Bench and Bar Experiences

Juror Conduct During the Trial

2011-12-01T06:58:00.003-06:00

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:

CONDUCT DURING TRIAL

"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:

ADMONITION TO JURY

"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."

CONCLUSION

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.

Bench and Bar Experiences to Return Soon

2011-10-08T07:54:00.002-05:00

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: http://cancerlight.blogspot.com.

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

Role and Duties of a Judge with a Jury

2011-08-26T07:23:00.002-05:00

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.

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

2011-08-17T09:59:00.002-05:00

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.

The Right to a Public Trial

2011-08-02T12:57:00.006-05:00

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.

SIXTH AMENDMENT RIGHT TO 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.

WISCONSIN CONSTITUTION ARTICLE I, SECTION 7 RIGHT TO A SPEEDY PUBLIC TRIAL

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 right...in 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.

WISCONSIN STATUTE SECTION 757.14

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.

STATUTORY EXCEPTIONS TO THE RIGHT TO A PUBLIC TRIAL

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.

CASE LAW EXCEPTIONS TO THE RIGHT TO A PUBLIC TRIAL

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

(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.

CONCLUSION

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.

The Fundamental Rights of the Criminal Defendant in Wisconsin

2011-07-21T12:14:00.002-05:00

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.

Conclusion

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.

Daughter's Wedding

2011-07-15T06:46:00.001-05:00

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.

Conspiracy Law in Wisconsin

2011-06-28T07:56:00.002-05:00

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).

Conclusion

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.

Party to a Crime Law in Wisconsin

2011-06-23T07:03:00.002-05:00

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.

Examples

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.

Conclusion

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."

Daubert Revisited -- The Role of the Trial Judge

2011-06-09T07:23:00.002-05:00

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.

Qualifications

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.

Conclusion

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.

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

2011-05-27T14:36:00.004-05:00

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.

Conclusion

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.

Minor Guardianship of the Person Under Chapter 54

2011-05-25T13:02:00.003-05:00

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.

Sentencing -- The Ultimate Exercise of Discretion

2011-05-10T16:42:00.002-05:00

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.

The Indian Child Welfare Act in Children's Court Proceedings

2011-05-04T07:22:00.002-05:00

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.

The Role of the Trial Judge in Jury Selection

2011-04-21T07:09:00.002-05:00

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.

John Doe Proceedings in Wisconsin

2011-04-13T07:38:00.002-05:00

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.

Conclusion

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.

Recall of Elected Officials in Wisconsin

2011-04-05T12:01:00.002-05:00

By John DiMotto

The political upheaval in Wisconsin, as a result of events in the Wisconsin Legislature over the past two months, has sparked a number of recall elections. While there has been much debate about recalls, there has been little discussion about the law itself. In this blog, I will address both Recall Law and the Recall Process.

Recall Law

Recall law is not unique to Wisconsin. Thirty-eight states have provisions for allowing recall of elected officials. Eleven states allow recall of State, local and federal elected officials. (Wisconsin is one of the eleven.) Seven states only allow recall of State and local elected officials. Twenty states only allow recall of local elected officials. Twelve state have no provisions for recall of elected officials.

Twelve of the states that allow recall of elected officials only do so if certain conditions - "grounds" - are present. However, a majority of the states allow recalls to proceed for no reason at all. Wisconsin is one of the states where grounds are not required.

In Wisconsin, the right of recall is provided for in the Wisconsin Constitution in Article XIII, Section 12. This provision was first enacted in 1926 and amended in April, 1981. It sets forth:

1) The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officers after the first year of the term for which the incumbent was elected. (The right of recall has been extended to local elected officials by virtue of Wisconsin Statute section 9.10.)

2) A recall petition must be signed by electors equalling at least 25% of the vote cast for the office of governor at the last preceding election in the area which the elected official represents.

3) If a petition is certified a recall election shall be held on the Tuesday of the 6th week after the petition is filed.

4) The incumbent continues to serve and perform his/her duties until the recall election results are officially declared.

5) Unless the incumbent declines within 10 days after the filing of the petition, the incumbent shall be on the ballot at the recall election without the need to meet any filing requirements. Other candidates must comply with the law for special elections. If more than two people compete for a nonpartisan office, a recall primary shall be held. The two persons receiving the highest number of votes shall be the two candidates in the recall election, EXCEPT that if any candidate receives a majority of the votes, that candidate shall assume office for the remainder of the term and a recall election shall not be held. For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party's nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall elections only.

6) When a recall primary is required, it shall be held on the Tuesday of the 6th week after the filing of the petition with the recall election to be held on the Tuesday of the 4th week after the recall primary.

7) The person receiving the highest number of votes in the recall election shall be elected for the remainder of the term.

8) After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he/she was elected.

9) Laws may be enacted to facilitate the operation of Art. XIII, Sec. 12 but no law shall be enacted to hamper, restrict or impair the right of recall. (The Wisconsin Legislature enacted 9.10 to facilitate this constitutional provision.)

Recall Process

Section 9.10 implements Article XIII, Section 12 by providing the process/framework.

1) A petition for recall of a state or federal elected official does not require any reason.

2) A petition for recall of a local elected official must contain a statement of the reason for the recall which is related to the official responsibilities of the official for whom removal is sought. see 9.10(2)(b).

3) A petition may only be filed after the petitioner has first filed a registration statement with the filing officer.

4) A petition may not be circulated until the registration is completed.

5) A petition must be filed on or before 5:00 pm on the 60th day commencing after registration.

6) Requirements for signatures to be valid and counted are set forth in 9.10(2)(e). (i.e. properly signed, dated, proper residency, qualifed elector, certification of circulator completed, etc)

7) Any challenge to the validity of signatures shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.

8) Burden of proof is on a challenger to the petition and signatures.

9) Time limit for challenger filing written challenges to petition -- within 10 days of filing. Time limit for petitioner to file a rebuttal -- within 5 days after challenge filed. Time limit for challenger to file a reply -- within 2 days after rebuttal filed. Certification of petition by filing officer -- within 14 days after filing of a reply. Determination on sufficiency of petition -- within 31 days after certification. Time limit to file a petition for writ of mandamus or prohibition with the circuit court by petitioner or elected official for the court to decide the sufficiency of the petition -- within 7 days of the filing officer's determination on sufficiency of petition.

10) There shall be separate elections for each official subject to recall.

The Government Accountability Board has information on its website with respect to the recall process.

While the right of recall is recognized in the Wisconsin Constitution, there is a debate over its use. There are many people who believe that recalls should be the exception and not the rule. They believe that mere disagreement over the decisions made by an elected official should not be the basis for a recall, rather it should be reserved for malfeasance, misconduct, failure to perform duties or particularly egregious behavior. They believe that absent such circumstances that the elected official should have the right to finish out his/her term and be accountable at the next election cycle. On the other hand, there are many people who believe that if they do not have confidence in an elected official, or if an elected official has "lied" to them or disappointed them or if they do not believe that an elected official is serving their interest or if they just don't like an elected official or even if they have no reason at all that they should have the ability to pursue recall of any state or federal elected official.

Whether you agree or disagree with the exercise of the right of recall, it is a recognized right of citizenship; a right of expression guaranteed by the Wisconsin Constitution.

Contempt Law in Wisconsin - Part Two - Case Law Construction

2011-03-31T14:09:00.002-05:00

By John DiMotto

In my last blog, I focused on the statutory provisions regarding Contempt of Court in Chapter 785. Today, I want to focus on how appellate courts have construed the statutory law.

In Evans v. Luebke, 267 Wis.2d 596 (Ct. App. 2003), the Court stated that contempt power is an inherent judicial power, one that does not necessarily derive from legislative mandate and which inheres in the definition of a court. However, if a statute prescribes the procedure in prosecution of contempt, or limits the penalty, the statute controls.

In Getka v. Lader, 71 Wis.2d 237 (1976), the Court recognized that the Wisconsin Legislature has given to every court and every judge in the State of Wisconsin, the power to punish a person for not following a court order via contempt. However, the "thing" ordered to be done must be within t he power of the person so ordered.

