One of our fundamental beliefs is that before a jury may convict a person of a crime, it must be satisfied of guilt beyond a reasonable doubt. However, upon even minimal scrutiny, this belief starts to crumble. For example, Wisconsin criminal jury instruction number 140 concludes with the following two sentences: “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 the truth.”
This instruction is problematic for several reasons. First, it invites — in fact, instructs — the jury to disregard the evidence and instead speculate on, or “search for,” what it believes to be “the truth.” This capitalizes on the human tendency to think we can know things without evidence. How often have you heard someone say, for example, “I know it, I just can’t prove it”? The jury instruction only emboldens that kind of sloppy thinking, and at the worst possible time with much at stake.
Second, this concept of truth-seeking is actually misplaced.
If truth-seeking were the system’s only, or even primary, concern, we would not exclude otherwise relevant evidence under, for example, the rape shield statue, the general ban on character evidence, or, although increasingly infrequent, even the Miranda rule. Instead, the jury often hears only a portion of the relevant evidence, and it should therefore convict only if the state presented sufficient evidence at trial, regardless of what the jury speculates might be true.
Third, and at the very least, the “search for the truth” language invites the jury to substitute a “preponderance of the evidence” standard for the “beyond a reasonable doubt” standard. That is, if there is ever so slightly more evidence of guilt than of innocence, then it necessarily follows that, in a “search for the truth,” the defendant must be guilty. However, such a conclusion is not consistent with proof beyond a reasonable doubt.
And fourth, what does it mean for a jury to “search for doubt,” and why is this not acceptable? If a juror has a reasonable doubt that defense counsel failed to discuss in closing argument, must the juror disregard the doubt because he, the juror, searched for it? If a doubt is a reasonable one, should it matter whether it was presented to the jury or, alternatively, searched for and discovered by the jury during its deliberations?
In short, the last two sentences of the jury instruction diminish, or at the very least confuse, the state’s burden of proof. As one court recognized nearly forty years ago with regard to reasonable doubt, “the phrase is self-defining,  there is no equivalent phrase more easily understood . . . and  any effort at further elucidation tends to misleading refinements.” United States v. Lawson, 507 F.2d 433 (7th Cir. 1974). And because other portions of the Wisconsin jury instruction go to great lengths to define what a reasonable doubt is and is not, its last two sentences are the unnecessary icing on an already convoluted cake.
Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.
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