State v. Emmanuel Earl Trammell

2019 WI 59

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1206-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Emmanuel Earl Trammell,
Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 832,917 N.W.2d 233
(2018 – unpublished)

OPINION FILED: May 31, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 26, 2019

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Wagner

JUSTICES:
CONCURRED: DALLET, J. concurs, joined by A.W. BRADLEY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by Urszula Tempska and Law Office of U. Tempska,
Shorewood. There was an oral argument by Urszula Tempska.

For the plaintiff-respondent, there was a brief filed by
Tiffany M. Winter, assistant attorney general, with whom on the
brief is Joshua L. Kaul, attorney general. There was an oral
argument by Tiffany M. Winter.

An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Ellen Henak and Henak
Law Office, S.C., Milwaukee.
 An amicus curiae brief was filed on behalf of Wisconsin
State Public Defender by Jefren E. Olsen, assistant state public
defender, with whom on the brief was Kelli S. Thompson, state
public defender.

2
 2019 WI 59
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1206-CR
(L.C. No. 2015CF3109)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. MAY 31, 2019
Emmanuel Earl Trammell, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished, per curiam decision of the court of appeals, State

v. Trammell, No. 2017AP1206-CR, unpublished slip op. (Wis. Ct.
App. May 8, 2018), affirming a jury verdict convicting Emmanuel
Earl Trammell ("Trammell") on one count of armed robbery and one
count of operating a vehicle without the owner's consent, and
affirming the Milwaukee County circuit court's order denying
Trammell's motion for postconviction relief.1 Though he failed
to object at the jury instruction and verdict conference as

1 The Honorable Jeffrey A. Wagner presided.
 No. 2017AP1206-CR

required by Wis. Stat. § 805.13(3) (2015–16),2 Trammell claims
that Wis JI—Criminal 140 (2017)3 unconstitutionally reduced the
State's burden of proof, and confused and misled the jury such
that he should be entitled to a new trial. Lastly, Trammell
alternatively claims that discretionary reversal is warranted
under Wis. Stat. § 751.06.
¶2 We conclude that Trammell waived his right to object
to the use of Wis JI—Criminal 140 by failing to object to its
use at the jury instruction and verdict conference, pursuant to
Wis. Stat. § 805.13(3). On that basis, the court of appeals
properly denied Trammell's appeal and correctly concluded that
it could not consider whether Wis JI—Criminal 140 misstates the

law, confuses the jury, and reduces the State's burden.
However, unlike the court of appeals, this court may nonetheless
consider the instruction under its discretionary power of
review. State v. Schumacher, 144 Wis. 2d 388, 409–10, 424

N.W.2d 672 (1988). We exercise that power here. The
constitutional question with which we are presented is whether
there is a reasonable likelihood that the jury understood the
instructions to allow a conviction based upon insufficient
proof. We conclude that Wis JI—Criminal 140 does not
unconstitutionally reduce the State's burden of proof below the

2
All subsequent references to the Wisconsin Statutes are to
the 2015–16 version, unless otherwise indicated.
3
All subsequent references to Wis JI–Criminal 140 are to
the 2017 version, unless otherwise indicated.

2
 No. 2017AP1206-CR

reasonable doubt standard. Lastly, we conclude that
discretionary reversal under Wis. Stat. § 751.06 is not
warranted. We therefore affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 Trammell was arrested on July 8, 2015, after stealing
a car from a convenience store parking lot while armed. On
July 10, 2015, the State charged Trammell with one count of
armed robbery and one count of operating a motor vehicle without
the owner's consent. Trammell entered a plea of not guilty.
¶4 Prior to trial, Trammell submitted a list of proposed
jury instructions pursuant to the circuit court's scheduling
order. Included in the list of proposed jury instructions was

Wis JI—Criminal 140 titled, "Burden of Proof and the Presumption
of Innocence."4

4 Wisconsin JI–Criminal 140 states as follows:

In reaching your verdict, examine the evidence
with care and caution. Act with judgment, reason, and
prudence.

Presumption of Innocence

Defendants are not required to prove their
innocence. The law presumes every person charged with
the commission of an offense to be innocent. This
presumption requires a finding of not guilty unless in
your deliberations, you find it is overcome by
evidence which satisfies you beyond a reasonable doubt
that the defendant is guilty.

State's Burden of Proof

The burden of establishing every fact necessary
to constitute guilt is upon the State. Before you can
return a verdict of guilty, the evidence must satisfy
(continued)
3
 No. 2017AP1206-CR

¶5 A two-day jury trial commenced on April 4, 2016.
During testimony, the victim identified Trammell in court and
testified that on July 8, 2015, the victim and his girlfriend
drove to a convenience store in his mother's Buick Regal. The
victim testified that he went into the store while his
girlfriend waited in the Buick. He testified that while he was
in the store, Trammell approached him and patted him down,
telling the victim that he was looking for a gun. The victim

you beyond a reasonable doubt that the defendant is
guilty.

Reasonable Hypothesis

If you can reconcile the evidence upon any
reasonable hypothesis consistent with the defendant's
innocence, you should do so and return a verdict of
not guilty.

Meaning of Reasonable Doubt

The term "reasonable doubt" means a doubt based
upon reason and common sense. It is a doubt for which
a reason can be given, arising from a fair and
rational consideration of the evidence or lack of
evidence. It means such a doubt as would cause a
person of ordinary prudence to pause or hesitate when
called upon to act in the most important affairs of
life.

A reasonable doubt is not a doubt which is based
on mere guesswork or speculation. A doubt which
arises merely from sympathy or from fear to return a
verdict of guilt is not a reasonable doubt. A
reasonable doubt is not a doubt such as may be used to
escape the responsibility of a decision.

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.

4
 No. 2017AP1206-CR

stated that after not finding a gun, Trammell snatched money
from the victim and asked him whose car he came in. The victim
testified that he told Trammell the Buick belonged to his
mother. The victim tried to stop Trammell but Trammell
brandished a gun, got in the driver's seat of the Buick, and
drove away. The other two individuals with Trammell drove away
in another car. The victim's girlfriend's testimony
corroborated the victim's recollection of events.
¶6 The State also called Officer Steven Strasser of the
Milwaukee Police Department ("Officer Strasser") to testify.
Officer Strasser testified that he heard a dispatch that OnStar5
had located the Buick and that police were pursuing it. Officer

Strasser stated that he joined the pursuit, and that the Buick
was ultimately stopped when police requested OnStar to cut off
the ignition in the vehicle. He testified that three
individuals exited and were arrested. He stated that police
identified the driver as Gabarie Silas ("Silas"), and that
Trammell was nowhere to be found.

¶7 The State also called Silas, who had entered into a
plea agreement, to testify. Silas testified that on July 8,
2015, he rode to the convenience store in a Dodge Stratus with

5"OnStar" is a General Motors product that provides
customers with subscription-based services, including emergency
services, roadside assistance, navigation, remote diagnostics,
and in-vehicle security features. See OnStar, Plans and
Pricing, https://www.onstar.com/us/en/plans-pricing/compare-
plans/ (last accessed Apr. 24, 2019).

5
 No. 2017AP1206-CR

Trammell and another individual. Silas also corroborated the
victim's testimony regarding what transpired at the convenience
store. He stated that once the victim's girlfriend was out of
the car, Trammell threw Silas the keys to the Dodge. Silas
drove away in the Dodge as Trammell took the Buick. Silas
testified that he and Trammell later switched cars. He further
testified that he understood the incident involved a gun that
Trammell provided to the victim but for which the victim never
paid Trammell. Silas said that Trammell intended to return the
car to the victim once Trammell and the victim settled the
outstanding debt.
¶8 Officer Eric Draeger of the Milwaukee Police

Department ("Officer Draeger") also testified for the State.
Officer Draeger stated that he monitors all jail telephone
calls, and that on January 6, 2016, he listened to a call
Trammell made to a friend, during which Trammell asked her to
offer false testimony at Trammell's trial.
¶9 Moreover, pursuant to a stipulation with Trammell's

trial counsel, the State informed the jury that a forensic
examiner identified two fingerprints lifted from the Buick as
Trammell's left index finger and Silas's left middle finger.
Trammell chose not to testify at trial.
¶10 At the close of evidence, the parties and the circuit
court conducted a jury instruction and verdict conference as
required by Wis. Stat. § 805.13(3). The circuit court indicated
that it intended to give the standard burden-of-proof
instruction, Wis JI—Criminal 140, which Trammell had
6
 No. 2017AP1206-CR

specifically requested. Trammell did not object to the
instruction, nor did he request that the instruction be modified
in any way. Prior to closing arguments, the circuit court
instructed the jury on the burden of proof using Wis JI—Criminal
140.
¶11 The jury convicted Trammell of both armed robbery,
party to a crime, and operating a motor vehicle without the
owner's consent, party to a crime. On May 17, 2016, Trammell
was sentenced to 12 years in prison and 8 years of extended
supervision on count one. He was further sentenced to 15 months
in prison and 15 months of extended supervision on count two,
running concurrently with the sentence on count one.

