Thursday, December 1, 2011

Juror Conduct During the Trial

By John J. DiMotto

When a jury is selected to try a case, the trial judge has the responsibility to ensure that the jury's verdict is based on three things, and three things alone:

1) The facts as found by the jury from all of the evidence submitted during the trial.

2) The law as given to the jury in the jury instructions.

3) The jurors use of their common sense and long experiences in life in evaluating the evidence.

Prior to "the age of the internet and cyberspace," judges would instruct the jury that for the duration of the trial they should not:

1) Talk to people about the case.

2) Listen to news reports about the case on radio or tv.

3) Read any articles about the case in the newspaper.

4) Read any books or articles in magazines pertaining to the case or issues in the case. (eg. I would instruct the jury not to go to the public library or call "ready reference" at the public library for any information.)

These admonitions were very simple and, I believe, effective. It was my experience that jurors understood they, not anyone else, were to make the decision in the case and that they decision they made was to be based on what they learned via the evidence introduced.

Things are much different today. The internet has opened up the world to everyone and access to information is without bounds. People want more information regarding matters touching every aspect of their lives and they are used to getting it on their own. People do not want limits placed on their ability to learn. If what people are told does not seem sufficient for their purposes they then seek out more information. People don't like to be told to NOT seek out information. As a result, it is incumbent upon a trial judge to not only place limits on what jurors can and cannot do, but to make sure the jurors understand why there is the necessity for limits.

Prior to the introduction of evidence in a jury trial, I read the jury a detailed instruction pertaining to their conduct during the trial. I tell them:


"As far as your own conduct during the trial, I must caution you that you are not to discuss this case either among yourselves or with anyone else during the trial.

You must not permit any third person to discuss this case in your presence, and if anyone does so, despite your telling them not to, you should report that fact to me. I understand that it is a normal human tendency to want to converse with people with whom one comes into contact; however, please do not, during the time you serve on this jury, speak, whether in or out of the courtroom, with any of the parties or their lawyers or any witnesses. By this I mean not only do not speak about the case but also do not speak at all even to pass the time of day. In no other way can all the parties be assured of the absolute impartiality they are entitled to expect from you as jurors.

In fairness to the parties to this lawsuit, you should keep an open mind throughout the trial, reaching you conclusion only during your final deliberations after all the evidence is in and you have heard the attorneys' closing arguments and my instructions on the law. You will then be in a position to intelligently and fairly exchange your views with other jurors as you deliberate upon the verdict to be submitted to you.

Since you will be deciding this case solely on the evidence received along with my instructions on the law, you must not make any independent investigation of the facts or the law.

Do not research any information that you personally think might be helpful to you in understanding the issues presented.

Do not investigate this case on your own in any manner, shape or form.

Do not read any newspaper reports or listen to any news reports on radio, television or on the internet.

Do not visit any locations discussed in the evidence in person or via the internet.

Do not conduct experiments.

Do not consult dictionaries, computers, websites or other reference materials for additional information.

Do not seek information regarding the public records of any party, witness or lawyer in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it.

Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury.

Do not use a computer, cell phone or other electronic device with communication capabilities to share any information about this case. For example, do not communicate by blog, email, text message, on twitter, facebook or other social network.

Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household or friends, but you may not do so. This case must be decided by you, the jurors, based on the evidence presented in the courtroom. people not serving on this jury have not heard the evidence, and ti is improper for them to influence your deliberations and decision in this case. After the trial is completed, you are free to communicate with anyone in any manner.

These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason t believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it would result in a new trial involving additional time and great expense. Furthermore, any juror who violates these rules may be found in contempt of court and may be responsible to pay the costs of the trial, may be subject to a fine and may even be subject to incarceration."

Yes, this is very detailed (some might even say "wordy") but I believe necessary to impress upon the jurors the awesome responsibility we have entrusted to them.

However, this is not the end of my admonition. Each and every time we take a recess and at the end of every day, I re-admonish the jury as follows:


"Do not discuss this case among yourselves or anyone else. It is premature to do so until this case is given to you for your final consideration during deliberations in the final phase of this trial.

This means you may not talk to anyone about the case face to face, by phone, by email, by text message or via any social network such as twitter, facebook, etc.

If you leave the jury room during the break, avoid contact with the lawyers, parties and witnesses and they know that they should avoid contact with you.

As I told you during voir dire and in my preliminary instructions, it is of the utmost importance that you not do any research or seek any information regarding issues in this case, any of the lawyers, parties or any of the witnesses. This means do not read any books or periodicals for any information. Definitely do not go on the internet for any information.

Do not do anything outside this courtroom in an attempt to assist you in performing your jury service. It will not assist you. Everything you need to do your job as jurors is being provided to you within the four walls of this courtroom. You will see and hear all of the evidence, here. You will be instructed on the principles of law that apply to the issues in this case, here. And, of course, you bring your common sense and long experiences in life with you, here.

If you do anything outside the courtroom, you will negatively impact the integrity of any verdict that you return and it will result in the necessity for a new trial in front of a different in the future at great expense to the public, and no on wants that to happen."


It is the responsibility of the trial judge to ensure that the integrity of a jury's verdict is beyond question or reproach. If the trial judge fully explains to the jury what their role is, what they can do, and, most importantly, what they cannot do, justice is served.

Saturday, October 8, 2011

Bench and Bar Experiences to Return Soon

By John DiMotto

I have not posted to my blog in the last few weeks because my wife was recently diagnosed with cancer and life has been a bit hectic for your family. She is undergoing chemotherapy treatments with a surgery to follow. She is doing well. The doctors have given her a very good prognosis - a cure prognosis based on medical indications- and we hope and pray that it will come to pass.

My wife is blogging about her experiences in her cancer battle. It is very thoughtful and reflective. You might want to check it out to get a first hand feel for what it is like. Her blog is called "Cancer Light". You can access it at:

I hope to be back in full swing in the near future.

Friday, August 26, 2011

Role and Duties of a Judge with a Jury

By John DiMotto

In addition to writing my blog, I have facebook and twitter accounts which provide me with a vehicle to communicate my thoughts on the law and to obtain information that will assist me in performing my service as a judge. One of the great advantages I have gained from my twitter account is a vast amount of information about juries, jury issues and jury problems. Two of the sites I follow on twitter are Jury Vox and Jury Talk. They have reported numerous instances throughout the country where jurors, sometimes intentionally but usually inadvertently because they were not properly instructed on what not to do, sought out information outside the courtroom that resulted in the trial judge having to grant a mistrial or new trial.

One of the most important duties a judge has perform in his/her capacity as the manager of the parties, jury and case in the course of a jury trial is to ensure that the jury arrives at its decision based on three things:

1) The facts, as the jury determines them, from all the evidence that is introduced during the trial.

2) The application of the law that the judge provides to the jury in the court's instructions to the facts as determined by the jury.

3) The use of the jurors common sense and long experiences in life.

It is imperative that the trial judge make every effort to ensure that "extraneous information" is not sought out by the jurors or be brought to the attention of the jurors. This is not easy in our 21st century "Informational Age."

What is "extraneous information?" It is anything outside of the record established by the evidence introduced during the proceedings in the courtroom. It can be:

1) Information about the attorneys, parties or witnesses.

2) Information pertaining to the issues that are the subject of the lawsuit.

3) Any investigation done by jurors outside of the courtroom.

4) Communication and discussions with others about the case.

5) Accessing books or periodicals for definition of legal terms.

6) Seeking out the opinions of others as to how the case should be decided.

In "the old days" --- pre-internet days --- it was much easier to insulate the jury from extraneous information. Judges only needed to be concerned about news reports in print, on radio or television and jurors talking to people about the case face to face or over the phone. Today, there are myriad ways that jurors can obtain extraneous information:

1) By use of electronic communication devices that almost every juror carries on his or her person (cell phone, smartphone, I-Pad, etc.)

2) By use of computer to access articles pertaining to the issue in the case or to access public record information on the participants in the trial.

This can be a very real problem unless the trial judge is very proactive in his/her interaction with the jury to make it abundantly clear to the jury that if they do ANYTHING outside the courtroom they will jeopardize the verdict in the case. I take this approach and believe that I have been extremely successful in impressing the jury that if they decide to play "Sherlock Holmes" and do any research about any aspect of the case or participants that it will not assist them rather it will cause a mistrial, or if discovered after trial will result in a new trial.

