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 Wis. 2d 585, 784 (1975); Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997).
972.01 Annotation
The Allen charge, as to the duty of a jury to try to reach agreement, was proper. Kelley v. State,
51 Wis. 2d 641,
187 N.W.2d 810 (1971).
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 Wis. 2d 784; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1995 a. 427; Sup. Ct. Order No.
96-08, 207 Wis. 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 could claim that his waiver of a jury, when the record was silent as to acceptance by the court and prosecution, made his subsequent jury trial invalid. Spiller v. State,
49 Wis. 2d 372,
182 N.W.2d 242 (1971).
972.02 Annotation
A defendant can waive a jury after the state has completed its case. Warrix v. State,
50 Wis. 2d 368,
184 N.W.2d 189 (1971).
972.02 Annotation
A defendant who demanded a jury trial cannot be held to have waived it by participating in a trial to the court and can raise this question for the first time on appeal. State v. Cleveland,
50 Wis. 2d 666,
184 N.W.2d 899 (1971).
972.02 Annotation
A record demonstrating the defendant's willingness and intent to waive a jury must be established before accepting a waiver. Krueger v. State,
84 Wis. 2d 272,
267 N.W.2d 602 (1978).
972.02 Annotation
The defense's participation in a misdemeanor court trial, without objection, did not constitute waiver of a jury trial. State v. Moore,
97 Wis. 2d 669,
294 N.W.2d 551 (Ct. App. 1980).
972.02 Annotation
The court abused its discretion in discharging an ill juror during deliberations without making any record as to the circumstances of the discharge and without counsel being present. Unless the defendant consents, it is reversible error for the court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman,
108 Wis. 2d 291,
321 N.W.2d 212 (1982).
972.02 Annotation
A trial court may not deny an accused's motion to withdraw a jury waiver without showing that granting the withdrawal would substantially delay or impede the cause of justice. State v. Cloud,
133 Wis. 2d 58,
393 N.W.2d 129 (Ct. App. 1986).
972.02 Annotation
A waiver of a jury trial must be made by an affirmative action of the defendant; neither counsel nor the court may waive it on the defendant's behalf. If the defendant has not personally waived the right, the proper remedy is a new trial rather than a postconviction hearing. State v. Livingston,
159 Wis. 2d 561,
464 N.W.2d 839 (1991).
972.02 Annotation
The verdict of a 13 member jury panel agreed to by the defense and prosecution was valid. State v. Ledger,
175 Wis. 2d 116,
499 N.W.2d 199 (Ct. App. 1993).
972.02 Annotation
When there are grounds to believe the jury in a criminal case needs protection, the 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).
972.02 Annotation
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).
972.02 Annotation
Sub. (1) applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. The state has a legitimate interest in having the decision of mental responsibility decided by a jury. State v. Murdock, 2000 WI App 170,
238 Wis. 2d 301,
617 N.W.2d 175.
972.02 Annotation
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 that a jury trial consists of a panel of 12 people that must agree on all elements of the crime charged; 3) was aware that in a court trial the judge will make a decision on whether or not he or she is guilty of the crime charged; 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.
972.02 Annotation
If a defendant waives the right to a jury trial and the circuit court fails to conduct a colloquy with the defendant regarding the waiver, a reviewing court may not find, a valid waiver, based on the record. 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 establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived a jury trial, the defendant is entitled to a new trial. State v. Anderson, 2002 WI 7,
249 Wis. 2d 586,
638 N.W.2d 301.
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 Wis. 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
A defendant has a heavy burden to show unlawful discrimination in a prosecutor's peremptory challenges. State v. Grady,
93 Wis. 2d 1,
286 N.W.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 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 Wis. 2d 577,
563 N.W.2d 188 (Ct. App. 1997).
972.03 Annotation
An appellate court should overturn a circuit court's determination that a prospective juror can be impartial only if the juror's bias is manifest; not where there is a reasonable suspicion of bias. The test for manifest bias is stated. State v. Ferron,
219 Wis. 2d 481,
579 N.W.2d 654 (1998). But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999) for a review of this case to apply new terminology regarding juror bias.
972.03 Annotation
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).
972.03 Annotation
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).
972.03 Annotation
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).
972.03 Annotation
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.
972.03 Annotation
The trial court's failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with a peremptory strike allowed under this section, did not require a new trial when the defendant received a fair trial. The harmless error test under s. 805.18 (2) is applicable. State v. Ramos,
211 Wis. 2d 12 is overturned. State v. Lindell, 2001 WI 108,
245 Wis. 2d 689,
629 N.W.2d 223.
972.03 Annotation
Equal protection precludes a prosecutor's use of a peremptory challenge to exclude potential jurors solely by reason of race; a 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 U.S. 400,
113 L. Ed. 2d 411 (1991). See also Basten v. Kentucky,
476 U.S. 79,
90 L. Ed. 2d 69 (1986) for a process for evaluating a claim that race was the sole basis for a 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 U.S. 127,
128 L. Ed. 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 Wis. 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
Guarantees of open public proceedings in criminal trials include voir dire examinations of potential jurors. Press-Enterprise Co. v. Superior Court of Cal.
464 U.S. 501 (1984).
972.06
972.06
View. The court may order a view by the jury.
972.06 Annotation
The trial court, sitting as the trier of fact, committed an error of law in making and relying on an unrequested, unannounced, unaccompanied and unrecorded view of an accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon,
120 Wis. 2d 560,
356 N.W.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
The federal rule that jeopardy attaches when the jury is sworn is an integral part of the guarantee against double jeopardy. Crist v. Bretz,
437 U.S. 28 (1978).
972.07 Note
NOTE: See also the notes to Article I, section 8 of the Wisconsin constitution.
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
Ordering a witness who has been granted immunity to answer questions does not violate the constitutional right against self incrimination. State v. Blake,
46 Wis. 2d 386,
175 N.W.2d 210 (1970).
972.08 Annotation
The prosecutor 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 Wis. 2d 383,
184 N.W.2d 176 (1971).
972.08 Annotation
An order by a judge to compel a witness in a John Doe proceeding to testify after a refusal on the ground of self-incrimination must be done in open court. State ex rel. Newspapers, Inc. v. Circuit Court,
65 Wis. 2d 66,
221 N.W.2d 894 (1974).
972.08 Annotation
In considering whether to move for immunity for a witness, a prosecutor should consider the duty to not merely convict but to seek impartial justice and should not hesitate to move for immunity on the ground that the testimony thus elicited might exonerate the defendant. Peters v. State,
70 Wis. 2d 22,
233 N.W.2d 420 (1975).
972.08 Annotation
This section does not prevent a district attorney from entering into a nonprosecution agreement prior to filing charges in exchange for information in a criminal investigation. State v. Jones,
217 Wis. 2d 57,
576 N.W.2d 580 (Ct. App. 1998).
972.08 Annotation
A defendant seeking review of prosecutor's immunization decision must make a substantial evidentiary showing that the government intended to distort the judicial fact-finding process. Stuart v. Gagnon,
614 F. Supp. 247 (1985).
