CHAPTER 972
CRIMINAL TRIALS
972.01 Jury; civil rules applicable.
972.02 Jury trial; waiver.
972.03 Peremptory challenges.
972.04 Exercise of challenges.
972.08 Incriminating testimony compelled; immunity.
972.085 Immunity; use standard.
972.09 Hostile witness in criminal cases.
972.11 Evidence and practice; civil rules applicable.
972.12 Sequestration of jurors.
972.14 Statements before sentencing.
972.15 Presentence investigation.
Ch. 972 Cross-reference
Cross-reference: See definitions in s.
967.02.
972.01
972.01
Jury; civil rules applicable. The summoning of jurors, the selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as in civil actions, except that
s. 805.08 (3) shall not apply.
972.01 History
History: Sup. Ct. Order, 67 W (2d) 585, 784 (1975); Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
972.01 Annotation
Wis. J. I.—Criminal, 520, the Allen charge, as to the duty of a jury to try to reach agreement, is proper. Kelley v. State, 51 W (2d) 641, 187 NW (2d) 810.
972.02
972.02
Jury trial; waiver. 972.02(1)(1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in
s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under
s. 967.08 (2) (b), on the record, with the approval of the court and the consent of the state.
972.02(2)
(2) At any time before the verdict in a felony case, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than 12. If the case is a misdemeanor case, the jury shall consist of 6 persons.
972.02(3)
(3) In a case tried without a jury the court shall make a general finding and may in addition find the facts specially.
972.02(4)
(4) No member of the grand jury which found the indictment shall be a juror for the trial of the indictment.
972.02 History
History: Sup. Ct. Order, 67 W (2d) 784; Sup. Ct. Order, 141 W (2d) xiii (1987);
1995 a. 427; Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
972.02 Note
Judicial Council Note, 1988: Sub. (1) is amended to reflect that waiver of trial by jury may be made by telephone upon the defendant's request, unless good cause to the contrary is shown. [Re Order effective Jan. 1, 1988]
972.02 Note
Judicial Council Note, 1996: This proposal changes ``drawn" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. [Re Order effective 7-1-97]
972.02 Annotation
A defendant cannot claim that his waiver of a jury, where the record is silent as to acceptance by the court and prosecution, made his subsequent jury trial invalid. Spiller v. State, 49 W (2d) 372, 182 NW (2d) 242.
972.02 Annotation
A defendant can waive a jury after the state has completed its case. Warrix v. State, 50 W (2d) 368, 184 NW (2d) 189.
972.02 Annotation
Where defendant demanded a jury trial he cannot be held to have waived it by participating in a trial to the court. He can raise this question for the first time on appeal. State v. Cleveland, 50 W (2d) 666, 184 NW (2d) 899.
972.02 Annotation
A record demonstrating defendant's willingness and intent to waive jury must be established before accepting waiver. Krueger v. State, 84 W (2d) 272, 267 NW (2d) 602 (1978).
972.02 Annotation
Defense's participation in misdemeanor court trial without objection did not constitute waiver of jury trial. State v. Moore, 97 W (2d) 669, 294 NW (2d) 551 (Ct. App. 1980).
972.02 Annotation
Under facts of case, court abused discretion in discharging juror during deliberations. State v. Lehman, 108 W (2d) 291, 321 NW (2d) 212 (1982).
972.02 Annotation
Trial court may not deny accused's motion to withdraw jury waiver without showing that granting withdrawal would substantially delay or impede cause of justice. State v. Cloud, 133 W (2d) 58, 393 NW (2d) 129 (Ct. App. 1986).
972.02 Annotation
Waiver of jury trial must be made by affirmative action of defendant; neither counsel nor court may waive it on defendant's behalf. If defendant has not personally waived right, proper remedy is new trial rather than postconviction hearing. State v. Livingston, 159 W (2d) 561, 464 NW (2d) 839 (1991).
972.02 Annotation
Verdict of thirteen member jury panel agreed to by defense and prosecution was not invalid. State v. Ledger, 175 W (2d) 116, 499 NW (2d) 199 (Ct. App. 1993).
972.02 Annotation
Where 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 W (2d) 25, 553 NW (2d) 528 (Ct. App. 1995).
972.02 Annotation
Waiver of jury in Wisconsin. 1971 WLR 626.
972.03
972.03
Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When the crime charged is punishable by life imprisonment, the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges. If the crime is punishable by life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges. Each side shall be allowed one additional peremptory challenge if additional jurors are to be selected under
s. 972.04 (1).
972.03 History
History: 1983 a. 226;
1995 a. 427; Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
972.03 Note
Judicial Council Note, 1983: This section is amended by allowing one additional peremptory challenge when additional jurors are to be impaneled. This approximates the right of each side under prior s. 972.05 to one additional peremptory challenge for each alternate juror. Since abolition of the concept of "alternate" jurors permits the additional peremptory challenge to be made to any member of the panel, only one additional challenge is permitted. [Bill 320-S]
972.03 Note
Judicial Council Note, 1996: This proposal changes ``impaneled" to ``selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. [Re Order effective 7-1-97.]
972.03 Annotation
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).
972.03 Annotation
A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a bald statement than that other nonprohibited factors were considered. There must be a showing that there is a nexus between legitimate factors and the juror who was struck. State v. Jagadowsky, 209 W (2d) 577, 563 NW (2d) 188 (Ct. App. 1997).
972.03 Annotation
A potential juror who expressed that she could not be fair and impartial 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 resulted in the defendant being denied one of the peremptory strikes guaranteed under s. 972.03 and required a new trial. State v. Ramos, 211 W (2d) 12, 564 NW (2d) 328 (1997).
972.03 Annotation
An appellate court should overturn a circuit court's determination that a prospective juror can be impartial only where the juror's bias is manifest; not where there is a reasonable suspicion of bias. Test for manifest bias stated. State v. Ferron, 219 W (2d) 481, 579 NW (2d) 654 (1998).
972.03 Annotation
There is no automatic disqualification of potential jurors who have been convicted of crimes. It was error to dismiss potential jurors for cause solely because of their convictions. In effect the state was given additional peremptory strikes in violation of this section, requiring reversal of the defendant's conviction. State v. Mendoza, 220 W (2d) 803, 584 NW (2d) 174 (Ct. App. 1998).
972.03 Annotation
It was error for the trial court not to strike 5 potential jurors who had served on a prior case where the same defense was used when they expressed that they would not give serious consideration to the defense. State v. Kiernan, 221 W (2d) 126, 584 NW (2d) 203 (Ct. App. 1998)
972.03 Annotation
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.
972.03 Annotation
Gender-based peremptory strikes are barred by the equal protection clause. J.E.B. v. Alabama ex rel. T.B. 511 US 127, 128 LEd 2d 89 (1994).
972.04
972.04
Exercise of challenges. 972.04(1)
(1) The number of jurors selected shall be prescribed in
s. 756.06 (2) (a) or
(am), 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 selected. 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.
972.04(2)
(2) 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.
972.04 History
History: 1983 a. 226; 1995 a.. 427; Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
972.04 Note
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]
972.04 Annotation
See note to 805.08, citing Press-Enterprise Co. v. Superior Court of Cal. 464 US 501 (1984).
