Chapter 805

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 (1999), 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 (2004).

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 Peremptory challenges may not be exercised, and therefore not changed, after the parties have accepted the jury, even if the jury has not yet been sworn. State v. Nantelle, 2000 WI App 110, 235 Wis. 2d 91, 612 N.W.2d 356, 99-2159.

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 A prospective juror who openly admits bias and is never questioned about the prospective juror’s partiality is subjectively biased as a matter of law. State v. Carter, 2002 WI App 55, 250 Wis. 2d 851, 641 N.W.2d 517, 01-2303.

805.08 Annotation An administrative assistant employed by the county district attorney’s office was not objectively biased because the administrative assistant 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 the 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 the trial court’s concern regarding the juror’s 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 had 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 As a matter of law, a reasonable presiding judge could not reach any other conclusion than to excuse the judge’s mother from sitting on the jury. State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, 07-0400.

805.08 Annotation 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.

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 the prospective 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.

805.08 Annotation The 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 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).

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 is 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.

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

805.09 805.09 Juries of fewer than 12; five-sixths verdict.

805.09(1) (1) Jury. The jury shall consist of a number of persons determined under s. 756.06 (2) (b).

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 could not 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(4) (4) Evidentiary objections are governed by s. 901.03.

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 the court 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, the 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.

805.13(5) (5) Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate.

805.13 History History: Sup. Ct. Order, 67 Wis. 2d 585, 703 (1975); 1975 c. 218; 1979 c. 128; 1981 c. 358; Sup. Ct. Order, 130 Wis. 2d xi (1987).

805.13 Note Judicial Council Note, 1986: Sub. (2) (b) is amended to provide that preliminary instructions may include 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.

Effective date note Sub. (4) is amended to required that the court provide the jury one written copy of its instructions regarding the burden of proof. [Re Order eff. 7-1-86]

805.13 Annotation Specific evidentiary facts may be incorporated into an instruction provided they do not lead the jury to believe that the court has prejudged the evidence. State v. Dix, 86 Wis. 2d 474, 273 N.W.2d 250 (1979).

805.13 Annotation Under sub. (3), a failure to object waives errors of substance as well as of form. Gyldenvand v. Schroeder, 90 Wis. 2d 690, 280 N.W.2d 235 (1979).

805.13 Annotation It was proper to instruct the jury that it need not consider a lesser offense if the jury found the defendant guilty of a higher one. State v. McNeal, 95 Wis. 2d 63, 288 N.W.2d 874 (Ct. App. 1980).

805.13 Annotation Although failure to object at the verdict conference to a substantive defect in the verdict constituted waiver, failure to object did not preclude the court’s consideration of the defect under s. 751.06. Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 292 N.W.2d 630 (1980).

805.13 Annotation When an objection at the verdict conference was not specific enough to preserve an appeal, the supreme court reversed the trial court under s. 751.06. Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis. 2d 301, 296 N.W.2d 749 (1980).

805.13 Annotation Under the separation of powers doctrine, sub. (4) and s. 972.10 (5) require submission of written instructions to the jury on the substantive law but do not require an 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).

805.13 Annotation When an alleged error went to the integrity of the fact-finding process, the trial court exercised its discretion to review the circumstantial evidence instruction irrespective of the defendant’s waiver of objection. State v. Shah, 134 Wis. 2d 246, 397 N.W.2d 492 (1986).

805.13 Annotation It is not error for the trial court to fail to instruct sua sponte on a lesser-included offense. The trial court should not interfere with the parties’ trial strategy. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990).

805.13 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).

805.13 Annotation If an attorney disagrees with an instruction that a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen, 204 Wis. 2d 115, 553 N.W.2d 820 (Ct. App. 1996), 92-2475.

805.13 Annotation Appellate courts have no power to reach waived issues concerning unobjected to jury instructions. State v. Ward, 228 Wis. 2d 301, 596 N.W.2d 887 (Ct. App. 1999), 98-2530.

805.13 Annotation A party is not held to a waiver under sub. (3) when a potentially inconsistent verdict is produced by the substance of the jury’s verdict, as opposed to the wording of the verdict. LaCombe v. Aurora Medical Group, Inc., 2004 WI App 119, 274 Wis. 2d 771, 683 N.W.2d 532, 03-2093.

805.13 Annotation A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under sub. (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, 288 Wis. 2d 188, 708 N.W.2d 13, 04-0363.

805.13 Annotation A trial court’s decision to read jury instructions on damages prior to certain testimony was a proper exercise of discretion, and the court properly denied the defendant’s motion for mistrial. Because the instructions were not disclosed to the parties before they were read by the court, the reading did not qualify as a preliminary instruction under sub. (2) (b). The trial court had broad discretion over the conduct of litigation and saw a need to orient the jury to the subject matter of the testimony when the evidence was jumping from expert testimony to fact testimony to damage testimony in a long and complex trial. Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

805.13 Annotation 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.

805.13 Annotation Defining the meaning of a word in a jury instruction is akin to defining the meaning of a word in a statute. Determining the meaning of the word in a jury instruction is a legal question that appellate courts review de novo. When the word is not defined in the jury instruction, the appellate court will assign the word its common, ordinary, and accepted meaning, which may be ascertained by resort to a dictionary. State v. Bowen, 2015 WI App 12, 359 Wis. 2d 659, 859 N.W.2d 166, 14-0767.

805.13 Annotation In this case, the defendant waived the defendant’s objection to the use of a jury instruction by failing to object at the jury instruction and verdict conference as required under sub. (3). The defendant’s post-conviction challenge to the jury instruction could have been made at trial, and the fact that law review articles that the defendant claims support the defendant’s position were published after the defendant’s conviction did not render the objection “unknowable” at the time of the conference. State v. Trammell, 2019 WI 59, 387 Wis. 2d 156, 928 N.W.2d 564, 17-1206.

805.13 Annotation The court of appeals has no power to reach an unobjected-to jury instruction under sub. (3) because the court of appeals lacks a discretionary power of review. However, the supreme court possesses a discretionary power of review that the court may exercise when a matter is properly before the court. State v. Trammell, 2019 WI 59, 387 Wis. 2d 156, 928 N.W.2d 564, 17-1206.