In the case In re: Adam's Rib, 39 Wis.2d 741 (1968), the Court stated that the power to punish for contempt is to be used sparingly and should not be used arbitrarily, capriciously or oppressively and that whether a person who is under an order to do a "thing" must have it within the person's capability. At a contempt hearing, the burden is on the alleged contemnor to give a satisfactory explanation as to why he/she failed to comply with the court order.

In O'Connor v. O'Connor, 48 Wis.2d 535 (1970), the Court stated that it has long been settled in Wisconsin, that a person cannot be held in contempt of court for failing to comply with an order unless it is willful and contemptuous. If the refusal is to pay money, it cannot be as the result of an inability to pay.

In Staples v. Staples, 87 Wis. 592 (1894), the Court stated that were an inability to pay is willfully brought about by a person himself/herself with the intent to avoid making a payment, the refusal becomes contumacious and the inability so resulting will not purge the person of the contempt.

In Schroeder v. Schroeder, 100 Wis.2d 625 (1981), the Court stated that a sentence to jail for a civil contempt is not to punish for not obeying the court's order but rather to enforce the private right of one of the parties to the action.

In Frisch v. Henrichs, 304 Wis.2d 1 (2007), the Court stated that a purge condition and sanction can be the same and that when a purge condition is outside compliance with the original court order it must serve remedial aims, the contemnor must be able to do it and the condition must be reasonably related to the nature of the contempt.

In City of Wisconsin Dells v. Dells Fireworks Inc., 197 Wis.2d 1 (Ct. App. 1995), the Court stated that courts may impose remedial sanctions for the purpose of termination a continuing violation of a court order.

In Carney v. CNH Health and Welfare Plan, 305 Wis.2d 443 (Ct. App. 2007), the Court stated that an order which requires specific conduct to do or to refrain from doing can be enforced by contempt. The specific term "enjoin" or "injunction" is not necessary before a court can exercise contempt powers.

In State ex rel N.A. v. G.S., 156 Wis.2d 338 (Ct. App. 1990), the Court stated that the review of a trial courts exercise of contempt power is under the abuse of discretion standard.

In Oliveto v. Crawford Co. Circuit Court, 194 Wis.2d 419 (1995), in addressing a summary

contempt in the presence of the court, the Court stated that summary contempt may be used only if the contumacious act is committed in the actual presence of the court, the sanction must be imposed for purpose of preserving order in the court and it is imposed to protect the authority and dignity of the court and the sanction is imposed immediately after the contempt after allocution.

In Gower v. Circuit Court for Marinette Co., 154 Wis.2d 1 (1990), a summary contempt for actions in the presence of the court case, the Court held that it is to be used only under limited circumstances.

In Shepard v. Outagamie Co. Circuit Court, 189 Wis.2d 279 (Ct. App. 1994), the Court held that intent may be inferred from conduct in determining if an action is willful or intentional.

In State v. Pultz, 206 Wis.2d 112 (1996), the Court held that where the State in the exercise of its police power brings its power to bear on an individual through the use of civil contempt and liberty is threatened, the individual is entitled to counsel, and if indigent, appointment of counsel at public expense.

In Christensen v. Sullivan, 320 Wis.2d 76 (2009), the Court held that a contempt of court must be intentional and the trial court has no discretion to impose a remedial sanction against a party after their contempt of court had ceased. Remedial contempt is used to terminate a continuing contempt of court.

In Meyer v. Teasdale, 321 Wis.2d 647 (Ct. App. 2009), the Court held that a contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with a purge condition.

These appellate cases tell us that the contempt powers of the court:

1) Are both inherent and statutory in nature.

2) Are to be used sparingly and only when deemed necessary.

3) Must be exercised to stop a continuing contempt or a contempt in the presence of the court.

4) When exercised must be such that the purge condition is within the reach of the contemnor.

5) Are to be used to promote and achieve Law and Order.

Contempt Law in Wisconsin - Part One - Statutory Law

2011-03-24T08:37:00.004-05:00

By John DiMotto

Recently, the Republican leadership in the Wisconsin Legislature held the Democratic Senators in contempt for leaving the State and preventing the Senate from taking up the Budget Repair Bill as an appropriations bill. The sanction was to preclude them from voting in committee until the next time the Senate was to be in session. (The same day they imposed the sanction they withdrew it.) Yesterday, SCOTUS heard arguments in Turner v. Rogers as to whether a person facing contempt of court for not paying child support, and facing possible incarceration until payment is made as a purge, has a right to counsel under the due process clause of the 14th Amendment. Given these two recent "contempt" scenarios, I thought this would be a good time to begin a review the law of contempt of court in Wisconsin. This will be a two part review. In today's, blog I will look at Chapter 785 of the Wisconsin Statutes which addresses "Contempt of Court." In my next blog, I will look at how appellate courts have construed the statutory law of contempt.

785.01 sets forth what conduct constitutes contempt of court. First, the conduct must be intentional. Second, it must be:

1) Misconduct in the presence of the court which:

(a) interferes with a court proceeding, or

(b) interferes with the administration of justice, or

[This is usually addressed via a summary, punitive sanction, procedure under 785.03(2). See below]

2) Disobedience, resistance or obstruction of:

(a) the authority, or

(b) process, or

3) Engaging in certain prohibited action in a family law case under 767.117(1)

4) Refusal of a witness to:

(a) appear, or

(b) be sworn, or

5) Refusal to produce a:

(a) record, or

(b) document, or

[2 through 5 are usually addressed via nonsummary, remedial sanction, procedure under 785.03(1)(a) although they can also be subject to nonsummary, punitive sanction, procedure under 785.03(1)(b) or both! See below]

There are two types of Contempt Procedures:

1) Nonsummary:

(a) Remedial sanction -- 785.03(1)(a)

(b) Punitive sanction -- 785.03(1)(b)

A remedial sanction may be imposed for the purpose of terminating a continuing contempt of court. An example would be for nonpayment of child support.

A punitive sanction may be imposed to punish a past contempt of court for the purpose of upholding the authority of the court. An example would be where the court entered an order which was blatantly disregarded by a party and where it is brought to the attention of the local DA who considers it so egregious that he/she wants to obtain a criminal conviction and sentence to jail. No remedy is sought, only punishment.

Nonsummary - remedial is utilized when a person aggrieved by a contempt of court seeks a remedy for himself/herself. After notice and hearing a court may impose one of the remedial sanctions in 785.04(1). A remedial sanction must be purgeable since it is to remedy a wrong.

An example would be where the court finds that the failure to pay child support is so serious that it orders 30 days in jail but if the nonpayer makes a lump sum payment within a reasonable time frame the nonpayer can avoid the jail time.

Nonsummary - punitive is a criminal offense which must be brought by a district attorney, attorney general or special prosecutor. It is commenced by the filing of a criminal complaint and all of the provisions of Chapters 967 -973 apply. A punitive sanction does not have to be purgeable since it is to punish not to remedy. The nonsummary, punitive sanction, procedure could be brought on the same facts as the above nonsummary, remedial sanction, procedure. (However, the use of the nonsummary, punitive sanction, procedure by the DA is rarely used due to limited resources.)

2) Summary -- 785.03(2).

The summary procedure is utilized by a judge who may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The punitive sanction must be imposed immediately after the contempt occurs and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The alleged condemner has the right of allocution before the sanction is imposed. An example of the summary procedure would be a situation where a lawyer would show disrespect for the court in open court.

Remedial sanctions under 785.04(1) that are available to the court include:

1) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.

2) Imprisonment if the contempt of court is of a type included in 785.01(1)(b) - (d) only so long as the person is committing the contempt of court or 6 months whichever is the shorter period.

3) A forfeiture not to exceed $2000 for each day the contempt of court continues.

4) An order designed to ensure compliance with a prior order of the court.

5) A sanction other than the above sanctions here if the court expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

Punitive sanctions under 785.04(2)(a) [nonsummary procedure] include:

1) A fine of not more than $5000 for each separate contempt of court, or

2) Imprisonment in the county jail for not more than one year or both for each separate contempt of court, or both.

Punitive sanctions under 785.04(2)(b) include:

1) A fine of not more than $500 for each separate contempt of court, or

2) Imprisonment in the county jail for not more than 30 days for each separate contempt of court, or both.

