As I have argued before, one problem with such deference is that the committee is made up almost entirely of former prosecutors and, in its most recent iteration, entirely of former government lawyers -- hardly a group to which we should blindly defer on matters of such importance. But now, another problem has emerged. It turns out that the much-ballyhooed committee of trial judges doesn't even write the instructions. Instead, as has been revealed during the course of a jury-instruction copyright dispute, the instructions are created and written solely by employees of the University of Wisconsin at Madison -- possibly just a single employee.
In my newest article, Criminal Jury Instructions: A Case Study, 84 Albany Law Review __ (forthcoming 2021), I explain what's going on. And now that the instructions have been stripped of their judicial halo and aura of authority, the article also provides a sample written request for defense lawyers to use to seek modification of the instructions in their own cases. Finally, because the jury instruction committee is going to have some unspecified level of involvement in this swampy jury-instruction process going forward, I advocate for legal reforms rooted in the principles of transparency and, with regard to the committee's composition, diversity of thought and experience.
