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.
Second, in light of the "two deficiencies" in JI 140 -- as explained by the Trammell concurrence and as I explained, here, along with JI 140's other defects -- it asks the court to modify JI 140. The proposed change is simple, and a modified instruction is included as Exhibit A. The document also includes an alternative modification, Exhibit B, which mirrors the optional language provided in JI 140's footnote.
Third, it discusses the empirical evidence that SCOW ignored except to criticize in a footnote. More specifically, it itemizes SCOWs list of complaints and then addresses each of them. SCOWs criticisms were the height of ignorance; it is obvious that none of the justices actually read the studies (let alone anything that has been written about them). But this is not surprising, as the Trammell court also went to great lengths to discredit its own, previously published Dubose opinion, in which it relied on empirical evidence to change the law. The concurrence wrote separately, in part, to defend the court's own work!
Finally, given that the Committee will consider modifying the instruction again (as requested by the Trammell's concurring justices), I'll write to the Committee later in the year and add the letter as well. Now that two justices realize it's a problem to tell the jury "not to search for doubt" but "to search for the truth," maybe the Committee will more seriously consider changing JI 140 for good.
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