(dissenting). I dissent because I believe that there is a reasonable likelihood that the contributory negligence instruction, in combination with Wis JI — Criminal 1185 and 1186, misled the jury into believing it could not consider the young women's conduct in regard to Lohmeier's statutory affirmative defense. I would affirm the court of appeals and hold that there is a reasonable likelihood that the contributory negligence instruction misled the jury, for several reasons.
First, the defense essentially conceded these elements of the charges under Wis. Stat. § 940.09(l)(a) and Wis. Stat. § 940.09(l)(b): intoxication, driving, and *201death.1 Therefore, the only real jury question was one of causation. The question posed by the affirmative defense instruction was whether the victims' deaths would have occurred even if the defendant had been exercising due care and was not under the influence of intoxicants. Lohmeier's affirmative defense went directly to causation.
Second, the circuit court never defined the concepts "negligence" and "contributory negligence" for the jury. The jury was told "In weighing the evidence, you may take into account matters of your common knowledge and your observations and experiences in the affairs of life." Wis JI — Criminal 195 Juror's Knowledge. A layperson's view of negligence could be characterized as the careless action of a person, including that of a victim.
Third, the circuit court gave no explanatory instruction to the jury to clarify the relationship between the affirmative defense instruction and the instruction that contributory negligence is not a defense. Without such an explanation, the probability is great that the jurors were misled into disregarding Lohmeier's affirmative defense.
Proper jury instruction is a crucial component of the fact-finding process. State v. Schulz, 102 Wis. 2d *202423, 426, 307 N.W.2d 151 (1981). The jury must determine guilt or guiltlessness in light of the jury charge, and the validity of that determination is dependent upon the correctness of the instructions given. Schulz, 102 Wis. 2d at 426-27. In the Schulz case, the taint of the faulty jury instruction was critical because there, intoxication was the major, if not the only, defense the defendant had to the charge of first-degree murder. Id. at 431. The charge given was not a standard instruction but emphasized, incorrectly, that the defendant had the burden of proof on the defense of intoxication. Id. at 432-33. We found in Schulz that the jury instructions could have reasonably been misunderstood by the jury to place the burden of proof of intoxication on the wrong party. Id. at 435. Such an error violated the defendant's right to a presumption of innocence and to have the state prove beyond a reasonable doubt every essential element of the crime charged against him. Id. at 435-36.
I agree with the court of appeals that as long as the given jury instruction fully and fairly informs the jury of the applicable law, the circuit court has discretion in choosing which instruction to give. State v. Lohmeier, 196 Wis. 2d 432, 441, 538 N.W.2d 821 (Ct. App. 1995). I also agree with the majority that we consider jury instructions in light of the proceedings as a whole. But the circuit court does not have discretion to give an instruction which clouds or even nullifies the applicable law. And it is precisely by looking at the instructions in context that the harm to the defendant is demonstrated. The pertinent instructions were given in the following order:
-1185 Homicide by Operation of Vehicle While Under the Influence - Sec. 940.Q9(l)(a).
*203-1186 Homicide by Operation of Vehicle While Blood Alcohol Content is 0.10% or More - Sec. 940.09(l)(b). (Both jury instructions 1185 and 1186 described the defendant's affirmative defense as set out in Wis JI — 1188 Homicide by Intoxicated User of Vehicle, Firearm, or Airgun: Affirmative Defense Under § 940.09(2).)
-A contributory negligence instruction based on Wis. Stat. § 939.14.2
The circuit court instructed the jury on the affirmative defense and immediately thereafter instructed the jury that contributory negligence of the victims was not a defense. Unfortunately, the judge did not give any explanation of the relationship between the contributory negligence instruction and Lohmeier's affirmative defense. Based partly on sequence, and primarily on the actual instruction language, it is reasonably likely that the cumulative effect of those instructions was to mislead the jurors. The jurors were misled into believing that the law forbade them to consider the acts of the victims, which may or may not *204have legally constituted contributory negligence, when they assessed causation.
In Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810 (1977), where the negligence of the victim was undisputed, we stated that the question for the jury was whether, considering the negligence of the victim along with the other circumstances of the case, the negligence of the defendant was nevertheless an operative factor having a substantial effect in producing the victim's death. Hart, 75 Wis. 2d at 399. The circuit court below could have said as much in its instructions, but did not.
The very essence of Lohmeier's defense was that it was not his intoxication, but the victims' carelessness in walking in or stepping out into the roadway that was the cause of the accident. As Lohmeier's counsel told the circuit court at the instructions conference,
"[TJhis is not a matter where we are attempting to establish contributory negligence as a defense. What we are saying is that the intervening fact is this movement of the girls. My problem with the instruction is that the legislature gives us the defense (in Wis. Stat. § 940.09(2)) and then if you give that (contributory negligence) instruction you are in essence telling the jury, don't listen to what the Defense has presented."