¶12 On April 10, 2017, Trammell filed a motion for
postconviction relief in the circuit court. Trammell claimed
that Wis JI—Criminal 140 "misstated the law, confused the
jurors, and caused Trammell to be convicted based on a burden of
proof lower than the constitutionally-required 'beyond

reasonable doubt' standard." In support of his position,
Trammell cited two law review articles written by the same two
authors——one which was released shortly after Trammell's
conviction, and one which was, at the time, set to be released
in 2017.6 Each law review article was based on separate but
similar studies which the authors conducted. The authors opined

6
Michael D. Cicchini & Lawrence T. White, Truth or Doubt?
An Empirical Test of Criminal Jury Instructions, 50 U. Richmond
L. Rev. 1139 (2016); Michael D. Cicchini & Lawrence T. White,
Testing the Impact of Criminal Jury Instructions on Verdicts: A
Conceptual Replication, 117 Columbia L. Rev. Online 22 (2017).

7
 No. 2017AP1206-CR

that when jurors are instructed to "search for truth,"
significantly higher conviction rates result. Trammell
acknowledged that "[t]he jury instructions given in this case
were subject to a jury instructions conference and were given
with both parties' agreement and no objections." While this
would seemingly constitute waiver under Wis. Stat. § 805.13(3),
Trammell nevertheless sought a new trial both in the interest of
justice and due to plain error. The State argued that Trammell
waived his right to object to the jury instruction by operation
of § 805.13(3), and that the jury instruction did not mislead or
confuse the jury or reduce the State's burden of proof.
¶13 On April 14, 2017, the circuit court issued a written

order denying Trammell's motion for postconviction relief. The
circuit court noted that Wis JI—Criminal 140 "was formulated and
approved by Wisconsin's Jury Instruction Committee," and stated
that "[a]lthough the studies performed by Cicchini and White
make for interesting reading, the court is bound by the standard
jury instruction implemented by the Jury Instruction Committee

which has been accepted for years by Wisconsin's appellate
courts." The circuit court therefore declined to grant Trammell
a new trial due to any purported plain error and rejected
Trammell's argument that Wis JI—Criminal 140 "prevented the true
controversy from being fully tried."7

7
The circuit court did not address whether Trammell waived
his objection to the use of Wis JI—Criminal 140 due to his
failure to object at the jury instruction and verdict conference
pursuant to Wis. Stat. § 805.13(3).

8
 No. 2017AP1206-CR

¶14 Trammell appealed. On May 8, 2018, the court of
appeals issued a per curiam opinion affirming the circuit court.
The court of appeals first concluded that Trammell waived his
right to object to the jury instruction pursuant to Wis. Stat.
§ 805.13(3) by failing to object at the jury instruction and
verdict conference, and that the court of appeals lacked
authority to disregard waiver of a jury instruction objection.
Trammell, No. 2017AP1206-CR, unpublished slip op., ¶¶11–13.

Second, the court of appeals concluded that even if it could
overlook Trammell's failure to object, the outcome was
controlled by this court's holding that Wis JI—Criminal 140 was
constitutional in State v. Avila, 192 Wis. 2d 870, 532

N.W.2d 423 (1995) overruled on other grounds by State v. Gordon,
2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765. Trammell, No.
2017AP1206-CR, unpublished slip op., ¶¶14–17. Third, the court
of appeals rejected Trammell's arguments that a new trial was
warranted in the interest of justice or due to plain error.
Id., ¶¶18–20.
II. STANDARD OF REVIEW
¶15 We will address four issues: (1) whether Trammell
waived his challenge to the use of Wis JI—Criminal 140; (2)
whether Wis JI—Criminal 140 misstates the law so to confuse and
mislead the jury thus requiring us to overrule Avila; (3)
whether Wis JI—Criminal 140 is otherwise constitutionally
infirm; and (4) whether discretionary reversal is warranted
under Wis. Stat. § 751.06.

9
 No. 2017AP1206-CR

¶16 This court reviews questions of waiver de novo. State

v. Kelty, 2006 WI 101, ¶13, 294 Wis. 2d 62, 716 N.W.2d 886.
Additionally, "[w]hether a jury instruction from the circuit
court deprives a defendant of his right to due process is a
question of law, which we review de novo." State v. Tomlinson,
2002 WI 91, ¶53, 254 Wis. 2d 502, 648 N.W.2d 367 (citing State
v. Kuntz, 160 Wis. 2d 722, 735, 467 N.W.2d 531 (1991)). Lastly,
"[u]nder Wis. Stat. § 751.06, we have independent discretionary
authority to reverse a conviction and order a new trial where
'it appears from the record that the real controversy has not
been fully tried, or that it is probable that justice has for
any reason miscarried.'" State v. Langlois, 2018 WI 73, ¶55,
382 Wis. 2d 414, 913 N.W.2d 812 (quoting § 751.06). "The
interpretation and application of a statute present questions of
law that we review de novo." Id. (citing Estate of Miller v.
Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759).
III. ANALYSIS
A. Waiver Under Wis. Stat. § 805.13(3)
¶17 We first address whether Trammell waived his objection
to the use of Wis JI—Criminal 140 by failing to object to it at
the jury instruction and verdict conference, as required by Wis.
Stat. § 805.13(3). We begin with the language of § 805.13.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Section 805.13 provides,
in pertinent part, as follows:

At the close of the evidence and before arguments to
the jury, the court shall conduct a conference with

10
 No. 2017AP1206-CR

counsel outside the presence of the jury. At the
conference, or at such earlier time as the court
reasonably directs, counsel may file written motions
that the court instruct the jury on the law, and
submit verdict questions, as set forth in the motions.
The court shall inform counsel on the record of its
proposed action on the motions and of the instructions
and verdict it proposes to submit. Counsel may object
to the proposed instructions or verdict on the grounds
of incompleteness or other error, stating the grounds
for objection with particularity on the record.
Failure to object at the conference constitutes a
waiver of any error in the proposed instructions or
verdict.
§ 805.13(3). Section 805.13(3) provides no exceptions to the
requirement that any objection be made at the jury instruction
conference.
¶18 Here, it is undisputed that Trammell's trial counsel
listed Wis JI—Criminal 140 as one of Trammell's proposed jury

instructions submitted to the circuit court prior to trial. It
is further undisputed that the circuit court properly held the
jury instruction and verdict conference at the close of evidence
and prior to closing arguments. Although circuit courts can and
do modify jury instructions, Trammell concedes that at no point

did his trial counsel object to the use of Wis JI—Criminal 140
as part of the instructions the circuit court would read to the
jury. Trammell also concedes that his trial counsel did not
request that Wis JI—Criminal 140 be altered in any way. The
circuit court instructed the jury using the pattern instruction.
Trammell's objection to the use of Wis JI—Criminal 140 did not
arise until over a year after his conviction, when he filed his
motion for postconviction relief on April 10, 2017.

11
 No. 2017AP1206-CR

¶19 Applying Wis. Stat. § 805.13(3), the circuit court
properly followed the requisite procedure, and Trammell's trial
counsel did not timely object as required by § 805.13(3).8 A
straightforward application of § 805.13(3) thus leads to the
conclusion that Trammell failed to properly object to Wis JI—
Criminal 140.
¶20 Trammell attempts to avoid the plain language of Wis.
Stat. § 805.13(3) by asserting that his objection was
"unknowable" at the time of the jury instruction and verdict
conference. Specifically, Trammell asserts that the two law
review articles by Cicchini and White, on which Trammell's
objection is based, were not published until after Trammell's

conviction. Citing State v. Howard, 211 Wis. 2d 269, 287–88,

564 N.W.2d 753 (1997), overruled on other grounds by Gordon, 262
Wis. 2d 380, Trammell claims that since he could not have known
about the articles until after his conviction, he could not
possibly have made any objection during the jury instruction and
verdict conference.
¶21 We are not persuaded. In Howard the defendant was
charged with, "inter alia, aiding and abetting the unlawful
delivery of a controlled substance (cocaine) while possessing a

8 We note that Trammell does not assert an ineffective
assistance of counsel claim regarding his trial counsel's
failure to timely object at the jury instruction and verdict
conference. We therefore will not address whether Trammell's
trial counsel was ineffective under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984).

12
 No. 2017AP1206-CR

dangerous weapon, in violation of Wis. Stat. §§ 161.41(1)(c)2,
939.05, 939.63(1)(a)3 and 2 (1987–88)." Howard, 211 Wis. 2d at

272. Howard failed to object to the use of two jury
instructions during the jury instruction and verdict conference.
Id. at 273. Howard was convicted and sentenced on March 23,
1990. Id. at 274. On June 22, 1994, this court issued its
decision in State v. Peete, 185 Wis. 2d 4, 18–19, 517 N.W.2d 149
(1994), in which this court interpreted Wis. Stat.
§ 939.63(1)(a) (1989–90) differently than it had previously been
interpreted by incorporating a new element. Because this
court's interpretation of § 939.63(1)(a) (1989–90) incorporated
a new element that was not part of the jury instructions read to

the jury in Howard, unlike Trammell, Howard did not waive his
objection because he could not have known about the Peete
holding at the time the jury instruction and verdict conference
occurred. Howard, 211 Wis. 2d at 275–76.
¶22 This court concluded that Howard did not waive his
objection to the two jury instructions, holding that he could
only waive objections "which he knew or should have known" at
the time of the jury instruction and verdict conference. Id. at
289. Citing Wis. Stat. § 805.13(3) (1989–90), this court stated
as follows:

Here, Howard and his counsel in 1990 had no way
to know how this court would construe Wis. Stat.
§ 939.63 [1989–90] by the time it decided Peete in
1994. We agree that Howard's counsel had an
obligation to object at the instructions conference
based on incompleteness or other error about which he
knew or should have known. We cannot agree that

13
 No. 2017AP1206-CR

Howard's counsel could have stated grounds for an
objection "with particularity," based on the absence
of a nexus element and corresponding instruction.
Howard has not waived this issue.
Id. (citation omitted).

