805.07 Annotation
Sub. (3) only authorizes the court to quash a subpoena to compel production of tangible things, not a subpoena to compel attendance of a witnesses. State v. Gilbert,
109 Wis. 2d 501,
326 N.W.2d 744 (1982).
805.08(1)(1)
Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
805.08(2)
(2) Number of jurors. A sufficient number of jurors shall be summoned in the action so that the number applicable under s.
756.06 remains after the exercise of all peremptory challenges to which the parties are entitled under sub.
(3). The court may order that additional jurors be selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.
805.08(3)
(3) Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under sub.
(2).
805.08(4)
(4) Jury view. On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.
805.08 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 698 (1975);
1975 c. 218;
1977 c. 318;
1977 c. 447 s.
210;
1983 a. 226; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997);
1999 a. 162.
805.08 Note
Judicial Council Note, 1983: Sub. (2) is amended by replacing the concept of “alternate" jurors with a provision allowing the court to order the impaneling of additional jurors. The panel is then reduced to the proper size by lot immediately prior to final submission of the cause. These changes are intended to promote an attentive attitude and a collegial relationship among the members of the jury.
805.08 Note
The first sentence of prior sub. (3) is moved to sub. (2) for more logical placement in the statutes. The reference to “alternate" jurors in the final sentence is changed to “additional" jurors to reflect the modification of sub. (2). [Bill 320S]
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
The mere expression of a predetermined opinion of guilt during voir dire does not disqualify the juror per se. Hammill v. State,
89 Wis. 2d 404,
278 N.W.2d 821 (1979).
805.08 Annotation
The disproportionate representation of a group in one array is insufficient to establish systematic exclusion. State v. Pruitt,
95 Wis. 2d 69,
289 N.W.2d 343 (Ct. App. 1980).
805.08 Annotation
Unless the defendant consents, it is reversible error for the trial 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).
805.08 Annotation
The trial court's deliberate, though well-intended, removal of a class or group for cause without examination of individuals in the group was improper. State v. Chosa,
108 Wis. 2d 392,
321 N.W.2d 280 (1982).
805.08 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).
805.08 Annotation
When a juror incompletely responds to material questions on voir dire, a new trial is warranted if it is shown that it is more likely than not that the juror was biased against the moving party. State v. Wyss,
124 Wis. 2d 681,
370 N.W.2d 745 (1985). But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis,
156 Wis. 2d 470,
457 N.W.2d 484 (1990). But see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
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 Wis. 2d 660,
482 N.W.2d 99 (1992). But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 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).
805.08 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, and not when there is a reasonable suspicion of bias. Stating the test for manifest bias. State v. Ferron,
219 Wis. 2d 481,
579 N.W.2d 654 (1998),
96-3425. But see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect response to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado,
223 Wis. 2d 270,
588 N.W.2d 1 (1999),
96-2194. But see State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702, for a review of this case to apply new terminology regarding juror bias.
805.08 Annotation
Adopting the terms “statutory bias," “subjective bias," and “objective bias" as the proper terms for referring to types of jury bias, replacing the terms “implied bias," “subjective bias," and “objective bias." State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Statutory bias refers to those situations described in sub. (1); a person falling within one of the sub. (1) descriptions may not serve regardless of the ability to be impartial. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on voir dire; it refers to the juror's state of mind. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
Wyss,
124 Wis. 2d 681 (1985),
Louis,
156 Wis. 2d 470 (1990),
Gesch,
167 Wis. 2d 660 (1992),
Messelt, 185 Wis. 2d 255 (1994),
Ferron,
219 Wis. 2d 481 (1998),
Delgado,
223 Wis. 2d 270 (1999), and
Broomfield, 223 Wis. 2d 465 (1999), are cases through which jury bias jurisprudence has evolved; considering where each would fall given the new bias terminology adopted in this case. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
805.08 Annotation
There is no automatic disqualification of potential jurors who have been convicted of crimes. State v. Mendoza,
227 Wis. 2d 838,
596 N.W.2d 736 (Ct. App. 1998),
97-0952.
805.08 Annotation
A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the third degree under
Gesch,
167 Wis. 2d 660 (1992), and must be struck for cause as the relationship constitutes statutory bias
. Failure to do so is grounds for reversal and a new trial. State v. Czarnecki,
231 Wis. 2d 1,
604 N.W.2d 891 (Ct. App. 1999),
98-2406.
