Tuesday, October 26, 2010

Jury Trial Issues - The Anonymous Jury

By John DiMotto
In a previous blog, I have discussed the right to a public trial. While every criminal defendant is entitled to a public trial under the Sixth Amendment to the US Constitution and Article I, Section 7 of the Wisconsin Constitution, this right is not conferred without boundaries. Under limited circumstances, an anonymous jury may be impanelled.
Before the trial court can impanel an anonymous jury, the court must articulate compelling circumstances on the record. It must be shown that there is a strong reason to believe that the jury needs protection. In addition, the court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights are protected. [see State v. Britt, 203 Wis.2d 25 (Ct. App. 1996)]
Examples of compelling circumstances have included participants' histories of violence -- including the defendant/s or victim/s; history of potentially threatening associations; witness intimidation; defendant involvement in organized crime; defendant involvement in a group with capacity to harm jurors; defendant's past attempts to interfere with judicial process; extensive publicity that could enhance the possibility that juror names would become public and expose them to intimidation or harassment. [see State v. Tucker, 259 Wis.2d 484 (2003)]
When the court concludes that an anonymous jury is warranted based on articulable facts, the court must take action to minimize any prejudicial effect. Usually this is accomplished by doing "voir dire by number." When this approach is utilized, the court ordinarily advises the jury that this practice is routine to avoid the inference that the jury should fear the defendant. The court should give a special presumption of innocence instruction that the use of numbers is not a reflection on the defendant's guilt. This instruction must not mislead the jury. Also, at the outset of the voir dire the attorneys are provided with a list of the names of the jurors as well as juror questionnaires. This way they have a "knowledge base" on the jurors. Under this scenario, when addressing jurors only their numbers are used.
Trial courts must take great care to balance the right to a public trial with the right of jurors to be free from fear and intimidation. Judges must always remember that anonymous juries should not be routine or standard practice. They are the exception not the rule.

Friday, October 22, 2010

Jury Trial Issues -- The Parameters of Character and Other Acts Evidence

By John DiMotto
In criminal jury trials, it is the job of the jury to determine if the state has presented "sufficient evidence" to overcome the defendant's presumption of innocence. "Sufficient evidence" is that amount/degree of evidence with respect to each element of the offense charged whereby the jury can say, beyond a reasonable doubt, that the defendant is guilty. Ordinarily, the evidence addresses two questions: was the crime committed and did the defendant commit the crime. It sounds simple, but that is far from the truth.
In many trials, evidence unrelated to the commission of the crime charged is offered. This evidence usually falls within two categories: character and other acts. Sometimes it is admissible; sometimes it is not. One thing is sure, the trial judge must be on his/her toes in terms of what to admit and what not to admit in order to protect the record.
Under the rules of evidence "general character" evidence [904.04(1)] is normally not admissible to prove that a person acted in conformity therewith on a particular occasion. This is because guilt should be determined based on "crime related" conduct. There is, of course, an exception. Under 904.04(1)(a), evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same is admissible. The defendant is in control of what character evidence may come in since the State may only admit character evidence to rebut character evidence offered in the first instance by the defendant. As a practical matter, a defendant rarely puts in character evidence since it opens the door for the State to put in "negative" character evidence. (Usually "negative" character evidence far exceeds "good" character evidence.) However, while character evidence is ordinarily not admissible, this does not preclude the introduction of "other acts" evidence when offered for a legitimate purpose.
"Other acts" evidence [904.04(2)] may be admissible if it is offered for a purpose other than character. By statute, it may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. By case law, it may be introduce to prove context or for background. However, while it may fit into one of those categories, it must be relevant in the context of the case under 904.01 and, most importantly, under 904.03, the probative value of the other acts evidence must not be outweighed by unfair prejudice. It is the trial court that is the gatekeeper of other acts evidence.
Over the past twenty years, the introduction of other acts evidence has grown by leaps and bounds. There are some who say it is becoming more the rule, rather than the exception. I disagree with that assessment. I believe judges are careful when it comes to deciding whether to admit other acts evidence.
I am actively engaged in judicial education in Wisconsin. Marquette University Law School Professor Daniel Blinka, one of the most foremost evidence experts in Wisconsin, and I have taught on the subject of character and other acts evidence at numerous evidence workshops. Wisconsin judges understand that it is incumbent on the trial judge to undertake a careful "Sullivan" analysis (State v. Sullivan) and make a good record. If the proponent can meet its burden under 904.04(2), 904.01 and 904.03 then the evidence will be admitted with a strong cautionary instruction. However, if not, then the evidence is barred.
In the final analysis, the burden is on the trial judge to enforce the rules of evidence to ensure that a fair trial results.

