                                                                      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                                       (2018 – unpublished)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

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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

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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

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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.




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