It must also be noted that a punitive sanction may be imposed for past conduct which was a contempt of court even though similar present conduct is a continuing contempt of court. In other words a party may seek a remedial sanction for a continuing contempt and the State may bring a criminal contempt for past conduct which is still continuing.

While contempt proceedings can be brought in a vast variety of scenarios, the use of contempt is the exception not the rule. Courts attempt to resolve misconduct and disobedience via the exercise of reason as opposed to the exercise of power.

In the next blog, I will examine the case law regarding contempt and how the procedures are actually used.

The Law of Temporary Restraining Orders and Injunctions in Wisconsin

2011-03-16T06:50:00.003-05:00

By John DiMotto

With the passage of the recent Budget Repair Bill and the threats of legal action to challenge the constitutionality of the legislation, I thought it would be timely to review the law in Wisconsin with respect to restraining orders and injunctions.

Chapter 813 of the Wisconsin Statutes addresses the issue of when and under what circumstances restraining orders and injunctions may be sought. The purpose of a restraining order or injunction is to prevent a person from engaging in conduct or from continuing to engage in conduct in violation of the rights of another person. The restraining order or injunction can address:

1) The constitutionality of a statute.

2) General conduct (i.e. stop a defendant from divesting himself of property which divestiture is being contemplated in order to avoid execution on a judgment that a plaintiff has against the defendant).

3) Specific conduct (i.e. domestic abuse, child abuse, individual at risk or harassment injunctions). A restraining order and injunction can also be sought when a party seeks to challenge the constitutionality of legislation.

Section 813.02 specifically addresses the conditions precedent to obtaining a temporary restraining order or injunction. 813.02(1)(a) sets forth:

"When it appears from a party's pleading that the party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."

Does this mean that a restraining order or injunction is the norm or is it the exception? Case law gives us guidance.

1) An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a plaintiff directed toward a defendant forbidding a defendant from doing some act which the defendant is threatening or attempting to commit or restraining a defendant in continuance thereof, such act being unjust and inequitable, injurious to the plaintiff and not such as can be redressed by an action at law. State v. O'Dell, 192 Wis.2d 333 (1995).

2) The granting or denial of injunctive relief rests within the trial court's discretion. Hall v. Liebovich Living Trust, 300 Wis.2d 725 (Ct. App. 2007).

3) Injunctions do not issue for inconsequential or trivial causes but only to restrain an act that is clearly contrary to equity and good conscience. Milwaukee Electric Railway and Light Co., 205 Wis. 126 (1931).

4) Injunctions are not to be issued lightly. Bartell Broadcasters v. Milwaukee Broadcasting Co., 13 Wis.2d 165 (1961).

5) An equitable remedy such as a prospective injunction must of necessity, place heavy reliance on the facts of the particular controversy. Prince v. Bryant, 87 Wis.2d 662 (1979).

6) To obtain injunctive relief, a litigant generally must show that the injunction is necessary to prevent irreparable harm. The purpose of an injunction is to prevent future violations. Past injuries are in themselves no ground for an injunction and only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits. There must be no adequate legal remedy available. (i.e. The injury cannot be compensated by damages.) Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002).

7) Factors to be considered for the issuance of a temporary injunction are identified in 813.02(1). The movant must show: Reasonable probability of success on the merits; an inadequate remedy at law and irreparable harm. Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990).

8) Before an injunction will be issued, the cause must be substantial. Temporary injunctions are to be issued only when necessary to preserve the status quo. At the temporary injunction stage, the requirement of irreparable injury is met by showing that without it to preserve the status quo pendente lite, the permanent injunction sought would be rendered futile. School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).

9) An injunction may be no more broad than is equitably necessary. City of Milwaukee v. Burnette, 248 Wis.2d 820 (Ct. App. 2001).

10) When a public entity seeks injunctive relief to enforce a law (i.e. zoning ordinance) it does not have to show irreparable harm. Forest Co. v. Goode, 219 Wis.2d 655 (1998).

11) Injunctive relief should be tailored to the necessity of the particular case. Hoffman v. Wisconsin Electric Power Co., 262 Wis.2d 264 (2003).

12) To warrant an injunction, the injury must be real, serious, material and permanent or potentially permanent. the right to an injunction must be clear and reasons for granting it strong and weighty. Kocken v. Wisconsin Council 40 AFSCME, 301 Wis.2d 266 (2007).

13) Injunctions must be specific as to the prohibited acts and conduct in order for the person being enjoined to know what conduct must be avoided. Welytok v. Ziolkowski, 312 Wis.2d 435 (Ct. App. 2002).

In the context of challenging legislation, we know that statutes are presumed constitutional and that the party challenging constitutionality must prove unconstitutionality beyond a reasonable doubt. In the context of seeking an injunction to prevent the implementation/enforcement of a statute on the grounds that the statute is unconstitutional, the moving party must show:

1) Reasonable probability of success on the merits.

2) Inadequate remedy at law.

3) Irreparable harm.

It will be interesting to see what arguments are made for and against provisions in the Budget Repair Bill. It will be even more interesting to learn not only the ultimate decision made by the trial court and appellate courts but the legal rationale for the ultimate decision.

Determining the Constitutionality of Laws

2011-03-01T12:02:00.002-06:00

By John DiMotto

As I am sure everyone knows, the budget problems of State of Wisconsin have been been the focus of local, national and international news for the past three weeks. Today, it was reported that the Milwaukee City Attorney has authored an opinion that provisions of the Governor's Budget Repair Bill are an unconstitutional infringement on the city's "home rule" authority over its pension plan, violates employees' contractual rights and violates workers' due process rights. There will undoubtedly be very lively and heated debate over whether he is correct.

Today, I want to examine the Rules of Statutory Construction that are considered by the courts when a constitutional challenge to legislation is raised.

When a party claims that a law is unconstitutional, that party is claiming that the law is at odds with a provision in either the US or the Wisconsin Constitution or both and, as such, the law cannot stand or be enforced. Black's Law Dictionary, 5th Edition defines "Constitution" as:

"The organic and fundamental law of a nation or a state...establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people ... of a particular state, as the absolute rule of action and decision for all departments (ie. branches) and officers of the government in respect to all the points covered by it, which must control until is shall be changed by the authority which established it (ie. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void."

It is a fundamental bedrock of our government, by virtue of the "separation of powers," that:

1) The Legislature enacts the law.

2) The Executive enforces the law.

3) The Judiciary interprets the law.

Thus, when a law is challenged as being unconstitutional -- an affront to the constitution -- it is the judiciary which makes the final decision.

A party has standing to challenge a statute's constitutionality if that party has a sufficient interest in the outcome of a justiciable controversy to obtain a judicial resolution of that controversy. Standing involves a two step analysis. The court must determine whether the plaintiff has suffered threatened or actual injury and the interest asserted must be recognized by law. see State v. Oak Creek, 232 Wis.2d 612 (2000).

The Rules of Statutory Construction as they pertain to constitutionality provide that:

1) Statutes enjoy a presumption of constitutionality, and,

2) All doubts are resolved in favor of constitutionality.

3) Therefore, a party challenging a statute's constitutionality bears a heavy burden and must demonstrate the statute is unconstitutional beyond a reasonable doubt.

see Ferdon v. Wisconsin Patients Compensation Fund, 284 Wis.2d 573 (2005).

The only exception to the challenger bearing the burden of proof is when a statute infringes on a First Amendment Right. In this instance, the State has the burden of proving constitutionality beyond a reasonable doubt. see State v. Trochinski, 253 Wis.2d 38 (2002).

A constitutional challenge to a law can be:

1) A "facial" challenge; that is, on its face, the law is unconstitutional in every context, or

2) An "as applied" challenge; that is, the law is unconstitutional as to the challenger alone.

see State v. Smith, 323 Wis.2d 377 (2010).