¶23 Howard is distinguishable from this case. Here, we
are not confronted with a subsequent case which changed the
elements of the crime with which Trammell was charged. Instead,
Trammell's argument is based purely on law review articles which
incorporate the authors' non-peer-reviewed "scientific" studies.

In fact, the arguments Trammell makes are indeed known as they
are referenced in the jury instruction comments to Wis JI—
Criminal 140. The circuit court has the authority to modify the
language, and the comment to the jury instruction even provides
optional language. State v. Burris, 2011 WI 32, ¶24, 333
Wis. 2d 87, 797 N.W.2d 430 (citing Nommensen v. Am. Cont'l Ins.
Co., 2001 WI 112, ¶50, 246 Wis. 2d 132, 629 N.W.2d 301; State v.
Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90 (1996)) ("We
examine the challenged jury instructions in light of the
proceedings as a whole, keeping in mind that circuit courts have
broad discretion in deciding which instructions to give."); Wis
JI—Criminal 140, cmt. at 5. But no one requested any such
modification and the circuit court was not required to modify
the instruction.
¶24 Unlike Howard, Trammel's post-conviction challenge to
the reasonable doubt jury instruction could have been made at
trial. While the two law review articles Trammell claims
support his position were published after his conviction, that

14
 No. 2017AP1206-CR

fact alone does not render his objection "unknowable" at the
time of the conference. The language now in question has been
used, in its current form, for decades and has been the subject
of constitutional challenges in the past. See Wis JI—Criminal

140, cmt. at 2–5. We therefore conclude that Trammell waived
his objection to the use of Wis JI—Criminal 140 by failing to
object at the jury instruction and verdict conference, as
required by Wis. Stat. § 805.13(3).
¶25 While the court of appeals correctly concluded that
its analysis ended with Trammell's waiver of his objection to
Wis JI—Criminal 140, we choose to continue our analysis. As
this court has stated, the court of appeals has no power to

reach an unobjected-to jury instruction because the court of
appeals lacks a discretionary power of review. Schumacher, 144
Wis. 2d at 409–10. However, this court possesses a
discretionary power of review that it may exercise when a matter
is properly before this court. Id. at 410 (citing State v.
Strege, 116 Wis. 2d 477, 492, 343 N.W.2d 100 (1984)). While we
only exercise our discretionary power of review in rare
circumstances, there is no dispute that this matter is properly
before us, and as this court exercised its discretionary power
of review in Schumacher to examine the constitutionality of an
unobjected-to jury instruction, see id. at 409–10, we do so
here.
B. Wisconsin JI–Criminal 140
¶26 We address Trammell's arguments regarding Wis JI—
Criminal 140. We begin by discussing the history of the
15
 No. 2017AP1206-CR

instruction. We then examine whether this court should overrule
Avila, and finally address Trammell's contention that various

parts of Wis JI—Criminal 140 unconstitutionally reduced the
State's burden of proof below the beyond-a-reasonable-doubt
standard. We decline to overrule Avila and conclude that Wis
JI—Criminal 140 does not unconstitutionally reduce the State's
burden of proof so to deprive Trammell of Due Process.
1. History of Wis JI–Criminal 140
¶27 Wisconsin JI–Criminal 140 was originally published by
the Wisconsin Judicial Conference Criminal Jury Instructions
Committee9 (the "Committee") in 1962. The original version was
similar in all material respects to the current version, and the

instruction has undergone only minor revisions in 1983, 1986,
1987, 1991, and 1994. Wis JI—Criminal 140, cmt. at 2. It was
republished in 2000 without any substantive change. Id. In
light of numerous United States Supreme Court and Wisconsin
cases addressing the substance of reasonable doubt jury
instructions, the Committee "has carefully reviewed Wis JI—
Criminal 140 several times." Id. It has also reviewed other
pattern jury instructions such as those published by the Federal
Judicial Center, and has concluded that Wis JI—Criminal 140, as
it has appeared for decades, correctly states the law. Id. at

9The Criminal Jury Instructions Committee is comprised of a
number of Wisconsin judges from across the state and
representatives from the Wisconsin Attorney General's office,
the State Public Defender's office, and the University of
Wisconsin Law School.

16
 No. 2017AP1206-CR

3–4. The Committee noted that "several parts of the instruction
have been approved by the appellate courts," and that "[r]ather
than risk creating appellate issues by significantly changing
the instruction, the Committee decided it was better to retain
the original version." Id. at 2–3.

¶28 In addition, the Committee has considered the two law
review articles by Cicchini and White that Trammell relies on in
this case. Id. at 5. The Committee stated that it "received
several inquiries about the phrase 'you are to search for the
truth,'" based on the law review articles, and that "[a]fter
careful consideration, the Committee decided not to change the
text of the instruction." Id. In deciding not to alter Wis JI—

Criminal 140, the Committee relied in large part on this court's
holding in Avila, noting that "[c]hallenges to including 'search
for the truth' in the reasonable doubt instruction have been
rejected by Wisconsin appellate courts."10 Id. Nonetheless,

10
The Committee also stated the following with regard to
the language of Wis JI—Criminal 140:

If an addition to the text [of Wis JI—Criminal
140] is desired, the Committee recommends the
following, which is modeled on the 1962 version of Wis
JI—Criminal 140:

You are to search for the truth and give the
defendant the benefit of any reasonable doubt that
remains after carefully considering all the evidence
in the case.

(continued)
17
 No. 2017AP1206-CR

circuit courts are endowed with the authority to appropriately
tailor jury instructions.
2. State v. Avila

¶29 Trammell asks this court to overrule Avila. We
address Avila separately because Trammell's arguments regarding
Avila seem to differ from his arguments regarding the specific
language of the instruction itself. For example, Trammell asks
us to invoke the Wisconsin Constitution and provide greater
protection than the United States Constitution, arguing that the
studies he cites provide ample basis for us to overrule Avila,
and further asserting that Avila is contrary to United States
Supreme Court precedent.

¶30 In Avila this court considered, inter alia, a starkly
similar challenge to the one Trammell brings here——that Wis JI—
Criminal 140 (1991), and its final two sentences in particular,
"improperly dilutes the State's burden of proof and as such is
constitutionally infirm." Avila, 192 Wis. 2d at 887. The at-
issue instruction was substantially the same as it appears
today. See id. at 888. In Avila this court concluded that Wis
JI—Criminal 140 (1991) was constitutional and did not dilute the
State's burden of proof. Id. at 890. Specifically, this court
considered the jury instruction as a whole, and determined "that

Wis JI—Criminal 140, cmt. at 5. As we conclude that the current
version of Wis JI—Criminal 140 correctly states the law and does
not unconstitutionally confuse the jury, we decline to express
any opinion regarding the Committee's proffered alternative
wording.

18
 No. 2017AP1206-CR

it is not reasonably likely that the jury understood Wis JI—
Criminal 140 (1991), to allow conviction based on proof below
the [In re] Winship [397 U.S. 358 (1970)] reasonable doubt

standard." Id. at 889. This court further concluded that the
instruction consistently reinforced the presumption of the
defendant's innocence and the State's burden to prove the
defendant's guilt beyond a reasonable doubt. Id. at 889.
Additionally, this court explained that Wis JI—Criminal 140
properly defined reasonable doubt and emphasized the jury's
"'duty to give the defendant the benefit of every reasonable
doubt,'" and to search for the truth instead of doubt. Id. at
890 (quoting Wis JI—Criminal 140 (1991)). As a result, this

court held that "[t]he instruction as a whole emphasizes with
great clarity" the State's burden and the presumption of the
defendant's innocence, and does not "dilute the State's burden
of proving guilt beyond a reasonable doubt." Id.
¶31 Trammell largely argues that Avila should be
overturned because it is refuted by reliable, empirical evidence
from two research studies which are now cited in two law review
articles. He argues that the language commanding the jurors (1)
"not to search for doubt," but instead (2) "to search for the
truth" is an impermissible "dual directive." He argues that
these dual directives cause some jurors to conclude that they
may properly vote guilty even when reasonable doubt exists, that
the two studies demonstrate that jurors convict at significantly
higher rates when dual directive instructions are given, and
that the dual directives effectively reduce the prosecution's
19
 No. 2017AP1206-CR

burden from beyond a reasonable doubt to preponderance of the
evidence.
¶32 Trammell argues that the Avila court, without the

benefit of this research, upheld Wis JI—Criminal 140, and that
the two studies demonstrate that Avila must be overturned. In
doing so, Trammell urges this court to follow State v. Dubose,
2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, and rely on the
studies that he cites. He asserts that this court utilized
social science research to alter the test for what constitutes
an admissible out-of-court identification in Dubose, and that
this court should similarly do so here.
¶33 Trammell is correct that in Dubose this court relied

in part on social science to hold that Article I, section 8 of
the Wisconsin Constitution contained a broader due process right
than that under the United States Constitution with respect to
an out-of-court identification procedure known as a "showup."
Id., ¶¶41, 45. Our holding in Dubose did indeed consider
several studies, see id., ¶29, but this court's conclusion was
based upon the Wisconsin Constitution and its decision to
"interpret our constitution to provide greater protections than
its federal counterpart." Id., ¶41. Significantly, Dubose
relied on the Due Process Clause of the Wisconsin Constitution
to afford greater protection than that provided by the Due
Process Clause of the United States Constitution. Today, we
decline to provide greater constitutional protection to Trammell
utilizing our state constitution. In fact, since Dubose was
decided, this court has recognized that Dubose "did not create a
20
 No. 2017AP1206-CR

precedential sea change." State v. Luedtke, 2015 WI 42, ¶¶48–

49, 362 Wis. 2d 1, 863 N.W.2d 592. Rather, this court viewed
Dubose narrowly in the context of "showups," and we have
declined to extend Dubose beyond its limited scope. See id.
¶34 Moreover, Dubose differs significantly from this case,
where Trammell asks us to declare Wis JI—Criminal 140
unconstitutional based on the two law review articles which rely
entirely on studies conducted by the two law review authors.11
We are unpersuaded by Trammell's invocation of Dubose and
similarly decline to rely on the two law review articles and the