805.08 Annotation
In deciding subjective bias, the particular words of the juror are not the focus. A prospective juror need not respond in voir dire with unequivocal declarations of impartiality. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219. But see Oswald v. Bertrand,
374 F.3d 475 (2003).
805.08 Annotation
Objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case, or the juror's intractable negative attitude to the justice system in general. A reasonable person can be impartial despite a relationship to a police officer or past experience as an officer. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219. But see Oswald v. Bertrand,
249 F. Supp 2d 1078 (2003).
805.08 Annotation
A party who during voir dire neither requests further questioning nor objects to the seating of a juror may not later allege error in the trial court's failure to act sua sponte in regard to a juror who may not be impartial. State v. Williams,
2000 WI App 123,
237 Wis. 2d 591,
614 N.W.2d 11,
99-0812.
805.08 Annotation
The court's finding that a murder trial juror was not objectively biased was reasonable. Although the juror had a business and social relationship with the victim, the juror did not have a personal connection to crucial evidence or a dispositive issue in the case, a negative attitude toward the justice system, or such a close relationship with the victim that no reasonable person in the juror's position could not be impartial. State v. Lindell,
2000 WI App 180,
238 Wis. 2d 422,
617 N.W.2d 500,
99-2704.
805.08 Annotation
An administrative assistant employed by the county district attorney's office was not objectively biased because she worked for the same entity as the prosecuting attorney. The court declines to create a per se rule that excludes potential jurors for the sole reason that they are employed by the district attorney's office. State v. Smith,
2006 WI 74,
291 Wis. 2d 569,
716 N.W.2d 482,
04-2035.
805.08 Annotation
A demonstration of a juror's specific bias is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality is not in question. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding her potential impartiality. The trial court has a duty to ensure that the impaneled jury is impartial; that is free of bias or prejudice. While the trial court in this case did not determine by lot which jurors would not participate in deliberations, this was appropriate, notwithstanding sub. (2), as the trial court has the discretion to remove a juror for cause during a trial proceeding. State v. Gonzalez,
2008 WI App 142,
314 Wis. 2d 129,
758 N.W.2d 153,
07-2160.
805.08 Annotation
The defendant was not entitled to a new trial even though she used a peremptory challenge to remove the judge's daughter-in-law from the jury. Because the defendant did not claim the jury was unfair or partial, a new trial was not required under the circumstances of the case. The defendant did not show that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. State v. Sellhausen,
2012 WI 5,
338 Wis. 2d 286,
809 N.W.2d 14,
10-0445.
805.08 Annotation
An appellate court should not give deference to a postconviction court's finding of subjective bias because the postconviction court did not preside over the trial and thus could not have observed the demeanor and disposition of a juror as the trial court did. Findings of fact regarding a trial, made at a hearing by a postconviction court that did not preside over the trial, are reviewed de novo. State v. Tobatto,
2016 WI App 28,
368 Wis. 2d 300,
878 N.W.2d 701,
15-0254.
805.08 Annotation
Prospective jurors need not respond to voir dire questions with unequivocal declarations of impartiality. A juror's honest answers at times can be expected to be less than unequivocal. State v. Tobatto,
2016 WI App 28,
368 Wis. 2d 300,
878 N.W.2d 701,
15-0254.
805.08 Annotation
A prospective juror must be able to set aside any opinion he or she might hold and decide the case on the evidence, but, as a general matter, a circuit court need not use or obtain any magic words in determining whether this requirement has been met. State v. Lepsch,
2017 WI 27,
374 Wis. 2d 98,
892 N.W.2d 682,
14-2813.
805.08 Annotation
A defendant's right to be present at a critical stage of the defendant's proceedings, right to a public trial, and right to a jury properly sworn to be impartial were not violated because the clerk of circuit courts administered the oath to the prospective jurors outside of the defendant's presence. State v. Lepsch,
2017 WI 27,
374 Wis. 2d 98,
892 N.W.2d 682,
14-2813.
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 California,
464 U.S. 501,
104 S. Ct. 819,
78 L. Ed. 2d 629 (1984).
805.08 Annotation
No new trial was required when a juror's failure to disclose during voir dire was harmless. McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548,
104 S. Ct. 845,
78 L. Ed. 2d 663 (1984).
805.08 Annotation
The use of peremptory challenges by a private litigant in a civil action to exclude potential jurors solely because of race violates the equal protection clause. Edmonson v. Leesville Concrete Co.,
500 U.S. 614,
111 S. Ct. 2077,
114 L. Ed. 2d 660 (1991).
805.08 Annotation
If the issue of jury bias surfaces during or before trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand,
374 F.3d 475 (2004).
805.08 Annotation
Analyzing Juror Bias Exhibited During Voir Dire in Wisconsin: How to Lessen the Confusion. Raissi. 84 MLR 517 (2000).
