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Home / Commentary / CRITIC’S CORNER: Defense of jury instruction 140 falls flat

CRITIC’S CORNER: Defense of jury instruction 140 falls flat

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 19 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 19 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Wisconsin’s criminal jury instruction 140 describes the prosecutor’s burden of proof as “beyond a reasonable doubt.” However, it then contradicts itself by telling the jury “not to search for doubt” but instead “to search for the truth.”

Prosecutors love this closing mandate because it diminishes the instruction’s earlier language concerning reasonable doubt.  As the Fifth Circuit explained, “‘seeking the truth’ suggests determining whose version of events is more likely true, the government’s or the defendant’s, and thereby intimates a preponderance of evidence standard.”[1]  A Washington court put it more bluntly: such language “impermissibly portray[s] the reasonable doubt standard as a defense tool for hiding the truth.”[2]

For years, prosecutors have rejected such logical reasoning. Instead, they have demanded evidence for the claim that Wisconsin’s closing mandate lowers the burden of proof.  Therefore, in two controlled studies published in law reviews at the University of Richmond and Columbia University, Lawrence T. White and I empirically tested the effect of Wisconsin’s closing mandate on mock jurors’ decision-making.  All of our findings demonstrated that the offending language lowered the burden of proof.[3]

In a recent article, prosecutor Michael Griesbach has lodged several criticisms of our studies and arguments.[4]  First, he claims that both of our studies were “non-peer reviewed.” This is false. Although it is true that Richmond’s journal is “refereed” rather than peer reviewed, Columbia’s does use peer review (as do journals at Harvard, Yale, and Stanford). For more on the difference, as well as what peer review is and is not, read Educating Judges and Lawyers in Behavioral Research: A Case Study.[5]

Second, Griesbach uses subtle ad hominem attacks rather than dealing with the substance of the studies. For example, he points out that I am “a defense attorney,” and that the studies were “conducted by Cicchinni [sic] himself and Lawrence Wright [sic].” He then refers to what the studies “purportedly show.”

Prosecutors are often surprised to learn that criticizing the researcher instead of the research is an invalid form of argument.[6]  Further, it appears that Griesbach didn’t even read our research. He not only misspells both of our names, but he misstates—to the detriment of his own argument, no less—the findings from our Columbia study.

Third, Griesbach mischaracterizes the Gonzalez-Balderas case. In that case, the trial court instructed the jury to seek the truth not in its burden-of-proof instruction, but rather in its instruction on the duty to deliberate and resolve factual disputes.  The Fifth Circuit, citing Supreme Court case law, specifically stated that “[s]uch an instruction would be error if used in the explanation of the concept of proof beyond a reasonable doubt,”[7] which is exactly where Wisconsin uses it.

Fourth, Griesbach invokes the tired prosecutorial mantra that trials are searches for the truth, thus attempting to justify half of jury instruction 140’s closing mandate. But in reality, “If one were asked to start from scratch and devise a system best suited to ascertaining the truth . . . [i]t is inconceivable that one would create a system bearing much resemblance to the criminal justice process we now have.”[8]

One reason the modern jury trial does such a poor job of unearthing the truth is that prosecutors are able to invoke several truth-suppressing trial rules to win convictions.  These include the advocate-victim privilege, the rape-shield statute, and the third-party defense prohibition, among others. All of these rules elevate competing interests (such as witness privacy and judicial economy) above the trial’s truth-seeking function.

The state cannot be allowed to suppress evidence of innocence and then demand that jurors be instructed to search for the truth. As other courts have stated, “truth is not the jury’s job. And arguing that the jury should search for truth and not for reasonable doubt both misstates the jury’s duty and sweeps aside the state’s burden.”[9]

Finally, Griesbach claims that I am “on a quest” to change our state’s jury instruction and that I have “filed motions throughout the state.” Once again, his claim doesn’t match reality. I have filed two such motions, and both were in Kenosha County.  Fortunately, however, at least 21 Wisconsin trial court judges—nearly all of whom I have never even met—have modified jury instruction 140.[10]  Judge Steven G. Bauer, a former prosecutor, even wrote a decision explaining why the closing mandate must be changed.[11]

I urge Michael Griesbach to read Judge Bauer’s decision and to join my “quest” to change jury instruction 140. After all, prosecutors have a duty to act as “a minister of justice”—a duty that “carries with it specific obligations to see that the defendant is accorded procedural justice.”[12] This includes, of course, protecting the defendant from conviction unless guilt is proved beyond a reasonable doubt. Merely persuading the jury that a charge is probably true falls well short of that standard.  Therefore, Wisconsin’s closing mandate should be deleted, and jury instruction 140 should simply conclude: “. . . It is your duty to give the defendant the benefit of every reasonable doubt.”

And if—as Griesbach argues contrary to logic and empirical evidence—the search-for-truth-not-doubt mandate doesn’t lower the burden of proof, then he won’t even miss it when it’s gone.

Michael D. Cicchini is a Wisconsin criminal defense lawyer and author.  To learn more about how the deck was stacked against Steven Avery and Brendan Dassey, read his most recent book, Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer (Prometheus Books).

[1] United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir. 1994).
[2] State v. Berube, 286 P.3d 402, 411 (Wash. Ct. App. 2012).
[3] Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Rich. L. Rev. 1139 (2016); Testing the Impact of Criminal Jury Instructions on Verdicts: A Conceptual Replication, 117 Colum. L. Rev. Online 22 (2017).  Both available at http://www.cicchinilawoffice.com/Wis_JI_140.html.
[4] Meeting the Challenge to Wisconsin’s Criminal Jury Instruction 140, Wis. L.J. (Nov. 22, 2017).
[5] Prepublication draft available at http://www.cicchinilawoffice.com/Wis_JI_140.html.
[6] See Hans Hansen, Fallacies: The ad hominem fallacy, Stanford Encyclopedia of Philosophy (May 29, 2015), at http://plato.stanford.edu/entries/fallacies/.
[7] Gonzalez-Balderas, 11 F.3d at 1223.
[8] Keith A. Findley, Adversarial Inquisitions: Rethinking the Search for the Truth, 56 N.Y. L. Sch. L. Rev. 912, 912 (2011).
[9] Berube, 286 P.3d at 411; see also People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App. 2009) (discussing “the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt”).
[10] http://www.cicchinilawoffice.com/Wis_JI_140.html.
[11] http://www.cicchinilawoffice.com/uploads/ji_140_bauer_decision.pdf.
[12] Wis. SCR 20:3.8, ABA Cmt. 1, Special Responsibilities of a Prosecutor.

One comment

  1. Michael,
    I’ve read both of your studies as outlined in the law review articles available online. At your suggestion, I’ve now also read Judge Bauer’s decision. All three are silent as to whether the mock jurors were given the full set of standard criminal jury instructions, including the frequent reminders about the state’s burden of proof beyond a reasonable doubt. If not, I think your studies are significantly flawed. Would you be willing to share whether they were?
    Michael Griesbach

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