Defendant has heavy burden to show unlawful discrimination in prosecutor's peremptory challenges. State v. Grady, 93 W (2d) 1, 286 NW (2d) 607 (Ct. App. 1979).
Equal protection precludes prosecutor's use of peremptory challenge to exclude potential jurors solely by reason of race; criminal defendant can raise the equal protection claim that jurors were excluded because of their race whether or not there is racial identity between the defendant and the excluded jurors. Powers v. Ohio, 499 US 400, 113 LEd 2d 411 (1991). See also Basten v. Kentucky, 476 US 79, 90 LEd 2d 69 (1986) for process for evaluating claim that race was sole basis for peremptory challenge.
Exercise of challenges. 972.04(1)
The number of jurors impaneled shall be prescribed in s. 756.096 (3) (a)
, whichever is applicable unless a lesser number has been stipulated and approved under s. 972.02 (2)
or the court orders that additional jurors be impaneled. That number, plus the number of peremptory challenges available to all the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.
A party may waive in advance any or all of its peremptory challenges and the number of jurors called pursuant to sub. (1)
shall be reduced by this number.
History: 1983 a. 226
; 1995 a.. 427.
Judicial Council Note, 1983: Sub. (1) is amended by allowing the court to order that additional jurors be impaneled. The size of the panel is then reduced to the appropriate number by lot immediately before final submission if that has not already occurred through death or discharge of a juror. See s. 972.10 (7), stats. Abolition of the concept of "alternate" jurors is intended to promote an attentive attitude and a collegial relationship among all jurors. [Bill 320-S]
See note to 805.08, citing Press-Enterprise Co. v. Superior Court of Cal. 464 US 501 (1984).
The court may order a view by the jury.
See note to 805.08, citing American Family Mut. Ins. Co. v. Shannon, 120 W (2d) 560, 356 NW (2d) 175 (1984).
In a trial to the court without a jury when a witness is sworn;
In a jury trial when the selection of the jury has been completed and the jury sworn.
Federal rule that jeopardy attaches when jury is sworn is integral part of guarantee against double jeopardy. Crist v. Bretz, 437 US 28 (1978).
Incriminating testimony compelled; immunity. 972.08(1)(a)(a)
Whenever any person refuses to testify or to produce books, papers or documents when required to do so before any grand jury, in a proceeding under s. 968.26
or at a preliminary examination, criminal hearing or trial for the reason that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a forfeiture or penalty, the person may nevertheless be compelled to testify or produce the evidence by order of the court on motion of the district attorney. No person who testifies or produces evidence in obedience to the command of the court in that case may be liable to any forfeiture or penalty for or on account of testifying or producing evidence, but no person may be exempted from prosecution and punishment for perjury or false swearing committed in so testifying.
Whenever a witness attending in any court trial or appearing before any grand jury or John Doe investigation fails or refuses without just cause to comply with an order of the court under this section to give testimony in response to a question or with respect to any matter, the court, upon such failure or refusal, or when such failure or refusal is duly brought to its attention, may summarily order the witness's confinement at a suitable place until such time as the witness is willing to give such testimony or until such trial, grand jury term or John Doe investigation is concluded but in no case exceeding one year. No person confined under this section shall be admitted to bail pending the determination of an appeal taken by the person from the order of confinement.
See note to Art. I, sec. 8, citing State v. Blake, 46 W (2d) 386, 175 NW (2d) 210.
The district attorney is required to move that witnesses be granted immunity before the court can act. The trial court has no discretion to act without a motion and a defendant cannot invoke the statute. Elam v. State, 50 W (2d) 383, 184 NW (2d) 176.
See note to Art. I, sec. 8, citing Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
An order by a judge to compel a witness in a John Doe proceeding to testify after refusal on the ground of self-incrimination must be done in open court. State ex rel. Newspapers, Inc. v. Circuit Court, 65 W (2d) 66, 221 NW (2d) 894.
In considering whether to move for immunity for a witness a district attorney should bear in mind that his duty is not merely to convict but to seek impartial justice, and he should not hesitate to move for immunity solely on the ground that the testimony thus elicited might exonerate the defendant. Peters v. State, 70 W (2d) 22, 233 NW (2d) 420.
See note to 48.34, citing State v. J.H.S. 90 W (2d) 613, 280 NW (2d) 356 (Ct. App. 1979).
Sub. (2) does not apply to preliminary proceedings. State v. Gonzales, 172 W (2d) 576, 493 NW (2d) 410 (Ct. App. 1992).
See note to Art. I, sec. 8, citing United States v. Wilson, 421 US 309.
Defendant seeking review of prosecutor's immunization decision must make substantial evidentiary showing that government intended to distort judicial fact-finding process. Stuart v. Gagnon, 614 F Supp. 247 (1985).
