Trammell challenged Wis. JI—Criminal 140, Wisconsin’s standard instruction on the burden of proof in a criminal case, arguing it dilutes the state’s burden of proving guilt beyond a reasonable doubt. His primary challenge was to the directives that “[w]hile it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for truth.” The court rejects Trammell’s arguments, though two concurring justices ask the Criminal Jury Instruction Committee to consider whether the instruction should be modified because it lacks an explanation of the quantum of proof required.
First things first: Waiver. Trammell didn’t object to the use of JI-140 at his trial, so under § 805.13(3) any challenge to the instruction is waived. Citing State v. Howard, 211 Wis. 2d 269, 287-88, 564 N.W.2d 753 (1997), which excused a failure to object because a subsequently decided supreme court case affected the validity of an instruction given at Howard’s trial, Trammell argued his failure to object should likewise be excused because it is based on studies that weren’t yet available at the time of his trial. (¶20). The court distinguishes Howard, saying that defendant “had no way to know” the supreme court would issue the decision it did, while Trammell’s complaints have been raised before (and rejected, State v. Avila, 192 Wis. 2d 870, 888-90, 532 N.W.2d 423 (1995)), and JI-140, footnote 5, itself offered alternative language which the circuit court had the authority to use. (¶¶21-24).
The court reaches the merits of Trammell’s claims nonetheless, because it has the discretionary power to do so. (¶¶14, 16, 25). It starts with the “dual directives” that tells jurors not to search for doubt, but to search for the truth.
Avila held this language did not dilute the state’s burden of proof. Trammell argues Avila should be overruled because recent studies (by Wisconsin’s own Attorney Michael Cicchini and Professor Lawrence White) have established that: 1) the dual directives cause some jurors to conclude they may find guilt even when reasonable doubt exists; 2) jurors convict at significantly higher rates when dual directives instruction is given: and 3) the dual directives effectively reduce the prosecution’s burden from beyond a reasonable doubt to preponderance of the evidence. (¶31). (The studies, along with numerous other resources on the challenges to JI-140, are available on Cicchini’s website, here; On Point posted on two of the Cicchini and White studies, here and here). Trammell argues the studies undermine the continued validity of Avila’s conclusion, and cites State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, in support of his claim that new social science research can undermine and justify the alteration or overruling of the holding of a prior case. (¶32).
The court doesn’t discuss or engage with the studies other than saying they present “potential reliability concerns.” (¶34 n.11). Instead, it takes Trammell’s reliance on Dubose as an invitation to read the Wisconsin constitution as giving greater protection to the presumption of innocence than federal constitution, and this the court declines to do. (¶33). With this very odd, quite askew reading of Trammell’s argument, the majority avoids confronting the studies head on, and contents itself with a conclusory statement that it will not rely on two studies conducted by the two authors themselves to “implement a sea change” and “upend a jury instruction that has exited substantially in the same form for decades and has been previously upheld under [sic] constitutional challenges.” (¶34).
The court also rejects Trammell’s claim that Avila‘s upholding of the dual directives is unconstitutional under Cage v. Louisiana, 498 U.S. 39 (1990), and Sullivan v. Louisiana, 508 U.S. 275 (1993). The instructions at issue in Cage and Sullivan effectively overstated the amount of doubt a jury must have to acquit by requiring “a grave uncertainty” or “an actual substantial doubt.” (¶¶35-36).
Trammell also challenged the dual directives in conjunction with other parts of JI-140, arguing the language of the instruction, taken altogether, misleads, confuses, or misdirects the jury as to the burden of proof, allowing a jury to convict on proof less than beyond a reasonable doubt. Specifically, Trammell challenged the following additional parts of the instruction: 1) its reference to reasonable doubt as analogous to a doubt that would cause a person “to hesitate … to act in the important affairs of life”; 2) its statement that the jury should acquit if it “can reconcile the evidence upon any reasonable hypothesis consistent with the defendant’s innocence”; and 3) its negative definition of reasonable doubt, as “not a doubt based upon mere guesswork or speculation” or one “aris[ing] merely from sympathy or from fear to return a verdict….” The court rejects these complaints by citing the fact that no specific definition of “reasonable doubt” has been mandated by U.S. Supreme Court; distinguishing the language in JI-140 from the language found problematic in the various cases Trammell cites; and reading JI-140 as a whole and in the context of various related instructions (e.g., JI-100, JI-170, JI-300). (¶¶39-58).
¶59 As a whole, the jury is clearly instructed regarding the presumption of innocence. To parse out certain phrases from the reasonable doubt instruction and as the defense would have us do, conclude that those words in a vacuum diminish the State’s burden of proof, would also require us to conclude that the jury did not properly follow the other instructions and repeated admonitions regarding the State’s requirement to meet its burden of proof as to each element. Here, there is not a “reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” Victor [v. Nebraska], 511 U.S. [1,] 6 [(1994)]. …[T]he instructions explicitly tell the jurors to base their conclusions on the evidence in the case and the law as instructed, holding the State to its burden to prove each element beyond a reasonable doubt.
Two practice points. First, a trial court has great discretion in instructing the jury; while the instructions must fully and fairly inform the jury of the applicable law, they do not have to conform to the standard jury instructions. State v. Camacho, 176 Wis. 2d 860, 883, 501 N.W.2d 380, 389 (1993). This decision does not change that rule, and in fact the majority recognizes the rule multiple times. (¶¶18, 23, 28). The majority also notes that JI-140, footnote 5, refers to the Cicchini and White studies and suggests additional language for judges to use, if desired. (¶¶23, 28 n.10). And as Cicchini’s resource page shows, a number of circuit judges have modified JI-140 in light of the challenges Trammell made in this case. The upshot is that defense lawyers may still ask a judge to modify JI-140, based on the arguments made but rejected here or based on other new arguments practitioners might come up with. True, trial judge will be more hesitant to do so now that the supreme court has once again put its imprimatur on the language, but nothing in this case precludes defense lawyers from continuing to ask trial judges to jettison the “search for truth” language or make other modifications to JI-140.
The second point is related. Two justices concur that the studies Trammell cites aren’t enough to overrule Avila, but they note a different problem with JI-140: It fails to tell jurors that “beyond a reasonable doubt” requires jurors to reach a “subjective state of near certitude” about the defendant’s guilt, Jackson v. Virginia, 443 U.S. 307, 315 (1979), and that failure, combined with the “search for truth” language, may mislead the jury about the level of certainty they need to find guilt beyond a reasonable doubt and therefore dilute the burden of proof. (¶¶69, 74-79). The majority says nothing about this issue; and the concurrence itself doesn’t conclude it makes JI-140 infirm (appropriately enough, given the issue was raised in the SPD’s amicus brief, and not litigated by the parties); instead, the concurring justices ask the Criminal Jury Instruction Committee to review the problem and decide whether to modify JI-140. (¶¶69, 80-81). In the meantime practitioners will want to consider whether to raise this claim as a new or additional challenge to the current version of JI-140.