Mr. Lohmeier's defense did not hinge on whether the girls' actions legally constituted contributory negligence, but rather asserted that their movement onto the roadway was an intervening event.
The record demonstrates that the circuit court itself had doubts as to the clarity of the instructions *205proposed.3 Lohmeier argued at the instructions conference that the two statutes, and the instructions based on them, were not consistent. The circuit court eventually agreed to give the contributory negligence instruction after the affirmative defense instructions, because the affirmative defense concerned causation:
"I don't really see any error in giving this instruction we are talking about because we are not talking about negligence or contributory negligence, we are talking about cause, nothing to do with negligence. So what has to be established is this independent. You can argue your cause and even if the Court gives this instruction because it releases what I fear to be a problem in assessing the jury, assessing relative wrong here which is not *206their duty or function, not at all. They must be satisfied that there was some type of cause that excuses responsibility for drinking and causing death. Those are given facts when you give an affirmative defense and may not take simple contributory negligence of a victim. What they have to have is an intervening cause and I think you can argue to that very simply your theories about movement without talking about contributory negligence or being in any way deterred by that. So I think I will give this instruction.
. Despite the circuit court's recognition of inconsistency, it failed to instruct the jury that the independent causation defense was not a question of contributory negligence. Although Lohmeier1 s counsel objected to the contributory negligence instruction, neither counsel offered an explanatory, or bridging, instruction to resolve the inconsistency. The jury was left on its own to sort out these undefined legal terms.
Argument of counsel further clouded the relationship between the affirmative defense and the contributory negligence instruction. The majority notes that Lohmeier's attorney never referred to the young women's conduct as contributory negligence. Majority op. at 196. However, the district attorney's closing argument included these statements:
Well I guess something that might come to mind is, well, hold it, this is a real world Mr. Koss and we have got girls walking the wrong way on the highway. I imagine everybody knows you don't do that. I agree, but first there's an instruction that says you are not to consider contributory negligence of a victim. It's not a defense. That's by law in Wisconsin. Moreover, and this is crucial, walking facing traffic or not facing traffic, that law is not for *207the benefit of the driver. That law is not for the benefit of the driver."
In sum, the circuit court gave the contributory negligence instruction without a proper explanation of the relationship between that instruction and the instruction regarding the affirmative defense. Because I conclude that such an omission was erroneous, and created a reasonable likelihood that the jury was misled into disregarding Lohmeier's affirmative defense, I respectfully dissent. Lohmeier should be granted a new trial. "It may well be that the defendant is guilty of the offense charged against him, but he is entitled to a fair trial according to the established rules of procedure and principles of law." Boldt v. State, 72 Wis. 7, 17, 38 N.W. 177 (1888), cited in Hart v. State, 75 Wis. 2d 371, 395, 249 N.W.2d 810 (1977)(footnote omitted).
I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice William A. Bablitch join this dissenting opinion.
The jury instruction for Wis JI — Criminal 1185, Homicide by Operation of Vehicle While Under the Influence - Sec. 940.09 (1)(a) reads in part: "The second element requires that the defendant's operation of a vehicle caused the death of Stacie Rogers and Renee L. Belair. 'Cause' means that the defendant's operation of a vehicle was a substantial factor in producing the death. It is not required that the death was caused by any drinking of alcohol or by any negligent or improper operation of the vehicle. What is required is that the death was caused by the defendant's operation of the vehicle."
The majority acknowledges that the Criminal Jury Instruction Committee recommends that no contributory negligence instruction be given. Majority op. at 189, n.5. The Committee recognized the very problem present in this case: "The rule as stated is an accurate statement of the law, but can create problems if literally applied. That is, evidence that may indicate negligence on the part of a victim may be relevant to an element of the crime - especially the cause element - or to a defense. In such a situation, the evidence is admissible despite § 939.14." Wis JI — Criminal 926 Comment. Here, of course, the harm to Lohmeier arose not from an evidentiary ruling, but from the confusing juxtaposition of the affirmative defense instructions with the instruction precluding contributory negligence as a defense.
At the instruction conference the court commented on the proposed contributory negligence instruction, "I don't see how you can say that it couldn't be something that the victim did. I don't know. I mean that argument could be made, but I'm not sure I want to inject that in there."
Later, "Because I just don't think -1 don't think that this defense was suppose[d] to come up, at least I don't think so anyway. It's not clear to just general contributory negligence of a victim. If that would apply, then that would apply if a drunk driver went off the road and the other driver was going over the speed limit. I don't think that would apply."
After further discussion with counsel the court said, "I really have no doubt that this would be appropriate other than the little specter of a doubt that I have that it's a possibility it could be inconsistent with a defense and the use of the wording in Caibaiosai that says the intervening fact may be independent or it may be dependent." Additionally, "I think the cautious thing would be quitely (sic) frankly to not give the instruction and let the attorneys argue it. I think you can argue it."
The circuit court ultimately gave the contributory negligence instruction.