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620 56th Street, Kenosha, WI 53140
mdc@CicchiniLaw.com
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Wis JI 140

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). After explaining the concept of beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.” 

J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, 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, as other states have held, it communicates the much lower preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.

Defense lawyers should consider filing motions to modify J.I. 140.  A sample brief in support of such a motion is 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.)

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.  


Judges who have modified J.I. 140 include:

Hon. Michael Aprahamian, Waukesha Cty.
Hon. David Bastianelli, Kenosha Cty. [e.g., here]
Hon. Steven Bauer, Dodge Cty. [written decision]
Hon. Ellen Berz, Dane Cty. [e.g., here]
Hon. Craig Day, Grant Cty.
Hon. Stephen Ehlke, Dane Cty. 
Hon. William Gabler, Eau Claire Cty. [e.g., here]
Hon. William Hanrahan, Dane Cty. [e.g., here]
Hon. Chad Kerkman, Kenosha Cty. [e.g., here]
Hon. Elliot Levine, LaCrosse Cty.
Hon. Mark McGinnis, Outagamie Cty. [e.g., here]
Hon. Nicholas McNamara, Dane Cty.
Hon. Mitchell Metropulos, Outagamie Cty.
Hon. Scott Needham, St. Croix Cty. (Chair, Committee of Chief Judges in Wisconsin)
Hon. Mark Nielsen, Racine Cty. 
Hon. Josann Reynolds, Dane Cty. [e.g., here]
Hon. Bruce Schroeder, Kenosha Cty. [e.g., here]
Hon. Carolina Stark, Milwaukee Cty. [e.g., here]
Hon. Todd Ziegler, Monroe Cty. [e.g., here]


Brief in support of motion to modify J.I. 140: 

By Michael D. Cicchini [here, uploaded 5/19/17]


Studies and articles on J.I. 140:

Cicchini & White, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. 1139 (2016)

Finding #1: Mock jurors who received J.I. 140 convicted at a significantly higher rate than mock jurors who received the same instruction but without the offending language.  This finding was statistically significant (p<.03).

Finding #2:  Mock jurors who received J.I. 140 convicted at the statistically identical rate as mock jurors who received no reasonable doubt instruction whatsoever.

Cicchini & White, Testing the Impact of Criminal Jury Instructions on Verdicts: A Conceptual Replication, 117 Columbia L. Rev. Online 22 (2017)

Finding #1:  After intentionally altering many features of the original study, this study replicated the first finding from the original study.  The gap in conviction rates was again statistically significant (p<.04).

Finding #2:  In response to a post-verdict question, mock jurors who were instructed “not to search for doubt,” but instead “to search for the truth” were nearly twice as likely to mistakenly believe that conviction was proper even when they had a reasonable doubt about guilt (p=0.01).

Finding #3:  Mock jurors who held this mistaken belief, regardless of the jury instruction they received, convicted the defendant a rate 2.5 times that of jurors who correctly understood the burden of proof.  This was highly statistically significant (p<.001).

Cicchini, The Battle over the Burden of Proof: A Report from the Trenches, 79 U. Pittsburgh L. Rev. __ (forthcoming, 2017)

Summary:  This article collects and debunks twenty different prosecutor arguments on the burden of proof and J.I. 140.  The arguments debunked include those that criticize the studies and many others, such as “verdict means to speak the truth” and “trials are about the truth.”  This article is an excellent resource for writing response briefs or preparing for jury-instruction conferences.


Columns and blogs on J.I. 140:

Eric Guenther, What's truth go to do with it? The burden of proof instruction violates the presumption of innocence, Obstructing Injustice (Feb. 1, 2006)

Michael D. Cicchini, Criminal court: Guilty by the preponderance of the evidence?, Marq. U. L. Sch. Fac. Blog (Nov. 16, 2010)

Michael D. Cicchini, Truth or doubt: Where should the emphasis lie in jury instructions?, Wis. L.J. (Mar. 21, 2016)

Gretchen Schuldt, 14 words that almost double Wisconsin’s conviction rate, Wis. Justice Initiative (Apr. 12, 2016)

Michael D. Cicchini, The truth (about jury instruction 140) is out there, Wis. L.J. (Jul. 1, 2016)

Anthony Cotton, Should juries really be searching for the 'truth'?, Wis. L.J. (Nov. 22, 2016)

Michael O'Hear, Time to revisit Wisconsin's jury instruction on reasonable doubt?, Life Sentences (May 25, 2017)

Michael D. Cicchini, "Mistakes were made": A reply to Michael Griesbach, Wis. L.J. (June 26, 2017)

Scott H. Greenfield, The search for "truth" instead of doubt, Simple Justice (Aug. 14, 2017)


Correspondence regarding J.I. 140:

Michael D. Cicchini, Letter to Criminal Jury Instruction Committee (June 7, 2016) [here]

Michael D. Cicchini, Letter to Senator Bob Wirch (May 17, 2017) [here

David E. Schultz, Reply email from Criminal Jury Instruction Committee (June 29, 2017) [here]


Radio Interviews about J.I. 140:

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


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