COA asks SCOW to clarify what must be proven in THC cases
State v. Aaron AJ Bethke, 2025AP1383-CR, 8/4/26, District III; case activity (including briefs)
In a rare case where the State believes the pattern jury instructions get it wrong, COA asks SCOW to settle an important burden of proof issue for marijuana prosecutions.
This case arises from the (inadvertent?) changes wrought by the 2018 Farm Bill, which legalized hemp. In response, Wisconsin modified the statute making THC illegal and created an exception for the possession of hemp consistent with the Farm Bill. The Wisconsin Criminal Jury Instructions Committee then modified WIS JI-Criminal 6030, the pattern instruction for possession of a controlled substance, to read that the State must now prove, in a THC prosecution, that the substance meets a specific THC concentration level of 0.3%.
In this case, the State objected to the use of this instruction and asked the circuit court to modify it so as to place the burden of proving the substance wasn’t illegal on Bethke. It relied on several persuasive decisions from foreign jurisdictions. The circuit court, however, denied the State’s motion. This interlocutory appeal followed.
In addition to its reliance on those out-of-state cases, the State also cites to a statute, § 961.56(1), which instructs the reader that “[t]he burden of proof of any exemption or exception [in the controlled substances chapter] is upon the person claiming it.” Bethke, meanwhile, relies on In re Winship, arguing that the State must prove his guilt beyond a reasonable doubt and that failure to place this burden on the State will result in persons being criminalized for conduct that is, in fact, lawful. He denies that the 0.3% exception is affirmative defense and that treating it as such will have serious fairness complications, as the defendant–the person without access to the same resources as the State–must now scientifically prove they have not committed a crime.
As COA notes, there are multiple similar cases working their way through the pipeline. Accordingly, it seems likely that further resources will be used at SCOW to determine an issue that, quite frankly, none of our neighboring states have cause to waste time and money on.