the cops are literally trained to be lawless.  This is a true systemic problem (in which prosecutors and judges are complicit), and it affects all of us.

Saturday, June 13, 2020

Bullying, intimidation replace reasoned debate in the “fake news” media

Trump (Public Domain)
Why would anyone read the New York Times (NYT) ever again?  It no longer maintains even the pretense of being a newspaper.  Instead, it has joined the mob.

The paper recently published an Op Ed by U.S. Senator Tom Cotton arguing for Trump's use of troops to quell mass rioting across the country.  This is a response supported by the majority of registered voters and something previous presidents have done under the Insurrection Act. 

But instead of responding to this Op Ed with argument and debate, the NYT employees responded like tantrum-throwing children in what has been described as an "open revolt."  The staff flew into a moral outrage, as they are highly offended by any ideas that deviate even slightly from their leftist thinking.  Such ideas make them feel "unsafe."  The end result was that the NYT Opinion Editor promptly resigned under intense pressure from the mob.

Monday, June 8, 2020

Where is #MeToo in all of this chaos?

Oddly, in the wake of massive rioting, property damage, injuries, and even deaths in Democratic-controlled cities across America, there is a lot of discussion about reduced funding for, and even de-funding of, police departments. 

Now, few people have been as critical of the police as yours truly.  I’ve written a book titled Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.  And all of my books, entirely or at least in part, have been very critical of the police.  But de-funding the police is an idea that’s so ridiculous even the hyper-liberal, floppy-haired Mayor of Minneapolis can’t get behind it.  (Watch this video to see the absurdity of it all.) 

Tuesday, June 2, 2020

Getting tough with UW and Wisconsin’s Jury Instruction Committees

Knightly studies copyright law
I’ve long complained that eleven sitting Wisconsin judges write our criminal jury instructions (JIs) and then somehow take and transfer a copyright in those JIs to the University of Wisconsin (UW), which then turns around and sells them back to us after we’ve already paid the judges’ salaries!  Worse yet, we lawyers have to pay annual update fees or the instructions quickly go out of date.  As I wrote in a recent blog post, I don’t think this is legal:

The “government edicts doctrine” states that court decisions and even “non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law.” (Georgia v. Public ResourceP. 4.)

Now, the UW-JI Committee gravy train could be coming to an end.  A non-profit California group called Public Resource just wrote a letter to the JI Committee members and UW stating this:

Thursday, May 28, 2020

Are multiple race-related investigations a problem in the George Floyd case?


Everyone knows the story by now.  A Minneapolis cop subdued an arrestee, George Floyd, and kept his knee on Floyd’s neck for an extended period of time, allegedly despite Floyd’s protestations that he couldn’t breathe.  Other cops stood by and watched.  Soon thereafter, Floyd died, presumably of suffocation.  Few people are surprised that the incident caused protests, which turned into riots and looting, which in turn caused many millions of dollars in property damage and at least one death.  While the riots and looting are nonsensical, such criminal behavior grew out of the protests which, it appears, were rooted in claims of racism.

Based on this, politicians and multiple levels of law enforcement were quick to jump into the mix, declare not only the cop’s guilt but also his racial motivation, and then kick-start their investigations.  There’s even a federal probe into this alleged homicide, which is normally a routine state matter.  But could all of the mayhem and millions of dollars in damage have been avoided if, instead of launching an investigation, the local Minneapolis prosecutors simply treated this case like a run-of-the-mill homicide? 

Sunday, May 17, 2020

Wordplay: How the Government Uses “Truth” and “Science” Against Us

As a criminal defense lawyer, I’ve seen government wordplay designed to violate our rights and take our freedoms.  For example, before a jury may convict a defendant of a crime, the government must prove guilt beyond a reasonable doubt.  Yet, instead of simply instructing juries on this burden of proof, the prosecutors-turned-judges who comprise Wisconsin’s jury-instruction committee drafted a statewide instruction that concludes by telling jurors: “you are not to search for doubt. You are to search for the truth.”  Prosecutors then parrot this language during closing arguments to the jury.  

