14 words that almost double Wisconsin's conviction rate

There are 14 words in Wisconsin's standard jury instructions for criminal cases that leads to conviction rates nearly double what they are without the language, according to a new study.

The study's authors contend the 14 words -- "you are not to search for doubt. You are to search for the truth" -- significantly reduces the burden of proof the government must meet to win a conviction, the authors of the study argue.

"Appellate courts concede that instructing jurors to search for the truth is not proper and may lower the government’s burden," the study's authors, Michael Cicchini and Lawrence T. White, wrote in an article scheduled for publication next month in the University of Richmond Law Review.  "However, these same courts refuse to reverse defendants’ convictions because, the courts claim, in the context of the instruction as a whole, jurors are probably not influenced by the truth-related language."

Cicchini, a Kenosha lawyer who has written two books and several law review articles, and White, chair of psychology at Beloit College and director of the school's law and justice program, recruited 300 volunteers to serve as mock jurors. All the volunteers read the same case summary of a criminal trial, but some were given jury instructions that included only the reasonable doubt language and others got instructions that added the state's truth language. (A third group got only the truth language, but the authors do not believe that actually would occur in a real case.)

Sixteen percent of jurors who received only the reasonable doubt instructions convicted, but 29% of those who heard both the reasonable doubt and search for truth language did so.

"Not only did truth-related language diminish the burden of proof, it actually eviscerated it....Because the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt, our findings provide strong evidence of a serious constitutional problem," the authors wrote.

An immediate solution to the problem is for judges to simply stop giving the "truth" instruction, Cicchini and White wrote. 

"A larger, more comprehensive solution to the problem is equally simple," they said. "In states where truth-related language is part of a state-wide model jury instruction, the state’s jury-instruction committee should modify its instruction accordingly. Alternatively, if the committee fails to do so, the state’s supreme court can use its supervisory powers to eliminate the “search for the truth” and similar language from its burden of proof instruction."

Such changes should not be controversial, because appeals courts have held that the "truth" language is probably not harmful, not that it is necessary or that the government is entitled to it.   

"Now that empirical evidence demonstrates the "risk” is actually a reality—i.e., truth-related language diminishes and even eviscerates the government’s burden of proof—such language has no place whatsoever in criminal jury instructions."