One of the most important phases of a jury trial is the Voir Dire phase. That is the time that the trial judge can lay the groundwork to ensure that the jurors stay "on task" -- that is to to decide the case based only on:

1) The evidence.

2) The law.

3) Their common sense and long experiences in life.

I spend upwards of an hour familiarizing the jury panel with their role and the justice system's expectations of them. I explain all phases of the jury trial from Voir Dire through Deliberations in great detail. I "leave no stone unturned" and, based on my discussions with the jurors after the case, I am confident that they followed by instructions. They have told me that they recognized that they had an awesome responsibility to arrive at a fair verdict and that the parameters I set for them to follow kept them focused.

I also emphasize it during my preliminary instructions before opening statements and the introduction of evidence in the evidentiary phase.

In addition to my admonitions during voir dire and during my preliminary instructions, at every break we take I always tell the jurors:

1) Do not discuss the case among themselves or with anyone else in any manner, face to face, phone, text message, social network.

2) Avoid contact with lawyers, parties and witnesses at all times.

3) Do not seek any information about the case, issues or participants to help them do their job because it will not help them.

4) Do not do anything outside the courtroom to assist them because it will have the opposite effect.

5) If they do anything outside the courtroom it will negatively impact the integrity of any verdict and will require a new trial in the future at great expense.

The trial judge must be an active advocate for justice and that includes properly instructing the jurors on their role. I am confident that when we do our job the jury DOES hear what we say and does follow our instructions. The result, a fair verdict and justice.

Wednesday, August 17, 2011

Judicial Checklists and Outlines -- A Judge's Best Friend?

By John DiMotto

It has been awhile since I have had the time and opportunity to post a blog, but today I have both and would like to discuss what I believe are essential tools for every judge -- Checklists and Outlines.

It is the responsibility of every judge to make a good record of every judicial proceeding in order to obtain a just outcome. Statutory law and case law provide that the rights of all litigants be honored. There are many statutory and judicially mandated duties and obligations place on the trial judge to protect the rights of all parties in all court proceedings. I believe that it is impossible for any judge to keep all of the duties, responsibilities and obligations with respect to the various areas of the law in his or her memory. The use of checklists and outlines allows a judge to "cross the 't's' and dot the 'i's'" and fully meet and comply with his or her responsibilities to do justice.

In order to arrive at a decision with respect to a hearing -- a conclusion of law -- the trial judge must make findings of facts from the record. Failure to do so may result in a reversal of the decision and necessitate a new hearing. Justice delayed is justice denied. In order to properly find the facts necessary to arrive at a conclusion of law, the trial judge must ensure that all of his/her obligations with respect to the matter at hand are met. Checklists and outlines provide the trial judge with the tools to do so.

There are four divisions in the Circuit Court in Milwaukee County.

1) The Criminal Division, which has a Misdemeanor subdivision and a Felony subdivision.

2) The Family Division.

3) The Civil Division, which has a Small Claims subdivision and a Large Claims subdivision.

4) The Juvenile Division, which has a CHIPS and Delinquency subdivision and a TPR subdivision.

Each of these subdivisions has multiple proceedings in which the trial judge has specific obligations and conditions precedent to meet. Failure to comply with the specific obligations attending the particular proceeding will result in reversal.

In order to ensure that all of a judge's responsibilities are met, I have prepared Checklists and Outlines. The Checklists set forth the obligations of the trial judge with respect to properly conducting a hearing. The Outlines set forth the law and legal principles that govern the proceeding. An understanding of the law set forth in the outline is necessary in order to properly meet the obligations of the trial judge set forth in the checklist. Checklists and Outlines go hand in hand and I routinely share them with my judicial colleagues throughout the State.

Examples of materials in outlines would include:

1) The substantive as well as procedural law pertaining to TPR cases.

2) The substantive as well as procedural law pertaining to Divorce cases.

3) The substantive as well as procedural law pertaining to guilty pleas in a Criminal case.

4) The substantive as well as procedural law pertaining to Guardianship and Protective Placement Probate cases.

Examples of Checklists would include:

1) The Findings of Fact/Conclusion of Law/Judgment with respect to Guardianship and Protective Placement cases. This checklist sets forth in detail everything that a judge must find in order to make a decision.

2) The Voluntary Consent Colloquy that a trial judge must engage in with a parent who wants to give up his/her parental rights. This includes approximately 75 questions that a judge should ask a parent to ensure that his/her decision is being freely, voluntarily, intelligently and understandingly made. It also includes approximately 15 questions that a judge should ask the attorney for the parent to ensure that the attorney has done his/her job in providing effective representation for the parent.

3) The Guilty Plea Colloquy that a trial judge must engage in with a person who wants to plead guilty to a crime. It includes questions required by statute and appellate courts in order to ensure that the plea is being made freely, voluntarily, intelligently and understandingly.

4) The Findings of Fact/Conclusion of Law/Judgment with respect to a Divorce case. Following this Checklist will ensure that all of the proper questions are asked and necessary findings are made.

It is impossible for a judge to keep all of the requisite questions in his or her mind given the myriad proceedings that a judge presides over every single day. By using Outlines -- to understand the law -- and Checklists -- to ensure asking the right questions, the trial judge can better ensure a just result and finality to the proceedings.

Tuesday, August 2, 2011

The Right to a Public Trial

By John DiMotto

In the current economic environment, local governments are constantly looking for ways to save taxpayer money. In many communities, large amounts of money are spent on courthouse security. One of the ways that local government has attempted to save money is to limit the hours that a courthouse is open to the public. However, closure limits access to courtrooms. While a decision to close courthouses to save money is very understandable, does it potentially threaten the administration of justice? I believe the answer is "yes". If our courthouses are not open to the public, courts can not function. If courts can not function delays will occur -- and from early on we have been told time and time again that "justice delayed is justice denied." In today's blog I want to examine the issue of the right to a public trial.


The Sixth Amendment to the United State Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." This tenet is rooted in "the principle that justice cannot survive behind walls of silence..." see Sheppard v. Maxwell, 384 U.S. 333, 349 (1966). It has been said that "the public trial is "'the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes.'" see Gannett Co. v. DePasquale, 443 U.S. 368, 422 (1979)(Blackmun, J., concurring in part and dissenting in part); State v. Vanness, 304 Wis.2d 692, 696 (Ct. App. 2007). We are not talking about a casual right but one that the Founding Fathers deemed to be a fundamental.


Article I, Section 7 of the Wisconsin Constitution also addresses the right to a public trial in Wisconsin. It provides "in all criminal prosecutions the accused shall enjoy the prosecutions by indictment, or information, to a speedy public trial." A quick reading of this section would seem to indicate that this State right to a public trial is only available to felonies since misdemeanors are are brought by complaint not indictment or information. However, in light of Wisconsin Statutes section 757.14 it would appear that this provision would apply in all criminal prosecutions.


757.14 provides "the sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law...." see also Stevens v. Manitowoc Circuit Court, 141 Wis.2d 239, 244 (1987). The significance of this provision is that it applies to both civil and criminal cases. While the philosophy of the Founding Fathers of the US, Wisconsin and the Wisconsin Legislature is openness, there are exceptions.


Wisconsin Statutes section 48.299, which governs CHIPS, JIPS, Guardianship and TPR actions in juvenile court, sets forth a general rule that hearings be closed to the general public except as provided otherwise within 48.299.

Wisconsin Statutes section 938.299, which governs Delinquency proceedings in juvenile court, sets forth a general rule that hearings be closed to the general public except as provided otherwise within 938.299.

Wisconsin Statutes section 51.20(12), which governs mental commitments in probate court, sets forth the general rule that these proceedings shall be open to the general public unless the subject individual moves that the hearing be closed.

Wisconsin Statutes section 54.44(5), which governs guardianship actions in probate court, sets forth the general rule that these proceedings shall be closed to the general public unless the ward moves that the hearing be open.

Wisconsin Statutes section 55.10(3), which governs protective placement or services actions in probate court, sets forth the general rule that these proceedings shall be open to the general public unless the ward requests that the hearing be closed.