11 We note the potential reliability concerns each study
exhibits. Neither study was peer-reviewed by social scientists,
as both appeared in law reviews. Further, as Cicchini and White
concede in both articles, there are concerns regarding the
studies' respective methodologies. The participants in neither
study engaged in an actual trial setting, instead individually
reading a case summary providing the elements of the
hypothetical crime, a transcript of witness testimony, and the
lawyers' closing arguments, and providing their "verdict"
without any deliberations. Cicchini & White, supra n.5, 50 U.
Richmond L. Rev. at 1160–61. Moreover, the studies were limited
in that they each utilized only one fact pattern, meaning that
the outcome is unknown under different hypothetical scenarios
than the two collective scenarios presented in the studies. See
id. at 1161–62. Additionally, the participants engaged in the
studies independently and without monitoring, meaning they may
have devoted inadequate attention to the studies. See id. at
1163–64. Lastly, in the first study, there was no procedure to
screen participants for potential bias, which occurs in a real-
world trial setting during voir dire. See id. at 1164–65.
While Cicchini and White altered their second study by providing
an entirely different fact pattern, screening out participants
who spent less than three minutes on completing the entire
study, such alterations do little to allay the inherent concerns
with either study. See Cicchini & White, supra note 6, 117
Columbia L. Rev. Online at 34–35.

21
 No. 2017AP1206-CR

studies cited therein. We decline to rely on Dubose to

implement a sea change here, upending a jury instruction that
has existed substantially in the same form for decades and has
been previously upheld under constitutional challenges.
Accordingly, we conclude that Wis JI—Criminal 140, as given, did
not cause the jurors to unconstitutionally apply a lower burden
of proof to convict Trammell. We decline to overrule Avila, and
thus hold that the use of Wis JI—Criminal 140 at trial did not
deprive Trammell of due process.
¶35 Additionally, Trammell argues that Avila is contrary
to United States Supreme Court precedent and thus must be
overturned. Specifically, Trammell cites two United States

Supreme Court cases——Sullivan v. Louisiana, 508 U.S. 275 (1993),
and Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam)——in
support of his position. Both cases, however, are readily
distinguishable. Sullivan and Cage were based on a Louisiana
pattern jury instruction that defined "reasonable doubt" as
"such doubt as would give rise to a grave uncertainty," and "an
actual substantial doubt." Cage, 498 U.S. at 40; Sullivan, 508
U.S. at 277. The Court in Cage held that "a reasonable juror
could have interpreted the instruction to allow a finding of
guilt based on a degree of proof below that required by the Due
Process Clause." Cage, 498 U.S. at 41. In Sullivan, the Court
recognized Cage and accepted it as controlling despite its per
curiam status. Sullivan, 508 U.S. at 278.
¶36 The jury instruction language at issue in Sullivan and
Cage was not the language used in Wis JI—Criminal 140. The
22
 No. 2017AP1206-CR

Supreme Court in Sullivan and Cage concluded that the Louisiana

jury instruction misstated the state's burden by defining
"reasonable doubt" and as a "grave uncertainty." Neither phrase
is used in Wis JI—Criminal 140 and neither Sullivan nor Cage
addressed the specific language Trammell challenges. Therefore,
neither case supports Trammell's position that Wis JI—Criminal
140 inaccurately states the law or reduces the State's burden so
to require reversal of Avila.
¶37 We next consider Trammell's interrelated argument that
Wis JI—Criminal 140 misleads, confuses, or misdirects the jury.
We conclude that Wis JI—Criminal 140 does not. We instead agree
with the State's arguments that: (1) the two law review

articles Trammell cites are simply speculation based upon
hypothetical scenarios, and (2) reviewing Wis JI—Criminal 140 in
light of the entire proceeding leads to a conclusion that the
instruction is not reasonably likely to confuse jurors into
applying an unconstitutional reasonable doubt standard. The
State urges this court to afford no weight to the studies
featured in the law review articles, as this court is to
determine issues of law, and as the studies are superfluous and
rely on assertions of fact and reliability "that have not been
tested in any court."12
¶38 Considering Wis JI—Criminal 140 in light of the entire
proceedings, nothing indicates a reasonable probability that the

12 See discussion, supra, note 11.

23
 No. 2017AP1206-CR

jury was misled, confused, or misdirected into applying the
reasonable doubt standard. We therefore decline to overrule
Avila.

3. Constitutionality of Wis JI—Criminal 140
¶39 Next we address Trammell's argument that Wis JI—
Criminal 140 is "constitutionally crippled for being blighted by
multiple compounding burden-reducing errors and confusing and
mis-directing the jury." In short, he argues that the
reasonable doubt instruction allowed a "finding of guilt based
on a degree of proof below that which is constitutionally
required." Victor v. Nebraska, 511 U.S. 1, 2 (1994). The
question is not "whether the instruction 'could have' been

applied unconstitutionally, but whether there is a reasonable
likelihood that the jury did so apply it." Id. (citing Estelle
v. McGuire, 502 U.S. 62, 72 & n. 4 (1991)).
¶40 Trammell argues that Wis JI—Criminal 140 violated his
due process rights because of what he terms: (1) The
"'important affairs of life' analogy"; (2) "'The alternative
hypothesis' flaw"; (3) "The unsavory 'unreasonable doubt' flaw";
and (4) "The truth-focus flaw." Trammell surmises that the
"multiple flaws of [Wis JI—Criminal 140] compound to make it
'possibly the worst jury instruction on reasonable doubt in the
nation'" requesting that this court overrule Avila and grant him
specific relief. Thus, we are called upon to determine whether
the standard reasonable doubt jury instruction given here
created a "reasonable likelihood that the jury understood the

24
 No. 2017AP1206-CR

instructions to allow conviction based on proof insufficient to
meet the Winship standard." Victor, 511 U.S. at 6.

¶41 It is true that the State must prove Trammell
committed each element of the offenses charged before Trammell
can be found guilty. We know that the jury was so instructed.13
The beyond-a-reasonable-doubt standard is not expressly
referenced in the United States Constitution or the Wisconsin
Constitution but has been deemed a requirement of due process.
However, no specific words are constitutionally required when
defining reasonable doubt.14 See Victor, 511 U.S. at 5. While

13
See Wis JI–Criminal 400 (2005) (defining "party to a
crime" and "aiding and abetting"), Wis JI—Criminal 1464 (2007)
(addressing count two in this case——taking and driving a vehicle
without owner's consent), and Wis JI—Criminal 1480 (2016)
(addressing count one in this case——armed robbery), all of which
were read to the jury prior to deliberations.
14
Indeed, various federal circuits have defined "reasonable
doubt" in different ways in their respective pattern criminal
jury instructions. See Judicial Council of the United States
Third Judicial Circuit, Pattern (Criminal) Jury Instructions,
1.13 (2012) (defining "reasonable doubt" as "a fair doubt based
on reason, logic, common sense, or experience," and one "that
would cause an ordinary reasonable person to hesitate to act in
matters of importance in his or her own life"; further defining
it as not meaning "proof beyond all possible doubt or to a
mathematical certainty"); United States Fifth Circuit District
Judges Association, Pattern Jury Instructions (Criminal Cases),
1.05 (2015) (defining "reasonable doubt" as "a doubt based upon
reason and common sense" and based on "proof of such a
convincing character that you would be willing to rely and act
upon it without hesitation in making the most important
decisions of your own affairs"); Sixth Circuit Committee on
Pattern Criminal Jury Instructions, Pattern Criminal Jury
Instructions, 1.03 (2019) (defining "reasonable doubt" as "a
doubt based on reason and common sense," and based on "proof
which is so convincing that you would not hesitate to rely and
act on it in making the most important decisions in your own
(continued)
25
 No. 2017AP1206-CR

the Due Process Clause of the Fourteenth Amendment does not
expressly address the application of the reasonable doubt
standard in criminal proceedings, the United States Supreme
Court in Winship held "that the Due Process Clause protects the

accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which
he is charged." Winship, 397 U.S. at 364. In so holding, the
Court explained as follows:

