This page is intended for Wisconsin criminal defense lawyers and provides information and resources regarding our state’s pattern jury instruction on the burden of proof (J.I. 140). J.I. 140 is riddled with defects that make it easier for prosecutors to win convictions. Most significantly, after (improperly) explaining reasonable doubt, J.I. 140 concludes by telling jurors “not to search for doubt,” but instead “to search for the truth.”
J.I. 140's closing mandate is highly defective. First, telling the jury “not to search for doubt” is unconstitutional because it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because it communicates the much lower preponderance of evidence standard, i.e., if the charge is merely probably true, in a "search for the truth" the jury would feel obligated to convict.
These problems are obvious just from reading J.I. 140. Despite this, prosecutors have responded that there is no evidence of a burden-lowering effect. Therefore, I empirically demonstrated the effect in two controlled experiments published in law journals at Richmond and Columbia Universities. Based on these findings, I asked our state's jury instruction committee in 2016 to modify J.I. 140's closing mandate, but it refused to do so.
Defense lawyers should consider filing requests to modify J.I. 140 on a case-by-case basis with their trial court judges. Some of the judges who have modified J.I. 140 to more accurately reflect the constitutionally-mandated burden of proof are also listed below. (Note: Case links are provided for some judges, but matters regarding jury instructions typically do not appear in CCAP notes.) Judge Bauer's written decision and Judge Schroeder's written order are also provided below.
The J.I. 140 issue has now been decided by the Supreme Court of Wisconsin (SCOW) in State v. Trammell (2019). The documents pertaining to that case, including SCOW's decision, are provided below. As expected, SCOW upheld the constitutionality of J.I. 140. However, it made clear that the form of the instruction is left to the discretion of each trial court judge, and the concurring opinion in Trammell discussed two defects in J.I. 140. The concurrence also asked the Jury Instruction Committee to revise J.I. 140 in light of these defects. The Committee will be taking this issue up, once again, later in 2019 or 2020.
The Jury Instruction Committee never got around to looking at J.I. 140 as the Trammell concurrence requested. Rather, Wisconsin's entire jury-instruction process has been blown up (or, as the academics like to say, "disrupted"). The entire process was all very swampy, and included UW taking a copyright in the instructions and then selling them for a profit. Now, we've learned that it was UW, not the Jury Instruction Committee, that was writing the instructions all along.
You can read all about this fiasco in my most recent article titled "Criminal Jury Instructions: A Case Study," available on the Articles page of this website. It includes a sample motion for defense counsel to use when seeking changes to any or all of Wisconsin's pro-state jury instructions. The jury instructions have now been separated from their fake halo of judicial authority, and now is the time for defense lawyers to challenge those that don't accurately reflect the law.
Toward that end, I have added another document at the very bottom of this page. It is a short version of a motion to modify J.I. 140. It incorporates the Trammel case holding as well as the recent revelation that the pattern instructions are not drafted by judges, but rather by unidentified UW employees. This short motion to modify J.I. 140 may be used as part of a pretrial motion in limine or as a stand-alone motion.
The following studies and law review articles on J.I. 140 are available for download on the "articles" page of this website (click the "articles" tab, above) and on my SSRN page. The links provided below will direct you to the specific article on SSRN, where you can view the abstract and also download the article.
Michael D. Cicchini & Lawrence T. White, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. 1139 (2016) (the first empirical test of JI 140's "truth v. doubt" language)
Michael D. Cicchini & Lawrence T. White, Testing the Impact of Criminal Jury Instructions on Verdicts: A Conceptual Replication, 117 Columbia L. Rev. Online 22 (2017) (a peer reviewed replication of the first study)
Michael D. Cicchini, Instructing Jurors on Reasonable Doubt: It's All Relative, 8 California L. Rev. Online 72 (2017) (discussing all of JI 140's defects, including its burden-shifting focus on RD instead of BRD")
Michael D. Cicchini, The Battle over the Burden of Proof: A Report from the Trenches, 79 U. Pittsburgh L. Rev. 61 (2017) (debunking prosecutor arguments regarding the two published studies, JI 140, and the burden of proof)
Michael D. Cicchini & Lawrence T. White, Educating Judges and Lawyers in Behavioral Research: A Case Study, 53 Gonzaga L. Rev. 159 (2017-18) (debunking erroneous judicial reasoning on behavioral research and the two published studies)
Michael D. Cicchini, Spin Doctors: Prosecutor Sophistry and the Burden of Proof 87 U. Cincinnati L. Rev. 489 (2018) (debunking a new set of prosecutor arguments regarding the two published studies and JI 140)
BLOGS AND PERIODICALS ON J.I. 140:
RADIO INTERVIEW ON J.I. 140:
Michael D. Cicchini, Wisconsin Public Radio's Central Time (Apr. 18, 2017) [here]
Although Wisconsin's jury instruction committee has refused to modify J.I. 140, the following Wisconsin trial judges have made changes on a case-by-case basis. If you know of other judges who have modified the instruction, please email me at mdc@CicchiniLaw.com and I will add them to the list.