In addition to statutory exceptions to the right to a public trial, case law does recognize other exceptions.

Under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), a party seeking to bar the court's doors to the public in a criminal case must satisfy a four part test.

(1) The party who wishes to close the proceedings must show an overriding interest which 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.

Under Braun v. Powell, 227 F.3d 908 (7th Cir. 2000), where an unjustified closure is trivial, there is also no constitutional violation.

Under Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996), the "triviality standard" looks to whether the actions of the court and the effect that they and on the conduct of the trial and whether it deprived the defendant of the protections conferred by the Sixth Amendment.

Under Vanness, supra, it is important to determine if critical portions of the trial were closed to the public in making a determination if the right to a public trial was violated.

Most recently in State v. Ndina, 315 Wis.2d 653 (2009), the Wisconsin Supreme Court addressed the Sixth Amendment right to a public trial for a criminal defendant. The court held that:

(1) while the right to a public trial it is an important right, and

(2) while there is a presumption of openness, and

(3) while the values served look to:

(a) ensure a fair trial,

(b) remind the court and the prosecutor of their responsibility to the defendant, and

(c) encourage witnesses to come forward, and

(d) discourage perjury,

that the right of a member of the public to attend can be forfeited or lost if justification is shown under Press-Enterprise Co., supra.


An examination of the United States and Wisconsin Constitutions and case law tells us that:

(1) The right to a public trial is the constitutional right of every criminal defendant. It is a precious right that must be closely guarded.

(2) Before the constitutional right to a public trial can be restricted the four part Press-Enterprise test must be met.

An examination of Wisconsin Statutes tells us that:

(1) In Wisconsin, the statutory right to a public hearing, open courtrooms and free access to every citizen is to be honored and respected in all court proceedings unless a statutory exception is present or unless Press-Enterprise test is met.

Thursday, July 21, 2011

The Fundamental Rights of the Criminal Defendant in Wisconsin

By John DiMotto

On July 13, 2011, the Wisconsin Supreme Court released State v. Denson, 2011 WI 70. In this decision, the Court held that a criminal defendant's constitutional right not to testify is a fundamental right the must be waived knowingly, voluntarily and intelligently. (However, unlike the scenario when a defendant wants to testify, the Court held that the trial court is not required to conduct an on the record colloquy to determine if the waiver is done so although they recommend a colloquy to be the better practice.) In light of this decision, I thought this would be a good time to look at the various "fundamental rights" of people who live in Wisconsin.

Right to Procreate

In State v. Oakley, 245 Wis.2d 447 (2001), the Wisconsin Supreme Court addressed the constitutional right of people to procreate. In this case, the defendant was charged with Failure to Support. The defendant was convicted and placed on probation. As a condition of probation, the trial court ordered that he may not procreate unless he shows he can support his children. In a 4-3 decision, the Wisconsin Supreme Court held that the right to procreate can be restricted. The four male members of the court were in the majority, the three women members of the court dissented.

Right to be Present

In State v. Anderson, 291 Wis.2d 673 (2006), the Wisconsin Supreme Court indicated that a criminal defendant has a constitutional right to be present which derives from the right to be heard and confront witnesses.

Right to a Jury Trial

In State v. Warbelton, 315 Wis.2d 253 (2009), the Wisconsin Supreme Court reiterated that a criminal defendant's constitutional right to a jury trial is a fundamental right. However, the Court also indicated that a criminal defendant does not have a fundamental right to insist upon a bench trial.

Right to Testify

In State v. Weed, 263 Wis.2d 434 (2003), the Wisconsin Supreme Court indicated the a criminal defendant's right to testify is a fundamental right requiring a personal colloquy with the defendant on the record.

Right to An Attorney and Right to Self Representation

In State v. Klessig, 211 Wis.2d 194 (1997), the Wisconsin Supreme Court reiterated that a criminal defendant has a fundamental right to assistance of counsel as well as the right to self representation. When a defendant wants to proceed pro se, the trial court must engage in a personal colloquy with the defendant on the record.

Right to Enter a Guilty Plea

In State v. Gordon, 262 Wis.2d 380 (2003), the Wisconsin Supreme Court indicated that while defense counsel is entrusted with authority to make tactical decisions regarding trial strategy, fundamental decisions, such as whether to plead guilty, are left to the criminal defendant.

Right to a Unanimous Verdict

In State v. Grant, 230 Wis.2d 90 (Ct. App. 1999), the Court of Appeals indicated that the right of a criminal defendant to a jury trial includes the right to a unanimous jury verdict. This right is not constitutionally required but exists under the Wisconsin Supreme Court Supervisory Authority.

Right to Poll the Jury

In State v. Weise, 162 Wis.2d 507 (Ct. App. 1991), the Court of Appeals indicated that the right of a criminal defendant to poll the jury is a corollary right to a unanimous verdict.

Right to Appeal

In State v. Albright, 96 Wis.2d 122 (1980), the Wisconsin Supreme Court recognized that the right to appeal is a fundamental right personal to the criminal defendant.

Right Against Self Incrimination

In State v. Hereford, 224 Wis.2d 605 (Ct. App. 1999), the Court of Appeals indicated that the right against self incrimination is a fundamental right of a criminal defendant.

Right to a Public Trial

In State v. Ndina, 315 Wis.2d 653 (2009), the Wisconsin Supreme Court indicated that the 6th Amendment affords a criminal defendant a fundamental right to a public trial.


In Wisconsin, criminal defendants have many rights. These rights are conferred upon any person charged with a crime because of dire consequences that can attend a conviction. Those rights that are most important, that are fundamental are carefully guarded to ensure that a person is afforded due process of law.

Friday, July 15, 2011

Daughter's Wedding

I have taken a couple of weeks off from blogging as my wife and I have been in the final preparation stages for our daughters wedding. My blog will return next week.

Tuesday, June 28, 2011

Conspiracy Law in Wisconsin

By John DiMotto

Not a week goes by when the media does not reference a criminal conspiracy that has been uncovered and being prosecuted. Did you ever wonder exactly what is required for criminal activity to constitute a conspiracy? Today, I would like to review Wisconsin statutory and case law regarding the law of conspiracy.

Statutory Law

Wisconsin Statutes section 939.31 addresses "Conspiracy." It sets forth that whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned. The crime of conspiracy is an inchoate crime, that is, one that has begun but not completed.

Elements of a Conspiracy - WI Criminal Jury Instruction 570

One of the best references to conspiracy law in Wisconsin is found in the Criminal Jury Instructions. It sets forth that there are three elements necessary to constitute a conspiracy. First, that a person have the intent to commit a specific crime. Second, that a person was a member of a conspiracy to commit that crime. Third, that one or more of the conspirators performed an act toward the commission of the intended crime that went beyond mere planning and agreement. It is important to note that "the act" performed need not by itself be an unlawful act or an attempt to commit the crime. However, "the act" must be a step toward accomplishing the criminal objective.

A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. There is no need for an express or formal agreement, no need for a meeting, no need for the members of the conspiracy to all know each other. So long as the parties agreed or combined by words or actions and the person intended that the agreement be carried out, it is not necessary that the other persons intended to carry out the agreement. Wisconsin has adopted a "unilateral" approach to conspiracy.

Case Law on Conspiracy

As always, appellate decisions give trial courts and attorneys guidance as to what constitutes a conspiracy.

State v. Cavallari, 214 Wis.2d 42 (Ct. App. 1997). A conspiratorial agreement may be demonstrated by circumstantial evidence. Tacit understanding of a shared goal is sufficient.

State v. Ray, 166 Wis.2d 855 (Ct. App. 1992). It is necessary for the trial court to determine when a conspiracy begins and ends.

State v. Hecht, 116 Wis.2d 605 (1984). Each defendant need not be present at the scene of the crime, just that between all of them, all elements of the crime are done with mutual awareness of what each is doing.

State v. Sample, 215 Wis.2d 486 (1998). In a conspiracy prosecution under 939.31, you assess the subjective behavior of the defendant not the others who may be involved. 939.31 applies to both bilateral and unilateral conspiracies.

