Michael D. Cicchini (Independent) has posted The Battle over the Burden of Proof: A Report from the Trenches (University of Pittsburgh Law Review, Vol. 79, No. 1, 2017) on SSRN. Here is the abstract:
After explaining the concept of “proof beyond a reasonable doubt,” many trial courts will conclude their burden of proof instructions by telling jurors “not to search for doubt” but instead “to search for the truth.” Criminal defense lawyers have argued that such truth-based instructions improperly lower the burden of proof to a mere preponderance of evidence standard. Prosecutors, however, have dismissed defense lawyers’ concerns as pure speculation.
To resolve this dispute, Professor Lawrence White and I empirically tested the impact of truth-based jury instructions on verdicts. In our two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than jurors who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even when they had a reasonable doubt about guilt.
Based on plain language, logical argument, and now the supporting empirical evidence, we defense lawyers have been asking trial courts to remove truth-related language from their burden of proof jury instructions. Prosecutors, however, are fighting to keep these burden-lowering, truth-based instructions and have made twenty different arguments when attempting to preserve the status quo.
This Article collects, organizes, and debunks these prosecutorial arguments. Its purpose is to assist criminal defense lawyers and judges in recognizing and responding to invalid arguments, many of which are based on logical fallacies, misstatements of law, misrepresentations of fact, or a gross misunderstanding of the scientific research. Debunking these prosecutorial arguments is a critical step in winning the battle over the burden of proof and protecting each defendant’s right to remain free of conviction “except upon proof beyond a reasonable doubt.”