[T]he Court said in Brinegar v. United States, [338
U.S. 160, 174 (1949)], that "[g]uilt in a criminal
case must be proved beyond a reasonable doubt and by

lives"); Judicial Committee on Model Jury Instructions for the
Eighth Circuit, Model Jury Instructions, 3.11 (2017 ed.)
(defining "reasonable doubt" as "doubt based upon reason and
common sense" that "leaves you firmly convinced of the
defendant's guilt," and based on "proof of such a convincing
character that a reasonable person, after careful consideration,
would not hesitate to rely and act upon that proof in life's
most important decisions"); Ninth Circuit Jury Instructions
Committee, Model Criminal Jury Instructions, 3.5 (2010 ed.)
(defining "reasonable doubt" as "proof that leaves you firmly
convinced the defendant is guilty" and "based upon reason and
common sense"); Criminal Pattern Jury Instruction Committee of
the United States Court of Appeals for the Tenth Circuit,
Criminal Pattern Jury Instructions, 1.05 (2011 ed.) (defining
"reasonable doubt" as "proof that leaves you firmly convinced of
the defendant's guilt . . . based on reason and common sense");
Judicial Council of the United States Eleventh Judicial Circuit,
Criminal Pattern Jury Instructions, B3 (2019) (defining
"reasonable doubt" as "a real doubt" and based on "proof so
convincing that you would be willing to rely and act on it
without hesitation in the most important of your own affairs").
The Seventh Circuit has chosen not to define reasonable doubt in
its pattern criminal jury instruction. See Committee on Pattern
Jury Instructions of the Seventh Circuit, Pattern Criminal Jury
Instructions of the Seventh Circuit, 1.04 (2012 ed.) (stating,
"[No instruction.]").

26
 No. 2017AP1206-CR

evidence confined to that which long experience in the
common-law tradition, to some extent embodied in the
Constitution, has crystallized into rules of evidence
consistent with that standard. These rules are
historically grounded rights of our system, developed
to safeguard men from dubious and unjust convictions,
with resulting forfeitures of life, liberty and
property." Davis v. United States, [160 U.S. 469, 488
(1895)], stated that the requirement is implicit in
"constitutions . . . [which] recognize the fundamental
principles that are deemed essential for the
protection of life and liberty."
Id. at 362.
¶42 We therefore address this jury instruction challenge
as a matter of constitutional law arising under due process. In
evaluating the constitutionality of a challenged jury
instruction, courts look not only to the at-issue instruction
itself, but also to other instructions given and the proceedings
as a whole. See Victor, 511 U.S. at 15–16 (considering the

constitutionality of a reasonable doubt instruction using the
phrase "moral certainty" in light of the entire instructions

given to the jury); State v. Hubbard, 2008 WI 92, ¶27, 313
Wis. 2d 1, 752 N.W.2d 839 ("Jury instructions are not to be
judged in artificial isolation, but must be viewed in the
context of the overall charge."). This court has stated that
there are two types of challenges to jury instructions: (1)
"those challenging the legal accuracy of the instructions"; and
(2) "those alleging that a legally accurate instruction
unconstitutionally misled the jury." Burris, 333 Wis. 2d 87,
¶44. Trammell appears to assert both challenges. This
constitutional challenge, however, must be based upon more than
conjecture. Such a challenge must demonstrate a reasonable

27
 No. 2017AP1206-CR

likelihood that the jury understood that the instructions
allowed a conviction based upon insufficient proof. See id.,

¶49 ("'Wisconsin courts should not reverse a conviction simply
because the jury possibly could have been misled; rather a new
trial should be ordered only if there is a reasonable likelihood
that the jury was misled and therefore applied potentially
confusing instructions in an unconstitutional manner.'")
(quoting Lohmeier, 205 Wis. 2d at 193-94); see also Victor, 511
U.S. at 6 ("The constitutional question . . . is whether there
is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to
meet the Winship standard."); Winship, 397 U.S. at 367

(requiring sufficient proof beyond a reasonable doubt with
juveniles as with adults when they are charged with a violation
of criminal law).
¶43 Specifically, Trammell argues that the "'important
affairs of life' analogy" in the jury instruction has burden-
reducing effects. He argues that instructing that beyond-a-
reasonable-doubt determinations be made based upon the important
affairs of one's life demonstrates a lower burden in that such
determinations are largely intuitive, full of bias, based on
variances, imperfect, and unique to personal experience. He
surmises that such decisions generally involve considerable
uncertainty and risk-taking. Specifically, the section of the
instruction to which he objects states:

The term "reasonable doubt" means a doubt based
upon reason and common sense. It is a doubt for which

28
 No. 2017AP1206-CR

a reason can be given, arising from a fair and
rational consideration of the evidence or lack of
evidence. It means such a doubt as would cause a
person of ordinary prudence to pause or hesitate when
called upon to act in the most important affairs of
life.
Wis JI—Criminal 140 at 1. Trammell's selection of portions of
this instruction to advance his argument have been previously
considered and deemed constitutionally satisfactory. See
Victor, 511 U.S. at 20-21 (citing Holland v. United States, 348

U.S. 121, 139–40 (1954)).
¶44 In support of his position, Trammell cites United

States v. Jaramillo-Suarez, 950 F.2d 1378 (9th Cir. 1991), and
People v. Johnson, 115 Cal. App. 4th 1169 (2004). In Jaramillo-
Suarez, the Ninth Circuit indicated that it preferred federal
district courts avoid using a jury instruction which instructed
a jury to find the defendant guilty if "you find the evidence so
convincing that an ordinary person would be willing to make the

most important decisions in his or her own life on the basis of
such evidence." Jaramillo-Suarez, 950 F.2d at 1386. However,
the Court also held that reversal was not required, as "the

reasonable doubt instruction, taken in context with all of the
other instructions, did not detract from the heavy burden
suggested by the use of the term 'reasonable doubt' standing
alone." Id. (internal quotation marks omitted).
¶45 In Johnson, the at-issue jury instruction——which the
court held improperly amplified the reasonable doubt standard——
bore no real resemblance to Wis JI—Criminal 140. There, the
court defined "reasonable doubt" by stating that people engage

29
 No. 2017AP1206-CR

in activities such as flying on airplanes and taking vacations
"because we have a belief beyond a reasonable doubt that we will
be here tomorrow." Johnson, 115 Ca. App. 4th at 1171. Neither

Jaramillo-Suarez nor Johnson are persuasive and taking Wis JI—
Criminal 140 as a whole, "reasonable doubt" is correctly
defined. Moreover, as discussed previously, the jury
instructions in their entirety reinforce the proper definition
of "reasonable doubt," further establishing that the portion of
Wis JI—Criminal 140 discussing "the most important affairs of
life" did not misstate the law. Trammell's arguments are
unpersuasive, and we conclude that this portion of the
instruction is not constitutionally infirm.

¶46 Trammell's next objection is framed as "the
alternative hypothesis" flaw. This passage immediately precedes
the important affairs of life language to which Trammell
objects. The instruction states in relevant part: "If you can
reconcile the evidence upon any reasonable hypothesis consistent
with the defendant's innocence, you should do so and return a
verdict of not guilty." Wis JI—Criminal 140 at 1. Trammell
argues that this reasonable hypothesis language creates two
problems. First, Trammell claims that it puts a defendant who
presents evidence and the theory of the defense in a competing
position, requiring the jury to balance the two competing
theories and thus effectuating a preponderance-of-the-evidence

standard instead of a beyond a reasonable doubt standard.
Second, he argues that the reasonable hypothesis verbiage shifts

30
 No. 2017AP1206-CR

the burden to the defense by focusing on the defendant's ability
to produce alternatives to the government's case.
¶47 In support of his position, Trammell cites United

States v. Khan, 821 F.2d 90 (2d Cir. 1987). Khan provides
Trammell no support. There, the court considered the
constitutionality of a jury instruction which stated, "So, if
the jury views the evidence in the case as reasonably permitting
either of two conclusions, one of innocence, the other of guilt,
you, the jury, should, of course, adopt the conclusion of
innocence." Id. at 92. While the court expressed distaste for
the language used, it considered the jury instructions as a
whole and concluded that the court "properly instruct[ed] the

jury on reasonable doubt." Id. at 92–93. If anything, the
court's holding in Khan provides support for the State.
¶48 Moreover, the language used here does not have the
same effect as the 'either-or' language used in Khan. Rather,
it echoes the reasonable doubt standard stating, "If you can
reconcile the evidence upon any reasonable hypothesis consistent
with the defendant's innocence, you should do so and return a
verdict of not guilty." Wis JI—Criminal 140 at 1. Further, Wis
JI—Criminal 140 as a whole clearly and repeatedly places the
burden of proof on the State, and the remainder of the jury
instructions provided to the jury further engender a proper
understanding of the reasonable doubt standard and the State's
burden. The "reasonable hypothesis" language in Wis JI—Criminal
140 does not lead to a conclusion that the instruction
incorrectly states the law. The objected-to language instead
31
 No. 2017AP1206-CR

informs the jurors to engage in consideration of a reasonable
hypothesis consistent with the defendant's innocence and focuses
on the defendant's innocence. It instructs the jury to return a
not guilty verdict if there is such a reasonable theory. We
therefore disagree with Trammell's contention that this section
of the instruction is unconstitutional.
¶49 Turning to Trammell's next argument, he asserts that
the jury instruction language referencing sympathy and the fear
to return a verdict of guilt creates a purported "unreasonable
doubt flaw." Trammell argues that the negative definition of
reasonable doubt provided discourages acquittals based on pro-
defense biases, but that it does not discourage convictions on

