Effective date note
Judicial Council Note, 1996: This proposal changes ``impaneled" to ``selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Adding the last sentence [to (2)] is intended to allow courts to keep additional jurors to replace any juror who might not be able to complete deliberations. Deliberations would begin anew with the additional juror in place [Re SCO No. 96-08 eff. 7-1-97].
805.08 Annotation
Case law makes clear that challenge for principal cause cannot be predicated on a ground not delineated in (1). Therefore, disqualification because of a juror's affiliation or interest in the insurance industry requires proof of bias or prejudice. Nolan v. Venus Ford, Inc. 64 W (2d) 215, 218 NW (2d) 507.
805.08 Annotation
Trial court did not abuse discretion in failing to strike for cause 3 veniremen who were friends of a prosecution witness where there was no showing of probable prejudice. Nyberg v. State, 75 W (2d) 400, 249 NW (2d) 524.
805.08 Annotation
Mere expression of predetermined opinion as to guilt during voir dire does not disqualify juror per se. Hammill v. State, 89 W (2d) 404, 278 NW (2d) 821 (1979).
805.08 Annotation
Disproportionate representation of group in one array is insufficient to establish systematic exclusion. State v. Pruitt, 95 W (2d) 69, 289 NW (2d) 343 (Ct. App. 1980).
805.08 Annotation
Trial court, sitting as trier of fact, committed error of law in making and relying on unrequested, unannounced, unaccompanied and unrecorded view of accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon, 120 W (2d) 560, 356 NW (2d) 175 (1984).
805.08 Annotation
See note to 752.35, citing State v. Wyss, 124 W (2d) 681, 370 NW (2d) 745 (1985).
805.08 Annotation
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis, 156 W (2d) 470, 457 NW (2d) 484 (1990).
805.08 Annotation
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 W (2d) 660, 482 NW (2d) 99 (1992).
805.08 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).
805.08 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).
805.08 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).
805.08 Annotation
There is no automatic disqualification of potential jurors who have been convicted of crimes. State v. Mendoza, 220 W (2d) 803, 584 NW (2d) 174 (Ct. App. 1998).
805.08 Annotation
Guarantees of open public proceedings in criminal trials includes voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court of Cal. 464 US 501 (1984).
805.08 Annotation
No new trial was required where juror's failure to disclose during voir dire was harmless. Mc Donough Power Equipment, Inc. v. Greenwood, 464 US 548 (1984).
805.08 Annotation
Use of peremptory challenges by private litigant in civil action to exclude potential jurors solely because of race violates equal protection. Edmonson v. Leesville Concrete Co., 500 US 614, 114 LEd 2d 660 (1991).
805.08 Annotation
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
805.08 Annotation
See also notes to Article I, section 7.
805.09
805.09
Juries of fewer than 12; five-sixths verdict. 805.09(2)
(2) Verdict. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.
805.09 History
History: Sup. Ct. Order, 67 W (2d) 585, 700 (1975);
1977 c. 318;
1977 c. 447 s.
210; Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
805.09 Annotation
"Claim-by-claim" analysis of multiple-question verdicts discussed. Giese v. Montgomery Ward, Inc. 111 W (2d) 392, 331 NW (2d) 585 (1983).
805.10
805.10
Examination of witnesses; arguments. Unless the judge otherwise orders, not more than one attorney for each side shall examine or cross-examine a witness and not more than 2 attorneys on each side shall sum up to the jury. The plaintiff shall be entitled to the opening and final rebuttal arguments. Plaintiff's rebuttal shall be limited to matters raised by any adverse party in argument. Waiver of argument by either party shall not preclude the adverse party from making any argument which the adverse party would otherwise have been entitled to make. Before the argument is begun, the court may limit the time for argument.
805.10 History
History: Sup. Ct. Order, 67 W (2d) 585, 701 (1975);
1975 c. 218.
805.10 Annotation
Attorney's concession during closing argument that client was negligent could not be construed as binding admission. Kuzmic v. Kreutzmann, 100 W (2d) 48, 301 NW (2d) 266 (Ct. App. 1980).
805.10 Annotation
This section authorizes judge to allow more than 2 attorneys on each side to sum up to jury but judge may not limit to fewer than 2 on each side. In Interest of C.E.W. 124 W (2d) 47, 368 NW (2d) 47 (1985).
805.11
805.11
Objections; exceptions. 805.11(1)
(1) Any party who has fair opportunity to object before a ruling or order is made must do so in order to avoid waiving error. An objection is not necessary after a ruling or order is made.
805.11(2)
(2) A party raising an objection must specify the grounds on which the party predicates the objection or claim of error.