A constitutional challenge to a law can be based on:

1) Overbreadth -- a statute is overbroad when its language is so sweeping that its sanctions may be applied to constitutionally protected conduct which the State is not permitted to regulate. see County of Kenosha v. C & S Management Inc., 223 Wis.2d 373 (1999). In order to assert a claim of overbreadth, it is not necessary that a person's own conduct be constitutionally protected. The overbreadth analysis reflects the conclusion that possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted. Thus, if a statute included in its prohibition conduct which is constitutionally protected, it is void even if the person's own conduct is unprotected and may be prohibited by a more narrowly drawn law. see State v. Johnson, 108 Wis.2d 703 (Ct. App. 1982). The danger in overbroad statutes is that they provide practically unbridled administrative and prosecutorial discretion that may result in selected prosecution based on certain views deem objectionable law enforcement. However, overbreadth must be real and substantial. Marginal infringement or fanciful hypotheticals of inhibition which are unlikely to occur will not render a statute unconstitutional on overbreadth grounds. see State v. Stevenson, 236 Wis.2d 86 (2000).

2) Vagueness -- a statute is vague if it fails to afford proper notice of the conduct it seeks to proscribe. The test for vagueness is whether a statute is so obscure that men of ordinary intelligence must guess as to its meaning and differ as to its applicability. To withstand a vagueness challenge it must be sufficiently definite so that potential offenders are able to discern boundaries of proscribed conduct. see Johnson, supra. Procedural due process is at issue. see County of Kenosha, supra.

3) Procedural Due Process -- requires that a person who has life, liberty or property at stake must be afforded the opportunity to be heard at a meaningful time and in a meaningful manner. Failure of a statute to so provide renders a statute unconstitutional. see Estate of Makos v. Masons Health Care Fund, 211 Wis.2d 41 (1997).

4) Substantive Due Process -- the Fourteenth Amendment due process clause is a guarantee of "more than a fair process." It contains a substantive sphere as well barring certain government actions regardless of the fairness of the procedures used to implement them. The threshold inquiry when analyzing an alleged violation of substantive due process is whether the challenger has established a deprivation of a liberty or property interest protected by the constitution. see Dowhower v. West Bend Mutual Ins. Co., 236 Wis.2d 113 (2000).

5) Equal Protection -- a statute which treats members of similarly situated classes differently violates the Fourteenth Amendment. If the challenge implicates a fundamental right or suspect classification the statute is subject to a strict scrutiny test. It must be shown by the State that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn. see State v. Baron, 318 Wis.2d 60 (2009). If the challenge does not implicate a fundamental right or suspect classification then the statute is subject to a rational basis test. It must be shown buy the challenger that the regulation is not rational. All doubts are resolved in favor of constitutionality. see Nankin v. Village of Shorewood, 245 Wis.2d 86 (2001).

Whenever there is a challenge to the constitutionality of a state statute, notice must be given to the Wisconsin Attorney General under 806.04(11) so he/she can decide whether the State wishes to be heard above and beyond the parties to the lawsuit.

If the Governor's Budge Repair Bill does become law, the constitutionality of some of the provisions of the bill (ie. home rule, worker contractual rights, worker due process) may be challenged in the courts. Furthermore, the challenger may also seek an injunction to prevent the challenged provisions from taking affect until the constitutionality of those provisions is ultimately decided. Any challenge may well result in a long and winding road.

Summary Judgment Procedure in Wisconsin

2011-02-21T07:25:00.002-06:00

By John DiMotto

When a person files a civil lawsuit to seek redress from what he/she perceives to be an injustice, that person is usually entitled to a trial on the merits. I say "usually" because there is a circumstance where a person is denied the right to a trial. That "circumstance" is when there is no genuine issue of material fact a person is NOT entitled to a trial. Whether this "circumstance" is present is determined by Summary Judgment.

Chapter 802 of the Wisconsin Statutes addresses "Pleadings, Motions and Pretrial Practice." One of the motions that Chapter 802 addresses is the Motion for Summary Judgment.

802.08(1) sets forth that a party:

"...may move for summary judgment on any claim, counterclaim, cross claim or 3rd party claim which is asserted by or against the party".

802.08(2) sets forth that:

"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue to the amount of damages."

802.08(3) sets forth that:

"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence."

802.08(5) sets forth that:

"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees."

Finally, 802.08(6) sets forth that:

"If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor."

In order to ensure that summary judgment is not abused, appellate courts have set forth principles to be embraced by the trial court.

Summary judgment is only available when "there is nothing to try." When brought by a defendant, it is akin to a motion for dismissal at the end of the plaintiff's case if there is not credible evidence in support of the elements the plaintiff must prove. see Transportation Ins. Co. v. Hunzinger, 179 Wis.2d 281 (Ct. App. 1993)

The party with the burden of proof at trial in connection with a claim has the burden to show that there is a genuine issue of material fact that requires a trial on that claim. This burden can be met by reasonable inferences drawn from circumstantial evidence. Submissions are to be examined in the light most favorable to the nonmoving party. see Tomson v. American Family Ins. Co., 321 Wis.2d 492 (Ct. App. 2009).

An issue of fact is genuine if a reasonable jury could find for the nonmoving part. A material fact is such a fact that would influence the outcome of the controversy. see Marine Bank v. Taz's Trucking Inc., 281 Wis.2d 275 (2005).

A case founded only on hunches and speculation rather than evidence will not justify a trial. see Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 863 (Ct. App. 2008).

Courts do not make findings at the summary judgment stage. Summary judgment methodology prohibits the trial court from making findings of fact. The trial court does not weigh the evidence or determine credibility of evidence. see Continental Casualty v. Milwaukee Metropolitan Sewerage District, 175 Wis.2d 527 (Ct. App. 1993).

While summary judgment is considered a drastic remedy which should not be granted when material facts are in dispute, without a doubt a trial court can and should grant summary judgment in those instances where the controlling material facts are not in dispute and the application of the law to the facts is not doubtful. see Town Bank v. City Real Estate Development LLC, ___Wis.2d___, 2010 WI 134.

Summary judgment should not be granted unless material facts are not in dispute, no competing inferences can arise and the law that resolves the issue is clear. see Tele-Port v. Ameritech Mobile Communications, 248 Wis.2d 846 (Ct. App. 2001).

When a motion for summary judgment is brought, the adverse party may not rest on mere allegations or denial in the pleadings but must set forth evidence. The opponent to summary judgment does not have the luxury of resting upon allegations or denials but must advance specific facts showing the presence of a genuine issue of material fact. see Schreiner v. Wieser Concrete Products, Inc. 294 Wis.2d 832 (Ct. App. 2006).

Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. see In rel Paternity of Taylor R. T., 199 Wis.2d 500 (Ct. App. 1996).

A question of law is suitable for summary judgment. see Public Service Corporation v. Heritage Mutual Ins. Co., 200 Wis.2d 821 (Ct. App. 1996).

Summary judgment can resolve legal issues and contract construction. see Meyer v. City of Amery, 185 Wis.2d 537 (Ct. App. 1994).

As you can see from the the declarations of appellate courts, if there is a dispute of material fact or if a contract is ambiguous, a trial court should never grant summary judgment. If there is a question of credibility, summary judgment cannot be granted. If there is evidence "to be weighed," summary judgment cannot be granted. Summary judgment is not a substitute for a trial but a mechanism to resolve a lawsuit where there is not dispute of fact or law.

Daubert in Wisconsin -- Seismic or Subtle?

2011-02-16T10:08:00.002-06:00

By John DiMotto

Over the past 16 days since, since the Daubert Rule took effect in Wisconsin, I have had numerous conversations with my colleagues about whether this evidentiary rule change will be seismic or subtle. Based on those conversations and my review of statutes and case law, I have come to the "preliminary opinion/conclusion" that it will be subtle because of the considerable overlap between concepts of relevancy and reliability. Let me explain.

Black's Law Dictionary, 5th Edition, defines relevancy as follows:

"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. Two facts are said to be relevant to each other when so related that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."

"Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue."

"Relevancy of evidence refers to its probative value in relation to the purpose for which it is offered. ... Term describes the logical relationship between a proffered item of evidence and a proposition that is material or provable in a given case."

Black's Law Dictionary, 5th Edition, defines reliable as follows:

"Trustworthy, worthy of confidence."

I believe that these two definitions must be read together and, if done, the reader will arrive at the inescapable conclusion that to be "relevant" the evidence in question must, in some measure, be "reliable." How can evidence be "probative", that is, "have the effect of proof" or the ability to "prove a fact or hypothesis" unless it has reliability?

