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.  

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.