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SchultzMarks30 Years

with Jury Instructions CommitteeEditor's Note: 1his on-the-sceneview of UW Law School ProfessorDavid Schultz's work with Wisconsin'sCriminal Jury Instructions Committeeis reprinted with permission from TheThird Branch, a quarterly publicationof the Director of State Courts Office.

By Amanda ToddEditor, 1he 1hird Branch

It'san unusually warm day inearly April, and a group ofnine circuit court judges - the

Criminal Jury Instructions Com-mittee - is shoehorned into a tinyconference room in downtownMadison. They will be here all day,evaluating new laws and appellateopinions to determine whethernew jury instructions are needed.Guiding their work - and draft-ing the necessary instructions - isUW Law Professor David Schultz,who has served in this capacity for30 years.

The work of the Criminal JuryInstructions Committee is intensive.The group meets six times a year,

'Dave Schultz's experience,ability, and institutionalmemory are absolutelycritical to the work of thiscommittee. His contri-bution simply cannot beoverstated. '

- John J. DiMottoChair

Criminal Jury Instructions Committee

for two days at a time, and commu-nicates regularly between meetings.The payoff is knowing that themodel instructions they create willbe put to immediate use in court-rooms across the state.

"This is very satisfying work,because you know how useful it is,"Schultz explained.

Creating accurate, plain Englishjury instructions is as much intuitiveas it is scientific, and the committeemembers bring to the table not onlytheir experience on the bench butalso their perspectives as judges inlarge urban centers and small ruralcounties. Lengthy debates over worduse, sidebar discussions on what's

driving crime (methamphetaminein the North Woods and Oxycontinin Milwaukee), and musings aboutwhat sparked a piece of legislation areintegral to the process. Schultz andJohn J. DiMotto, committee chairand veteran Milwaukee County Cir-cuit Court Judge, masterfully movethe committee forward withoutstifling discussion.

"Dave Schultz's experience,ability, and institutional memoryare absolutely critical to the workof this committee," DiMotto said."His contribution simply cannot beoverstated."

Schultz is a Fort Atkinsonnative, the son of a police chief,husband of a pediatric nurse-prac-titioner, and father to three grownchildren. In addition to his serviceto the Criminal Jury InstructionsCommittee, he is the UW LawSchool's Associate Dean for Con-tinuing Education and Outreach,and he teaches criminal law to firstyear students.

In 1976, when he began hiswork with the committee, the

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membership had just turned over- the first significant change sinceits inception in 1960. Among thosewho retired was Judge Gerald Boi-leau of Marathon County, the manwho first suggested that the state

The work of the CriminalJury Instructions Commit-tee is intensive. The payoffis knowing that the modelinstructions they createwill be put to immediateuse in courtrooms acrossthe state.

hold an "institute" on jury instruc-tions in 1959 to take the place ofa traffic law conference that hadfallen through. OW Law ProfessorFrank Remington took the lead indeveloping the format and contentof that first conference, designingan agenda that permitted the judgesthemselves to steer the discussions.Remington explained at the timethat "the giving of instructions isuniquely a judicial function and oneabout which the judiciary has themost knowledge and experience."

The judge-centered approachmakes Wisconsin's committeeunique in the nation, and thephilosophy is evident in many of thegroup's discussions. The membersregularly invoke a hypothetical judge

in the Countyof Flodge (anamalgam ofFlorence andDodge) toremind them-selves that theyare working forthe benefit oftheir colleagueson the trialcourt.

Furtherevidence of thetrial judges'supremacy inthis arena isthe lack of additional layers in thedecision process. As Schultz wrotein a 1990 paper, "It seems that theWisconsin system is better than onewhere a higher authority approvesthe instructions and tequires theiruse without change .... The certaintythat such a system provides seems tobe outweighed by its inflexibility."

The downside of the lack ofreview means that there is little roomfor error. Distributing jury instruc-tions that misstate, for example,the elements of a crime, would beproblematic. So the committee willsit around this conference table untillate in the day, tinkering with Schultz'sproposed instructions and finallyreading them aloud to one another

UW Law School Professor DavidSchultz says staffing the Criminal JuryInstructions Committee is one of thebest parts of his job.

to see if they make sense. And thenSchultz will work his formatting andediting magic, the instructions will bedistributed, and the process will beginanew. Above all, Schultz said, it's agreat example of the Wisconsin Idea.

