AuthorCicchini, Michael D.


Jury instructions can be incredibly important in criminal cases. (1) Among other things, the instructions enumerate the elements of the charged crimes, define key legal terms, guide the jury in evaluating the evidence, and explain the state's burden of proof. (2) Even subtle differences in wording can, in some instances, mean the difference between acquittal and conviction. (3)

Unfortunately, many of Wisconsin's pattern jury instructions are blatantly pro-prosecutor. (4) Defense lawyers frequently seek changes to the pattern instructions, yet courts at all levels of the system typically deny such requests. (5) Courts often do so not on the merits, but rather out of reverence for the "eminently qualified committee of trial judges" that supposedly drafted the instructions. (6) Courts treat the jury-instruction committee's words as gospel, often praising the member-judges for their "highly qualified legal minds." (7)

Recently, however, during the course of a copyright dispute, the state's flagship university revealed that its employees, and not the great legal minds on the jury-instruction committee, are solely responsible for "the writing and creating of the jury instructions." (8) For many defense lawyers who have advocated to change these pro-state jury instructions--only to be denied out of reverence for a judicial committee which, it turns out, didn't even write them--this revelation feels scandalous and, in fact, is the motivation for this Article. (9)

Part I explains the importance of jury instructions and gives four examples of how Wisconsin's pattern instructions benefit the prosecutor at the expense of defendants. Part II discusses the jury-instruction committee that was thought to have authored the instructions. Part III explains how a copyright dispute revealed that unidentified state university employees, not the judges on the ballyhooed committee, are the true authors.

Given this new reality, Part IV provides a legal strategy, including a sample written request, for criminal defense lawyers to seek modification of the pattern instructions on a case-by-case basis. Part V anticipates and debunks the likely response of prosecutors seeking to preserve the pro-state instructions as written. Finally, Part VI considers two public policy objectives and proposes badly needed legal reform of the jury-instruction process.


    Standard or pattern jury instructions are often incredibly important in criminal cases. Among other things, the instructions (a) convey to the jury the elements of the charged crime, (b) define key legal terminology, (c) guide the jury in evaluating the evidence, and especially (d) explain the state's burden of proof. (10) It is therefore not surprising that, in some cases, the wording of even a single instruction could dictate the jury's ultimate verdict. (11)

    The impact of jury instructions also runs much deeper and is felt much earlier. Because of their significance at trial, the instructions will influence the defense lawyer's decisions on what evidence to present, which defenses to pursue, and which arguments to make to the jury. (12) Even earlier than that, the jury instructions to be used at trial may impact defense counsel's advice to the defendant on whether even to have a trial (as opposed to accepting a plea offer) in the first place. (13)

    Given the importance of jury instructions, they must be accurate and clear--two different legal requirements of equal importance. (14) In Wisconsin, however, the state's pattern criminal jury instructions often fall short of that goal. In many ways, some of the instructions are blatantly anti-defendant. The Sections below provide four examples of this anti-defendant bent within the context of the four purposes of jury instructions discussed above.

    1. Elements of the Crime

      A primary purpose of criminal jury instructions is to convey the elements of the charged crime. For example, when a defendant in Wisconsin is charged with "exposing a child to harmful material," such as pornography, the law is clear: in addition to the other elements of the crime, the state must also prove that the defendant "knowingly" exhibited such material to the child. (15)

      Despite this undisputed element, Wisconsin's pattern jury instruction merely required the state to prove that "[t]he defendant... exhibited" harmful material to the child, without any reference to the requisite mental state. (16) Its flaw was serious and obvious: "the jury instruction did not explicitly instruct the jury that the State must prove beyond a reasonable doubt that the defendant knowingly, as opposed to accidentally, exhibited the harmful material to the child. The word 'knowingly' does not appear anywhere in the instruction." (17)

