Chapter 972

972.02 Annotation To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: 1) makes a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) is aware that a jury trial consists of a panel of 12 people that must agree on all elements of the crime charged; 3) is aware that in a court trial the judge will make a decision on whether or not the defendant is guilty of the crime charged; and 4) has 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.

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, 00-1563.

972.02 Annotation 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.

972.02 Annotation If a court withholds any juror information in open court, it must: 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.

972.02 Annotation 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 the right to a jury trial 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.

972.02 Annotation Harmless error analysis applies when a court erroneously takes judicial notice of a fact that should have been submitted to the jury. State v. Smith, 2012 WI 91, 342 Wis. 2d 710, 817 N.W.2d 410, 10-1192.

972.02 Annotation Absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time it is made. Walworth County Department of Health & Human Services v. Roberta J.W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860, 12-2387.

972.02 Annotation The 6th amendment right to a public trial extends to voir dire. A judge’s decision to close or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, 11-2424.

972.02 Annotation Criminal Law—Waiver of Jury in Wisconsin Criminal Cases. 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 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.

972.03 Note NOTE: For notes relating to discriminatory and otherwise improper use of peremptory strikes, see the notes to article I, section 7, of the Wisconsin Constitution under the heading Jury Trial and Juror Qualifications.

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), 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); 2013 a. 164.

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, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (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 Mutual Insurance 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, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (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) (1) 

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(1)(b) (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

972.08(2) (2) Whenever a witness attending in any court trial or appearing before any grand jury or John Doe investigation under s. 968.26 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 under s. 968.26 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 History History: 1979 c. 291; 1989 a. 122; 1993 a. 98, 486; 2009 a. 24.

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 Sub. (2) does not apply to preliminary proceedings. State v. Gonzalez, 172 Wis. 2d 576, 493 N.W.2d 410 (Ct. App. 1992).

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), 97-1806.

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).

972.08 Note NOTE: See also the notes to article I, section 8, of the Wisconsin Constitution.

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, 551.602 (5), 553.55 (3), 601.62 (5), 767.87 (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 History History: 1989 a. 122; 1995 a. 225, 400; 1997 a. 35; 2005 a. 443 s. 265; 2007 a. 196.

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 Wis. 2d R1, R6 (1973); 1993 a. 486.

972.09 Annotation The defendant was not prejudiced by receipt in evidence of a hostile state witness’s 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’s testimony at trial, but would have been objectionable as hearsay if such objection had been made. When 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. Bullock v. State, 53 Wis. 2d 809, 193 N.W.2d 889 (1972).

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 Wis. 2d 311, 210 N.W.2d 755 (1973).

972.10 972.10 Order of trial.

972.10(1) (1) 

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 selected 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 Wis. 2d xi (1986); 1993 a. 486; 1995 a. 387; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

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 Note The state need not introduce evidence of a confession until after defendant testifies and gives contradictory testimony. Ameen v. State, 51 Wis. 2d 175, 186 N.W.2d 206.

Effective date note 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 The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because the prosecutor expressed an opinion as to the defendant’s guilt, when it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor’s conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893 (1971).

972.10 Annotation No potential coercion was exerted by the trial court in its 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 Wis. 2d 703, 223 N.W.2d 442 (1974).

972.10 Annotation An objection to jury instructions will not be waived when the instructions misstate the law. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978).

972.10 Annotation If a defendant moves for dismissal at the close of the state’s case and then presents evidence, the appellate court will consider all evidence of guilt in ruling on a motion. State v. Gebarski, 90 Wis. 2d 754, 280 N.W.2d 672 (1979).

972.10 Annotation A refusal to give a jury special instructions on identification was not an abuse of discretion. Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979).

972.10 Annotation Control of the content and duration of closing argument is within the discretion of the trial court. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979).

972.10 Annotation A special instruction need not be given because a witness has been granted immunity. Linse v. State, 93 Wis. 2d 163, 286 N.W.2d 554 (1980).

972.10 Annotation A defendant who chose to be represented by counsel had no right to address the jury personally in closing arguments. Robinson v. State, 100 Wis. 2d 152, 301 N.W.2d 429 (1981).

972.10 Annotation A defendant is entitled to an instruction on a valid theory of defense if the instruction is supported by the evidence and is relevant to the issue being tried. It was not error to refuse to give an instruction regarding the defendant’s theory of defense relating to the legal basis for the motive of a witness who was not a defendant. State v. Dean, 105 Wis. 2d 390, 314 N.W.2d 151 (Ct. App. 1981).

972.10 Annotation 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).

972.10 Annotation Under the separation of powers doctrine, sub. (5) and s. 805.13 (4) require submission of written instructions to the jury on the substantive law but do not require automatic reversal when the trial court fails to do so. Instructions on the burden of proof and presumption of innocence are procedural, not substantive law. E.B. v. State, 111 Wis. 2d 175, 330 N.W.2d 584 (1983).

972.10 Annotation Entrapment instructions are upheld. State v. Saternus, 127 Wis. 2d 460, 381 N.W.2d 290 (1986).

972.10 Annotation The court must inform counsel of changes it makes to jury instructions following an instructions conference. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

972.10 Annotation Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.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 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).

972.10 Annotation Sub. (7) does not address whether a court may substitute an alternate juror for a deliberating juror with the consent of the parties under the procedure set forth in Lehman, 108 Wis. 2d 291 (1982). In this case, the defendant consented to the substitution, and that consent satisfied the procedural requirements of Lehman. State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, 10-0411.

972.10 Annotation The right to counsel includes the right to make a closing summary of the evidence to the trier of fact. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).

972.10 Annotation Absent an overriding interest articulated in findings, a criminal trial must be open to the public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).

972.10 Note NOTE: See also the notes to article I, section 7, of the Wisconsin Constitution.

972.11 972.11 Evidence and practice; civil rules applicable.

972.11(1) (1) Except as provided in subs. (2) to (4), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895 and 995, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.

972.11(2) (2) 

972.11(2)(a) (a) In this subsection, “sexual conduct” means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.

972.11(2)(b) (b) If the defendant is accused of a crime under s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, 948.09, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), any evidence concerning the complaining witness’s prior sexual conduct or opinions of the witness’s prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11):