805.11(3)
(3) Exceptions shall never be made.
805.11 History
History: Sup. Ct. Order, 67 W (2d) 585, 701 (1975);
1975 c. 218.
805.12
805.12
Special verdicts. 805.12(1)(1)
Use. Unless it orders otherwise, the court shall direct the jury to return a special verdict. The verdict shall be prepared by the court in the form of written questions relating only to material issues of ultimate fact and admitting a direct answer. The jury shall answer in writing. In cases founded upon negligence, the court need not submit separately any particular respect in which the party was allegedly negligent. The court may also direct the jury to find upon particular questions of fact.
805.12(2)
(2) Omitted issue. When some material issue of ultimate fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, the issue shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on the issue shall be deemed a waiver of jury trial on that issue.
805.12(3)
(3) Clerk's entries after verdict. Upon receiving a verdict, the clerk shall make an entry on the minutes specifying the time the verdict was received and the court's order setting time for motions after verdict under
s. 805.16. The verdict and special findings shall be filed.
805.12 History
History: Sup. Ct. Order, 67 W (2d) 585, 702 (1975);
1975 c. 218.
805.12 Annotation
If court can find as matter of law that party is causally negligent, contrary to jury's answer, and jury attributes some degree of comparative negligence to that party, court should change causal negligence answer and permit jury's comparison to stand. Ollinger v. Grall, 80 W (2d) 213, 258 NW (2d) 693.
805.12 Annotation
See note to 805.15, citing Fouse v. Persons, 80 W (2d) 390, 259 NW (2d) 92.
805.12 Annotation
See note to 751.06, citing Schulz v. St. Mary's Hospital, 81 W (2d) 638, 260 NW (2d) 783.
805.12 Annotation
Where evidence conflicts and inconsistent theories on cause of event are advanced, instructions on both theories should be given. Sentell v. Higby, 87 W (2d) 44, 273 NW (2d) 780 (Ct. App. 1978).
805.12 Annotation
See note to 805.14, citing Westfall v. Kottke, 110 W (2d) 86, 328 NW (2d) 481 (1983).
805.12 Annotation
Ambiguities in jury questions were "omitted issues" under (2) and therefore properly determined by trial court. Badtke v. Badtke, 122 W (2d) 730, 364 NW (2d) 547 (Ct. App. 1985).
805.12 Annotation
Special verdict formulation in Wisconsin. Decker and Decker, 60 MLR 201.
805.12 Annotation
Product liability verdict formulation in Wisconsin. Slattery et al. 61 MLR 381.
805.13
805.13
Jury instructions; note taking; form of verdict. 805.13(1)(1)
Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record.
805.13(2)
(2) Preliminary instructions and note taking. 805.13(2)(a)(a) After the trial jury is sworn, the court shall determine if the jurors may take notes of the proceedings:
805.13(2)(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.
805.13(2)(a)2.
2. If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.
805.13(2)(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, a description of the nature of the case, 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. Any such preliminary jury instructions may be given again in the charge at the close of the evidence. The additional preliminary 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.
805.13(3)
(3) Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.
805.13(4)
(4) Instruction. The court shall instruct the jury before or after closing arguments of counsel. Failure to object to a material variance or omission between the instructions given and the instructions proposed does not constitute a waiver of error. 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.
805.13(5)
(5) Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate.
805.13 History
History: Sup. Ct. Order, 67 W (2d) 585, 703 (1975);
1975 c. 218;
1979 c. 128;
1981 c. 358; Sup. Ct. Order, 130 W (2d) xi (1987).
805.13 Note
Judicial Council Note, 1986: Sub. (2) (b) is amended to provide that preliminary instructions may include a description of the nature of the case, 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.
805.13 Annotation
Sub. (4) is amended to required that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]
805.13 Annotation
Specific evidentiary facts may be incorporated into instruction provided they do not lead jury to believe court has prejudged evidence. State v. Dix, 86 W (2d) 474, 273 NW (2d) 250 (1979).
805.13 Annotation
See note to 895.045, citing Brons v. Bischoff, 89 W (2d) 80, 277 NW (2d) 854 (1979).
805.13 Annotation
Under (3), failure to object waives errors of substance as well as of form. Gyldenvand v. Schroeder, 90 W (2d) 690, 280 NW (2d) 235 (1979).
805.13 Annotation
Jury was properly instructed that it need not consider lower grade of offense if it found defendant guilty of higher one. State v. McNeal, 95 W (2d) 63, 288 NW (2d) 874 (Ct. App. 1980).
