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). The instruction is riddled with defects that make it easier for prosecutors to win convictions. Most significantly, after (improperly) explaining the concept of proof beyond a reasonable doubt, J.I. 140 concludes by telling the jury “not to search for doubt,” but instead “to search for the truth.”
J.I. 140's closing mandate is blatantly unconstitutional. 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 to modify J.I. 140's closing mandate, but it refused to do so. In support of its decision, it continues to cite a near century-old case having nothing to do with the burden of proof jury instruction.
Defense lawyers should consider filing motions to modify J.I. 140 on a case-by-case basis with their trial court judges. Sample briefs in support of such a motion are provided below. 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.
Finally, the J.I. 140 issue is now before the Supreme Court of Wisconsin (SCOW) in State v. Trammell. The defense, state, and amicus briefs are provided below. Oral argument is expected in March, 2019, with SCOW's decision expected this summer.
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, 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.