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 drawn as prescribed in
s. 756.096 (3) (a) or
(am), whichever is applicable, and
ch. 805, 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.
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 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
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 impaneled under
s. 972.04 (1).
972.03 History
History: 1983 a. 226;
1995 a. 427.
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 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
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.
972.04
972.04
Exercise of challenges. 972.04(1)
(1) The number of jurors impaneled shall be prescribed in
s. 756.096 (3) (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 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.
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.
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).
972.06
972.06
View. The court may order a view by the jury.
972.06 Annotation
See note to 805.08, citing American Family Mut. Ins. Co. v. Shannon, 120 W (2d) 560, 356 NW (2d) 175 (1984).
972.07
972.07
Jeopardy. Jeopardy attaches:
972.07(1)
(1) In a trial to the court without a jury when a witness is sworn;
972.07(2)
(2) In a jury trial when the selection of the jury has been completed and the jury sworn.
972.07 Annotation
Federal rule that jeopardy attaches when jury is sworn is integral part of guarantee against double jeopardy. Crist v. Bretz, 437 US 28 (1978).
972.08
972.08
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.
972.08(2)
(2) 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.
972.08 Annotation
See note to Art. I, sec. 8, citing State v. Blake, 46 W (2d) 386, 175 NW (2d) 210.
972.08 Annotation
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.
972.08 Annotation
See note to Art. I, sec. 8, citing Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
972.08 Annotation
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.
972.08 Annotation
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.
972.08 Annotation
See note to 48.34, citing State v. J.H.S. 90 W (2d) 613, 280 NW (2d) 356 (Ct. App. 1979).
972.08 Annotation
Sub. (2) does not apply to preliminary proceedings. State v. Gonzales, 172 W (2d) 576, 493 NW (2d) 410 (Ct. App. 1992).
972.08 Annotation
See note to Art. I, sec. 8, citing United States v. Wilson, 421 US 309.
972.08 Annotation
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).
972.085
972.085
Immunity; use standard. Immunity from criminal or forfeiture prosecution under
ss. 13.35,
17.16 (7),
77.61 (12),
93.17,
111.07 (2) (b),
128.16,
133.15,
139.20,
139.39 (5),
195.048,
196.48,
551.56 (3),
553.55 (3),
601.62 (5),
767.47 (4),
885.15,
885.24,
885.25 (2),
891.39 (2),
968.26,
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.
972.085 Note
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).
972.085 History
History: 1989 a. 122;
1995 a. 225,
400; s. 13.93 (2) (c).
972.09
972.09
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.
972.09 History
History: Sup. Ct. Order, 59 W (2d) R1, R6 (1973);
1993 a. 486.
972.09 Annotation
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.
972.09 Annotation
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.
972.09 Annotation
See note to art. I, sec. 11, citing United States v. Havens, 446 US 620 (1980).
972.10(1)(a)(a) After the selection of a jury, the court shall determine if the jurors may take notes of the proceedings:
972.10(1)(a)1.
1. 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.
972.10(1)(a)2.
2. If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.
972.10(1)(b)
(b) 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.
972.10(2)
(2) 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.
972.10(3)
(3) 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.
972.10(4)
(4) 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.
972.10(5)
(5) 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.
972.10(6)
(6) 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.
972.10(7)
(7) 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.
972.10 History
History: 1979 c. 128;
1981 c. 358;
1983 a. 226; Sup. Ct. Order, 130 W (2d) xi (1986);
1993 a. 486;
1995 a. 387.
972.10 Note
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]
972.10 Note
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.
972.10 Annotation
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]
972.10 Annotation
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.
972.10 Annotation
Objection to jury instructions will not be waived when instruction misstates law. Randolph v. State, 83 W (2d) 630, 266 NW (2d) 334 (1978).
972.10 Annotation
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).
972.10 Annotation
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).
972.10 Annotation
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).
972.10 Annotation
Special instruction need not be given because witness has been granted immunity. Linse v. State, 93 W (2d) 163, 286 NW (2d) 554 (1980).
972.10 Annotation
See note to 939.23, citing State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
972.10 Annotation
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).
972.10 Annotation
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).
972.10 Annotation
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).
972.10 Annotation
See note to 805.13, citing In Matter of E. B. 111 W (2d) 175, 330 NW (2d) 584 (1983).
972.10 Annotation
Entrapment instructions upheld. State v. Saternus, 127 W (2d) 460, 381 NW (2d) 290 (1986).
972.10 Annotation
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).
972.10 Annotation
See note to Art. I, sec. 7, citing State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
972.10 Annotation
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).