805.13 Annotation
Although failure to object at conference to substantive defect in verdict constituted waiver, failure to object does not preclude court's consideration of defect under 751.06. Clark v. Leisure Vehicles, Inc. 96 W (2d) 607, 292 NW (2d) 630 (1980).
805.13 Annotation
Although objection at conference was not specific enough to preserve appeal, supreme court reversed trial court under 751.06. Air Wisconsin, Inc. v. North Cent. Airlines, Inc. 98 W (2d) 301, 296 NW (2d) 749 (1980).
805.13 Annotation
Under separation of powers doctrine, 805.13 (4) and 972.10 (5) require submission to jury of written instructions on substantive law but do not require automatic reversal when trial court fails to do so. Instructions on burden of proof and presumption of innocence are procedural, not substantive law. In Matter of E. B. 111 W (2d) 175, 330 NW (2d) 584 (1983).
805.13 Annotation
Where alleged error went to integrity of fact-finding process, court exercised discretion to review circumstantial evidence instruction irrespective of defendant's waiver of objection. State v. Shah, 134 W (2d) 246, 397 NW (2d) 492 (1986).
805.13 Annotation
Jury instruction waiver discussed. State v. Hatch, 144 W (2d) 810, 425 NW (2d) 27 (Ct. App. 1988.)
805.13 Annotation
See note to 805.15, citing State v. Harp, 150 W (2d) 861, 443 NW (2d) 38 (Ct. App. 1989).
805.13 Annotation
It is not error for trial court to fail to instruct sua sponte on lesser included offense. Trial court should not interfere with parties' trial strategy. State v. Myers, 158 W (2d) 356, 461 NW (2d) 777 (1990).
805.13 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).
805.13 Annotation
If an attorney disagrees with an instruction which a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen, 204 W (2d) 115, 553 NW (2d) 820 (Ct. App. 1996).
805.14
805.14
Motions challenging sufficiency of evidence; motions after verdict. 805.14(1)
(1)
Test of sufficiency of evidence. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
805.14(2)
(2) Nonsuit abolished; misdesignation of motions. 805.14(2)(a)(a) The involuntary nonsuit is abolished. If a motion for involuntary nonsuit is made, it shall be treated as a motion to dismiss.
805.14(2)(b)
(b) When a party mistakenly designates a motion to dismiss as a motion for directed verdict, or vice versa; or mistakenly designates a motion to change answer as a motion for judgment notwithstanding the verdict, or vice versa; or otherwise mistakenly designates a motion challenging the sufficiency of evidence as a matter of law, the court shall treat the motion as if there had been a proper designation.
805.14(3)
(3) Motion at close of plaintiff's evidence. At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff.
805.14(4)
(4) Motion at close of all evidence. In trials to the jury, at the close of all evidence, any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict or dismissal or by moving the court to find as a matter of law upon any claim or defense or upon any element or ground thereof.
805.14(5)(a)(a)
Motion for judgment. A motion for judgment on the verdict is not required. If no motion after verdict is filed within the time period specified in
s. 805.16, judgment shall be entered on the verdict at the expiration thereof. If a motion after verdict is timely filed, judgment on the verdict shall be entered upon denial of the motion.
805.14(5)(b)
(b)
Motion for judgment notwithstanding verdict. A party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict in the event that the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.
805.14(5)(c)
(c)
Motion to change answer. Any party may move the court to change an answer in the verdict on the ground of insufficiency of the evidence to sustain the answer.
805.14(5)(d)
(d)
Motion for directed verdict. A party who has made a motion for directed verdict or dismissal on which the court has not ruled pending return of the verdict may renew the motion after verdict. In the event the motion is granted, the court may enter judgment in accordance with the motion.
805.14(5)(e)
(e)
Preliminary motions. It is not necessary to move for a directed verdict or dismissal prior to submission of the case to the jury in order to move subsequently for a judgment notwithstanding the verdict or to change answer.
805.14(5)(f)
(f)
Telephone hearings. Motions under this subsection may be heard as prescribed in
s. 807.13.
805.14(6)
(6) Grounds to be stated with particularity. In any motion challenging the sufficiency of evidence, the grounds of the motion shall be stated with particularity. Mere conclusory statements and statements lacking express reference to the specific element of claim or defense as to which the evidence is claimed to be deficient shall be deemed insufficient to entitle the movant to the order sought. If the court grants a motion challenging the sufficiency of the evidence, the court shall state on the record or in writing with particularity the evidentiary defect underlying the order.
805.14(7)
(7) Effect of order of dismissal. Unless the court in its order for dismissal otherwise specifies for good cause recited in the order, any dismissal under this section operates as an adjudication upon the merits.
805.14(8)
(8) Nonwaiver. A party who moves for dismissal or for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdict.
