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. A jury instruction directing the jury to accept a judicially-noticed fact as true when applied to an element of a criminal offense eliminates the jury’s opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element and is constitutional error, although it is subject to harmless error analysis. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541. Whether a defendant waived the right to have a jury determine all the elements of a crime or only some of them and whether a 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. If a court withholds any juror information in open court, it must both: 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. An ability to understand the English language is necessary in order to satisfy the statutory requirements of ss. 756.02 and 756.04. If a juror cannot meet the statutory requirements, the entire trial process may be nothing more than an exercise in futility. A defendant was prejudiced when a juror was allowed to serve as a juror who was not qualified under the statutes and did not have a sufficient understanding of English so that the juror could meaningfully participate in the trial process. State v. Carlson, 2003 WI 40, 261 Wis. 2d 97, 661 N.W.2d 51, 01-1136. While a limited class of errors is deemed structural, requiring automatic reversal regardless of any effect on the outcome, most errors, including constitutional ones, are reviewed for harmlessness. Harmless error analysis applies to an erroneous jury instruction that operates as a mandatory conclusive presumption on an element of a penalty enhancer. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679. An accused’s right to a unanimous verdict is not violated every time a judge instructs a jury on a statute that presents multiple modes of commission and does not select one among the many modes of commission. An argument that an instruction leads to a constitutionally infirm verdict must address the legislature’s intent in enacting the statute and, if multiple modes of commission are found, whether the choice provided is constitutionally unacceptable. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303. A prosecutor’s knowledge that a challenged juror possessed the same name as known criminals in the area, the location of a venire person’s residence when a residential location has some relationship to the facts of the case, failure to disclose during voir dire any police contacts at his or her residence when research revealed such contacts, and employment, or unemployment status, all may be race-neutral explanations for a peremptory strike. Individual follow-up questions on voir dire are not required in order to strike a potential juror. State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607, 00-3403. Whether a prosecutor’s conduct during closing argument affects the fairness of a trial is determined by viewing the statements in the context of the total trial. A line of demarcation is drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and suggests the jury arrive at a verdict by considering factors other than the evidence. Argument on matters not in evidence is improper. State v. Smith, 2003 WI App 234, 268 Wis. 2d 138, 671 N.W.2d 854, 02-3404. 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 defendant’s right to a jury trial, as required by statute, 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. Reinstruction that presents for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances. State v. Thurmond, 2004 WI App 49, 270 Wis. 2d 477, 677 N.W.2d 655, 03-0191. When counsel fails to object under Batson, 476 U.S. 79 (1986), to peremptory strikes on the grounds they were improperly based on race or gender, the defendant claiming harm must establish that had trial counsel made the Batson objection there is a reasonable probability that it would have been sustained and the trial court would have taken the appropriate curative action. Discriminatory intent is a question of historical fact. The essential inquiry is whether the prosecutor had viable neutral explanations for the peremptory challenges. State v. Taylor, 2004 WI App 81, 272 Wis. 2d 642, 679 N.W.2d 893, 03-1509. The verdict of a jury must be arrived at freely and fairly. The validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court. The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Defendants may waive the right by failing to ask for a poll in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770. A court has two options if a juror dissents during jury polling or assents merely an accommodation against the juror’s conscience: return the jury for continued deliberations or determine that further deliberations would be fruitless and grant a mistrial. If a juror gives an ambiguous or ambivalent assent, the court may question the juror further. When initially asked by the court, “Is this your verdict?” and the juror first replied, “Can I ask a question?” and then with an unambiguous “no,” the court could only have granted a mistrial or returned the jury for further deliberations. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770. An administrative assistant employed by a 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 a district attorney’s office. State v. Smith, 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482, 04-2035. A judge’s interruptions of a juror’s answers to questions regarding the juror’s agreement with the verdict and the judge’s insistence that the form showed a unanimous verdict strongly suggested that the juror may have felt pressure and intimidation, and that the juror may have misunderstood the verdict reached in the jury room. Although the juror expressed agreement with subsequent statements, because the juror was cut off when attempting to answer whether the juror found the defendant guilty or not guilty, and never actually gave an answer, the juror could not be said to have found the defendant guilty on count one. Consequently, the verdict was not unanimous. State v. Dukes, 2007 WI App 175, 303 Wis. 2d 208, 736 N.W.2d 515, 06-2127. The trial court has an affirmative, sua sponte duty to inquire into the necessity for a defendant to wear a visible electronic security device during trial once the court becomes aware of the situation. A trial court maintains the discretion to decide whether a defendant should be restrained during a trial as long as the reasons justifying the restraints have been set forth in the record. It is an erroneous exercise of discretion to rely primarily upon law enforcement department procedures instead of considering the risk a particular defendant poses for violence or escape. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435. Whenever a defendant wears a restraint in the presence of jurors trying the case, the court should instruct that the restraint is not to be considered in assessing the proof and determining guilt. Counsel’s failure to object to the device constituted ineffective assistance of counsel. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435. A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672. While the prosecutor may strike hard blows during closing argument, the prosecutor’s duty is to refrain from using improper methods. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, 07-0778. A demonstration of the specific bias of a juror is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality the trial court does not have a concern about. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding potential impartiality. The trial court has a duty to ensure that the impaneled jury is an impartial one, one that is free of bias or prejudice. State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, 07-2160. A circuit court need not consider the necessity of a restraint that is not visible to the jury and has no sua sponte duty to inquire into the necessity of hidden restraints. Limiting a court’s sua sponte duty to visible restraints is consistent with the rationale for the general rule against restraining defendants at trial. The no-restraint rule is designed to prevent the jury from forming an opinion about the defendant’s guilt based solely on the fact that the defendant is restrained. There is little risk of prejudice if the jury cannot see the restraint. State v. Miller, 2011 WI App 34, 331 Wis. 2d 732, 797 N.W.2d 528, 09-3175. When the court properly instructed the jury, the failure to provide the jury with a not guilty form for one of the five charged offenses did not constitute structural error, but rather was trial error subject to a harmless error analysis. State v. Hansbrough, 2011 WI App 79, 334 Wis. 2d 237, 799 N.W.2d 887, 10-0369. Jurors are presumed impartial, and the defendant has the burden of rebutting this presumption and proving bias. That a juror has been a victim of sexual assault does not make the juror per se biased against the defendant in a sexual assault case. State v. Funk, 2011 WI 62, 335 Wis. 2d 369, 799 N.W.2d 421, 08-2765. The fundamental inquiry is the same regarding a sleeping juror and a hearing-impaired juror: are the defendant’s constitutional rights to an impartial jury and due process violated when the juror does not hear particular testimony? When it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent the defendant did not receive a fair trial—that is, a trial comporting with the constitutional guarantees of an impartial jury and due process. State v. Kettner, 2011 WI App 142, 337 Wis. 2d 461, 805 N.W.2d 132, 11-0085. Any party or counsel who notices that a juror has fallen asleep at trial must bring the issue to the trial court’s attention during trial as soon as practicable after the person notices the sleeping juror so that the problem can immediately be resolved. Because the defendant waited until after trial to bring the issue to the trial court’s attention, it was impossible for the trial court to determine the extent of the problem, if any; thus, the defendant forfeited the defendant’s right to appeal the trial court’s refusal to conduct a post-trial hearing on that issue. State v. Saunders, 2011 WI App 156, 338 Wis. 2d 160, 807 N.W.2d 679, 10-2393. The defendant was not entitled to a new trial even though the defendant 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. A stipulation is a matter of convenience and litigation strategy entered into to avoid the time, expense, and potential prejudice of introducing unnecessary and possibly prejudicial evidence. It is a far different thing for a defendant to stipulate to a fact than it is to waive the constitutional right to a jury determination of that fact. However, 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. That a father and son had the same first and last names, and the same middle initial, phone number, and address, the jury summons did not include any specific identifying information, and the son appeared and served on the jury when the summons was intended for the father, did not make the son an improper juror. State v. Turner, 2013 WI App 23, 346 Wis. 2d 229, 827 N.W.2d 654, 12-0297. A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003. The circuit court’s decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant’s presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394. 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. Unanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged; it is not required with respect to the alternative means or ways in which the crime can be committed. It is ultimately the elements of the crime charged that must be accepted by a unanimous jury and not the peripheral details. State v. Badzinski, 2014 WI 6, 352 Wis. 2d 329, 843 N.W.2d 29, 11-2905. 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. The right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the U.S. Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish the defendant’s right to a public trial in order to lose it. Defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, 11-2424. A jury has no right to exercise its nullification power, and no party has a right to have a jury decide a case contrary to law or fact, much less a right to an instruction telling jurors they may do so or to an argument urging them to nullify applicable laws. Voir dire questions that assume proof of, or demand consideration of, only what the law requires are proper because they ask that the jurors do no more than promise to fulfill their duty to follow the law, and do not limit the jurors’ consideration of any pertinent factors or invite them to prejudge any particular fact. State v. Zdzieblowski, 2014 WI App 130, 359 Wis. 2d 102, 857 N.W.2d 622, 14-0619. Errant jury instructions are subject to harmless error analysis. This includes errors that omit an element, as well as errors that create requirements beyond the statute. Jury instructions can be considered erroneous if they instruct the jury on a theory of the crime that was not presented to the jury or if they fail to instruct the jury on the theory of the crime that was presented to the jury during trial. To affirm a conviction based on an erroneous instruction, a court must be convinced beyond a reasonable doubt that the jury still would have convicted the defendant of the charge had the correct jury instruction been provided. State v. Williams, 2015 WI 75, 364 Wis. 2d 126, 867 N.W.2d 736, 14-1099. Jurors are not required to unanimously agree as to which act or acts the defendant committed in order to find the defendant guilty when the prosecutor has issued only one charge but introduced evidence of multiple acts that separately constitute the criminal offense charged. If there is only one crime, jury unanimity on the particular alternative means of committing the crime is required only if the acts are conceptually distinct. Unanimity is not required if the acts are conceptually similar. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354. 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 trial, are reviewed de novo. State v. Tobatto, 2016 WI App 28, 368 Wis. 2d 300, 878 N.W.2d 701, 15-0254. Jury instructions must fully and fairly inform the jury of the legal rules applicable to the case. A jury instruction that was modified based upon a statute that went into effect after the defendant committed key acts underlying the offense failed to fully and fairly inform the jury of the law applicable to the defendant’s alleged criminal acts. State v. Bryzek, 2016 WI App 48, 370 Wis. 2d 237, 882 N.W.2d 483, 15-1501. A defendant may intentionally and voluntarily relinquish the defendant’s statutory and constitutional rights to be present at trial. The defendant in this case did not dispute that he waived his constitutional right to be present at trial, but argued that he could not waive his statutory right. The defendant made an express, affirmative, intentional choice not to be present, waiving, rather than forfeiting, his constitutional and statutory rights. The defendant knew of his rights and waived them on multiple occasions throughout the course of the trial. The trial court properly handled the defendant’s waiver of his right to be present by allowing the defendant’s counsel to communicate with him and repeatedly inquiring whether the defendant would like to be present. State v. Washington, 2017 WI App 6, 373 Wis. 2d 214, 890 N.W.2d 592, 16-0238. A prospective juror must be able to set aside any opinion the juror 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. The defendant’s right to be present at a critical stage of the 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. It was not improper to strike the only two African-American members of the jury panel because the prosecutor had a legitimate, race-neutral reason for striking the potential jurors and did not act with discriminatory intent. That the two jurors alleged that their prior experiences with law enforcement may have involved discriminatory intent did not detract from the prosecutor’s legitimate, nondiscriminatory concern about potential bias against the state’s case in a wholly unrelated proceeding. State v. Sanders, 2019 WI App 52, 388 Wis. 2d 502, 933 N.W.2d 670, 18-1310. The U.S. Supreme Court in Griffin, 502 U.S. 46 (1991), drew a distinction between jury instructions that instruct a jury on a legally, as opposed to a factually, inadequate theory. The Griffin court held that, while a jury instruction is erroneous if it includes methods of proof that are not supported by sufficient evidence, such an error does not violate due process when the jury is also instructed on a theory that is supported by sufficient evidence. In this case, although the circuit court erroneously instructed the jury on two methods of proof that were not supported by sufficient evidence, that error did not violate the defendant’s right to due process because the jury was also instructed on a method of proof that was supported by sufficient evidence. State v. Harvey, 2022 WI App 60, 405 Wis. 2d 332, 983 N.W.2d 700, 21-1689. In nonsummary criminal contempt proceedings, the alleged contemnor has a right to a jury trial if the sentences imposed aggregate more than six months. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974). The court erred by communicating with the jury and agreeing to accept a guilty verdict “with extreme mercy” without notifying defense counsel. Rogers v. United States, 422 U.S. 35, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975). The 6th amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community. A law exempting women from jury duty on request, resulting in their low representation on panels, violated the requirement. To establish a prima facie violation a defendant must show: 1) the group alleged to be excluded is a “distinctive” group in the community; 2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). See also Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010). When community sentiment against the accused had softened by the time of trial four years after a heinous crime, the trial court did not commit “manifest error” in finding the jury as a whole was impartial. Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). The “fair cross section” element to the right to trial by jury does not provide a constitutional basis for a challenge to the prosecution’s peremptory striking of jurors on the basis of race. Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990). Equal protection precludes a prosecutor’s use of peremptory challenges to exclude potential jurors solely by reason of race. A criminal defendant may raise the equal protection claim that jurors are 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, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). When potential jurors had seen news reports about the defendant’s alleged crime, the judge’s refusal to question those prospective jurors about the specific content of those reports did not violate the right to an impartial jury. Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991). A criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges of potential jurors. Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). The 5th and 14th amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005). See also Wilber v. Hepp, 16 F.4th 1232 (2021). Batson, 476 U.S. 79 (1986), established a three-step process for the constitutional review of allegedly race-based peremptory strikes: 1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; 2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes; and 3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). See also Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005). It was not intended that the first Batson, 476 U.S. 79 (1986), step be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with certainty, that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). The right to exercise peremptory challenges in state court is determined by state law. The U.S. Supreme Court has long recognized that peremptory challenges are not of federal constitutional dimension. States may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009). When a juror makes a clear statement that indicates the juror relied on racial stereotypes or animus to convict a criminal defendant, the 6th amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Pena-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017). The constitution forbids striking even a single prospective juror for a discriminatory purpose. When all of the relevant facts and circumstances taken together establish that a peremptory strike of a prospective juror was motivated in substantial part by discriminatory intent, a Batson, 476 U.S. 79 (1986), violation has occurred. Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). 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). The 6th amendment to the U.S. Constitution doesn’t apply to fact finding that doesn’t increase a prisoner’s original sentence. A denial of parole doesn’t increase a sentence; it’s a decision not to shorten the portion of the sentence that is served in prison. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Criminal Law—Jury—Unanimous Jury Verdict Is Not Constitutionally Required in State Criminal Cases. Johnson. 1973 WLR 926.
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Trials. Anderson. 1992 WLR 751.
speedy and public trial
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. 2d 563, 193 N.W.2d 682 (1972). A delay of five weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive a speedy trial. Taylor v. State, 55 Wis. 2d 168, 197 N.W.2d 805 (1972). Failure to demand a speedy trial weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299 (1977). The speedy trial provisions of the constitution are designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305 (1977). The controlling case concerning the right to a speedy trial is Barker, 407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354 (1977). A delay of 84 days between the defendant’s first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696 (1978). Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987). The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990). The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993). Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98-0567. The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, 638 N.W.2d 910, 01-0282. The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603. When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial is violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04-3014. The defendant’s right to a public trial was violated when the courthouse doors were locked at 4:30 P.M., pursuant to county policy, and the public was denied access to the courtroom while the defendant presented the defendant’s case and the state presented its rebuttal. State v. Vanness, 2007 WI App 195, 304 Wis. 2d 692, 738 N.W.2d 154, 06-2535. Although a presumption of openness exists, the right to a public trial is not absolute. The closure of a trial is trivial and does not implicate the 6th amendment if the closure does not implicate the values served by the 6th amendment: 1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury. A circuit court’s exclusion of every family member except the defendant’s mother, who did not understand English, plainly implicated the values served by the right to a public trial. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Closure of a criminal trial is justified when four conditions are met: 1) the party who wishes to close the proceedings must show an overriding interest that is likely to be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect that interest; 3) alternatives to closure must be considered by the trial court; and 4) the court must make findings sufficient to support the closure. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure, but it was not necessary under the facts of this case. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Although a 14-month delay was presumptively prejudicial, that did not end the court’s analysis. The defendant in this case was not actually prejudiced by the delay because the defendant was already serving more than two life sentences for a conviction in a homicide case. The delay did not cause the defendant’s pretrial incarceration; the defendant’s homicide sentence would have kept the defendant in prison anyway. State v. Lock, 2013 WI App 80, 348 Wis. 2d 334, 833 N.W.2d 189, 12-1514. There was no violation of the right to a speedy trial when the entirety of the delay in bringing the defendant to trial occurred to accommodate the defendant and the defense. State v. Provost, 2020 WI App 21, 392 Wis. 2d 262, 944 N.W.2d 23, 18-1268. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. In determining whether a particular defendant has been deprived of the defendant’s right, courts should consider four factors: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000016/000109
section
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