State v. Huff, 319 Wis.2d 258 (Ct. App. 2008). A unilateral conspiracy is when a person agrees to proceed in a prohibited manner. This approach assesses the subjective, individual behavior of the defendant. A criminal conspiracy will lie even where 1 of 2 alleged co-conspirators is unknown to the defendant, a cop or an informant who merely feigns participation in the conspiracy. Immateriality of con-conspirator's legal status is implicit in the unilateral approach. A bilateral conspiracy is when 2 or more persons agree to proceed in a prohibited manner. Under the inchoate crime of conspiracy under 939.31, by definition, no substantive crime is ever needed. 939.31 focuses on the subjective behavior of the individual defendant.

State v. Routon, 304 Wis.2d 489 (Ct. App. 2007). The focus of 939.31 conspiracy puts a heavy emphasis on intent. A stake in the venture is not a necessary element of conspiracy - It may be persuasive of the defendant's involvement in the crime but lack of stake in the venture does not absolve one of party to a crime liability for conspiracy.

The issue of whether withdrawal or renunciation is a defense to the inchoate crime of conspiracy under 939.31 has not been specifically addressed in Wisconsin case law. In terms of solicitation, it cannot be a defense. see State v. Boehm. 127 Wis.2d 351 9Ct. App. 1985).


Wisconsin like most other states has taken the steps to criminalize conduct that would lead to actual criminal activity. Conspiracy law has the intent to "nip criminal activity" in the bud. Conspiracy law is a pre-emptive strike against crime.

Thursday, June 23, 2011

Party to a Crime Law in Wisconsin

By John DiMotto

Did you ever REALLY wonder what LEGALLY constitutes being a "party to a crime" (PTAC)? I have been asked that question on more than one occasion by non-lawyers and when I ask them what they believe the answer is, they usually respond "if you are there" you must be a party to the crime. However, that is not accurate. The correct answer -the legal definition is found in the Wisconsin Statutes and is further explained in the Wisconsin Criminal Jury Instructions and appellate decisions.

Statutory Definition

Wisconsin Statutes section 939.05 address "Parties to Crime." It sets forth that:

1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed is has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

2) A person is concerned in the commission of the crime if the person:

a) Directly commits the crime; or

b) Intentionally aids and abets the commission of it; or

c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and under the circumstances is a natural and probable consequence of the intended crime. A person is not a party to the crime is the person voluntarily changes his or her mind and no longer desires that the crime be committed AND notifies the other parties concerned of his or her withdrawal within a reasonable time BEFORE the commission of the crime so as to allow the others also to withdraw.


The statutory definition seems clear, but some concrete examples are helpful to an accurate understanding of the concept of "party to a crime."

1) Direct Commission -- Armed Robbery -- If "A" decides to rob a bank, takes a gun, goes into a bank, points the gun at the bank teller and demands money or says he will shoot the teller, "A" is given money and flees the bank, "A" has directly committed an Armed Robbery because "A"'s conduct meets all elements of the crime.

2) Intentionally Aids and Abets the Commission of a Crime -- Armed Robbery (PTAC) -- If "A" decides to rob a bank but wants someone to be a "lookout" (keep an eye out for the presence of police and to let "A" know if any police might come on the scene to stop the commission of the crime) and so "A" tells "B" of his plan to rob a bank and asks "B" to come along and stand at the door of the bank and to warn "A" if the police are coming and "B" agrees and does so, "B" is a party to the crime of Armed Robbery and is as guilty as "A" even though "B" did not have a gun, did not threaten anyone and did not take the money.

3) Conspiracy PTAC theory -- Armed Robbery (PTAC) -- If "A", B" and "C" agree to rob a bank and "A", "B" and "C" each consciously intend to make it happen and have a stake in the venture and one of them actually robs the bank, all three are equally guilty of the crime.

4) Natural and Problem Consequence theory -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway driver" (i.e. "B" will drive "A" to the bank and drive "A" away after the robbery.) If "A" intentionally shoots and kills the bank teller BOTH "A" and "B" can be convicted of First Degree Intentional Homicide as parties to the crime since homicide is a natural and probable consequence of an armed robbery. This is so even though "B" never entered the bank. The reason for this liability is to deter people from joining in such crimes.

5) Withdrawal theory -- Armed robbery (PTAC) -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway" driver but when "A" comes to "B"is house "B" tells him he has changed his mind and will not drive "A" to the bank, "B" has withdrawn before the commission of the crime and can not be held responsible. What is critical to legally withdrawing from being a party to a crime is the withdrawal must be done before any acts in furtherance of the crime are done.

Jury Instructions on Party to a Crime

Since the "Intentionally Aid and Abet" theory is most often used by prosecutors to charge a person who does not directly commit the crime, I will focus on that concept.

A person intentionally aids and abets the commission of a crime by either:

1) Actually assisting the person who directly commits the crime (i.e. "B" comes along with "A" and acts as a lookout, "B" is a party to the crime); or

2) Is ready and willing to assist the person who directly commits the crime and the person who directly commits the crime knows of the willingness to assist. (i.e. "A" tells "B" that he is going to rob a bank one week from the day of their conversation and "B" tells "A" that if he comes to learn of anything that will prevent the successful completion of the crime he will notify "A", "B" is a party to a crime.)

A person does not intentionally aid and abet the commission of a crime if he is only a bystander or spectator and does nothing to assist the commission of the crime. (i.e. "A" is dealing drugs out of the kitchen of his home. He sells to people who come to the back door. "B" is in the home visiting "A"'s sister who is "B" girlfriend. If there is no interaction between "B" and "A", "B"'s presence in the home does not subject him to any criminal liability.

Case Law

State v. Rundle, 176 Wis.2d 985 (1983). For aiding and abetting, a person needs to engage in some conduct, verbal or overt, that as a matter of objective fact aids another in committing the crime AND the person must have a conscious desire or intent that the conduct will in fact yield such assistance.

State v. Simplot, 180 Wis.2d 383 (Ct. App. 1993). There is no need for the jury to be unanimous regarding the alternative ways for a person to be a party to a crime. So long as all twelve agree that the person either directly committed the crime or aided and abetted the commission that is sufficient.

Holland v. State, 91 Wis.2d 134 (1979). Party to a crime statute does not create a separate and distinct offense. It sets forth a ways to be involved in the commission of a substantive crime. Also, there is often overlapping between being an aider and abettor and a conspirator.

State v. Whiting, 136 Wis.2d 400 (Ct. App. 1987). To convict a person of being a party to a crime there need only be evidence showing that the person was a willing participant. for example, merely locating a homicide victim and bringing the shooter and victim together is enough.

State v. Marshall, 92 Wis.2d 107 (1979). A person need not perform an act which constitutes an essential element of a crime in order to be an aider and abettor. A person need only undertake some conduct.

State v. Zalenka, 130 Wis.2d 34 (1986). Proof of acts which can support liability as a party to a crime is separate from proof of the underlying criminal act.

State v. King, 120 Wis.2d 285 (Ct. App. 1984). Mere presence and ambivalent conduct at the scene of a crime is insufficient to support a conviction as a party to a crime.

State v. Williquette, 125 Wis.2d 86 (Ct. App. 1985). An omission may constitute aiding and abetting only if a person has a legal duty to act. (A parent has a legal duty to protect one's child and failing to protect one's child from the other parent may constitute aiding and abetting.)

State v. Martinez, 150 Wis.2d 47 (1989). Being ready and willing to assist the commission of a crime is "some conduct" that as objective fact aids another.

Bethards v. State, 45 Wis.2d 606 (1970). A lookout can properly be held vicariously liable for the crime of another.

Clark v. State, 62 Wis.2d 194 (1974). Supplying a gun; loading the gun is sufficient for party to a crime liability.

State v. Charbarneau, 82 Wis.2d 644 (1978). When a person is ready and willing to render aid that person is an aider and abettor. This is a reasonable assumption since this tends to further the criminal objective by providing support.

In the Interest of R.B., 108 Wis.2d 494 (Ct. App. 1982). Mere presence at a party, even though the juvenile had knowledge that beer would be there and its accessibility to him is insufficient to constitute possession of beer.

