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.

North Carolina’s instruction on the burden of proof reads:

A reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented, or lack or insufficiency of the evidence, as the case may be.  Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt. (Emphasis added.)

That’s powerful language, and it accurately conveys the very high burden of proof the prosecutor must satisfy before depriving a citizen of his or her freedom, property, and sometimes life.

On the other hand, while Wisconsin’s instruction, in relevant part, starts the same way as North Carolina’s, it has several defects: (1) It shifts the burden to the defendant to produce doubt rather than explaining what constitutes “proof beyond” a reasonable doubt; (2) It goes to great lengths to warn the jury that, if they have a doubt, it probably isn’t a reasonable one; and (3) It paints reasonable doubt as a defense tool for hiding the truth, and even instructs the jury not to search for doubt!  Wisconsin’s lengthy instruction reads in relevant part:

. . . The term “reasonable doubt” means a doubt based upon reason and common sense. . . . A reasonable doubt is not a doubt which is based on mere guesswork or speculation.  A doubt which arises merely from sympathy or from fear to return a verdict of guilt is not a reasonable doubt.  A reasonable doubt is not a doubt such as may be used to escape the responsibility of a decision.  While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth. (Emphasis added.)

You can imagine the fun Wisconsin prosecutors have with that pro-state language when they make their closing arguments to the jury.  As a sitting Wisconsin judge, himself a former prosecutor, explained:

During closing arguments, the defense attorney often argues the burden of proof instruction . . . and then the prosecutor, on rebuttal, says “Defense counsel read you only part of the jury instruction on reasonable doubt. What counsel left out were these two lines: ‘you are not to search for doubt. You are to search for the truth.’” 

         Prosecutors make this argument because they know that the order prohibiting the search for doubt diminishes the beyond a reasonable doubt burden of proof and makes it easier for the State to obtain a conviction. I have had these lines used against me as a defense attorney, and mea culpa, mea culpa, I have used them against defense counsel as district attorney. (Emphasis added.)

Therefore, while both states’ instructions are supposed to explain the same burden of proof — proof beyond a reasonable doubt, as mandated by the Constitution — they actually explain two very different burdens of proof.  This is not only obvious from the plain language, but to remove any doubt, so to speak, I have authored or coauthored several controlled experiments that empirically demonstrate the problem in terms of different conviction rates and different interpretations of the burden of proof, based on different jury instructions given to test participants.  (See my articles published in the Richmond, Columbia, Villanova, and Washington & Lee law reviews.)

Given the obvious and great importance of jury instructions, the relevant question is this: Who drafts them?  This question recently came to mind as several colleagues and I have noticed, in the context of substantive jury instructions that explain what constitutes particular crimes, that several instructions have undergone subtle but important changes to become more pro-prosecutor over time.

The answer is that in Wisconsin, as in other states, there is a committee that drafts the jury instructions.  But in Wisconsin, unlike many other states, the committee members are made up entirely of sitting judges, almost all of whom are former prosecutors!  And those who aren’t former prosecutors have eaten at the government trough in other capacities, such as that of child-support-enforcement lawyer.  (See my articles in the Pittsburgh and Cincinnati law reviews for the gory details about the committee’s composition.)

But it could be even worse than it appears.  I hypothesize that current prosecutors have a direct line to the former prosecutors that comprise the committee.  I also suspect that current prosecutors exercise some influence over the committee’s decisions, which, if true, would explain why Wisconsin’s jury instructions continually evolve to become more and more pro-prosecutor.  Why do I think this?  I’ve actually had some direct experience with the committee which, at a minimum, presents the appearance of such prosecutor-committee communication, if not influence.  As I previously wrote of my experience when urging the committee to drop the unconstitutional mandate “not to search for doubt” from its reasonable doubt jury instruction:

[W]hat was surprising was the impenetrable black box in which the jury-instruction committee operated. Impenetrable, that is, to anyone who is not a prosecutor. Since September 2016, prosecutors have been enthusiastically reporting (including in court filings) that the committee decided not to modify the instruction. Then, nine months later on June 29, 2017, I received an email from the reporter of the committee, informing me that the committee had, in fact, decided against modification. The reporter was apparently unaware that prosecutors had been spreading the news of this decision since September 2016; he claimed the committee had discussed the matter in October, and did not make its decision until December, of 2016.  (Parenthetical and emphasis added; for the documents on which I base these claims, see my California law review article.)

Using a buzzword of the day, it might be time to introduce some “diversity” into our jury instruction committee that is now comprised almost exclusively of former prosecutors and entirely of former government lawyers.  Maybe then our jury instructions wouldn’t subtly evolve—without any changes in the corresponding statutes or case law that could possibly justify such evolution—for the benefit of prosecutors.  And maybe then we could get a “proof beyond a reasonable doubt” jury instruction that doesn’t literally relieve the state of its burden of proof by telling the jury “not to search for doubt.”

That defense lawyers have to hope for such things simply demonstrates how far the pendulum has swung in Wisconsin’s pro-prosecutor, anti-defendant climate.