Wisconsin Jury Instruction 140 Resource Page

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.


Studies and Law Review Articles on JI 140

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) 


JI 140 in the News


  1. Eric Guenther, What's truth got to do with it? The burden of proof instruction violates the presumption of innocence, Obstructing Injustice (Feb. 1, 2006)
  2. Michael D. Cicchini, Criminal court: Guilty by the preponderance of the evidence?, Marq. U. L. Sch. Fac. Blog (Nov. 16, 2010)
  3. Michael D. Cicchini, Truth or doubt: Where should the emphasis lie in jury instructions?, Wis. L.J. (Mar. 21, 2016)  
  4. Gretchen Schuldt, 14 words that almost double Wisconsin’s conviction rate, Wis. Justice Initiative (Apr. 12, 2016)  
  5. Michael D. Cicchini, The truth (about jury instruction 140) is out there, Wis. L.J. (Jul. 1, 2016)  
  6. Anthony Cotton, Should juries really be searching for the 'truth'?, Wis. L.J.(Nov. 22, 2016)
  7. Michael D. Cicchini, Steven Avery and the Criminal Justice Machinery, Criminal Element (April 6, 2017)
  8. Michael O'Hear, Time to revisit Wisconsin's jury instruction on reasonable doubt?, Life Sentences (May 25, 2017)  
  9. Michael D. Cicchini, "Mistakes were made": A reply to Michael Griesbach, Wis. L.J. (June 26, 2017)  
  10. Scott H. Greenfield, The search for "truth" instead of doubt, Simple Justice (Aug. 14, 2017)  
  11. Hon. Steven Bauer, Why Wisconsin's criminal burden of proof instruction hadto be changed, To Speak the Truth (Oct. 24, 2017)  
  12. Hon. Steven Bauer, Second study casts reasonable doubt on Wisconsin's criminal burden of proof instruction, To Speak the Truth (Oct. 30, 2017)  
  13. Michael Griesbach, Meeting the challenge to Wisconsin's criminal jury instruction 140, Wis. L.J. (Nov. 22, 2017)  
  14. Michael D. Cicchini, Defense of jury instruction 140 falls flat, Wis. L.J. (Dec. 5, 2017)  
  15. Michael D. Cicchini, Responding to more criticisms of the empirical studies on Wisconsin's reasonable-doubt jury instruction, The Legal Watchdog (Dec. 22, 2017)
  16. Bruce Vielmetti, Should juries find reasonable doubt, or truth?, Milwaukee Journal-Sentinel (Mar. 4, 2019)


Michael D. Cicchini, Wisconsin Public Radio's Central Time (Apr. 18, 2017) [here]


Trial Judges and JI 140

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. 

  1. Hon. Michael Aprahamian, Waukesha Cty.
  2. Hon. David Bastianelli, Kenosha Cty. [e.g., here]
  3. Hon. Steven Bauer, Dodge Cty. [links to two blog posts above; written decision, below]
  4. Hon. Ellen Berz, Dane Cty. [e.g., here]
  5. Hon. Craig Day, Grant Cty.
  6. Hon. Robert Eaton, Ashland Cty.
  7. Hon. Stephen Ehlke, Dane Cty. 
  8. Hon. William Gabler, Eau Claire Cty. [e.g., here]
  9. Hon. William Hanrahan, Dane Cty. [e.g., here]
  10. Hon. Chad Kerkman, Kenosha Cty. [e.g., here]
  11. Hon. Paul Lenz, Eau Claire Cty. (retired)
  12. Hon. Elliot Levine, LaCrosse Cty.
  13. Hon. Mark McGinnis, Outagamie Cty. [e.g., here]
  14. Hon. Nicholas McNamara, Dane Cty.
  15. Hon. Mitchell Metropulos, Outagamie Cty.
  16. Hon. Scott Needham, St. Croix Cty.
  17. Hon. Mark Nielsen, Racine Cty. 
  18. Hon. Josann Reynolds, Dane Cty. [e.g., here]
  19. Hon. Bruce Schroeder, Kenosha Cty. [written order below
  20. Hon. Michael Schumacher, Eau Claire Cty.
  21. Hon. Carolina Stark, Milwaukee Cty. [e.g., here]
  22. Hon. Todd Ziegler, Monroe Cty. [e.g., here]