Immunity; use standard.
Immunity from criminal or forfeiture prosecution under ss. 13.35
, 17.16 (7)
, 77.61 (12)
, 111.07 (2) (b)
, 139.39 (5)
, 551.56 (3)
, 553.55 (3)
, 601.62 (5)
, 767.47 (4)
, 885.25 (2)
, 891.39 (2)
, 972.08 (1)
and 979.07 (1)
and ch. 769
, provides immunity only from the use of the compelled testimony or evidence in subsequent criminal or forfeiture proceedings, as well as immunity from the use of evidence derived from that compelled testimony or evidence.
NOTE: This section is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
History: 1989 a. 122
; 1995 a. 225
; s. 13.93 (2) (c).
Hostile witness in criminal cases.
Where testimony of a witness at any preliminary examination, hearing or trial in a criminal action is inconsistent with a statement previously made by the witness, the witness may be regarded as a hostile witness and examined as an adverse witness, and the party producing the witness may impeach the witness by evidence of such prior contradictory statement. When called by the defendant, a law enforcement officer who was involved in the seizure of evidence shall be regarded as a hostile witness and may be examined as an adverse witness at any hearing in which the legality of such seizure may properly be raised.
Sup. Ct. Order, 59 W (2d) R1, R6 (1973); 1993 a. 486
Defendant was not prejudiced by receipt in evidence of the hostile state witness' entire statement rather than only those portions she acknowledged at trial, for while prior inconsistent statements may not be introduced until they have been read to the witness in order that the witness may explain the contradiction, it appeared herein that the unread portion of the statement was not inconsistent with the witness' testimony at trial, but would have been objectionable as hearsay if such objection had been made. Where the question is raised as to the propriety of use of a prior inconsistent statement of a witness, and request is made for hearing outside the presence of the jury, the more appropriate procedure is to excuse the jury; however, such request is addressed to the discretion of the trial court and will not constitute grounds for reversal unless there is a showing of prejudicial effect on the jury or denial of defendant to his right to a fair trial. Bullock v. State, 53 W (2d) 809, 193 NW (2d) 889.
This section does not forbid the use of prior inconsistent statements of a witness as substantive evidence when no objection is made by counsel. There is no duty on the trial court to sua sponte reject the evidence or to instruct the jury that the evidence is limited to impeachment. Irby v. State, 60 W (2d) 311, 210 NW (2d) 755.
See note to art. I, sec. 11, citing United States v. Havens, 446 US 620 (1980).
After the selection of a jury, the court shall determine if the jurors may take notes of the proceedings:
If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of the proceedings, except the opening statements and closing arguments, if they so desire and that the court will provide materials for that purpose if they so request. The court shall stress the confidentiality of the notes to the jurors. The jurors may refer to their notes during the proceedings and deliberation. The notes may not be the basis for or the object of any motion by any party. After the jury has rendered its verdict, the court shall ensure that the notes are promptly collected and destroyed.
If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.
The court may give additional preliminary instructions to assist the jury in understanding its duty and the evidence it will hear. The preliminary instructions may include, without limitation, the elements of any offense charged, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin. The additional instructions shall be disclosed to the parties before they are given and either party may object to any specific instruction or propose instructions of its own to be given prior to trial.
In a trial where the issue is mental responsibility of a defendant, the defendant may make an opening statement on such issue prior to the defendant's offer of evidence. The state may make its opening statement on such issue prior to the defendant's offer of evidence or reserve the right to make such statement until after the defendant has rested.
The state first offers evidence in support of the prosecution. The defendant may offer evidence after the state has rested. If the state and defendant have offered evidence upon the original case, the parties may then respectively offer rebuttal testimony only, unless the court in its discretion permits them to offer evidence upon their original case.
At the close of the state's case and at the conclusion of the entire case, the defendant may move on the record for a dismissal.
When the evidence is concluded and the testimony closed, if either party desires special instructions to be given to the jury, the instructions shall be reduced to writing, signed by the party or his or her attorney and filed with the clerk, unless the court otherwise directs. Counsel for the parties, or the defendant if he or she is without counsel, shall be allowed reasonable opportunity to examine the instructions requested and to present and argue to the court objections to the adoption or rejection of any instructions requested by counsel. The court shall advise the parties of the instructions to be given. No instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such instruction is the fact the name of the witness appears upon a list furnished pursuant to s. 971.23
. Counsel, or the defendant if he or she is not represented by counsel, shall specify and state the particular ground on which the instruction is objected to, and it shall not be sufficient to object generally that the instruction does not state the law, or is against the law, but the objection shall specify with particularity how the instruction is insufficient or does not state the law or to what particular language there is an objection. All objections shall be on the record. The court shall provide the jury with one complete set of written instructions providing the burden of proof and the substantive law to be applied to the case to be decided.