Sounds good on its surface, doesn’t it?  Who doesn’t want “the truth”?  It’s like when the government names something “the Patriot Act” or calls itself “the Department of Justice.”  The citizenry shouldn’t question what’s going on beneath the surface; the label tells us everything we’re supposed to know.

But it’s rarely that simple.  

Saturday, May 9, 2020

How is Wisconsin able to copyright its criminal jury instructions?

I’m familiar with Wisconsin Criminal Jury Instructions (JIs) partly because I’ve advocated for reforming one of them: JI 140 on the burden of proof.  I’m also familiar with the JIs because I’m a criminal defense lawyer and I’m required to use them in every single jury trial.  Trial court judges adopt them verbatim nearly 100 percent of the time.  And except for a single jury instruction (JI 140) out of hundreds of instructions, I’ve only rarely seen a trial court judge modify them.

But I’m also familiar with the JIs because I have to pay for them every year.  And thanks to some clever marketing by the seller, most lawyers have to buy both the digital version for use in court and the print version for research purposes.  Why?  Because the seller includes valuable notes and commentary in the print version but not in the digital version.  Conversely, the digital version is needed so the instructions can be tailored for in-court use.  The cost is $235 for the print version and $210 for the digital version.  Once you buy them, however, the expenses are just beginning.  There are recurring annual update costs for each, which can run one or two hundred dollars per year.  (This is, admittedly, less than the initial outlay of $445.)

I’ve always wondered why we have to pay for JIs when they are written by a committee of sitting trial court judges.  We’re already paying the judges’ salaries with our tax dollars, so why do we have to pay for their labor on jury instructions as well?  I’ve asked this question several times of several people over several years, and no one seems to know the answer.  Well, it turns out the answer may have been settled back in 1834 and affirmed again in 1888.  And it’s bad news for those who claim copyright in the JIs and sell them to us for a profit.

Wednesday, April 29, 2020

“Fake news” can have multiple, tasty layers [Updated below]

Trump (public domain)
As I wrote in my last post, I’ve been reading and watching more news thanks to the shut-down, and I’ve come to appreciate Trump’s complaint that the media produces “fake news.”  A great example is Trump’s recent touting of Hydroxychloroquine as a possible treatment for the Chineese / Wuhan / Covid-19 Virus (“the Virus”).  After allegedly seeing one of the President’s press conferences, a guy in Arizona took cholorquine.   He died, and the media was all over it, giddily reporting that Trump was defying the medical experts, that he was dispensing medical advice, and that the man (an alleged Trump supporter) took Trump’s recommended drug and died.  One of my favorite headlines read as follows: “Arizona man dies after attempting to take Trump coronavirus cure.”  (You can find a montage of similar news headlines in this video clip.)  Now, this was obviously fake news from the get-go.  Here’s the top layer:

Friday, April 24, 2020

Trump-haters giddy over new Hydroxy study, except . . .

Trump (public domain photo)
With more time on my hands thanks to the lock-down, I recently subscribed to the Washington Post.  I won’t be renewing.  WaPo, like CNN and numerous other “news” outlets, is obsessed with a prescription drug called Hydroxychloroquine (“Hydroxy”).  Why?  Because Trump touted it as a possible treatment for the Chinese / Wuhan / Covid-19 Virus (“the Virus”).  It’s a drug that’s so old it’s available in generic form and therefore is cheap, has been used for malaria, is currently used for arthritis and other ailments, and was even used to treat SARS.  It also has few side effects, and can even be used by pregnant women.  Trump was very enthusiastic about the drug, but also somewhat guarded, describing it as “encouraging” and “exciting” and saying it “could be a game-changer but maybe not” and “we really hope” this is going to work as we move toward a vaccine.  Nor did Trump pull the drug out of thin air: doctors were already prescribing Hydroxy for the Virus in other countries and even in the U.S.  (Remember, this is a prescription drug; individuals can’t run out and buy it at the local pharmacy.)  And there was even a published French study showing its benefits.  

