Criminal Court: Guilty by the Preponderance of the Evidence?

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.

This Post Has 3 Comments

  1. Charles Blumenfield

    Getting rid of those two sentences will be very difficult. Perhaps the better approach would be seeking a slight modification, although it may only address one of the issues raised by Mr. Cicchini: add the following language to the end of the last sentence –“…as indicated by the evidence and testimony presented during the trial.”

    At least that would allow both the prosecutor and defense counsel to focus on the requirement that the verdict be based on what the jury heard and saw, not just anything they can conjure up in the jury room, including the clothing and shoes worn by the lawyers or who they liked and who they hated.

    Interestingly, the phrase “reasonable doubt” was first introduced in order to make it easier for jurors, who had a religious fear of finding someone guilty, to convict defendants. In perhaps the most recent SCOTUS opinion dealing with the issue, Victor v. Nebraska, 511 US 1 (1994) the court addressed the issue as follows:

    “At Victor’s trial, the judge instructed the jury that “[t]he burden is always on the State to prove beyond a reasonable doubt all of the material elements of the crime charged, and this burden never shifts.” App. in No. 92-8894, p. 8 (Victor App.). The charge continued:

    “`Reasonable doubt’ is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture. Id., at 11 (emphasis added).

    On state postconviction review, the Nebraska Supreme Court rejected Victor’s contention that the instruction, particularly the emphasized phrases, violated the Due Process Clause. 242 Neb. 306, 310-311, 494 N. W. 2d 565, 569 (1993)….”

    The court upheld the language in an opinion that reviewed the issue going back to an 1850 decision. While concerned regarding the use of the term “substantial” as a modifier of “reasonable”, Justice O’Connor found the phrase as used in the context of the sentence to be acceptable, despite the prior holding in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) where the court overturned the conviction because the instruction equated “reasonable doubt” with a “moral certainty”.

    Interesting issue.

  2. Sam Filippo

    JI 140 has always bothered me in its attempt to denigrate the BRD standard. Thanks for your articulation of the specifics. From now on, I will submit JI 140 amended to delete the last two sentences. I doubt it will get too far with the average trial judge, but the defense bar should start chipping away at it anyway. Maybe some enlightened appellate court will agree.

  3. Cathy Ritterbusch

    Isn’t this much ado about nothing? The police always get the right guy; it’s only when the pesky defense attorneys preclude slam-dunk evidence with technicalities that any doubt enters the picture. Haven’t you watched TV lately? Burden, schmurden.

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