In closing argument, the state on the issue of guilt and the defendant on the issue of mental responsibility shall commence and may conclude the argument.
If additional jurors have been impaneled under s. 972.04 (1)
and the number remains more than required at final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them.
History: 1979 c. 128
; 1981 c. 358
; 1983 a. 226
; Sup. Ct. Order, 130 W (2d) xi (1986); 1993 a. 486
; 1995 a. 387
Judicial Council Note, 1983: Sub. (7) requires the court to reduce the size of the jury panel to the proper number immediately prior to final submission of the cause. Unneeded jurors must be determined by lot and these may not participate in deliberations. State v. Lehman, 108 Wis. 2d 291
(1982). [Bill 320-S]
Judicial Council Note, 1986: Sub. (1) (b) is amended to provide that preliminary instructions may include the elements of any offense charged, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin.
Sub. (5) is amended to require that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]
No potential coercion was exerted by the trial court in its further supplemental statement made to the jury requesting it to continue its deliberations for the next half hour or hour, and if not then agreed, overnight hotel arrangements would be made. Ziegler v. State, 65 W (2d) 703, 223 NW (2d) 442.
Objection to jury instructions will not be waived when instruction misstates law. Randolph v. State, 83 W (2d) 630, 266 NW (2d) 334 (1978).
If defendant moves for dismissal at close of state's case and then presents evidence, appellate court will consider all evidence of guilt in ruling on motion. State v. Gebarski, 90 W (2d) 754, 280 NW (2d) 672 (1979).
Refusal to give jury special instructions on identification was not abuse of discretion. Hampton v. State, 92 W (2d) 450, 285 NW (2d) 868 (1979).
Control of content and duration of closing argument is within discretion of trial court. State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
Special instruction need not be given because witness has been granted immunity. Linse v. State, 93 W (2d) 163, 286 NW (2d) 554 (1980).
See note to 939.23, citing State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
Defendant who chose to be represented by counsel had no right to address jury personally in closing argument. Robinson v. State, 100 W (2d) 152, 301 NW (2d) 429 (1981).
Court refuses to extend "theory of defense instruction" to include legal basis for motivation of witness who is not a defendant. State v. Dean, 105 W (2d) 390, 314 NW (2d) 151 (Ct. App. 1981).
Unless defendant consents, it is reversible error for court to substitute alternate juror for regular juror after jury deliberations have begun. State v. Lehman, 108 W (2d) 291, 321 NW (2d) 212 (1982).
See note to 805.13, citing In Matter of E. B. 111 W (2d) 175, 330 NW (2d) 584 (1983).
Entrapment instructions upheld. State v. Saternus, 127 W (2d) 460, 381 NW (2d) 290 (1986).
Court must inform counsel of changes it makes to jury instructions following instructions conference. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
See note to Art. I, sec. 7, citing State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 W (2d) 346, 535 NW (2d) 1 (Ct. App. 1995).
See note to Art. I, sec. 7, citing Herring v. New York, 422 US 853.
See note to Art. I, sec. 3, citing Richmond Newspapers, Inc. v. Virginia, 448 US 555 (1980).
Evidence and practice; civil rules applicable. 972.11(1)(1)
Except as provided in subs. (2)
, the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885
, except ss. 804.02
, shall apply in all criminal proceedings.
In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
If the defendant is accused of a crime under s. 940.225
, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11)
Evidence of the complaining witness's past conduct with the defendant.
Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
Notwithstanding s. 901.06
, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b)
applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1.
If the defendant is accused of a crime under s. 940.225
, evidence of the manner of dress of the complaining witness at the time when the crime occurred is admissible only if it is relevant to a contested issue at trial and its probative value substantially outweighs all of the following:
The danger of unfair prejudice, confusion of the issues or misleading the jury.
The considerations of undue delay, waste of time or needless presentation of cumulative evidence.
The court shall determine the admissibility of evidence under subd. 1.
upon pretrial motion before it may be introduced at trial.
In a prosecution under s. 940.22
involving a therapist and a patient or client, evidence of the patient's or client's personal or medical history is not admissible except if:
The defendant requests a hearing prior to trial and makes an offer of proof of the relevancy of the evidence; and
The court finds that the evidence is relevant and that its probative value outweighs its prejudicial nature.
The court shall limit the evidence admitted under par. (a)
to relevant evidence which pertains to specific information or examples of conduct. The court's order shall specify the information or conduct that is admissible and no other evidence of the patient's or client's personal or medical history may be introduced.