When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant’s opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003). In Imani, 826 F.3d 939 (2016), and Tatum, 847 F.3d 459 (2017), the 7th Circuit Court of Appeals held that the Wisconsin courts violated the clearly established rule of Faretta, 422 U.S. 806 (1975), that a court may not force a lawyer upon a defendant based on a perceived lack of education, experience, or legal knowhow. While a defendant seeking to waive the defendant’s 6th amendment right to counsel must do so knowingly and intelligently and so must be mentally competent to make that decision, the defendant’s technical legal knowledge is irrelevant to a court’s assessment of the defendant’s competency. The focus of the inquiry is on a defendant’s mental competency. Washington v. Boughton, 884 F.3d 692 (2018). Before concluding that a defendant has a right to counsel at a critical stage, a court must also find that the criminal prosecution has commenced. The 6th amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against the accused. In this case, the defendant was arrested without a warrant and detained, and the defendant remained in jail when the police went to the county courthouse two days later to make their case. The defendant’s 6th amendment right to counsel attached when the court commissioner found probable cause, set bail, and executed a form that accused the defendant of a crime. It was of no 6th amendment consequence that the defendant never appeared in court during the probable-cause proceeding. Garcia v. Hepp, 65 F.4th 945 (2023). Right to Counsel: Repayment of Cost of Court-Appointed Counsel as a Condition of Probation. Strattner. 56 MLR 551 (1973).
How Do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant’s Right to Counsel Under Miranda v. Arizona. Finger. 79 MLR 1041 (1996).
The Interrogations of Brendan Dassey. Gallini. 102 MLR 777 (2019).
How Courts in Criminal Cases Respond to Childhood Trauma. Denno. 103 MLR 301 (2019).
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. Johnson. 1992 WLR 1643.
jury trial and juror qualifications
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521 (1970). A resident of Menominee County may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, section 23, is not violated by using district-based jury lists. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459 (1971). When two alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87 (1971). Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208 (1971). 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 because the prosecutor expressed his 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). When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615 (1972). Discussing the exclusion of young persons, students, and teachers from a jury list. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d 566 (1973). Discussing rules for proving discrimination in compiling a jury list and the burden of proof. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973). Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state’s witnesses are the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751 (1973). The absence of persons of the defendant’s race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889 (1974). A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801 (1976). A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether a defendant: 1) directly committed the crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979). Excusing Native Americans from a jury without individual examination denied the Native American defendant a trial by an impartial jury. State v. Chosa, 108 Wis. 2d 392, 321 N.W.2d 280 (1982). The verdict was unanimous in a battery case even though the jury was not required to specify whether the battery occurred when the defendant threw an object at the victim or during an ensuing fistfight. State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982). The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983). When the accused refused to participate in the trial, the court erred by failing to inform the accused of the right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 Wis. 2d 21, 345 N.W.2d 892 (Ct. App. 1984). A waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989). A defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989). Once a defendant makes a prima facie showing that the prosecutor used peremptory challenges in a purposefully discriminatory manner, the burden shifts to the prosecution to provide a neutral explanation for challenging the jurors. Discussing Batson, 476 U.S. 79 (1986). State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). Waiver of a jury trial must be made by the 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, not a postconviction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991). 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). Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking a member of the jury panel. State v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991). Discussing unanimity requirements when multiple occurrences of multiple acts are charged. State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992). A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992). When the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992). A defendant has the right to have jurors individually polled on their verdict. Reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992). When the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992). The “clearly erroneous” standard applies to all steps under the Batson, 476 U.S. 79 (1986), analysis made by a trial court in determining whether a peremptory challenge is discriminatory. State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App. 1992). The verdict of a 13 member jury panel agreed to by the defense and prosecution was not invalid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993). A trial court’s comments to a deliberating jury without the presence of the defendant and the defendant’s counsel violated the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 Wis. 2d 68, 519 N.W.2d 621 (Ct. App. 1994). A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony that bears on guilt or innocence, prejudice must be assumed. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994). When polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircher, 189 Wis. 2d 392, 525 N.W.2d 788 (Ct. App. 1994). Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. When the shackles cannot be viewed by the jury, no prejudicial harm may occur. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995). A defendant’s presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant’s presence may be harmless error. State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994). When it was conceded that a juror was sleeping, summarily foreclosing inquiry into the juror’s inattentiveness was an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed, and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), 95-0152. A prosecutor’s motive of protecting a defendant cannot justify a peremptory challenge based solely on a juror’s race. Excluding a prospective juror because of race can never be “neutral” regardless of the prosecutor’s good faith. State v. Guerra-Reyna, 201 Wis. 2d 751, 549 N.W.2d 779 (Ct. App. 1996), 93-3464. When there are grounds to believe the jury in a criminal case needs protection, a 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. 1996), 95-0891. Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187. A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 96-2927. A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside 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 violated the defendant’s right to due process. State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96-3425. But see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics are also considered. State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97-1509. A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to respond truthfully to voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97-1276. A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant’s agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97-2702. 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 responses 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. The terms “statutory bias,” subjective bias,” and “objective bias” are adopted 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. Statutory bias refers to those situations described in s. 805.08 (1); a person falling within one of the descriptions there may not serve regardless of the ability to be impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed an opinion, that situation more properly qualifies as subjective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. Subjective bias is revealed through the words and demeanor of a 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. 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. Wyss, 124 Wis. 2d 681 (1985), Louis, 156 Wis. 2d 470 (1990), Gesch, 167 Wis. 2d 660 (1992), Messelt, 185 Wis. 2d 254 (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. Where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. 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 five 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), 97-2449. 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. 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 (1999), 97-0952. Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror’s subjective bias is generally ascertained by that person’s responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), 98-1091. 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), 98-2206. 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. The right to a jury trial guaranteed by this section and section 5 includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642. 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. A challenge under Batson, 476 U.S. 79 (1986), that a peremptory strike was solely because of race does not require a post-verdict evidentiary hearing and must be decided based on what the prosecutor believed at the time the strike was made. A defendant must show that the prosecutor intentionally misrepresented the facts that were relied on or that the prosecutor had been told those facts but knew they were erroneous. State v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711, 00-0961. The trial court’s failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with one of the peremptory strikes guaranteed under s. 972.03, did not require a new trial when the defendant received a fair trial. The harmless error test was applicable. Ramos, 211 Wis. 2d 12 (1997), is overruled. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, 99-2704. Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge’s obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3). The task need not be performed by a judge in court or with the prospective juror present in person and may take place in advance of a particular trial. A defendant’s presence cannot be required when the judge or clerk is acting in an administrative capacity under s. 756.03. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821. Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant’s conviction. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084. When the jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although the jury had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176. Absent waiver, a trial court’s communication with a deliberating jury in the absence of the defendant and defense counsel violates the right to be present at trial and to have counsel at every stage that the defendant may need aid with legal problems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084. 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 of the nature of a jury trial, such that it consists of a panel of 12 people who must agree on all elements of the crime charged; 3) was aware of the nature of a court trial, such that the judge will decide the defendant’s guilt; 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, 00-1563. If a trial court fails to conduct a colloquy with a defendant regarding the waiver of the right to a jury trial, a reviewing court may not find, based on the record, that there was a valid waiver. 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 show by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived the right, 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.
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