Issues (from the petition for review):
1. Is this Court’s holding in Avila–that it is “not reasonably likely” that the standard JI-140 reduces the State’s burden of proof–good law; or should it be overruled by the Court on the grounds that it is rebutted by empirical evidence?
2. Whether §805.13(3) bars defendants from raising post-trial objections to jury instructions not raised during an instruction conference, if the objections could not have been known or discovered, by the time of the conference.
We’ve been expecting this issue. A jury cannot convict a defendant unless the evidence shows “beyond a reasonable doubt that he is guilty. See Wis.-JI-140. That same instruction tells jurors: “While 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.” This has become known as the “Dual Directive.” Two recent studies by Wisconsin’s own Attorney Michael Cicchini and Professor Lawrence White have established that this “Dual Directive” causes (1) jurors to believe that may convict even when reasonable doubt exists; (2) jurors to convict at double the rate of jurors who received only a “reasonable doubt” instructions without “search for the truth” instructions; and (3) a reduction in the State’s “beyond a reasonable doubt burden.” On Point has posted on the Cicchini and White studies here and here.
As to the second issue, the Cicchini/White studies weren’t published at the time of Trammell’s jury instructions conference. Technically, he waived the issue under §805.13(3), which states that the failure to object at the jury instruction conference constitutes waiver. Trammell wants SCOW to make an exception for situations whether the basis for the objection was unknown at the time of the conference. A special exception may not be necessary. SCOW has already held that it “may consider erroneous instructions to which objection was not properly preserved based on our discretionary authority set forth in §751.06.” State v. Glen, 199 Wis. 2d 575, 545 N.W.2d 230 (1996).