I believe that an examination of Wisconsin statutory and case law reinforces my opinion/conclusion/proposition that to be relevant, evidence must have reliability.

The Wisconsin Rules of Evidence address "relevant evidence" in 904.01 The definition is in accord with the definition of relevancy in Black's Law Dictionary. It sets forth:

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

If evidence is to have "any" tendency to make something "more" or "less" probable, doesn't the evidence to have some indicia of reliability?

In State v. Payano, 320 Wis.2d 348 (2009), the Wisconsin Supreme Court reiterated that relevance has two components:

1) The evidence must go to a consequential proposition and,

2) The evidence must make the consequential proposition more probable or less probable.

If the evidence can make the consequential proposition more or less probable, doesn't it stand to reason that it must be reliable?

In State v. Ross, 260 Wis.2d 291 (Ct. App. 2003), the Court of Appeals, in addressing the concept of relevancy stated:

"In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case."

In order for the evidence to make the logical or rational connection, doesn't it stand to reason that it must be reliable?

In Winnebago County v. Harold W., 215 Wis.2d 521 (Ct. App. 1997), the Court of Appeals, in addressing relevancy stated:

"Relevancy is an elastic concept which must be assessed in light of the nature of the proceedings."

Doesn't this definition imply the need for the evidence to have some reliability? And, if it does, then shouldn't it be admitted and let the trier of fact give it such weight as it deems the evidence is entitled to receive?

Finally, I believe that a re-reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), supports my opinion/conclusion/proposition.

1) SCOTUS stepped back from the rigid "general acceptance" rule of Frye.

a) The drafting history of Rule 702 makes no mention of Frye and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the tradition barriers to 'opinion' testimony.

2) SCOTUS held that the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issue.

However, and most significantly,

3) SCOTUS made it clear that:

a) This is a flexible inquiry;

b) Rule 702 will not create a "free for all"; and,

c) [1] Vigorous cross examination, [2] presentation of contrary evidence and [3] careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

I believe that SCOTUS intended to make the introduction of expert testimony easier.

I believe that the thrust of Daubert is that SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.

I believe that while the Wisconsin Walstad Relevancy Rule is more liberal than the Daubert Reliability Rule, that the differences are not very great and that Daubert will not dramatically change the landscape when it comes to the introduction of expert testimony.

In terms of the necessity for and extent of 901.04 (1) hearings, I believe that trial judges need not "re-invent the wheel" when it comes to the qualifications of the expert and the expert principle at issue. If the expert and/or the principle have previously been litigated, I believe that the trial court can rely on "past precedent." For example, I do not think any judge need conduct an extensive hearing as to whether DNA evidence will be admissible. I believe that the reliability of DNA evidence has been decided. With respect to other areas there may be a need for 901.04(1) hearings. However, the trial judge must be mindful that, based on the strong language in Daubert, the threshold for admissibility is a low one. Trial judges must always remember that, for the most part, "weight of evidence" is left to the sound decision of the trier of fact.

Seismic or subtle?

I say subtle.

Daubert In Wisconsin -- Initial Applicability to Criminal and Civil Cases

2011-02-07T13:26:00.002-06:00

By John DiMotto

2011 Wisconsin Act 2, which became effective on February 1, 2011, brought the Daubert "Reliability"Rule with respect to the introduction of expert evidence to Wisconsin, replacing the Walstad "Relevancy" Rule. A crucial question that the legislation has prompted is whether the Daubert Rule applies prospectively in all cases commenced on the effective date of the act or just civil cases. An attempt to answer this questions raises more questions.

Initial Applicability

Section 45 of the bill addresses the initial applicability of the various provisions in the bill. As it pertains to the Daubert Rule (907.01 - 907.03) the legislation reads as follows:

"Section 45(5) CIVIL ACTIONS. The treatment of ...907.03, the renumbering and amendment of sections 907.01 and 907.02 of the statutes, and the creation of sections 907.01(3) and 907.02(2) of the statutes first apply to actions or special proceedings that are commenced on the effective date of this subsection."

Is this a definitive statement that the Daubert Rule applies only to civil cases commenced after January 31, 2011, that is, prospectively, but that it applies to all criminal cases that is, "retroactively" as well as "prospectively" regardless of when they are commenced?

In order to seek out an answer to this question, it is necessary to look at statutory language and case law regarding construction of laws.

Statutory Construction

Chapter 990 is entitled "Construction of Statutes." 990.001(6) addresses statutory titles and history notes. It specifically states:

"The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes."

Does this means that the title to (5): "CIVIL ACTIONS" is not technically part of the statute and not to be given any weight? If it is not part of the law, does that mean that the Daubert Rule which applies to "actions and special proceedings" applies to criminal actions as well as civil actions which are commenced after January 31, 2011, that is "prospectively" and not "retroactively?"

Case Law

In Betthauser v. Medical Protective Co., 172 Wis.2d 141 (1992), the

Wisconsin Supreme Court referenced that:

"The general rule in Wisconsin is that legislation is presumptively prospective unless the statutory language clearly reveals either expressly or by necessary implication an intent that the statute apply retroactively."

In Steffen v. Little, 2 Wis.2d 350 (1957), the Wisconsin Supreme Court set forth that:

"While statutes in general are construed prospectively the rule is otherwise with statutes whose operation is procedural or remedial."

However, the Court also recognized that:

"it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment." see State ex rel. Schmidt v. District No. 2 (1941), 237 Wis.186.

Daubert Rule

Four more questions that are prompted by 990.001, Betthauser and Steffen are:

1) Does 990.001 evince an intent that the statute apply retroactively to criminal cases?

2) Is the Daubert Rule procedural or remedial?

3) Would retroactive application impair contracts or disturb vested rights?

4) Did the legislation intend to have a Rule apply differently with respect to civil cases vis a vis criminal cases?

These are questions that will undoubtedly be raised and which must be addressed by courts throughout Wisconsin in the coming months.

The Daubert "Expert Testimony" Rule: Coming to Wisconsin

2011-01-27T07:56:00.002-06:00

By Judge John DiMotto

By the passage of Senate Bill 1 during the recent 2011 Special Legislative Session called for the purpose of addressing tort reform, Wisconsin is poised to join the federal courts and the majority of states by adopting the Daubert "reliability" Rule for the admission of expert testimony. No longer will Wisconsin rely on the Walstad "relevancy" rule, rather Wisconsin judges will now take a more active "gatekeeper" role in the first instance. Does this mean that seismic changes are on the horizon or will the change be subtle at best? To answer this question requires a brief look at the differences between the Walstad "relevancy" rule and the Daubert "reliability" rule.

But first, a little history.

In Frye v. U.S., 293 F.2d 1013 (D.C. CA 1923), the D.C. Court of Appeals adopted the Frye test or "general acceptance." Under this test, expert opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community.

In Watson v. State, 64 Wis.2d 264 (1974), the Wisconsin Supreme Court rejected an argument by defense counsel that the "general acceptance" standard of Frye governs the admissibility of expert opinion in Wisconsin. The Court cited to McCormick, Evidence, which is critical of the Frye rule, and stated that in Wisconsin, we follow the wide-open rule of cross-examination to test credibility.

In State v. Walstad, 119 Wis.2d 483 (1984), the Wisconsin Supreme Court reiterated that the Frye test is foreign to the Wisconsin Rules of Evidence section 904.02 which sets forth that all relevant evidence [evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence] is admissible. Thus, for over 47 years, Wisconsin has opted to use a "relevancy" standard with respect to the admission of expert testimony.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court addressed the viability of the Frye test. In Daubert, SCOTUS stated that the Frye "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and held that nothing in rule 702 establishes "general acceptance" as an absolute prerequisite to admissibility nor did it incorporate the "general acceptance" standard. SCOTUS held that before admitting expert testimony the trial judge must decide under Rule 104(a) whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issues. SCOTUS further set forth factors to consider in making the determination. SCOTUS made it clear that this is a flexible inquiry and that this rule will not create a "free for all" and that vigorous cross examination, presentation of contrary evidence and careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. (In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), SCOTUS made it clear that the Daubert "reliability" Rule applies to all expert testimony, not just scientific expert testimony.)

