When there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror's names, employment, and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court's discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1995), 95-0891.
Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.
A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 95-1946.
A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror, which violated the defendant's right to due process. State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96-3425. But for a review of this case to apply new terminology regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics were also considered. State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97-1509.
An objection that peremptory challenges were racially motivated in violation of Basten must be made prior to the time the jury is sworn. State v. Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998), 97-1002.
The use of and procedure for juror questioning of witnesses is discussed. State v. Darcy N.K. 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998), 97-0458.
Art. I, s. 7 guarantees the right to a jury of 12 in all criminal cases whether felony or misdemeanor. State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), 97-0885.
A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111.
Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111.
Failure to respond truthfully to voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97-1276.
A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant's agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97-2702. Affirmed, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect responses to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999), 96-2194. But for a review of this case to apply new terminology regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
The terms "statutory bias," subjective bias," and "objective bias" are adopted as the proper terms for referring to types of jury bias, replacing the terms "implied bias," "subjective bias," and "objective bias." State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
Statutory bias refers to those situations described in s. 805.08 (1); a person falling within one of the descriptions there may not serve regardless of the ability to be impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed an opinion, that situation more properly qualifies as subjective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on voir dire; it refers to the juror's state of mind. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
State v. Wyss, 124 Wis. 2d 470, Louis, Gescch, State v. Messelt, 185 Wis. 2d 254, Ferron, Delgado, and State v. Broomfield, 223 Wis. 2d 465, are cases through which jury bias jurisprudence has evolved; where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
Veteran jurors cannot be removed solely on the basis of having served as jurors in a similar case, but must be shown to have exhibited bias in the case they are called to hear. It was error for the trial court not to strike 5 potential jurors who had served on a prior case in which the same defense was used when the jurors expressed that they would not give serious consideration to the defense. State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999), 97-2449.
A defendant is not entitled to a new trial when both the prosecution and defense are given an equal number of peremptory strikes, even if the number is less than provided for by statute. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273.
There is no automatic disqualification of potential jurors who have been convicted of crimes. The erroneous dismissal of a prospective juror for cause does not constitute an additional peremptory challenge for the moving party; it is an error subject to harmless error analysis. State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (Ct. App. 1998), 97-0952.
Hansford applies retroactively only to those cases in which the issue of a six-person jury was raised before trial. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909.
Stipulating to an element of a crime did not deny the constitutional right to a jury trial when the jury was instructed on the element and the court did not resolve the issue on its own. State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999), 98-1531. See also Walworth County DH&HS v. Andrea L.O. 2008 WI 46, ___ Wis. 2d___, ___ N.W.2d ___, 07-0008.
Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror's subjective bias is generally ascertained by that person's responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), 98-1091.
The defendant was not automatically entitled to a new trial when, in waiving the right to a jury trial, the trial court did not advise that a jury verdict must be unanimous. The appropriate remedy is through a postconviction motion that, as a threshold requirement, must contain an allegation that the defendant did not know or understand the rights at issue. State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct. App. 1999), 98-2206.
A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the 3rd degree under Gesch who be struck for cause as the relationship constitutes statutory bias. Failure to do so is grounds for reversal and a new trial. State v. Czarnecki, 231 Wis. 2d 1, 604 N.W.2d 891 (Ct. App. 1999), 98-2406.
The right to a jury trial guaranteed by art. I, ss. 5 and 7, includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.
Peremptory challenges may not be exercised, and therefore not changed, after the parties have accepted the jury, even if the jury has not yet been sworn. State v. Nantelle, 2000 WI App 110, 235 Wis. 2d 91, 612 N.W.2d 356, 99-2159.
A party who during voir dire neither requests further questioning nor objects to the seating of a juror may not later allege error in the trial court's failure to act sua sponte in regard to a juror who may not be impartial. State v. Williams, 2000 WI App. 123, 237 Wis. 2d 591, 614 N.W.2d 11, 99-0812.