State v. Doney, 114 Wis.2d 309 (Ct. App. 1983). A co-conspirator is an agent in a criminal venture. Persons who enter into a conspiracy become ad hoc agents for one another.


The concept of party to a crime involves an intent to be involved in the commission of a crime and some conduct in furtherance of the crime. "Just being present" at a crime scene or "just knowing" that a crime is being committed alone does not make one criminally liable for the conduct of the criminal actor. To sum it up, to be a party to a crime requires "mens rea."

Thursday, June 9, 2011

Daubert Revisited -- The Role of the Trial Judge

By John DiMotto

It has been a little over four months since Daubert became the "law of the land" in Wisconsin with respect to the introduction of expert testimony. To date, I have yet to have a case where any lawyer has made an issue out of any expert testimony. It is my sense that unless the science/topic/subject matter is really unusual that Daubert will not be an issue that will take up too much time in the litigation. However, that remains to be seen. Therefore, it is very important that every judge understand the critical role the judge has in the resolution of Daubert motions.


I believe that the admission of expert testimony under Daubert requires three conditions precedent -- that is, three levels of "Qualifications."

1) The expert witness must be "qualified" to discuss the science/topic/subject matter. The expert must have special expertise by education, training or experience.

2) The science/topic/subject matter must be "qualified" for admission. This requires that the principles and methodology must be reliable and valid enough to be considered by the trier of fact.

3) The expert witness must have properly applied the "qualified" science/topic/subject matter principles and methodology to the facts in the case.

Daubert Test

The test under Daubert is not the correctness of the expert's conclusions but the soundness of the expert's methodology. Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010). The correctness of conclusions and the weight to be given to the conclusions is a consideration for the trier of fact. This is not to be a concern of the court.

Role of the Court

The role of the court when addressing a Daubert issue is to analyze the expert testimony in the context of its field to determine if it is acceptable science. Boyd v. City and Cnty of S.F., 576 F.3d 938 (9th Cir. 2009). The term "science" is a broad concept. It encompasses technical science as well as street science. The role of the court when addressing a Daubert issue is a flexible one. its overarching subject is scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1973). Trial judges must understand that their role is truly one of serving as a gatekeeper. Trial judges are to be concerned with reliability. Overall relevancy is reserved for the trier of fact. Daubert does not take the case out of the hands of the attorneys. Vigorous cross examination, presentation of contrary evidence and careful instructions on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. These attorney "tools of the trade" are the safeguards. Daubert, supra. If the trial judge determines that the science/topic/subject matter is valid, the expert is qualified and the expert has properly applied the principles and methodology to the facts, the test is met and the evidence is admissible.

How the Court Should Exercise its Powers

In Wisconsin, Daubert issues are to be addressed by the trial court as preliminary questions of fact under 901.04. I believe that this is a determination that can be made one of four ways:

1) Pretrial paper review. (i.e. Summary Judgment)

2) Pretrial evidentiary hearing.

3) At trial.

4) No hearing needed (where there is not dispute as to the expert, the science/topic.subject matter or expert's application of principles to facts)

Each case is different and the decision as to how to make the determination of fact rests within the sound discretion of the trial court.

Scheduling Orders

It will be critical for the trial judge to craft a scheduling order to address Daubert. I believe that the trial judge should have a six point order in order to address and resolve a Daubert motion in an orderly fashion.

1) Set a deadline for disclosure of plaintiff's experts, submission of written expert reports with supporting materials. The submissions should:

a) Set forth the expert's ultimate opinions.

b) Set forth the basis of the expert's opinions.

c) Address each of the Daubert factors and the Committee Comments to the 2000 Amendments to the Federal Rules factors.

d) Provide any case law where the science/topic/subject matter has previously been deemed reliable and admissible for Daubert purposes.

e) Set forth counsel's position with respect to how the court should make its 901.04 determination.

2) Set deadline for completing discovery of plaintiff's experts.

3) Set deadline for disclosure of defendant's experts, submission of written expert reports with the same supporting materials required of plaintiff's counsel.

4) Set deadline for completing discovery of defendant's experts.

5) Set deadline for filing of Motions in Limine to exclude Daubert evidence.

6) Set status date to address how the court should resolve the Daubert Motions in Limine.


It is incumbent upon the trial judge to take control over the Daubert issue at the scheduling conference in order to keep control over the case. It is the role of the attorneys to educate and persuade the trial judge on the ultimate Daubert decision to be made. It is the role of the trial judge to ensure that the attorneys provide the court with the tools needed to resolve the Daubert issue in the case.

Friday, May 27, 2011

The Interaction and Interplay Between The Collateral Source Rule, Principles of Subrogation and The Made Whole Doctrine in Wisconsin

By John DiMotto

Three of the most difficult Rules/Principles/Doctrines in the Civil Practice of Law that have a direct impact on the award of damages are The Collateral Source Rule, The Principles of Subrogation and The Made Whole Doctrine. On the surface, these concepts seem straightforward. However, in reality, nothing is further from the truth. The interaction and intersection of these Rules/Doctrines have generated much litigation and will undoubtedly continue to do so, forever. This past week, in Fischer v. Steffen, 2011 WI 34, the Wisconsin Supreme Court discussed each of these Rules/Doctrines. Today, I would like to examine them.

The Collateral Source Rule (CSR)

Wisconsin's tort law recognizes the CSR. see Rixmann v. Somerset Pub. Sch., 83 Wis.2d 571 (1978). The CSR provides that a tortfeasor's liability to an injured individual is not reduced because the injured individual received payments from some other source. see Payne v. Bilco Co., 54 Wis.2d 424 (1972). The CSR is part of a policy seeking to deter negligent conduct by placing the full cost of wrongful conduct on the tortfeasor. see American Standard Ins. Co. v. Cleveland, 124 Wis.2d 258 (Ct. App. 1985). The tortfeasor is not relieved of the obligation to the plaintiff simply because the plaintiff had the foresight or good fortune to get benefits from a collateral source (ie. insurance). see Ellsworth v. Schelbrock, 235 Wis.2d 678 (2000). The CSR applies to insurance companies, Medicare and Medical Assistance. In fact, it is not limited to "paid for benefits" but applies to gratuitous medical services provided by the State. see Thoreson v. Milwaukee and Suburban Tranp. Corp., 56 Wis.2d 231 (1972). The CSR places on the tortfeasor full responsibility for the loss he/she caused. The reimbursement rate is not dispositive. The plaintiff can recover the value of the services. see Ellsworth, supra. The plaintiff is entitled to recover without limitation to the amounts paid. Limiting the plaintiff's potential recovery to amounts paid is contrary to Wisconsin's rule of valuation of medical expense damages, the CSR and Principles of Subrogation. see Koffman v. Leichtfuss, 246 Wis.2d 31 (2001). If there is any windfall, the party to profit is the person injured not the tortfeasor. see Powers v. Allstate Ins. Co., 10 Wis.2d 78 (1960).

Principles of Subrogation

Subrogation involves the substitution of one party in place of another with reference to a legal right or claim. see Houle v. School District of Ashland, 267 Wis.2d 708 (Ct. App. 2003). Subrogation is a legal doctrine which permits an insurer to stand in the shoes of the insured to pursue recovery from a responsible tortfeasor. It is a derivative right. see Fischer v. Steffen, 2001 WI 34, supra. The law invokes subrogation to avoid unjust enrichment once an insured has been fully compensated. see Muller v. Society Ins., 309 Wis.2d 410 (2008). The insurer succeeds in relation to the debt and gives to the substitute all the rights, priorities and remedies of the insured for whom the insurer is substituted. Once the insurer pays, it has the right to stand in place of the insured pursuant to contract for insurance and may seek to recoup its outlay from the tortfeasor. In such instance, the insured is normally precluded from seeking the same recovery from the tortfeasor. The right of subrogation normally trumps the CSR although there are two exceptions: first, when the plaintiff is not made whole, the plaintiff gets priority over the insurer and, second, when the insurer waives its right of subrogation the plaintiff may pursue the subrogation claim. see Fischer v. Steffen, 325 Wis.2d 382 (Ct. App. 2010). However, if a subrogated insurer pursues its subrogation claim via settlement or arbitration, the result is binding on the plaintiff and subrogation trumps CSR. see Fischer v. Steffen, 2011 WI 34, supra.