      Because the jury instruction failed to convey a critical element of the charged crime, and because defense counsel raised a proper and timely objection at trial, eventually the state's highest court reversed the defendant's conviction which, the court concluded, the state obtained because of the defective, anti-defendant instruction. (18) "We disagree with the circuit court and court of appeals.... [T]he words 'exhibited... harmful material to,' which the court of appeals relied upon for the clarity of the [pattern] instruction, are the very words... about which the jurors sought clarification." (19)

      After this court decision, the pattern instruction was subsequently changed to include the word "knowingly" within the first element of crime. (20)

    2. Legal Definitions

      Rather than improving over time, other jury instructions regress and become inaccurate or unclear--often to a defendant's detriment. For example, in order to be convicted of battery by prisoner, the state must prove, in addition to other elements, that the defendant was, at the time of the battery, confined as a prisoner. (21) The legal definition of prisoner is critical, as inmates may be incarcerated for a variety of reasons. To be a prisoner, the defendant must have been confined "as a result of a violation of the law." (22) More specifically, "a prisoner is a person confined under authority of law and pursuant to a penological or a correctional objective." (23)

      Under this definition, if a person had been convicted of a crime, was serving a jail term, and committed a battery, he would be guilty of battery by prisoner. Why? Because he was in jail due to "a violation of the law" and, more specifically, was serving time "pursuant to a... correctional objective." (24) Conversely, if a person was merely accused of a crime, was being held on bail, and committed a battery, he should not be found guilty of battery by prisoner. Why not? Because he was confined only because he was unable to post bail. There is no "correctional objective" in holding a person, who is presumed to be innocent, on bail; rather, the sole purpose of bail is to assure the defendant's appearance at future court hearings. (25)

      That is why Wisconsin's pattern jury instruction, in its 2001 edition, correctly instructed the jury: "Evidence has been received that the defendant was a prisoner... and therefore had been convicted of a crime. This evidence was received because the defendant's status as a prisoner is an issue in this case." (26) This definition of prisoner, i.e., an inmate who "had been convicted of a crime," was generally accurate and would work in most cases. (27) But then, in 2017 and without explanation, the powers-that-be changed the pattern instruction to eliminate that definition to then read: "Evidence has been received that (the defendant) was a prisoner.... This evidence was received because the (defendant's) status as a prisoner is an issue in this case." (28)

      This unfortunate devolution leaves the jury to define prisoner however it wishes and frees the prosecutor to argue, far more expansively than the law permits, that a prisoner is anyone who is held in custody regardless of whether he was confined for a "correctional objective" or merely because, though presumed innocent, and perhaps even actually innocent, he did not have the financial resources to post bail.

    3. Evaluating the Evidence

      Instead of enumerating elements of crimes or defining legal terms, other instructions guide the jury in evaluating the evidence. For example, Wisconsin's jury instruction on the credibility of witnesses provides nine factors for the jury to use when determining the weight to give to a witness's testimony. (29) The instruction also has a paragraph for use when the defendant testifies. Its first sentence reads: "The defendant has testified in this case, and you should not discredit the testimony just because the defendant is charged with a crime." (30) But then the second sentence reads: "Use the same factors to determine the credibility and weight of the defendant's testimony that you use to evaluate the testimony of any other witness." (31)

      Given this language, prosecutors like to argue to the jury that those "same factors" to be used when evaluating the defendant's testimony include "whether the witness has an interest... in the result of this trial[,]" or has a "bias or prejudice...." (32) For example, one prosecutor argued to the jury: "[W]hat's her interest, bias[,] or prejudice? Well, she's the Defendant here, she stands a chance of getting convicted. That's one very large reason she should have of trying to slant her testimony, of trying to shift the blame away. It's not pleasant to be convicted, especially at her age." (33)

      And if the defendant happens to be a young male, rather than older female, that canned but effective argument can be modified accordingly. As a different--or perhaps the same--prosecutor argued in another case: "[W]hat is his interest, bias, or prejudice? Well, he's the one on trial here. You recall his testimony. He's a [seventeen-year-old] male attending [high school], getting ready to enter into adulthood. Do you think he'd want to go through...

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