In State v. Peters, 192 Wis.2d 674 (Ct. App. 1995), the Wisconsin Court of Appeals considered whether the Daubert "reliability" Rule affected the Walstad "relevancy" Rule and held that it did not. The Court did stat that while Wisconsin confines itself to determination of relevancy, that Wisconsin trial judges do serve a limited and indirect "gatekeeping" role, albeit, oblique. The court stated that scientific evidence can be rejected, though relevant, if it is superfluous, a waste of time, other 904.03 reasons, the jury does not need it, evidence is inherently improbable, or the area is not suitable for expert opinion [ie. public policy reasons such as polygraph tests]. The Court further stated that this list is not an exhaustive inventory of grounds to refuse to admit relevant evidence and indicated that although Wisconsin trial judges do not evaluate the reliability of scientific evidence, they may restrict it through a limited gatekeeping function.

Today, by virtue of the amendments to 907.02 and 907.03, the Walstad "relevancy" Rule has been superseded by the Daubert "reliability" Rule (as amended by changes in 2000).

As a result, Wisconsin trial judges now must be "gatekeepers" as to all expert testimony as to both relevancy and reliability. Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.

The Committee Note on Rules - 2000 Amendment discusses the fact that Daubert sets forth a non-exclusive "checklist" for trial courts to use in assessing reliability of expert testimony and further discusses that other courts have added to the checklist. The checklist discussion in the Committee Notes includes:

1) Whether the expert's technique or theory has been tested.

2) Whether the technique or theory has been subjected to peer review and publication.

3) The known or potential rate of error.

4) The existence and maintenance of standards and controls.

5) Whether the technique or theory has been generally accepted in the scientific community.

6) Whether experts are proposing to testify about matters flowing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed it for purposes of testifying.

7) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.

8) Whether the expert has adequately accounted for obvious alternative explanations.

9) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

10) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Under 907.02, before expert testimony will be admitted, the trial court must be satisfied that:

1) The testimony is based upon sufficient facts or data.

2) The testimony is the product of reliable principles and methods. and,

3) The witness has applied the principles and methods reliably to the facts of the case.

The "$64,000 Question" that I posed in my first paragraph and that remains to be answered is still: Is this a seismic change or a subtle change?

I am not sure we will have an answer in the near future, but in the meantime and in the final analysis, what it will "boil down to" is for every trial judge to properly exercise his or her discretion in terms of both relevancy and reliability via a flexible inquiry conducted under 901.04.

Immigration Law - The Fiance Visa

2011-01-20T14:44:00.002-06:00

By John DiMotto

Another visa that is immediately available for review and processing by the USCIS is the K-1 "fiance visa."

A fiance of a US citizen who will travel to the US to marry and take up indefinite residence after marriage maybe eligible for a fiance visa. There are four criteria that must be met:

1) One party is a US citizen.

2) Both parties are legally free to marry.

3) The parties have met in person at least once in the two years prior to filing the petition absent a waiver of the requirement.

4) The marriage will take place within 90 days of the fiance entering the US on the fiance visa.

If the four criteria are met, then:

1) The US citizen must file an I-129F (Petition for Alien Fiance) with USCIS. It can only be filed in the US. If the petition is approved,

2) It is then forwarded to NVC for additional processing. After it is processed and approved,

3) The petition is then sent to the Embassy having jurisdiction over the alien fiance where an interview of the alien fiance will take place. If the interview goes well and is approved by Embassy staff,

4) The K-1 visa will be issued and the alien fiance may immigrate to the US.

5) If the marriage takes place in a timely fashion, the now alien spouse must file an I-485 to adjust status to a conditional permanent resident. This conditional permanent residency is granted to ensure the marriage is not a sham. The alien spouse may not leave the US or work until the I485 is granted. If granted, the alien spouse can work. The "condition" is reviewed in approximately two years. If the "condition" is removed then regular permanent residency is granted which is good for ten years until the next review.

The timeline from when the I-129F is filed until it is granted by USCIS is approximately 5 - 6 months. Further, from the time the I-129F is forwarded to the Embassy until a final decision is made can be an additional 3 - 6 months.

The I-129F petitions are reviewed in the order they are received by USCIS. There is no quota on these petitions since the US recognizes the importance of expeditious processing of visas for a US citizen and his/her fiance. The US wants to spare long separations between fiances but it also wants to ensure that there truly is a relationship and bond between the fiances.

Immigration Law -- Immediate Relative Visa Options

2011-01-14T07:20:00.002-06:00

By John DiMotto

If an individual seeking a visa and permanent residency in the United States is an "immediate relative," (IR) such as a spouse, there are two possible ways to obtain an immediate relative visa. First, the US citizen spouse (USCS) can file an I-130 with USCIS in the United States. Second, if the US citizen is a resident of the country where the IR lives, the US citizen may be able to file the I-130 with the US embassy in that country.

Filing the I-130 in the US:

If the USCS files the I-130 in the United States, the USCS may also concurrently file an I-485 Petition to Adjust the Status of the IR. The granting of the I-130 Petition will get the IR a visa to enter the country. The subsequent granting of the I-485 Petition will get the IR his/her "green card" -- permanent residency. Filing in the United States is a two step process. It ordinarily takes 5 - 6 months to get approval of each Petition.

Filing the I-130 with the US Embassy in the country of the IR:

If the USCS is eligible to file the I-130 with the US Embassy in the country where the IR lives, a process known as "Consular Processing" (CP), the IR can become a permanent resident directly through CP. Everything is done through the US Embassy which is a much quicker process. USCIS via the embassy works with the State Department to issue an IR visa on an approved I-130 Petition. If the State Department issues the visa, the IR spouse may then travel to the United States and will officially become a permanent resident when admitted at a US port of entry. If CP can be used it can potentially reduce the total time to obtain permanent residency by half.

In order to be able to file the I-130 with the US Embassy in the country of the IR, the USCS must meet filing requirements. The key filing requirement is that the USCS must be a resident in the country of the IR. They must show they have permission to reside in the consular district and have been doing so for at least six months before filing the petition.

Regardless of whether the I-130 is filed in the United States or in the US Embassy in the country where the IR lives, an important component in the process is the consular interview. Once the I-130 has passed a review by USCIS and the National Visa Center, the last step before a final decision is made is the consular interview. This takes place at the US Embassy. The interviewer wants to make sure that the request is appropriate. If the IR is a spouse, the interviewer will want to be satisfied that the marriage is legitimate and not merely a sham to get the IR into the United States. The IR will oftentimes present documentary evidence and photographs, etc that establish a "true" marital relationship. If the interviewer is satisfied that the relationship is genuine and that the IR will not be a burden or threat to the United States, final approval is given, the IR visa issued and the IR may immigrate to the United States.

In my next blog, I will look at the K-1 "Fiance" visa process.

Immigration Law -- The Visa Process

2011-01-06T13:00:00.002-06:00

By John DiMotto

As we begin 2011 and as I move into my second year as a blogger, I have decided to leave my "comfort zone" -- Wisconsin law -- and look at a more national issue: Immigration Law. My focus in this upcoming series will NOT be on whether the law and procedures are good or bad rather the focus will be on what the law requires and what what must be done to comply with the law. Additionally, I want to look at the law as it pertains to "Alien Relative" immigration as well as "Fiance" immigration. Today, I will discuss "Alien Relative" immigration.

Alien Relative Immigration:

U.S. citizens who want a relative to immigrate to the U.S. and obtain status as a permanent resident have a number of options to pursue. Also, depending on the nature of the relative "relationship," the time it will take to obtain the appropriate visa will be different.

Immediate Relative Immigration:

If the relative seeking a visa to immigrate is an "immediate relative", he/she does not have to wait for a visa number. There are an unlimited number of visa numbers is immediately available to an "immediate relative." An "immediate relative" is a spouse, unmarried children under the age of 21 and parents. The fact that there are an unlimited number of visa numbers for "immediate relatives" does not mean that there is no wait time for the issuance of the "immediate relative" visa. More on this later.