The right to a jury trial guaranteed by art. I, ss. 5 and 7 includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.
Inconvenience and inability to work during regular working hours cannot result in bias sufficient to strike a juror for cause. State v. Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717, 99-2249.
A challenge under Batson that a peremptory strike was solely because of race does not require a post-verdict evidentiary hearing and must be decided based on what the prosecutor believed at the time the strike was made. A defendant must show that the prosecutor intentionally misrepresented the facts that were relied on or that the prosecutor had been told those facts but knew they were erroneous. State v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711, 00-0961.
The trial court's failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with one of the peremptory strikes guaranteed under s. 972.03, did not require a new trial when the defendant received a fair trial. The harmless error test is applicable. Overturns State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), 94-3036. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, 99-2704.
When a jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although the jury had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176.
Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge's obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3). The task need not be performed by a judge in court or with the prospective juror present in person, and may take place in advance of a particular trial. A defendant's presence cannot be required when the judge or clerk is acting in an administrative capacity under s. 756.03. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821.
Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant's conviction. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084.
Absent waiver, a trial court's communication with a deliberating jury in the absence of the defendant and defense counsel violates the right to be present at trial and to have counsel at every stage that the defendant may need aid with legal problems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084.
To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: 1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people who must agree on all elements of the crime charged; 3) was aware of the nature of a court trial, such that the judge will decide his or her guilt; and 4) had enough time to discuss the decision with counsel. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.
If the trial court fails to conduct a colloquy with the defendant regarding the waiver of the right to a jury trial, a reviewing court may not find, based on the record, that there was a valid waiver. As a remedy, the circuit court must hold an evidentiary hearing on whether the waiver was knowing, intelligent, and voluntary. If the state is unable to show by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived the right, the defendant is entitled to a new trial. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.
A prospective juror who openly admits bias and is never questioned about his or her partiality is subjectively biased as a matter of law. State v. Carter, 2002 WI App 55, 250 Wis. 2d 851, 641 N.W.2d 517, 01-2303.
A jury instruction directing the jury to accept a judicially-noticed fact as true when applied to an element of a criminal offense eliminates the jury's opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element and is constitutional error, although it is subject to harmless error analysis. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541.
Whether a defendant waived the right to have the jury determine all the elements of the crime or only some of them and whether the defendant gave up a jury trial in lieu of a determination by the circuit court or stipulated to the elements, the waiver analysis is the same. Any waiver must be made personally on the record by the defendant. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, 01-1668.
If a court withholds any juror information in open court, it must both: 1) find that the jury needs protection; and 2) take reasonable precautions to avoid prejudicing the defendant. When jurors' names are withheld, the court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. State v. Tucker, 2003 WI 12, 259 Wis. 2d 484, 657 N.W.2d 374, 00-3354.
An ability to understand the English language is necessary in order to satisfy the statutory requirements of ss. 756.02 and 756.04. If a juror cannot meet the statutory requirements the entire trial process may be nothing more than an "exercise in futility." A defendant was prejudiced when a juror was was allowed to serve as a juror who was not qualified under the statutes and did not have a sufficient understanding of English so that he could meaningfully participate in the trial process. State v. Carlson, 2003 WI 40, 261 Wis. 2d 97, 661 N.W.2d 51, 01-1136.
While a limited class of errors is deemed structural, requiring automatic reversal regardless of any effect on the outcome, most errors, including constitutional ones, are reviewed for harmlessness. Harmless error analysis applies to an erroneous jury instruction that operated as a mandatory conclusive presumption on an element of a penalty enhancer. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.
An accused's right to a unanimous verdict is not violated every time a judge instructs a jury on a statute that presents multiple modes of commission and does not select one among the many modes of commission. An argument that an instruction leads to a constitutionally infirm verdict must address the legislature's intent in enacting the statute and, if multiple modes of commission are found, whether the choice provided is constitutionally unacceptable. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.
