Law School makes jury instructions public
Nudge from California nonprofit played role in Wisconsin change
At court trials, judges and lawyers depend on Wisconsin's standard jury instructions to help frame issues, define offenses and guide jurors' understanding of the law, so they might reach just verdicts.
But as crucial as the instructions are, they were — until recently — hard to obtain, almost like a secret, protected code.
Unlike the state's statutes and appellate rulings, which are online or in books in many libraries, the jury instructions were only available in bound volumes in some law libraries or on CDs that cost $550 for the full set, plus fees for annual updates.
The thousands of instructions tend to state the law in simpler, more understandable language than that used in statutes. They explain everything from reckless endangerment and circumstantial evidence, to the common law liability of animal owners and breach of contract.
Then last week, the court system announced that the UW Law School, which has been publishing and selling the instructions for 60 years, had determined that digitizing them to the public "is in the best interest of the legal community and state."
What the announcement didn't mention was that a nonprofit group dedicated to putting government records in the public domain had forced the university's hand last fall when it threatened to publish the instructions online if Wisconsin did not.
Public Resource, based in California, noted that since the 19th century, writings of judges in their official duties have not been subject to copyright protection, under what's called the public edict doctrine.
"You can't have rule of law if you can't read the laws," said Public Resource president Carl Malamud, who held off on posting the instructions after Wisconsin asked for extra time to consider his demand.
This is how the welcomed free publication of the instructions — for criminal, civil and children's courts — was characterized in a news release from the state courts system:
“For over six decades, the UW Law School has been privileged to publish and provide a home for the Wisconsin Jury Instructions. This has been a labor of love, grounded in our deep commitment to the Wisconsin Idea," wrote UW Law School Dean Dan Tokaji.
"We are delighted that the jury instructions will be digitized and made free to the public from this point forward, thanks to the diligent efforts of the state courts and many people working with them."
In a separate interview, Tokaji did acknowledge that the PRO demand "was the trigger that led us down the road," and said the organization does deserve some credit for the change, which he called a "win, win, win" for the law school, practitioners and the public.
Malamud also was happy with the outcome and congratulated the Wisconsin courts.
He was not surprised that his organization's role in bringing about the change was not mentioned.
"We've been doing this for a very long time, and usually you don't even get a response to the letter, let alone acknowledgment," he said in an email. " We did get notes from the University (of Wisconsin) lawyer, but no one at the law school or the judicial conference talked to us. It doesn't matter as long as the right thing happens, which in this case it did!"
Public.Resource.Org has made a similar demand about jury instructions in California.
In 2013 Georgia sued PRO after it published that state's statutes, known as the Official Code of Georgia Annotated, on the PRO website, claiming it amounted to terrorism.
But a federal appeals court found the laws, and the annotations about them, were inherently the public's and not subject to copyright protections the state claimed. Last year, the U.S. Supreme Court upheld that ruling.
Wisconsin was the only one whose law school took such a primary role in development and distribution of jury instructions. UW Law officials said specific figures weren't readily available Friday, but estimated that the school typically broke even on the sales, which about covered the cost in staffing.
The instructions are officially the product of Judicial Conference committees, judges appointed by the Supreme Court to draft and review the various instructions.
Until now, that took place with the help of the law school employees who acted as staff to the committees, and handled the publication and sales of the end product.
Bryce Pierson, who led the law school's part, will continue in the role of legal adviser, but now as an employee of the the state courts system.