805.08 Annotation
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Trials. Anderson. 1992 WLR 751.
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 Wis. 2d 585, 700 (1975);
1977 c. 318;
1977 c. 447 s.
210; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997).
805.09 Annotation
Five-sixths jury agreement is not required on all questions on the verdict, but on all questions necessary to support a judgment on a particular claim. A verdict must be reviewed on a claim-by-claim basis rather than as a whole. Giese v. Montgomery Ward, Inc.,
111 Wis. 2d 392,
331 N.W.2d 585 (1983).
805.09 Annotation
The trial court's order to bifurcate the issues of liability and damages and to try the separate issues before separate juries contravened s. 805.05 (2) and cannot be reconciled with the requirement of sub. (2) that the same five-sixths of the jury must agree on all questions necessary to sustain a verdict. Waters v. Pertzborn,
2001 WI 62,
243 Wis. 2d 703,
627 N.W.2d 497,
99-1702.
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 Wis. 2d 585, 701 (1975);
1975 c. 218.
805.10 Annotation
An attorney's concession during closing argument that the attorney's client was negligent could not be construed as a binding admission. Kuzmic v. Kreutzmann,
100 Wis. 2d 48,
301 N.W.2d 266 (Ct. App. 1980).
805.10 Annotation
This section authorizes judges to allow more than two attorneys on each side to sum up to the jury, but a judge may not limit to fewer than two the number of attorneys arguing on each side. Waukesha County Department of Social Services v. C.E.W.,
124 Wis. 2d 47,
368 N.W.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 Wis. 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 Wis. 2d 585, 702 (1975);
1975 c. 218.
805.12 Annotation
If the court can find as a matter of law that a party is causally negligent, contrary to the jury's answer, and the jury attributes some degree of comparative negligence to that party, the court should change the causal negligence answer and permit the jury's comparison to stand. Ollinger v. Grall,
80 Wis. 2d 213,
258 N.W.2d 693 (1977).
805.12 Annotation
If the answer to one material question shows that the jury answered perversely, the court should set aside the entire verdict unless it is satisfied that the other questions were not affected by the perversity. Fouse v. Persons,
80 Wis. 2d 390,
259 N.W.2d 92 (1977).
805.12 Annotation
When the verdict form did not contain a special fact question regarding the major issue of the case, real issues had not been tried. Schulz v. St. Mary's Hospital,
81 Wis. 2d 638,
260 N.W.2d 783 (1978).
805.12 Annotation
If evidence conflicts and inconsistent theories on the cause of the event are advanced, instructions on both theories should be given. Sentell v. Higby,
87 Wis. 2d 44,
273 N.W.2d 780 (Ct. App. 1978).
805.12 Annotation
An inconsistent verdict, if not timely remedied by reconsideration by the jury, must result in a new trial unless the party injured by the inconsistency waives the portion of its damage claim and the waiver does not result in a change of the prevailing party as found by the jury. Westfall v. Kottke,
110 Wis. 2d 86,
328 N.W.2d 481 (1983).
805.12 Annotation
Ambiguities in jury questions were “omitted issues" under sub. (2) and properly determined by the trial court. Badtke v. Badtke,
122 Wis. 2d 730,
364 N.W.2d 547 (Ct. App. 1985).
805.12 Annotation
A special verdict must cover material issues of ultimate fact. The form of a special verdict is discretionary with the trial court, and an appellate court will not interfere as long as all material issues of fact are covered by appropriate questions. Industrial Risk Insurers v. American Engineering Testing, Inc.,
2009 WI App 62,
318 Wis. 2d 148,
769 N.W.2d 82,
08-0484.
805.12 Annotation
The trial court cannot submit a case on one theory and resort to sub. (2) to dispose of it on another theory. Under s. 805.13 (3), the parties confer, with the trial court's supervision, on the instructions and special verdict that will go to the jury. If a party has an objection, the party must voice it or it will be waived. If the special verdict leaves out an essential material issue of ultimate fact of a cause of action pled and presented to the jury, and the jury's answers define, by necessary implication, what the missing issue should be, then, under sub. (2) the trial court may “fill in" this missing issue. But the trial court cannot “fill in" a missing cause of action. Hansen v. Texas Roadhouse, Inc.,
2013 WI App 2,
345 Wis. 2d 669,
827 N.W.2d 99,
10-3137.
805.12 Annotation
Special Verdict Formulation in Wisconsin. Decker & Decker. 60 MLR 201 (1977).
805.12 Annotation
Product Liability Verdict Formulation in Wisconsin. Slattery, Terschan, & Griffin. 61 MLR 381 (1978).
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.