Family Preference Category Immigration:

If the relative seeking a visa to immigrate does not qualify as an "immediate relative" then that relative is placed in the "family preference" category. This relative must wait in line for a visa number to become available for him/her to immigrate because there are a limited number of these visas available each year. Those persons in the "family preference" category include unmarried sons or daughters over the age of 21, married children of any age, brothers and sisters if the U.S. citizen petitioner is over the age of 21.

From the time the Petition for Alien Relative (I-130) is filed in the case of an "immediate relative" or starting from the time a visa number becomes available in the case of a family preference category relative, until the time the visa is actually issued can take between 6 to 10 months. This process entails the U.S. Citizenship and Immigration Services (USCIS) to review the I-130 (4 - 5 months). If approved it is sent to the State Department National Visa Center (NVC) for its review (1 - 3 months). If approved the documents are sent to the U.S. Embassy in the country where the alien relative lives where the staff will review the documents and call the alien relative in for an interview (1 - 2 months) after which it makes a final decision.

Once the alien relative is admitted to the U.S., in order to be granted permanent residence status (issued a green card) another petition (I-485) must ordinarily be filed, reviewed and approved. (There is an exception which I will not discuss today.) Once the "green card" is issued, then the alien relative may obtain employment. (There is a provision in the law whereby the alien resident, while waiting for the "green card" can petition for an employment authorization document [EAD]. I will not discuss this today.) The timeline for approval of the I-485 can be 5 months.

As you can tell by the process, from the time the I-130 is filed and a visa number is available (immediately for an "immediate relative" but with a time delay for those in the "family preference" category) until the "green card" is issued can take up to 15 months. The wheels of government do rotate slowly.

More on these immigration issues in my next blog.

Merry Christmas and Happy New Year

2010-12-14T06:16:00.002-06:00

By John DiMotto

Today, I want to wish all those persons who have followed this blog a Merry Christmas and a Happy New Year. I have enjoyed sharing my thoughts on various points of law and look forward to continuing to do so in 2011.

With the end of the year in full swing and with a number of things "on my plate" this will be my last post for 2010. I will be back "with fervor" after the first of the year.

"See you all next year."

The Wisconsin Rules of Evidence -- The "Business Records" Hearsay Exception

2010-12-07T07:02:00.002-06:00

By John DiMotto

Wisconsin Statutes section 908.03(6) sets forth the "Business Records" exception to the general prohibition on the admissibility of hearsay. It encompasses:

1) a memorandum, report, record, or data compilation;

2) in any form;

3) of acts, events, conditions, opinions, or diagnoses;

4) made at or near the time by, or from information transmitted by;

5) a person with knowledge;

6) all in the course of a regularly conducted activity;

7) as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 909.02(12) or (13), or a statute permitting certification;

8) unless the sources of information or other circumstances indicate lack of trustworthiness.

In my experience, this is one of the most misunderstood hearsay exceptions by trial attorneys. Many lawyers believe that any entry in a business record is admissible. Nothing could be farther from the truth.

In order for an entry in a business record to be admissible, all declarants involved in making the specific entry record must be part of the organization which prepared it. If one of the declarants is not part of the organization, an additional level of hearsay is present which must fall into an exception. see State v. Gilles, 173 Wis.2d 101 (Ct. App. 1992); 908.05; 7 D. BLINKA, WISCONSIN PRACTICE, EVIDENCE sec. 803.06, at 481 (1991). In the scenario of a corporation, if an employee of the corporation sets forth in a document made in the course of regularly conducted activity what he saw and did at a meeting, the "Business Records" exception would allow for the introduction of that information. However, if that same employee sets forth what a person, who is not a member of the corporation, said at that same meeting, the statement of that person is not admissible unless some other hearsay exception applies. The "Business Records" exception does not allow admission of a second level of hearsay. The reports cannot establish more than their maker could if he was testifying in court on their subject. see State v. Mitchell, 84 Wis.2d 325, 330 (1978).

It is also important to note that while the custodian, or other qualified witness, who is utilized to introduce the record need not be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of 908.03(6), the witness must have personal knowledge of how the records are made so the witness can say they were made "at or near the time of the event by or form information transmitted by a person with knowledge" and in the ordinary course of regularly conducted activity. see Palisades Collection LLC v. Kalel, 324 Wis.2d 180 (Ct. App. 2010). In the context of collections actions, where a plaintiff buys a debt from a credit card company, the plaintiff, not being a member of the credit card company, could not be the conduit for the introduction of the credit card company's "business records." Personal knowledge as to how the records are kept is foundational.

An interesting issue that I have faced in Termination of Parental Rights (TPR) cases, is whether records that are prepared by a social service agency under contract with the Bureau of Milwaukee Child Welfare (BMCW) to provide services to the subject child and parents and which must be provided to BMCW come under the umbrella of 908.03(6) and are admissible. I have held that if the State can establish that there is an agency relationship between the service providers and BMCW and if the State can establish that the records are kept according to standards set by BMCW, that 908.03(6) applies.

The "Business Records" exception is an important and necessary exception but it can be subject to abuse. A trial court must ensure that the conditions precedent to introduction of evidence under it are met.

In my next blog, I will look at the Public Records exception.

The Wisconsin Rules of Evidence - The "Statements for Purposes of Medical Diagnosis or Treatment" Hearsay Exception

2010-11-30T13:04:00.002-06:00

By John DiMotto

Wisconsin Statutes section 908.03(4) sets forth the "Statements for Purposes of Medical Diagnosis or Treatment" exception to the general prohibition on the admissibility of hearsay. It encompasses:

"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

In order for the exception to apply, not only must the statements be made for purposes of medical diagnosis or treatment but they must describe:

1) medical history, or

2) past or present symptoms, or

3) pain or sensations, or

4) inception of the cause or external source, or

5) general character of the cause or external source

insofar as the statements are reasonably pertinent to the diagnosis or treatment.

It is critical that what is being said is "reasonably pertinent to the diagnosis or treatment. The fact that statements are made, in and of themselves, does not make them admissible. For example if a patient is seeing his/her doctor for a sprained ankle and the doctor asks the patient how it happened and the patient says that he/she tripped and fell on a bump in the sidewalk and then adds, "oh by the way, one year ago I was sexually assaulted while on a date by John Doe", the report of the sexual assault would not be admissible under 908.03(4) because it could not be successfully argued that it was reasonably pertinent to the diagnosis or treatment of a sprained ankle. There must be a link between the statement and the diagnosis or treatment.

The reason for admissibility under 908.03(4) is that the declarant's motive is for obtaining improved health. This guarantees trustworthiness since a physician relies on what a person says to diagnose and treat. In fact, in a child abuse case, the identity of the perpetrator is deemed reasonably necessary to provide treatment to the child. see State v. Nelson, 138 Wis.2d 418 (1987). For this reason, the statement may come from the patient himself/herself (first party) or from the mother of a child (third party). see State v. Huntington, 216 Wis.2d 671 (1998). This exception is a firmly rooted one. This exception, however, does have limits. For example, while it applies to physicians and psychologists it does not extend to counselors or social workers. see Huntington.

It is believed that when people speak with their doctor that they will be honest and candid since their health, their life is at stake. The law recognizes this as a fact and as such endows these statements with sufficient reliability that they can be admitted regardless of the presence or even availability of the declarant.

In my next post, I will address the Business and Public Records exceptions.

The Wisconsin Rules of Evidence -- The State of Mind Hearsay Exception

2010-11-22T08:04:00.003-06:00

By John DiMotto

Wisconsin Statutes section 908.03(3) sets forth the "State of Mind" exception to the general prohibition on the admissibility of hearsay. It encompasses:

"A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."

This exception is a limited one. It only applies to the then existing state of mind, emotion, etc and does not apply if the state of mind is with respect to a memory or belief. Thus, if a witness is on the stand and says that when she was with the declarant, the declarant seemed distant and distracted and when she asked the declarant if anything is wrong the declarant said he was extremely upset because he has been diagnosed with cancer, this declaration would be admissible because it describes the current circumstances of the declarant's state of mind. However, if the declarant would answer by saying that the declarant is reflecting on the assassination of JFK from 47 years ago, this would not be admissible because it is a statement of memory.