Made Whole Doctrine (MWD)

The MWD prevents competition between the injured party and subrogated insurer when the injured party's damages exceed a limited pool of funds from which recovery may be had. Under MWD, the injured party should be the first to tap into the limited pool of funds and recover on any loss. When some cannot be fully paid, the loss should be born by the subrogated party. The subrogated party has no right to share in any money recovered from the tortfeasor until the plaintiff is "made whole." see Garrity v. Rural Mutual Ins. Co., 77 Wis.2d 537 (1977). An insured is to be made whole, but no more than whole. see Rimes v. State Farm Mut. Auto Ins., 106 Wis.2d 263 (1982). An insured giving a general release and settling a case is not being made whole. see Rimes, supra. The test for wholeness depends on whether the insured has been completely compensated for all the elements of damages not merely those damages for which the insurer has indemnified the insured. Subrogation is only occasioned when the insured receives an award by judgment or otherwise which pays all elements of damages including those for which the insurer indemnifies the insured. see Rimes, supra.


The Wisconsin Supreme Court in Fischer, supra, indicated that the Collateral Source Rule, Principles of Subrogation and the Made Whole Doctrine work in tandem. They are equitable doctrines and ordinarily work together to further the goals of an injured party recovering for his/her loss and the tortfeasor to pay for damages he/she inflicts. However, there are no "black letter" rules. The interaction and application of these rules/principles/doctrines are heavily influenced by the facts of each case. As a result, we can expect to see much more litigation addressing the interplay between them.

Wednesday, May 25, 2011

Minor Guardianship of the Person Under Chapter 54

By John DiMotto

In Wisconsin, a guardianship of the person and a guardianship of the estate for a minor can be created either under Chapter 54 or under Chapter 48. In this blog, I will examine the Chapter 54 Guardianship of the Person for a Minor.

A Guardianship of the Person for a Minor creates a legal relationship between "the ward" -- the child for whom a guardian has been appointed by the court and "the guardian" -- the individual appointed by the court to provide for the essential requirements for health and safety and personal needs of a minor. Furthermore, in all respects the guardian must honor his/her fiduciary obligation to exercise the degree of care, diligence, and good faith when acting on behalf of the ward, advocate for the ward's best interests and exhibit the utmost degree of trustworthiness, loyalty and fidelity in relation to the ward.

Before a court can appoint a guardian of the person for a minor, it must be shown that there is a need for the appointment of a guardian and that the person seeking the guardianship is appropriate and qualified to serve.

Under 54.34(1), any person may petition for the appointment of a guardian for a minor. However, 54.15 sets forth that if one or both of the parents of a minor are suitable and willing, the court shall appoint one or both as guardian unless the courts finds that the appointment is not in the proposed ward's best interest. Where a non-parent seeks to become guardian, before the court can appoint the non-parent the must be evidence that is clear and convincing that the parent/s are unfit, and if so, that appointment of the non-parent is in the best interest of the child.

In every Chapter 54 guardianship action, the court must appoint an attorney to serve as Guardian Ad Litem (GAL) for the minor child. 54.40(3) sets forth the responsibilities of the GAL. The GAL is THE advocate for the best interests of the minor and functions independent of the petitioner and all other persons interested in the action. The GAL is the "Voice" for the best interests of the child.

Under 54.42, there is a right to a jury trial, a right to counsel and a right to be present at the hearing. Jury trials, however, are rare. Most petitioners and wards want a court trial.

Under 54.44, the burden of proof is on the petitioner seeking the guardianship to establish by clear, convincing and satisfactory evidence that there is a need for a guardian -- that grounds exist for the appointment of a guardian. Whether the proposed guardian is suitable is a determination made by the court and the court alone.

Under 54.44, the hearing on the petition must be held within 90 days of the filing of the petition. There is no provision in the statute for any extensions. If the hearing is not conducted in a timely fashion, the court loses competency to act and jurisdiction to proceed. The 90 day time limit does not require that the hearing be concluded within 90 days, only that it commence within 90 days.

Under 54.46, at the conclusion of the hearing the court shall either dismiss the petition, if the petitioner fails to meet the burden of proving the necessity for the guardianship or shall grant the petition and enter a determination and order appointing a guardian and setting forth the specific powers granted to the guardian.

Under 54.64, the guardianship remains in effect until the child reaches the age of 18 years unless it is terminated for good cause at an earlier time.

It is important to note that whenever the petition for a minor guardianship of the person has the potential of supplanting the "natural guardianship" rights that attend parenthood, THE condition precedent is proof of the "unfitness" of the parent/s which must be established by clear, convincing and satisfactory evidence. This is known as "The Barstad Rule" from Barstad v. Frazier, 118 Wis.2d 549 (1984). Only if "unfitness" is proven does the court consider what is in the best interest of the child.

Barstad is the legal standard for minor guardianship in a dispute between a parent and non-parent third party. "Best Interests" is not the proper standard and is not to be considered unless "unfitness" is proven. This is because if "Best Interests" was the proper standard most young parents could not compete on an equal level with their established older relatives.

In addressing the Barstad standard, the court in In the Matter of the Guardianship of Clive Ro, 322 Wis.2d 615 (Ct. App. 2009), recognized that while transfer of legal custody from a parent to a third party does not have the finality of a Termination of Parental Rights (TPR), a change in custody may result in as complete a severance of child-parent times as does termination. The court went on to state that in the absence of compelling reasons, principles followed in TPR cases should be followed where change of custody from a parent to a third party is presented to the court. The court very strongly stated that parents' constitutional right to be a parent must be considered.

In my next blog, I will look at the provision for a minor guardianship under Chapter 48.

Tuesday, May 10, 2011

Sentencing -- The Ultimate Exercise of Discretion

By John DiMotto

As a Circuit Court Judge, I have been asked on numerous occasions over the years to participate in various seminars and conferences that have addressed sentencing matters. I am also routinely asked by people "how does a judge arrive at a sentence?" The answer is simpler than the exercise. A judge must analyze:

1) The nature and gravity of the offense.

2) The character of the offender.

3) The protection of society.

Based on the judge's analysis, he/she arrives at a sentence that he/she believes will account for all three of these sentencing factors.

In 2004, the Wisconsin Supreme Court in State v. Gallion, 270 Wis.2d 535, a case in which I was the trial judge, discussed sentencing considerations and revisited the issue of sentencing and set forth the requisite standards of the sentencing framework. The Wisconsin Supreme Court indicated :

1) Sentencing requires an exercise of discretion and that a strong presumption of reasonability is afforded to the trial court.

2) Appellate courts should not substitute their preference.

3) Discretion contemplates a process of reasoning.

a) This process depends on facts in the record or that are derived by inference from the record.

b) Discretion must be exercised on a rational and explainable basis. There must be a statement by the trial judge detailing the reasons for selecting the particular sentence imposed.

c) Discretion does not lend itself to mathematical precision.

4) The sentence imposed should call for the minimum amount of custody which is consistent with the protection of the public, gravity of the offense and rehabilitative needs of the defendant.

5) Probation should be considered as the first sentencing alternative and should be the sentence unless the court finds:

a) Confinement is needed to protect the public, or

b) The offender needs treatment in confinement or,

c) Probation would unduly depreciate the seriousness of the offense.

6) The Sentencing Framework should:

a) Specify the objectives of the sentence on the record.

* General Objectives are Protection, Punishment, Rehabilitation, Deterrence, Restorative Justice and Victim Restitution.

c) Identify which general objectives are of greatest importance.

d) Describe facts relevant to the objectives and explain in light of those facts why the particular component parts of the sentence imposed advance the specified objectives.

e) Identify factors considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision.

* Factors include -- the defendant's prior record; the defendant's history of undesirable behavior; the defendant's character; the results of a presentence investigation; the aggravated nature of the crime; the defendant's degree of culpability; the defendant's demeanor at trial; the defendant's age, education, and employment record; the defendant's remorse, repentance and co-operation; the defendant's need for close rehabilitative control; the rights of the public; the length of pretrial detention; read in offenses; the effect of the crime on the victim.

f) The sentence must be the minimum amount of time consistent with the gravity of the offense, the defendant's rehabilitation and protection of public.

g) Court must first consider probation.

h) Court must explain how the conditions of probation or Extended Supervision advance sentencing objectives.

i) Court must explain how incarceration time advances sentencing objectives.