pro-prosecution biases.
¶50 Trammell cites no case addressing the issue, and his
argument is unpersuasive. The circuit court instructed the
jury, "A reasonable doubt is not a doubt which is based upon
mere guesswork or speculation. A doubt which arises merely from
sympathy or from fear to return a verdict of guilt is not a

reasonable doubt." See Wis JI—Criminal 140 at 2. That portion
of the jury instruction merely reinforces the idea that jurors
are to fairly and rationally consider the evidence, which is
assuredly not a misstatement of the law. We therefore conclude
that the portion of the instruction referring to sympathy and
the fear of returning a guilty verdict is constitutional.
¶51 Trammell next argues that there is a "truth focus
flaw" in the burden of proof jury instruction. Again, Trammell
harkens back to the dual directives analogy from the two law
32
 No. 2017AP1206-CR

review articles and the studies relied upon therein. He takes
issue with the jury instruction language, "[Y]ou are not to
search for doubt. You are to search for the truth." Id. He

argues that this phrase puts criminal juries in the position of
civil juries to determine which narrative is more true.
Trammell argues that weighing truth narratives is not the jury's
task. He argues that as a whole and as the studies have shown,
this jury instruction confused the jury and misdirected the jury
such that his conviction must be overturned. As previously
discussed, we disagree and reaffirm that Avila correctly
concluded that the instruction survives constitutional scrutiny.
The search for the truth language does not lower the burden for

the State.
¶52 Trammell finally argues that as the studies have
shown, this jury instruction as a whole confused and misdirected
the jury such that his conviction must be overturned. Avila
answers this in the negative. However, we further address the
standard jury instructions and why, as a whole, they dispel
Trammell's catch-all argument.
¶53 In the opening instructions given to the jury, the
jury is routinely told:

Regardless of any opinion you may have about what the
law is or ought to be, you must base your verdict on
the law I give you in these instructions. Apply that
law to the facts in the case which have been properly
proven by the evidence. Consider only the evidence
received during this trial and the law as given to you
by these instructions and from these alone, guided by
your soundest reason and best judgment, reach your
verdict.

33
 No. 2017AP1206-CR

Wis JI—Criminal 100 (2000). The jury is told to consider only
the evidence received during trial. Wis JI–Criminal 103 (2000).
They are instructed to use their sound reason and best judgment.
Wis JI–Criminal 100 (2000). In Wis JI—Criminal 101 (2001), the
jurors are advised that the lawyers' remarks are not evidence.
The instructions define evidence as the sworn testimony of the
witnesses, the exhibits, and any stipulated or agreed to facts.
Wis JI—Criminal 103 (2000). The jurors are admonished not to
rely on anything they have seen or heard outside the courtroom
and that they "are to decide the case solely on the evidence
offered and received at trial." Id. They are cautioned that the

legal charging document is not evidence and is not to be

considered in any way as evidence against the defendant. Wis
JI—Criminal 145 (2000). They are admonished to disregard
entirely any question the circuit court did not allow to be
answered and not to draw any conclusions from the lawyers'
objections. Wis JI—Criminal 147 (2000). They are told not to
draw any conclusions from objections made or court rulings on
them and that they "are the sole judges of the credibility of
the witnesses and the weight of the evidence." Wis JI—Criminal
148 (2000). They are advised "[w]hether evidence is direct or
circumstantial, it must satisfy you beyond a reasonable doubt
that the defendant committed the offense before you may find the
defendant guilty." Wis JI—Criminal 170 (2000).
¶54 Repeatedly, the jury is told that it is endowed with
the responsibility to determine how much weight, if any, to give
the evidence, testimony and witnesses. Wis JI—Criminal 190
34
 No. 2017AP1206-CR

(2000), Wis JI—Criminal 300 (2000). The jury is instructed that
it is their duty to scrutinize and weigh the testimony of the
witnesses and to determine the effect of the evidence as a
whole. Wis. JI–Criminal 300 (2000). The jury is told, "You are
the sole judges of the credibility, that is, the believability,
of the witnesses and of the weight to be given to their
testimony." Id. The jury is given various factors to consider

and then to "give the testimony of each witness the weight you
believe it should receive." Id. They are to decide who to
believe or disbelieve, what portion of the testimony to accept
or not, and what weight to attach to the evidence and testimony.
Id. They are to determine the truth based upon the evidence

presented and then apply the law as instructed to the evidence.
They are instructed that "[i]n weighing the evidence, you may
take into account matters of your common knowledge and your
observations and experience in the affairs of life." Wis JI–
Criminal 195 (2000).
¶55 The reasonable doubt instruction does not stand alone.
We emphasize that for each count with which the defendant is
charged, the jury is advised of the State's burden of proof:
"Before you may find the defendant guilty of the offense, the
state must prove by evidence that satisfies you beyond a
reasonable doubt that the following . . . elements were
present." With respect to each count, the jury is again advised
regarding its decision and told, "If you are satisfied beyond a
reasonable doubt that all . . . elements . . . have been proved,
you should find the defendant guilty. If you are not so
35
 No. 2017AP1206-CR

satisfied, you must find the defendant not guilty." The jury is
never instructed that it must find the defendant guilty.

Rather, with the consideration of guilt, the word "should" is
used. Regarding when they are not so satisfied that the State
has met its burden to prove each element beyond a reasonable
doubt, they are directed that they "must" find the defendant not
guilty. Again, this instruction is consistent with a
presumption of innocence and the "reasonable hypothesis"
language.
¶56 The reasonable doubt instruction given in the case at
issue, which also is the standard instruction in Wis JI—Criminal
140, advises the jury to examine the evidence with care and

caution. It tells the jury to act with judgment, reason, and
prudence. Wis JI—Criminal 140 at 1. The very first thing the
jury is advised with respect to the burden of proof is the
presumption of innocence. Id. The jurors are told:

Defendants are not required to prove their
innocence. The law presumes every person charged with
the commission of an offense to be innocent. This
presumption requires a finding of not guilty unless in
your deliberations you find it is overcome by evidence
which satisfies you beyond a reasonable doubt that the
defendant is guilty.
Id.
¶57 The very next section speaks of the burden being on
the State and reflects that, "The burden of establishing every
fact necessary to constitute guilt is upon the state. Before
you can return a verdict of guilty, the evidence must satisfy
you beyond a reasonable doubt that the defendant is guilty."

36
 No. 2017AP1206-CR

Id. The following section advises the jury that if they can

reconcile the evidence upon any reasonable hypothesis consistent
with the defendant's innocence, they should return a verdict of
not guilty. Id. The next section read describes reasonable
doubt based upon reason and common sense:

It is a doubt for which a reason can be given, arising
from a fair and rational consideration of the evidence
or lack of evidence. It means such a doubt as would
cause a person of ordinary prudence to pause or
hesitate when called upon to act in the most important
affairs of life.

A reasonable doubt is not a doubt based on mere
guesswork or speculation. A doubt which arises merely
from sympathy or from fear to return a verdict of
guilt is not a reasonable doubt. A reasonable doubt
is not a doubt such as may be used to escape the
responsibility of a decision.

Id. at 1–2.
¶58 Finally, the jury is advised, "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."
Id. at 2. While picking and choosing various phrases or words
from the instructions makes for an interesting argument, the
instructions as a whole direct the jury to understand the
presumption of innocence due to the defendant, remind it of the
State's high burden, instructs that the defendant is due the
benefit of the doubt and to soberly weigh and consider the
evidence, testimony and witnesses presented at trial, and apply
the law to the facts, reaching a sound conclusion based only on
the facts and the law.

37
 No. 2017AP1206-CR

¶59 As a whole, the jury is clearly instructed regarding
the presumption of innocence. To parse out certain phrases from
the reasonable doubt instruction and as the defense would have
us do, conclude that those words in a vacuum diminish the
State's burden of proof, would also require us to conclude that
the jury did not properly follow the other instructions and
repeated admonitions regarding the State's requirement to meet
its burden of proof as to each element. Here, there is not a
"reasonable likelihood that the jury understood the instructions
to allow conviction based on proof insufficient to meet the
Winship standard." Victor, 511 U.S. at 6. Trammell's argument

fails as it would not cause a jury to understand those phrases

to mean "something less than the very high level of probability
required by the Constitution in criminal cases." Id. at 14. In
fact, the instructions explicitly tell the jurors to base their
conclusions on the evidence in the case and the law as
instructed, holding the State to its burden to prove each
element beyond a reasonable doubt.
C. Discretionary Reversal
¶60 Trammell lastly contends that discretionary reversal
is warranted under Wis. Stat. § 751.06. Trammell asserts that
the circuit court's use of Wis JI—Criminal 140 warrants
discretionary reversal, and thus a new trial, under Wis. Stat.
§ 751.06 "because the instruction confused the jury in a manner
that went to the integrity of the fact-finding process," and "by
mis-stating the prosecution's burden." He further argues that
the use of the jury instruction "prevented the real
38
 No. 2017AP1206-CR

controversy . . . from being fully tried according to the
requisite standard of proof/persuasion." "In applying § 751.06,
we exercise our discretion infrequently, judiciously, and only
in exceptional cases." Langlois, 382 Wis. 2d 414, ¶55 (citing