A prosecutor's knowledge that a challenged juror possessed the same name as known criminals in the area, the location of a venireperson's residence when a residential location has some relationship to the facts of the case, failure to disclose during voir dire any police contacts at his or her residence when research revealed such contacts, and employment, or unemployment status, all may be race-neutral explanations for a peremptory strike. Individual follow-up questions on voir dire are not required in order to strike a potential juror. State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607, 00-3403.
Whether a prosecutor's conduct during closing argument affects the fairness of a trial is determined by viewing the statements in the context of the total trial. A line of demarcation is drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and suggests the jury arrive at a verdict by considering factors other than the evidence. Argument on matters not in evidence is improper. State v. Smith, 2003 WI App 234, 268 Wis. 2d 138, 671 N.W.2d 854, 02-3404.
There is no constitutional right to waive a jury and be tried by a judge. A prosecutor's decision to withhold consent to a defendant's requested waiver of his or her right to a jury trial, as required by statute, is not reviewable. A trial court need not justify its refusal to approve the waiver. State v. Burks, 2004 WI App 14, 268 Wis. 2d 747, 674 N.W.2d 640, 03-0472.
Reinstruction that presents for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances. State v. Thurmond, 2004 WI App 49, 270 Wis. 2d 477, 677 N.W.2d 655, 03-0191.
When counsel fails to object under Batson to peremptory strikes on the grounds they were improperly based on race or gender, the defendant claiming harm must establish that had trial counsel made the Batson objection there is a reasonable probability that it would have been sustained and the trial court would have taken the appropriate curative action. Discriminatory intent is a question of historical fact. The essential inquiry is whether the prosecutor had viable neutral explanations for the peremptory challenges. State v. Taylor, 2004 WI App 81, 272 Wis. 2d 642, 679 N.W.2d 893, 03-1509.
The verdict of a jury must be arrived at freely and fairly. The validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court. The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Defendants may waive the right by failing to ask for a poll in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770.
A court has two options if a juror dissents during jury polling or assents merely an accommodation against the juror's conscience: return the jury for continued deliberations or determine that further deliberations would be fruitless and grant a mistrial. If a juror gives an ambiguous or ambivalent assent the court may question the juror further. When initially asked by the court, "Is this your verdict?" and the juror first replied, "Can I ask a question?" and then with an unambiguous "no," the court could only have granted a mistrial or returned the jury for further deliberations. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770.
An administrative assistant employed by a county district attorney's office was not objectively biased because she worked for the same entity as the prosecuting attorney. The court declines to create a per se rule that excludes potential jurors for the sole reason that they are employed by a district attorney's Office. State v. Smith, 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482, 04-2035.
A judge's interruptions of a juror's answers to questions regarding her agreement with the verdict and the judge's insistence that the form showed a unanimous verdict strongly suggested that the juror may have felt pressure and intimidation, and that she may have misunderstood the verdict reached in the jury room. Although the juror expressed agreement with subsequent statements, because the juror was cut off when attempting to answer whether she found the defendant guilty or not guilty, and never actually gave an answer, the juror could not be said to have found the defendant guilty on count one. Consequently, the verdictwas not unanimous. State v. Dukes, 2007 WI App 175, 303 Wis. 2d 208, 736 N.W.2d 215, 06-2127.
The trial court has an affirmative, sua sponte duty to inquire into the necessity for a defendant to wear a visible electronic security device during trial once the court becomes aware of the situation. A trial court maintains the discretion to decide whether a defendant should be restrained during a trial as long as the reasons justifying the restraints have been set forth in the record. It is an erroneous exercise of discretion to rely primarily upon law enforcement department procedures instead of considering the risk a particular defendant poses for violence or escape. State v. Champlain, 2008 WI App 5, ___ Wis. 2d ___, 744 N.W.2d 889, 06-2435.
Whenever a defendant wears a restraint in the presence of jurors trying the case, the court should instruct that the restraint is not to be considered in assessing the proof and determining guilt. Counsel's failure to object to the device constituted ineffective assistance of counsel. State v. Champlain, 2008 WI App 5, ___ Wis. 2d ___, 744 N.W.2d 889, 06-2435.
