Instructing Jurors on Reasonable Doubt: It's All Relative

The worst part of Wisconsin's reasonable-doubt jury instruction 140 is its closing mandate telling jurors "not to search for doubt" but instead "to search for the truth."  But while that's the most serious of the instruction's offenses, it turns out to be just one of many.  You can read all about the instruction's other burden-lowering defects, and learn how jurors should be instructed, in my new article Instructing Jurors on Reasonable Doubt: It's All Relative, 8 California L. Rev. Online 72 (2017).

For law geeks only: An inside look at law review publishing

For those few people out there who have an interest in the law review publishing process, check out my recently published article titled, appropriately enough, Law Review Publishing: Thoughts on Mass Submissions, Expedited Review, and Potential Reform, 16 U. New Hampshire L. Rev. 147 (2017). 

Responding to more criticisms of the empirical studies on Wisconsin’s reasonable-doubt jury instruction

Prosecutors insist that Wisconsin’s jury instruction 140 on the burden of proof — which concludes by telling jurors “not to search for doubt” but “to search for the truth” — does not lower the burden of proof.  This raises the question: If it doesn’t lower the burden of proof, then why are you fighting so vigorously to preserve the offending closing mandate?  Why not just join the other 49 states that don’t use such qualifying language when instructing their juries on reasonable doubt?

Educating Judges and Lawyers in Behavioral Research: A Case Study, 53 Gonzaga L. Rev. __ (2017)

In 2016 Lawrence T. White and I conducted two controlled studies on Wisconsin’s burden of proof jury instruction.  Our findings were published in articles here and here.  Not surprisingly, when you tell participants the state’s burden is “beyond a reasonable doubt,” but then tell them “not to search for doubt” and instead “to search for the truth,” you are lowering the burden of proof.

Knightly's back!

After a long hiatus to write another book, edit some articles, and attend to an unproductive personal “frolic,” I’m now resuming my posts at The Dog — with Knightly’s assistance, of course. 

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