State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826
N.W.2d 60). Since we conclude that Wis JI—Criminal 140 does not
misstate the law, does not likely confuse the jury, and does not
reduce the State's burden, and as there is substantial evidence
to support the jury's verdict, we conclude that this is not an
exceptional case warranting discretionary reversal under
§ 751.06.
¶61 Though Trammell waived his objection to Wis JI—

Criminal 140, this court may nevertheless consider whether
Trammell is entitled to relief under Wis. Stat. § 751.06. See
Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 616–17, 292
N.W.2d 630 (1980) (concluding that the plaintiff waived his
objection to a verdict form under Wis. Stat. § 805.13(3) (1979-
80), but stating that "the failure to make a timely assertion of
error does not preclude this court from considering the issue of
the defect in the verdict" under § 751.06 (1979-80)).
¶62 Wisconsin Stat. § 751.06 states as follows:

In an appeal in the supreme court, if it appears from
the record that the real controversy has not been
fully tried, or that it is probable that justice has
for any reason miscarried, the court may reverse the
judgment or order appealed from, regardless of whether
the proper motion or objection appears in the record,
and may direct the entry of the proper judgment or
remit the case to the trial court for the entry of the
proper judgment or for a new trial, and direct the

39
 No. 2017AP1206-CR

making of such amendments in the pleadings and the
adoption of such procedure in that court, not
inconsistent with statutes or rules, as are necessary
to accomplish the ends of justice.
Thus, this court may order a new trial under one of two
disjunctive prongs: "(1) whenever the real controversy has not
been fully tried; or (2) whenever it is probable that justice
has for any reason miscarried." State v. Hicks, 202

Wis. 2d 150, 159–60, 549 N.W.2d 435 (1996) (citing State v.
Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985)).
¶63 This court has stated that the real controversy has
not been fully tried under Wis. Stat. § 751.06 in two
situations:

(1) when the jury was erroneously not given the
opportunity to hear important testimony that bore on
an important issue of the case; and (2) when the jury
had before it evidence not properly admitted which so
clouded a crucial issue it may be fairly said that the
real controversy was not fully tried.
Id. at 160. Regarding the miscarriage of justice prong, this
court has explained that justice is only miscarried if "there
would be a substantial probability that a different result would
be likely on retrial." Schumacher, 144 Wis. 2d at 401 (citing
Wyss, 124 Wis. 2d at 740-41). "As such, the defendant must meet
a higher threshold in order for this court to grant a new trial
under the second prong." State v. Maloney, 2006 WI 15, ¶14 n.4,
288 Wis. 2d 551, 709 N.W.2d 436.
¶64 Here, the record demonstrates that nothing in

Trammell's trial prevented the real controversy from being fully
tried, nor was there a miscarriage of justice. Examining the

40
 No. 2017AP1206-CR

first prong, the real controversy here was fully tried.
Trammell does not bring an evidentiary challenge, instead
claiming that under State v. Perkins, 2001 WI 46, 243

Wis. 2d 141, 626 N.W.2d 762, the use of the at-issue jury
instruction in Perkins warrants a new trial under the first
prong. Like Trammell, Perkins waived his right to object to the
use of a jury instruction by failing to object at the jury
instruction and verdict conference, but claimed that
discretionary reversal was warranted under Wis. Stat. § 751.06.
Id., ¶11–12. This court agreed, concluding that the at-issue
jury instruction in Perkins failed to define what would
constitute a "threat[] to cause bodily harm," and that as a

result, Perkins was entitled to a new trial because the real
controversy was not fully tried. Id., ¶¶33–37, 49.
¶65 Perkins is inapposite to this case. In Perkins this
court concluded that the real controversy was not fully tried
because the at-issue jury instruction gave an incomplete
statement of the law by failing to define a threat to cause
bodily harm. Here, Wis JI—Criminal 140 does not provide an
incomplete statement of the law as did the jury instruction in
Perkins. Indeed, it discusses the reasonable doubt standard at
length and with specificity. Moreover, as discussed at length
previously, Wis JI—Criminal 140 as a whole does not misstate the
law or serve to reduce the State's burden of proof, nor does it
likely confuse the jury. Accordingly, we conclude that the real
controversy at issue here has been fully tried.

41
 No. 2017AP1206-CR

¶66 Turning to the second prong, we conclude that there is
not a substantial probability that a different result would be
likely on retrial. At trial, the State presented a wealth of
evidence supporting Trammell's conviction on both counts. The
State presented testimony from the victim, the victim's
girlfriend, and Trammell's accomplice Silas, all of whom
corroborated one another and clearly implicated Trammell in the
armed theft of the Buick. Officer Strasser's testimony further
corroborated the State's theory of the case, and Officer
Draeger's testimony indicated that Trammell tried to convince
another individual to lie on his behalf at trial. In addition
to the testimony offered at trial, the State presented

fingerprints from the Buick that matched Trammell's left index
finger and Silas's right index finger. Given the overwhelming
amount of evidence supporting Trammell's guilt, we conclude that
there is not a substantial probability that a different result
would occur if the matter were to be retried. As the real
controversy has been fully tried and there is no substantial

probability of a different result if a retrial occurred,
discretionary reversal under Wis. Stat. § 751.06 is unwarranted.
IV. CONCLUSION
¶67 We conclude that Trammell waived his right to object
to the use of Wis JI—Criminal 140 by failing to object to its
use at the jury instruction and verdict conference, pursuant to
Wis. Stat. § 805.13(3). On that basis, the court of appeals
properly denied Trammell's appeal and correctly concluded that
it could not consider whether Wis JI—Criminal 140 misstates the
42
 No. 2017AP1206-CR

law, confuses the jury, and reduces the State's burden.
However, unlike the court of appeals, this court may nonetheless
consider the instruction under its discretionary power of
review. Schumacher, 144 Wis. 2d at 409–10. We exercise that

power here. The constitutional question with which we are
presented is whether there is a reasonable likelihood that the
jury understood the instructions to allow a conviction based
upon insufficient proof. We conclude that Wis JI—Criminal 140
does not unconstitutionally reduce the State's burden of proof
below the reasonable doubt standard. Lastly, we conclude that
discretionary reversal under Wis. Stat. § 751.06 is not
warranted. We therefore affirm the court of appeals.

By the Court.—The decision of the court of appeals is
affirmed.
¶68 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.

43
 No. 2017AP1206-CR.rfd

¶69 REBECCA FRANK DALLET, J. (concurring). I agree with
the majority opinion that the two law review articles cited by
Trammell do not provide the overwhelming evidence necessary to
conclude that Wis JI——Criminal 140 (2017) unconstitutionally
reduces the State's burden of proof below the reasonable doubt
standard or to warrant discretionary reversal. Notwithstanding,
I write separately for two reasons: First, to respond to the
majority opinion's denigration of this court's holding in State

v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582; and

second, to encourage the Wisconsin Criminal Jury Instructions
Committee to revise Wis JI——Criminal 140 in the interest of
justice in light of the arguments made in the amicus curiae
brief of the Wisconsin State Public Defender.
¶70 In Dubose, we recognized extensive social science
studies over a ten-year period demonstrating the unreliability
of eyewitness testimony and, based upon that overwhelming
evidence, we adopted new standards for the admissibility of out-

of-court identification procedures. Id., ¶¶29-33. Dubose
stands for the principle that prior decisions of this court may
become unsound when they are based upon principles that are no
longer valid. See id., ¶¶31-33. Dubose further upholds this
court's right to interpret the Wisconsin Constitution to provide
greater protections than the United States Constitution. Id.,
¶41.
¶71 Although the majority opinion acknowledges that the
Dubose court considered several studies, it minimizes the impact
of the studies when it summarily concludes that the court's

1
 No. 2017AP1206-CR.rfd

holding was instead based upon the Wisconsin Constitution.
Majority op., ¶33. The majority opinion seemingly calls into
question this court's ability to consider social science
evidence in constitutional cases. While I agree that two law
review articles alone do not provide the type of extensive new
research like the studies we relied upon in Dubose, the Dubose

case was "not the first to result in a change in principles
based on extensive new studies completed after a court decision
that was premised on constitutional interpretation and

application." Dubose, 285 Wis. 2d 143, ¶43. For example, in

Brown v. Board of Education, 347 U.S. 483, 494 & n.11 (1954),
the United States Supreme Court overturned the "separate but
equal" doctrine and provided an important shift in
constitutional law based on recent studies that demonstrated the
negative effects of segregation in public education. The United
States Supreme Court stated: "We must consider public education
in light of its full development and its present place in

American life throughout the Nation." Id. at 492-93. In
addition to desegregation of schools, other examples of cases
where social science research has formed the basis for the
United States Supreme Court to abrogate previous decisions
include: the regulation of women's working hours in Muller v.
State of Oregon, 208 U.S. 412 (1908); criminalization of
consensual same sex intimate conduct in Lawrence v. Texas, 539
U.S. 558 (2003); and imposition of the death penalty on the
mentally ill and juveniles in Atkins v. Virginia, 536 U.S. 304
(2002), and Roper v. Simmons, 543 U.S. 551 (2005). The majority

2
 No. 2017AP1206-CR.rfd

opinion cannot possibly be suggesting that this court can no
longer be informed by current research that measures the effects
of previous court decisions on an evolving society.
¶72 In its effort to limit Dubose, the majority also

challenges our ability to interpret the Wisconsin Constitution
more broadly than the United States Constitution. This court
has stated:

This court . . . will not be bound by the
minimums which are imposed by the Supreme Court of the
United States if it is the judgment of this court that
the Constitution of Wisconsin and the laws of this
state require that greater protection of citizens'
liberties ought to be afforded . . . .