Tuesday, October 12, 2010

Jury Trial Issues -- The Right to a Public Trial

By John DiMotto
Every criminal defendant is entitled to a public trial from jury selection through the verdict. This right is guaranteed by the Sixth Amendment Right to a Public Trial -- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...in the State and district wherein the crime shall have been committed..." as well as Article I, Section 7 of the Wisconsin Constitution -- "In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury..."
The Right to a Public Trial promotes the presumption of openness that attends court proceedings. The values served are to:
1) ensure a fair trial.
2) remind the court and the prosecutor of their responsibilities toward the criminal defendant.
3) encourage witnesses to come forward.
4) discourage perjury.
Where values are implicated and closure is not trivial, exclusions must be justified. In order to justify closure:
1) The party seeking closure must show an overriding interest which is likely to be prejudiced by a public trial.
2) Closure must be carefully tailored to protect that interest.
3) Alternatives to closure must be considered by the court, and
4) The court must make findings sufficient to justify closure.
Closure of the entire courthouse, thereby denying the public access to a courtroom during a trial, violates a defendant's right to a public trial. The Right to a Public Trial is a basic tenet of our judicial system. The principle is that justice cannot survive behind walls of silence. However, where the unjustified closure is trivial there may not be a constitutional violation. Each case must viewed individually -- case by case.
It is important to note that the Right to a Public Trial is not only tested when the entire proceedings are closed to everyone. It is also tested when there is exclusion of just certain people (ie. family members of the defendant) and if only for part of the trial.
In Wisconsin, two recent cases that have addressed the Right to a Public Trial are State v. Vanness, 304 Wis.2d 692 (Ct. App. 2007) and State v. Ndina, 315 Wis.2d 653 (2009).
In the final analysis, the public has not just a right to know but a right to be present in order to know.