Saturday, April 11, 2020

Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. __ (2021)

Check out my new article, Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 TEMPLE L. Rev. __ (forthcoming, 2021) on SSRN or my website.  You can read the abstract after the jump:

Tuesday, March 31, 2020

Paul Campos on the evolution of law schools and their professors

Knightly studies the law
This excerpt is from a larger blog post by Paul Campos.  Campos, of Inside the Law School Scam fame, first takes aim at a typical law school professor.  I don’t know this particular prof or his work, but from what I know about the academy, Campos’s target is indeed the prototypical, modern law prof.  Campos writes:

[His] career path is this: he was an undergrad, then he was a law student, then he was a law professor. That’s it. That’s all he’s ever done. He’s never had a job as a lawyer, or indeed as anything but a professor, at least not as an adult anyway.

But it wasn’t always that way at American law schools.  There was a time, before I went to law school, where law profs had actually practiced law before joining the academy to teach.  And law schools embraced their role as professional schools or trade schools — much the way medical schools do. 

Thursday, March 26, 2020

Speaking and Writing Tips from The Legal Watchdog

Being stuck at home has caused me to watch more TV than I usually do.  This, in turn, has exposed me to more talking heads than usual.  And this has given me the opportunity to compile a list of things that everyone should immediately stop saying.  Plus, there's a bonus tip for writers:
1.  As a general rule, don't begin sentences with "so."
2.  Stop asking whether you're "right?" in the middle of a sentence or even between sentences.
3.  Don't overuse the word "space."  E.g., you are not a leader in the fashion space; rather, you are a leader in the fashion industry.
4.  Stop trying to start a "national conversation" or "raise awareness."  Find new labels to exaggerate the scope of your endeavors.
5.  Don't begin a new point with "that said" or "having said that."  It's a sure sign you're about to contradict yourself and it makes me want to punch you. 
6.  Stop saying "again" as a preface to sentences.  Often, the information that follows isn't even repetitive.  And if it is, stop repeating yourself.
7.  Don't say "not to mention" before you mention the thing that you just said you weren't going to mention. 
8.  Don't say "it goes without saying."  Because apparently it doesn't.  See also #7. 
9.  Things don't center around other things, they center on other things; they do, however, revolve around other things.  E.g., The President’s existence doesn't center around the Corona-Chinese-Wuhan-Covid19 virus; it revolves around it, or centers on it.
10. Don't "reach out" to me.  Call, email, or put a letter in the U.S. Mail.
11. BONUS WRITING TIP: On a related note, always use your Oxford comma. See, e.g., #10 and #12.
12. Stop referring to someone's position, claim, or argument as a "narrative."

This public service has been brought to you by Knightly.

Wednesday, March 18, 2020

The Great Divide

I saw an exchange during Trump’s press conference today on the Corona virus that is emblematic of the divide in politics.  I realize that if Christopher Hitchens was still alive, he’d be the first to correct me: “Politics is division by definition, if there was no disagreement there would be no politics.”  But I’m talking about a new divide—call it the great divide.

Monday, March 2, 2020

Deal Jumpers


Wisconsin judges are allowed to accept a defendant's plea pursuant to a plea agreement, then disregard the state's sentence concession that induced the defendant to plead in the first place, and then slam the defendant with any sentence the judge wishes to impose.  Worse yet, the hapless defendant is left without recourse.  

This is one of those things to which we criminal defense lawyers in Wisconsin get conditioned, yet is surprising to many outsiders.  Read all about it, including how defense lawyers might be able to constrain this insidious practice in certain circumstances, in my new article Deal Jumpers, 2021 U. Illinois L. Rev. __ (forthcoming, 2021).  You'll find the abstract after the jump.  You'll find all of my articles on the articles page of my website.

Saturday, February 1, 2020

How Cozy is Wisconsin’s Jury Instruction Committee with State Prosecutors?

The law — whether a crime such as “possession of marijuana,” the burden of proof to be applied by the jury, or the meaning of key legal terms such as “intent” or “possession” or “knowledge” — is defined by jury instructions.  For example, despite the label we put on the prosecutor’s burden of proof in a criminal case, the burden is only as formidable as the jury instruction the trial judge reads and submits to the jury.  To demonstrate this point, while a North Carolina prosecutor and a Wisconsin prosecutor must, in theory, both prove their cases “beyond a reasonable doubt” to win convictions, consider the dramatic differences between the two states’ jury instructions.