State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977).
¶73 In Dubose, 285 Wis. 2d 143, ¶41, we emphasized that
even though Article I, Section 8 includes language similar to
that of the Due Process Clause of the United States
Constitution, "we retain the right to interpret our constitution

to provide greater protections than its federal counterpart."
We clarified in State v. Luedtke, 2015 WI 42, ¶50, 362

Wis. 2d 1, 863 N.W.2d 592, that the Due Process Clause of the
Wisconsin Constitution provides greater protection in one

identification procedure, the showup. This court does not
forfeit to the federal judiciary its power to interpret our
constitution. See State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d
86, 700 N.W.2d 899 ("While textual similarity or identity is
important when determining when to depart from federal
constitutional jurisprudence, it cannot be conclusive . . . .
The people of this state shaped our constitution, and it is our

3
 No. 2017AP1206-CR.rfd

solemn responsibility to interpret it.") The Dubose case

remains an example of this court's ability to consider social
science evidence in constitutional cases and to interpret our
constitution more broadly than its federal counterpart.
¶74 Although I agree that there is currently insufficient
evidence that Wis JI——Criminal 140 unconstitutionally reduces
the State's burden of proof below the "beyond a reasonable
doubt" standard, I nonetheless respectfully request that the
Wisconsin Criminal Jury Instructions Committee review the

instruction again in the interest of justice in light of the
arguments made in the amicus curiae brief of the Wisconsin State
Public Defender. I believe that the combination of two
deficiencies in the instruction could potentially dilute the
burden of proof in Wis JI——Criminal 140 and thus warrants
further consideration.
¶75 First, Wis JI——Criminal 140 fails to define "beyond a

reasonable doubt."1 The United States Supreme Court has

described the standard of proof of "beyond a reasonable doubt"
as "a subjective state of near certitude of the guilt of the
accused" that symbolizes the significance our society attaches
to liberty. Jackson v. Virginia, 443 U.S. 307, 315 (1979); see
also In re Winship, 397 U.S. 358, 364 (1970) (declaring proof

1The majority repeatedly refers to the standard of proof as
"reasonable doubt" instead of "beyond a reasonable doubt."
Majority op., ¶¶2, 41, 48, 65, 67. The majority opinion
likewise provides examples of definitions of "reasonable doubt"
from other jurisdictions, but fails to acknowledge the failure
of Wis JI——Criminal 140 to define "beyond a reasonable doubt."
See majority op., ¶41 n.14.

4
 No. 2017AP1206-CR.rfd

beyond a reasonable doubt to be equivalent to proof to an
"utmost certainty"). While the United States Supreme Court has
declined to require specific language to describe this burden of
proof, we may look to other states for guidance.
¶76 Some states convey the requisite level of proof by
instructing jurors that they must be "firmly convinced" of the
defendant's guilt. See, e.g., Revised Arizona JI——Criminal 20

("Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant's guilt."); Delaware Pattern

Criminal Jury Instructions § 2.6 ("proof that leaves you firmly
convinced of the defendant's guilt"); Indiana Criminal Pattern
Jury Instruction No. 1.1500 ("Reasonable doubt exists when you
are not firmly convinced of the Defendant's guilt . . ."); 17
La. Civ. L. Treatise, Criminal Jury Instructions § 3.3
("Reasonable doubt . . . is present when, after you have
carefully considered all the evidence, you cannot say that you
are firmly convinced of the truth of the charge."); New Jersey

Model Criminal Jury Charges Non 2C Charges ("proof . . . that
leaves you firmly convinced of the defendant's guilt"); North
Carolina Pattern Jury Instructions § 101.10 ("proof that fully
satisfies or entirely convinces you of the defendant's guilt");
2 CR Ohio Jury Instructions § 405.07 ("'Reasonable doubt' is
present when the jurors . . . cannot say they are firmly
convinced of the truth of the charge."); Model Utah Jury
Instructions, Second Edition CR103 ("Proof beyond a reasonable
doubt is proof that leaves you firmly convinced of the
defendant's guilt.").

5
 No. 2017AP1206-CR.rfd

¶77 Other states have described the level of certainty
required as "an abiding conviction" of guilt or a "moral
certainty." See 1-1 Arkansas Model Jury Instructions——Criminal

AMCI 2d 110 ("A juror is satisfied beyond a reasonable doubt if
after an impartial consideration of all the evidence he has an
abiding conviction of the truth of the charge."); Judicial
Council of California Criminal Jury Instructions No. 103 ("proof
that leaves you with an abiding conviction that the charge is
true"); Florida Standard Jury Instructions § 3.7 ("if, after

carefully considering, comparing and weighing all the evidence,
there is not an abiding conviction of guilt, or, if, having a
conviction, it is one which is not stable but one which wavers
and vacillates, then the charge is not proved beyond every
reasonable doubt"); Massachusetts Criminal Jury Instructions No.
2.180 ("you have in your minds an abiding conviction, to a moral
certainty, that the charge is true"); Nevada Revised Statutes
Annotated § 175.211 ("If the minds of the jurors . . . are in

such a condition that they can say they feel an abiding
conviction of the truth of the charge, there is not a reasonable
doubt."); North Dakota Pattern Criminal Instructions 2017
§ K-1.10 ("You should find the Defendant guilty only if you have
a firm and abiding conviction of the Defendant's guilt . . .");
7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 2.03 ("moral
certainty is required").
¶78 In contrast, Wis JI——Criminal 140 describes what a
"reasonable doubt" is: "a doubt based upon reason and common
sense," "a doubt for which a reason can be given," and "a doubt

6
 No. 2017AP1206-CR.rfd

as would cause a person of ordinary prudence to pause or
hesitate when called upon to act in the most important affairs
of life." The instruction further describes what a "reasonable
doubt" is not: "a doubt which is based on mere guesswork or
speculation," "[a] doubt which arises merely from sympathy or
from fear to return a verdict of guilt," and "a doubt such as
may be used to escape the responsibility of a decision." Yet
nowhere in Wis JI——Criminal 140 is the jury told the required
level of certitude they must reach to convict.

¶79 Second, the instruction could exacerbate the risk that
the jury will convict based upon a lesser level of certainty
than beyond a reasonable doubt when, after only defining
"reasonable doubt," the jury is told not to search for doubt,
but to search for "the truth." See Brief of Amicus Curiae

Wisconsin State Public Defender at 8. While the adversary
system as a whole involves a search for the truth, a juror's
duty is to decide whether the State has proven its case beyond a

reasonable doubt by examining only the evidence introduced at
trial. Oftentimes the evidence seen by a juror is constrained
for various reasons including: evidentiary and constitutional
rulings made by the circuit court, the availability of
witnesses, and strategic decisions of counsel. Instructing
jurors to search for the truth but not instructing them that the
evidence at trial must convince them to a degree of near
certainty may encourage jurors to believe that the truth lies
outside of the courtroom. There is no way to accurately "test,"
and thus we will never know, the impact on jurors of the

7
 No. 2017AP1206-CR.rfd

following words given at the end of Wis JI——Criminal 140:
"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."
¶80 The majority opinion dismisses Trammell's challenges
to Wis JI——Criminal 140 based upon the recent consideration
given to the instruction by the Criminal Jury Instructions
Committee and this court's decision in Avila, where we held that

"it is not reasonably likely that the jury understood Wis JI—

Criminal 140[], to allow conviction based on proof below the
Winship reasonable doubt standard." State v. Avila, 192 Wis. 2d

870, 889, 535 N.W.2d 440 (1995), overruled on other grounds by
State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765.
The majority rightfully places great weight on the Criminal Jury
Instructions Committee's examination of Wis JI——Criminal 140 in
light of the two recent law review articles and its subsequent
decision not to change the text of the instruction. Majority

op., ¶27. As we have previously recognized, the criminal jury
instructions "'are the product of painstaking effort of an
eminently qualified committee of trial judges, lawyers, and
legal scholars, designed to accurately state the law and afford
a means of uniformity of instructions throughout the state.'"
State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983)
(quoting State v. Genova, 77 Wis. 2d 141, 150-51, 252 N.W.2d 380
(1977)). I know the Criminal Jury Instructions Committee has
diligently considered whether to change the text of Wis JI——
Criminal 140 in the past. I urge them to now consider the

8
 No. 2017AP1206-CR.rfd

argument that is made here: the interaction of the lack of
explanation of the quantum of certainty combined with the
directive not to search for doubt but to search for "the truth"
potentially confuses and misleads jurors regarding the level of
certainty required to convict.
¶81 I therefore encourage the Wisconsin Criminal Jury
Instructions Committee to review Wis JI——Criminal 140 in light
of this particular challenge and revise Wis JI——Criminal 140 in
the interest of justice. For the foregoing reasons, I concur.

¶82 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence.

9
 No. 2017AP1206-CR.rfd

1