The trial court erroneously instructed the jury in a municipal forfeiture case that the defendant was presumed innocent, and the City is therefore entitled to a new trial:
¶12 Here, the circuit court seemed to combine both instructions [Wis. J.I.-Criminal 140 and 140A] by informing the jury that Braun was presumed innocent and that the City had the burden of proving, by clear and convincing evidence, that Braun’s actions constituted disorderly conduct. However, because Braun’s trial concerned a civil forfeiture, he was not entitled to a presumption of innocence, and thus, the jury was incorrectly instructed. See Village of Sister Bay v. Hockers, 106 Wis. 2d 474, 480, 317 N.W.2d 505 (Ct. App. 1982). Because we assume that the jury follows instructions, see Sommers v. Friedman, 172 Wis. 2d 459, 468, 493 N.W.2d 393 (Ct. App. 1992), the jury presumed Braun was innocent, effectively imposing an extra burden of proof on the City.
The testimony of the police officer and Braun conflicted; “[b]ecause the jury considered the conflicting testimony with the presumption that Braun was innocent, we conclude that the outcome of Braun’s trial could have been different had the jury been given the proper instruction.” (¶13).
The “presumption of innocence” has been described as “an inaccurate, shorthand description of the right of the accused to ‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.'” Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (cited source omitted). It is not evidence, “but instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt.” Id. While the standard of proof in this case is clear and convincing evidence (which is what the jury was told), like the State in a criminal case, the City has both the burden of production and the burden of persuasion. To the extent that is all the “presumption of innocence” means, it is not clear how mistakenly telling the jury about that presumption “effectively impos[ed] an extra burden of proof on the City” (¶12) that the City didn’t already have.