7) Court must by reference to relevant facts and factors explain how the sentence's component parts promote the sentencing objectives.

8) Court should rely on information provided by others.

9) Character of the victim may be considered.

10) Victim's have sentencing rights.

Sentencing must never be a "knee jerk" reaction to a crime or to a defendant. Sentencing requires a balancing of multiple considerations. Sentencing is the most difficult decision that a circuit judge ever makes. Lives are in the balance -- of people and of the community as a whole.

Every judge takes this responsibility to heart every time he/she walks into a courtroom to do a sentencing. Justice demands nothing less.

Wednesday, May 4, 2011

The Indian Child Welfare Act in Children's Court Proceedings

By John DiMotto

Whenever a child is an enrolled member of an American Indian Tribe or a biological parent is an enrolled member of an American Indian Tribe and the child is eligible for enrollment, special federal and state statutory protections attend child custody proceedings including:

1) Placements made to foster care, institutions, guardians or conservators.

2) Termination of Parental Rights proceedings.

3) Preadoptive placements.

4) Adoptive placements.

However, these protections do not govern placements in:

1) Delinquency proceedings.

2) Award of custody in divorce proceedings.

The Declaration of Policy as set forth in 25 USC 1901 - 1963 (The Federal Indian Child Welfare Act [ICWA]) is twofold:

1) Protect the best interest of every American Indian child.

2) Promote the stability and security of Indian Tribes and families.

The Declaration of Policy as set forth in Wis. Stat. 48.028(2) (The State Indian Child Welfare Act [WICWA]) is also twofold:

1) Cooperate fully with Indian Tribes in order to ensure that the Federal ICWA is enforced in Wisconsin.

2) Protect the best interest of Indian children and promote stability and security of Indian Tribes and families by doing all of the following:

a) Establishing minimum standards for the removal of Indian children from their families and placing those children in out of home care placements, preadoptive and adoptive placements that will reflect the unique value of Indian culture.

b) Using practices, in accord with Federal ICWA, 8.028 and other applicable law, that are designed to prevent the voluntary or involuntary out of home placements and, when it is necessary, placing the Indian child in a placement that reflects the unique values of the Indian child's tribal culture and that is best able to assist the Indian child in establishing, developing and maintaining a political, cultural and social relationship with the Indian child's tribe and tribal community.

ICWA and WICWA apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian or any extended Indian family member or other person at the commencement of the proceeding and regardless of whether the Indian child lives on or off a reservation. If the child lives on a reservation the Indian tribe shall have exclusive jurisdiction over the child. Also, if an Indian child is a ward of a tribal court, the Indian tribe shall have exclusive jurisdiction over the Indian child. Furthermore, if the Indian tribe petitions for jurisdiction over an Indian child who does not live on a reservation, jurisdiction shall be transferred to the Indian tribal court a parent objects, the Indian tribe does not have a tribal court or there is good cause to deny the transfer. Good cause must be proven by clear and convincing evidence.

In any child custody proceeding in which ICWA and WICWA apply, the Indian Tribe and Indian custodian have the right to:

1) Intervene in the State court proceedings.

2) Notice of proceedings.

3) Examine all reports and documents filed with the court.

4) The right to court appointed counsel attends all Indian parents and Indian custodians.

Before an Indian child may be removed from the home of an Indian child's parent or custodian and placed out of home, the State must prove by clear and convincing evidence, including the testimony of one or more qualified experts that continued custody by the parent or custodian is likely to result in serious emotional or physical damage to the child and that active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have been unsuccessful. In TPR actions, the "serious emotional of physical damage" element must be proven beyond a reasonable doubt.

In terms of the "qualified experts" requirement, there is an order of preference for the selection of experts. The order of preference is as follows:

1) Member of the Indian tribe.

2) Member of another tribe.

3) Professional with substantial knowledge of Indian culture.

4) Layperson with substantial knowledge of Indian culture.

In terms of the "active efforts" requirement, 48.028(4)(g)1. sets forth nine activities that are to be undertaken. These include:

1) Evaluation of child's circumstances and development of a case plan.

2) Comprehensive assessment of family.

3) Timely notification to tribe about proceedings.

4) Extended family members notified and included in process.

5) Provision of natural and unsupervised family interaction in most natural setting where safe.

6) Available family preservation strategies offered and pursued.

7) Community resources identified and offered.

8) Monitoring progress of situation.

9) Consideration of alternatives.

Whenever a child custody proceeding involves an Indian child, it is of the utmost importance that ICWA and WICWA requirements be pursued with vigor. The best interest of the Indian child can only be obtained where there is sensitivity to the Indian child's tribal culture.

Thursday, April 21, 2011

The Role of the Trial Judge in Jury Selection

By John DiMotto

In his "The Dark Side" blog for the Wisconsin Law Journal, my friend, attorney David Ziemer -who is a News Editor for WLJ, recently wrote about jury service and related some anecdotes about how trial judges approach it. (It was a good blog from the perspective of a trial attorney.) I thought this would be a good time to provide a judicial perspective on jury selection and the role of the judge in the process.

The role of the trial judge in jury selection is different than that of the attorneys for the parties. The role of the attorneys in jury selection is to impanel a jury that the attorneys believes will be favorable to the his/her case. The role of the trial judge, "who should have no dog in the race" is to ensure that a fair and impartial jury is impanelled. A "fair and impartial" jury is one which will arrive at its verdict:

1) Based on the facts it finds worthy of belief from all the evidence introduced,

2) By applying the law, the legal principles, provided to the jury by the judge in the instructions,

3) By using its collective common sense and long experiences in life.

In seeking to impanel a jury that will be fair and impartial, the trial judge has great discretion in the control of the voir dire process. The following are principles that guide the conduct of the trial judge.

1) The trial judge can control the form and the number of questions. Latitude in voir dire does not extend to asking questions which mislead, confuse or misinform. In fact, where a juror merely expresses a predetermined opinion that does not disqualify the juror per se. A trial judge should follow up to see if the juror can lay aside the opinion and decided the case based on the facts introduced and the law that applies to the case. If the juror will give that assurance, the juror should not be "struck for cause" -- disqualified. see Hammill v. State, 89 Wis.2d 404(1979).

2) Selection of an impartial jury is conducted under the trial court's supervision. see State v. Van Straten, 140 Wis.2d 306 (Ct. App. 1987).

3) The test for whether a prospective juror should be struck for cause is determined based on whether the juror is biased. If a juror cannot be indifferent, the juror should be excused. see State v. Faucher, 227 Wis.2d 700 (1999).

4) Even the appearance of bias should be avoided. see State v. Louis, 156 Wis.2d 470 (1990).

5) The test for juror bias is whether there is statutory, subjective or objective bias. If it is present and a prospective juror cannot lay it aside, the prospective juror must be excused. see State v. Erickson, 227 Wis.2d 758 (1999).

6) Statutory bias is present where a juror is related by blood or marriage to any party or attorney appearing in the case, as well as those who have a financial interest in the case. These people may not serve under any circumstances. see Faucher, supra.

7) Subjective bias is revealed through words and demeanor of a prospective juror during the voir dire process. This refers to the prospective juror's state of mind. This is usually revealed by demeanor since rarely is there direct proof by the juror explicitly admitting prejudice or inability to set aside prejudice. The trial judge is in a superior position to determine this from the demeanor of the juror. see State v. Jimmie R.R., 232 Wis.2d 138 (Ct. App. 1999).

8) Objective bias if present if a reasonable person in the prospective juror's position objectively could not judge the case in a fair and impartial manner. Here the trial judge considers the facts in the case and the facts and circumstances surrounding the voir dire. There must be a connection between the prospective juror's bias and the issues or theory of the case. These attitudes must be strongly held but are not expected to be unequivocal. see State v. T. Oswald, 232 Wis.2d 62 (Ct. App. 1999). When a prospective juror's relationship to the case is such that no reasonable person in the same position could possibly be impartial even though the juror desires to set aside any bias. see State v. Czarnecki, 237 Wis.2d 794 (Ct. App. 2000).