While the prosecutor may strike hard blows during closing argument, the prosecutor's duty is to refrain from using improper methods. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. State v. Weiss, 2008 WI App 72, ___ Wis. 2d___, ___ N.W.2d ___, 07-0778.
A demonstration of the specific bias of a juror is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality the trial court does not have a concern about. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding potential impartiality. The trial court has a duty to ensure that the impaneled jury is an impartial one; one that is free of bias or prejudice. State v. Gonzalez, 2008 WI App 142, ___ Wis. 2d ___, ___ N.W.2d ___, 07-2160.
In nonsummary criminal contempt proceedings, the alleged contemnor has a right to a jury trial if the sentences imposed aggregate more than 6 months. Codispoti v. Pennsylvania, 418 U.S. 506.
The court erred by communicating with the jury and agreeing to accept a guilty verdict "with extreme mercy" without notifying defense counsel. Rogers v. United States, 422 U.S. 35.
A Missouri law that granted women an exemption from jury duty on request, resulting in low representation of women on panels, violated the "fair cross section" requirement of the 6th amendment. Duren v. Missouri, 439 U.S. 357 (1979).
When community sentiment against the accused had softened by the time of trial 4 years after a heinous crime, the trial court did not commit "manifest error" in finding the jury as a whole was impartial. Patton v. Yount, 467 U.S. 1025 (1984).
A black defendant was denied equal protection through the state's use of peremptory challenges to exclude all blacks from the jury. Batson v. Kentucky, 476 U.S. 79 (1986). See also Purkett v. Elem, 515 U.S. 1170, 132 Ed 2d 874 (1995).
The "fair cross section" element to the right to trial by jury does not provide a constitutional basis for a challenge to the prosecution's peremptory striking of jurors on the basis of race. Holland v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905 (1990).
Equal protection precludes prosecutor's use of peremptory challenge to exclude potential jurors solely by reason of race. A criminal defendant may 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 U.S. 400, 113 L. Ed. 2d 411 (1991).
When potential jurors had seen news reports about the defendant's alleged crime, the judge's refusal to question those prospective jurors about the specific content of those reports did not violate right to an impartial jury. Mu'Min v. Virginia, 500 U.S. 415, 114 L. Ed. 2d 493 (1991).
A criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges of potential jurors. Georgia V. McCollum, 505 U.S. 42, 120 L. Ed. 33 (1992).
A constitutionally deficient instruction regarding proof beyond a reasonable doubt can never be harmless error. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182 (1993).
Gender-based peremptory strikes are barred by the equal protection clause. J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127, 128 L. Ed. 2d 89 (1994).
Batson established a 3-step process for the constitutional review of allegedly race-based peremptory strikes: 1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose: 2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes; and 3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162 L. Ed. 2d 129, 125 S. Ct. 2410 (2005). See also Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005).
It was not intended that the first Batson step be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with certainty, that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California, 545 U.S. 162, 162 L. Ed. 2d 129, 125 S. Ct. 2410 (2005).
If the issue of jury bias surface during or before, trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004).
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
Unanimous verdict not constitutionally required in state criminal cases. Johnson, 1973 WLR 926.
SPEEDY AND PUBLIC TRIAL
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. 2d 563, 193 N.W.2d 682.
A delay of 5 weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive speedy trial. Taylor v. State, 55 Wis. 2d 168, 197 N.W.2d 805.
Failure to demand a speedy trial is weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299.
The speedy trial provisions of the constitution were designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305.
The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354.
A delay of 84 days between the defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696.
Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Cir. Ct. 141 Wis. 2d 239, 414 N.W.2d 832 (1987).
The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990).
The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993).
Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant's assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98-0567.
The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, 638 N.W.2d 910, 01-0282.
The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603.
When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial was violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04-3014.
