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.

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Reform?

On November 7, 2010, Senator-elect Ron Johnson was a guest on “Up Front with Mike Gousha.” He made a comment that hit the heart of an issue I have often pondered. This past summer, I had the opportunity to clerk for a law firm that handles primarily medical malpractice actions. So, this conversation sparked my interest.

Mr. Johnson referred to “Tort Reform” and the frivolous lawsuits against medical professionals.  He said that an estimated $2-3 billion dollars was spent on frivolous suits that have forced doctors to practice “defensive medicine” in Wisconsin.  Whether accurate or not that number has raised eyebrows.

The healthcare crisis facing our nation seems to be the driving forces behind the particular interest in frivolous (or at the least possibly frivolous) medical malpractice actions.

 What is tort reform? Generally, tort reform seeks to limit the costs associated with medical malpractice claims by adopting statutory or other regulatory law to limit civil liability.

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LA Students Drive Home the Message of Success in Education at Law School Conference

The speech by Raj Vinnakota and the panel discussion from this conference can be viewed by clicking here.

Raj Vinnakota and Rafe Esquith have some real differences in how they approach educating children who come from backgrounds that are connected with low success rates in education. Each has taken decidedly different paths to becoming a nationally prominent figure in pushing for greater success for such children. Vinnakota is involved in national reform efforts. Esquith is a teacher whose message focuses on the great things that can happen between teachers and students.

But the two certainly share one major belief: It can be done. Children growing up amid poverty or in homes where the circumstances are not conducive to success in school can become big successes.  Teachers and schools can lead them there. And it can happen a lot more frequently than it has been happening across the nation.

If there was a key take-away from “High Success with High-Need Kids,” a conference Tuesday at Marquette Law School’s Eckstein Hall, it was that Vinnakota and Esquith, as well as four leaders in  Milwaukee education, differed on styles of education, attitudes toward testing or teacher unions, and a variety other issues. But they each had a charge to the 230 people who attended:

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