Friday, October 8, 2010

Jury Trial Issues -- Polling the Jury in a Criminal Case

By John DiMotto
One of the most important rights that any party involved in litigation has is the right to a jury trial. The beauty of the American system of justice is the right to have one's case decided by one's peers. 6 or 12 people from one's community are empanelled to:
1) hear all the evidence;
2) decide what the fact actually are by assessing the credibility of witnesses and the weight of the evidence;
3) apply the law, the legal principles applicable to the facts;
4) render a verdict by answering a question or questions on a Verdict/Special Verdict form.
The American Jury System is the envy of the world. Judges in other jurisdictions "thirst" for our system of justice. (Many judges from Wisconsin, including myself and my wife, Judge Jean DiMotto, have gone to countries throughout the world to discuss our justice system. In every country their judges have been on the edge of their seats taking in what it really means to "do justice.")
Today, I want to start on the "back end" of a jury trial -- taking the verdict in a criminal case.
When a jury arrives a a verdict, the jury is brought into the courtroom and the verdict is read in open court either by either the Court Clerk, the Judge or the Jury Foreperson. After it is read, it is customary for the judge to collectively ask the jury if what was read is their verdict. After the collective polling, a defendant has the right to have the jurors individually polled - although he has no right to cross examine them on their verdict. see State v. Cartagena, 140 Wis.2d 59 (Ct. App. 1987). Collective polling is not sufficient if the defendant wants individual polling. see State v. Wojtalewicz, 127 Wis.2d 344 (Ct. App. 1985).
The purpose of polling a jury is to ensure that the verdict, as read, is the verdict of each and every one of the twelve jurors - to test uncoerced unanimity of the verdict. see State v. Kircher, 189 Wis.2d 392 (Ct. App. 1994). An ancillary purpose of individual polling is to allow jurors to change their mind. see U.S. v. Shepard, 576 F.2d 719 (7th Cir. 1978). The act of polling the jury safeguards the right to a unanimous verdict by giving each jury the opportunity to dissent although previously agreeing or to state that assent was merely an accommodation. A juror may dissent at any time before the verdict is received and properly recorded.
The right to poll a jury is a corollary to the right to a unanimous verdict. see State v. Weise, 162 Wis.2d 507 (Ct. App. 1991). It is a significant right. see State v. Behnke, 155 Wis.2d 796 (1990). Because the return of a verdict is a critical stage of the proceedings, a defendant has the right to counsel at that time. In fact, where defense counsel's absence cause a defendant to lose the right to poll a jury, the conviction must be reversed. see State v. Smith, 51 Wis. 615 (1881).
The decision whether to poll is one that is delegated to defense counsel. However, the failure to request polling the jury will almost always result in a claim of ineffective assistance of counsel. Most judges will sua sponte poll the jury to ensure unanimity.
The trial court should carefully and delicately question a juror who during polling creates some doubt as to his/her vote to see if there is, in fact, doubt. If there is doubt, the court has three options:
1) Direct jury to retire to jury room and resume deliberations.
2) Declare a mistrial.
3) Carefully interrogate the juror about ambiguous or ambivalent assent.
The threshold question in polling is whether there was assent. If not, court then must determine whether further deliberations are necessary. see State v. Duke, 303 Wis.2d 175 (Ct. App. 2007). The court is only to question regarding whether the juror agrees or not. The court cannot go beyond the issue of "assent." see State v. Raye, 281 Wis.2d 339 (2005).
The right to poll a jury is an absolute right. It must be honored by the trial court!

Tuesday, October 5, 2010

Termination of Parental Rights Law in Wisconsin - Adoption and Safe Families Act

By John DiMotto
In October, 1997 the United State Congress passed the Adoption and Safe Families Act (ASFA). One month later, President Bill Clinton signed the legislation into law.
ASFA was enacted to address problems in the foster care system. It changed how child welfare was viewed. It focused on the health and safety of children as opposed to reuniting children with birth parents. ASFA puts children first and the needs and rights of birth parents second.
In all cases involving children who are placed out of their parental home -- CHIPS and TPR cases -- there are certain obligations and duties that must be undertaken by Child Welfare Agencies. In Milwaukee County that agency is the Bureau of Milwaukee Child Welfare (BMCW). Anytime a child is placed out of the parental home, the Court is required to undertake an ASFA analysis to ensure that the interests of the child and parents are fully protected in light of the potential for TPR. The analysis requires the Court to determine if:
1) Reasonable efforts have been made by the BMCW to prevent the removal of the child from the parental home, while assuring that the child's health and safety were the paramount concerns.
2) Reasonable efforts have been made by the BMCW to permit the return of the child safely to the parental home.
3) Placement in the child's parental home is contrary to the welfare of the child.
4) Reasonable efforts have been made by the BMCW to provide services and involve appropriate service providers in meeting the needs of the child and the parents.
5) Reasonable efforts have been made by the BMCW to place the child safely with other out of home siblings.
6) Reasonable efforts have been made by the BMCW to facilitate safe visitation among siblings where they are not placed together.
7) Reasonable efforts have been made by the BMCW to achieve the permanency plan goals, including through out of state placement if appropriate.
ASFA puts the onus on both the parents and the Child Welfare Agency to make every reasonable effort to work together in the best interest of the child.