"I really believe in that part ofthe OW's mission, the idea that wereach out to the people of the stateand assist state government in servingthe people. The instructions are theproduct of a true partnership betweenthe judiciary and the OW, and I'mproud to have been a part of that." •

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Waukesha County Circuit Court JudgeDonald J. Hassin, left, and DaneCounty Circuit Court Judge StevenD. Ebert, right, flank Assistant StatePublic Defender Charles Vetzner who,along with Assistant Attorney GeneralDavid Becker, serves as an adviserto the Criminal Jury InstructionsCommittee. Other committee mem-bers are Judges Kitty K. Brennanand John DiMotto (chair), MilwaukeeCounty; Mark A. Mangerson, OneidaCounty; Scott Needham, St. CroixCounty; Edward Zappen, WoodCounty; Annette K. Ziegler, Washing-ton County; and Donald Zuidmulder,Brown County.

Speaking Plain English

The Criminal Jury Instructions Committee began producing model jury instructions in 1962. For the next 40years, its process and product were fairly consistent. Then, in 1998, the committee determined that it wouldoverhaul the instructions to make the formatting easier to follow and the language clearer. With the help of aUniversity of Minnesota professor who specializes in plain language, the modifications were successfully madeand the new approach was institutionalized.

"We really have been at the forefront of a national movement to make uury instructions] easier for juries tofollow and understand," said Milwaukee County Circuit Court Judge John J. DiMotto, the committee chair.

The following excerpts from Wis JI-Criminal #800, the instruction of the privilege of self defense, illustratethe effect of the new formatting and plain language.

Before: After:Self-defense is an issue in this case. The CriminalCode of Wisconsin provides that a person isprivileged to threaten or intentionally use forceagainst another for the purpose of preventing orterminating what he reasonably believes to bean unlawful interference with his person by suchother person. However, he may intentionally useonly such force or threat thereof as he reasonablybelieves is necessary to prevent or terminate theinterference.

Self-defense is an issue in this case. The law ofself-defense allows the defendant to threaten orintentionally use force against another only if:• The defendant believed that there was an

actual or imminent unlawful interference with thedefendant's person; and

• The defendant believed that the amount offorce the defendant used or threatened to usewas necessary to prevent or terminate theinterference; and

• The defendant's beliefs were reasonable.

Minter is UW Law School's SecondLongtime Jury Instructions Reporter

Inaddition to the criminal juryinstructions, the Law Schoolpublishes two more jury instruc-

tion sets, Wisconsin Jury Instruc-tions-Civil and Wisconsin JuryInstructions-Children.

For both projects, programattorney Scott C. Minter of the

Continuing Education and Out-reach division, like his colleagueDave Schultz, is a longtime commit-tee reporter.

Minter recently marked his26th year in the jury instructionsfield. He succeeded Professor JohnConway as reporter to the Civil JuryInstructions Committee in 1980,and has served as the reporter to theJuvenile Jury Instructions Commit-tee since its inception in 1992.

Minter comments, "I have hadthe good fortune to follow JohnConway and to work with DaveSchultz, both known for theirsuperb scholarship, work ethic,and respect for the importance ofthe jury instruction projects. I alsoappreciate the chance to work withdistinguished trial judges who have

served on the committees. Our workis a dual effort to understand thesubstantive civil law and correctlyrestate it in a way that is under-standable to jurors. At each meet-ing, I learn more about the law andlitigation."

Minter also develops LawSchool continuing educationprograms and publications, and isco-author of the widely distributedtreatise Wisconsin Real Estate Law,which has ongoing connections withthe Law School that beganin 1964 when it was written byProfessors Walter Raushenbush,James MacDonald, and JakeBeuscher. Recently Minter editedthe autobiography of Law SchoolProfessor James E. Jones, [r.,Hattie's Boy (see page 24.)

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