9) Jurors are presumed to be impartial and the challenger to that presumption bears the burden of proving bias. see State v. Gilliam, 238 Wis.2d 1 (Ct. App. 2000).

10) No "magical words" need be spoken by prospective jurors and they need not affirmatively state he/she can definitely set bias aside. Prospective jurors need not respond to voir dire questions with unequivocal declarations of impartiality and they need not unambiguously state the ability to set aside a bias. The trial judge should not focus on isolated words but on the entire record. see State v. J. Oswald, 232 Wis.2d 103 (Ct. App. 1999).

11) The decision as to the subjective sincerity of a prospective juror in expressing his/her final view of fairness is within the discretion of the trial judge. see State v. Sarinske, 91 Wis.2d 14 (1979).

12) In making the determination as to whether a prospective juror should be struck for cause, trial judges are guided by the following words of the Wisconsin Supreme Court in State v. Lindell, 245 Wis.2d 689 2001):

"We take this opportunity to restate that we caution and encourage circuit courts to strike prospective jurors for cause when the circuit court reasonably suspects that juror bias exists. ... This is a decades-old standard, that encourages circuit courts 'to err on the side of striking prospective juror who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run. ... It is the appearance of partiality that gives us great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality."

13) Where a juror believes that he/she cannot decide the case fairly on the evidence, he/she should be removed for cause. see State v. Zurfluh, 134 Wis.2d 436 (Ct. App. 1986).

What these principles convey to every trial judge is that his/her role in the voir dire process is critical and must not to be taken for granted. The trial judge must use his/her eyes and ears in the evaluation of every prospective juror to ensure that prospective jurors will be fair. In this endeavor:

1) A trial judge should not excuse "for cause" a prospective juror merely because he/she does not want to serve.

2) A trial judge should not excuse "for cause" a juror who merely says he/she cannot be fair without exploring the "why" to that statement.

3) A trial judge should excuse "for cause" a prospective juror who carries a "real" bias that can not be laid aside.

4) A trial judge should excuse "for cause" a prospective juror who because of legitimate circumstances in his/her life are such that the juror cannot give his/her time and attention to the case.

When a trial judge has concerns about the possibility of bias on the part of a prospective juror, the trial judge should do a careful, thoughtful, and thorough individual voir dire with that prospective juror making it clear to the juror that the judge is not looking for a particular answer but rather wants, needs and expects candid and honest answers to the judge's questions. A trial judge should never badger a prospective juror to seek a particular answer, however a trial judge should never let a juror manipulate the process to get out of jury service. If a trial judge believes that a prospective juror is being less than candid in order to avoid service the judge must "challenge" that juror for the truth.

When a trial judge is confronted with a prospective juror who does not present with a statutory, subjective or objective bias but is seeking to be excused for some other reason, a trial judge has the responsibility to follow up as well. For example:

1) If a prospective juror's service will cause a very real and significant financial hardship, that should be given serious consideration in these very difficult economic times.

2) If a prospective juror has a parent or spouse or child who is seriously ill and service will interfere with the prospective juror's obligation to that individual, that should be given serious consideration.

3) However, mere inconvenience should never be countenanced.

Jury service should not be such that it can easily be avoided. In our country, we are blessed to have many "rights" that are the envy of people throughout the world. However, along with our "rights" we have "responsibilities." Jury service is one of those responsibilities. Only is there is a bias that cannot be set aside or life circumstances so important that they trump jury service should prospective jurors be excused. It is the responsibility of the trial judge to oversee the voir dire process and maintain the integrity of the jury system.

Wednesday, April 13, 2011

John Doe Proceedings in Wisconsin

By John DiMotto

It was announced at a recent press conference conducted by officials of the Milwaukee County district Attorneys Office and the Government Accountability Board that a prominent Wisconsin Railroad CEO was being charged with campaign law violations for making illegal campaign contributions based on information gathered during a John Doe proceeding. While most people have heard or read about various John Doe proceedings, a full understanding of what they entail is a mystery to many. I thought this would be a good time to examine the law regarding John Doe proceedings in Wisconsin.

The John Doe proceeding in Wisconsin is outlined in 968.26 of the Wisconsin Statutes. Its purposes is to convene a proceeding before a judge to determine whether a crime has been committed in the court's jurisdiction.

Request for a John Doe Proceeding

The request to convene a John Doe proceeding ordinarily comes from a district attorney (DA) although there are times when the complaining party is a citizen. If the complaining party is a DA, the judge SHALL convene a hearing.

If the complaining party is not a DA, the judge shall refer it to the DA for review unless the complaint relates to the conduct of the DA in which case the complaint is referred to a special prosecutor (SP). However, the word "shall" in the context of this statute is not mandatory in all instances. The matter shall be referred to the DA only "if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge's jurisdiction." see Naseer v. Miller, 329 Wis.2d 724 (Ct. App. 2010). This is because the intended purpose of a John Doe proceeding is to serve "both as an inquest into the discovery of crime and as a screen to prevent 'reckless and ill-advised' prosecutions." see State ex rel Reimann v. Circuit Court for Dane County, 214 Wis.2d 605 (1997).

When a DA is making the request, it is usually because the efforts of law enforcement to investigate a crime are being thwarted and their investigation is being impeded. When the request is being made by a citizen, it is usually because the citizen feels that law enforcement and the DA are not being responsive to his/her complaints.

If the judge convenes a John Doe proceeding, the judge shall subpoena witnesses requested by the DA or SP and shall examine any witnesses who are called by the DA or SP, although ordinarily it is the DA or SP who conducts the examinations of witnesses given their knowledge of the entire matter. Requests to grant immunity to compel testimony can be made, by the DA or SP and if granted, witnesses must testify or be subject to contempt.

The John Doe proceeding may be secret or open.

Any witness called to testify at a John Doe proceeding may be represented by counsel at the proceeding although the attorney may not examine any witnesses or argue before the judge. The role of the attorney is to advise his/her client at the proceeding.

The proceedings are recorded. If the proceeding is secret, the testimony taken shall not be open to inspection by anyone except the DA or SP unless it is used at a preliminary hearing or trial of the accused and then only to the extent that it is so used.

At the conclusion of the John Doe proceeding, the judge determines if there is prosecutive merit to warrant the issuance of a criminal complaint and arrest warrant.

DA Request for John Doe

When the request for a John Doe proceeding comes from a DA, the hearing shall be granted and the DA presents the case to the judge. At the conclusion of the proceedings the DA can independently issue a criminal complaint or ask the judge to do so.

Citizen Request for John Doe

In a case where the complainant is a citizen and in the circumstance where the complaint is referred to a DA or SP, the DA/SP has 90 days to issue charges or refuse to issue charges. If the DA/SP refuses to issue charges, all of his/her investigative reports along with a written explanation as to why charges are not being issued must be given to the judge. Additionally, the judge may require law enforcement to provide all of their investigative reports for the judge's review. The judge need not subpoena and examine under oath the citizen complainant or any witnesses that that the citizen complainant may have. Only is a John Doe hearing is convened shall the judge subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom it has been committed.

Under prior law the judge was required under all circumstances to examine the complainant. This is no longer necessary. Under the current John Doe statute, a judge may consider matters extrinsic of the actual petition in determining whether to convene a John Doe hearing. After reviewing all of the information provided, the judge shall convene a hearing if he/she determines it is necessary to determine if a crime has been committed. Under the current law, the judge shall consider the credibility of testimony and information in support of an opposed to the citizen's complaint in making the decision as to whether to convene a John Doe hearing. The judge can weigh the evidence, which is a change from prior John Doe law. Ultimately, it is within the discretion of the judge as to whether he /she shall convene a hearing. The only recourse by a citizen complainant if a judge will not convene a John Doe hearing is to seek a Writ of Mandamus.


The current John Doe statute as set forth above, is the most recent version of the law. It has been amended within the last two years, making changes to citizen based requests to curb abuses. The new law recognizes the need for wide judicial discretion to evaluate a citizen complaint for a John Doe proceeding in order to ensure fairness in the pursuit of justice.