While the State of Mind exception allows a witness to testify as to what a declarant's current state of mind is, it does not allow the admission of a declarant's statements of conduct of others to prove the truth of that conduct solely because that conduct is relevant to the declarant's state of mind. see State v. Kutz, 267 Wis.2d 531 (Ct. App. 2003). The State of Mind exception allows a declarant's statements about his/her state of mind to prove his/her state of mind. see State v. Johnson, 187 Wis.2d 431 (Ct. App. 1994). Under 908.03(3), a statement of a present intent to do an act in the future is admissible to prove the declarant acted in conformity. see State v. Everett, 231 Wis.2d 616 (Ct. App. 1999).

The State of Mind exception had its genesis in Mutual Life Ins. Co. of NY v. Hillmon, 145 US 285 (1882). In this case, the admissibility of letters which set forth the intentions of a declarant was at issue. The Kansas trial court excluded the letters as being hearsay. The United States Supreme Court reversed and remanded for a new trial ruling that the letters should be admitted. SCOTUS held that:

"The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation."

"The rule applicable to this case has been thus stated by this court: 'Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.'"

In my next blog, I will look at the exception dealing with Statements for Purposes of Medical Diagnosis or Treatment.

The Wisconsin Rules of Evidence - The Excited Utterance Hearsay Exception

2010-11-15T08:55:00.005-06:00

By John DiMotto

Wisconsin Statutes section 908.03(2) sets forth the "Excited Utterance" hearsay exception. It encompasses:

"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

There are three elements to this hearsay exception:

1) Need for a startling event or condition.

2) Statement related to the startling event or condition.

3) Statement made while under stress of excitement caused by the startling event or condition.

Case law gives lawyers and judges guidance on the parameters and outer limits of this exception.

The excited utterance is a firmly rooted hearsay exception. State v. Patino, 177 Wis.2d 348 (Ct. App. 1993). It is based upon spontaneity and stress which endows the statement with sufficient trustworthiness to overcome reasons for exclusion. Essentially, it must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement stimulated by the event and the event itself. State v. Huntington, 216 Wis.2d 671 (1998). Under the excited utterance, time is measured by the duration of the condition of excitement rather than the mere lapse of time from the event/condition. State v. Moats, 156 Wis.2d 74 (1990). The excited utterance exception is based on the notion that excitement or agitation stills the declarant's capacity for conscious reflection thus reducing the risks associated with fabricated or insincere testimony. State v. Gerald L.C., 194 Wis.2d 549 (Ct. App. 1995).

In the context of child sexual abuse cases, the excited utterance is expansively applied. The Wisconsin Supreme Court has formulated, by case law, a special species of excited utterance for statements made by young children alleged to have been victims of sexual assault. A broad and liberal interpretation is given. State v. Padilla, 110 Wis.2d 414 (Ct. App. 1983). Excited utterance time is measured by the duration of the condition. Young children produce declarations free of conscious fabrication for longer time than adults. It is unlikely a young child will review the incident and calculate the effect of his or her statement. State v. Teynor, 141 Wis.2d 187 (Ct. App. 1987). In fact, a statement from an alleged victim may be an excited utterance even though the alleged victim did not appear emotionally upset and even if the statements were made in response to questions. State v. Gollon, 115 Wis.2d 592 (Ct. App. 1983); State v. Lindberg, 175 Wis.2d 332 (Ct. App. 1993). What matters is spontaneity and stress. Contemporaneity, unlike the present sense impression, is not needed. Moats.

The excited utterance exception is a vehicle to bring evidence before the trier of fact by taking the trier of fact back in time. The excited utterance is a legal "time machine."

In my next blog, I will examine the "State of Mind" exception.

The Wisconsin Rules of Evidence - Present Sense Impression Hearsay Exception

2010-11-12T13:08:00.005-06:00

By John DiMotto

Section 908.03(1) sets forth the "Present Sense Impression" hearsay exception. It encompasses:

"A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

These statements describe or explain what the declarant has seen, heard, smelled or tasted.

For example:

1) I just saw a car strike a person crossing the street in the crosswalk.

2) I smelled an odor of gas just before the explosion.

3) I just heard a woman screaming "leave me alone" and then saw a man slap her in the face.

4) I just took a bite out of an apple and it caused my mouth to pucker up.

It is important to note that these statements pertain to facts; matters that are concrete. The exception is not intended to encompass opinions.

These statements must be made at the time of the perception or immediately thereafter. They are considered to be reliable because of their spontaneity and contemporaneity. There should be no appreciable time between the observation and statement. This is unlike the Statement of Recent Perception exception found in 908.045(2). The temporal relationship between an event and a statement describing the event is not as critical when dealing with the Statement of Recent Perception as it is with the Present Sense Impression. 908.045(2) concerns that which is recent. 908.03(1) concerns that which is present. see State v. Knapp, 265 Wis.2d 278 (2003). The Statement of Recent Perception was intended to allow more time between the observation of the event and the statement. see State v. Weed, 263 Wis.2d 434 (2003); Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis.2d 806 (Ct. App. 1988); State v. Ballos, 230 Wis.2d 495 (Ct. App. 1999).

The Present Sense Impression is akin to a 908.03(2) "excited utterance" without the excitement requirement and with a contemporaneity requirement. They are both "firmly rooted" hearsay exceptions. see State v. Hemphill, 287 Wis.2d 600 (Ct. App. 2000).

The Present Sense Impression exception to the general rule barring hearsay allows the introduction of a statement which is deemed to have sufficient indicia of reliability by virtue of the circumstances in which the statement is made.

In my next blog, I will look at the 908.03(2) Excited Utterance Exception.

The Rules of Evidence: Hearsay Exceptions

2010-11-09T12:49:00.007-06:00

By John DiMotto

The Wisconsin Rules of Evidence are set forth in Chapters 901 - 911 of the Wisconsin Statutes. They were enacted by Supreme Court Order, 59 Wis.2d R1, R9 (1973). Today, I would like to begin a series on the hearsay exceptions codified in 908.03 and 908.045.

Hearsay is defined in 908.01(3). "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence, to prove the truth of the matter asserted." Ordinarily, hearsay is excluded because it is not based on the personal observation or knowledge of the witness. 908.02 specifically sets forth that "hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.

Black's Law Dictionary, 5th Ed. reports that hearsay is:

1) "Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say."

2) "That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons."

3) "The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity."

That having been said, the exceptions -- specified cases from necessity -- are numerous.

There are two sets of hearsay exceptions:

1) Those where the availability of the declarant is immaterial.

2) Those where the declarant is unavailable.

908.03 delineates the hearsay exceptions where the availability of the declarant is immaterial. There are twenty three specific exceptions and one "catchall" exception. Many of these exceptions are firmly rooted while others are not.

With respect to these exceptions, while availability of the declarant may be statutorily immaterial, in criminal cases the issue of confrontation must be addressed when testimonial hearsay is at issue. In Crawford v. Washington, the United States Supreme Court held that the only indicium of reliability to satisfy constitutional demands with respect to testimonial statements is confrontation - by testing in the crucible of cross examination. Where the hearsay is nontestimonial, the States have flexibility in their development of hearsay law. It is important to note that Crawford applies in criminal cases not in civil cases.

In my next blog, I will begin looking at the various hearsay exceptions in 908.03 and 908.045 as they pertain to civil cases.

Jury Trial Issues -- The Twelve Person Jury

2010-11-01T07:39:00.003-05:00

By John DiMotto

Did you ever wonder why, in Wisconsin, a criminal defendant is entitled to a trial by a twelve person jury?

The 6th Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." There is no reference as to how many jurors shall constitute the jury.

Article I, Section 7 of the Wisconsin Constitution provides that "In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed..." Once again, there is no reference as to how many jurors shall constitute the jury.

If there is no direct language as to how many jurors shall constitute a jury, how is it that in Wisconsin we have settled on twelve in every criminal case? The answer lies in case law.

In State v. Hansford, 219 Wis.2d 226 (1998), the Wisconsin Supreme Court addressed the issue in the context of whether a six person jury in misdemeanor cases is constitutional. In absence of any direct language in the constitution itself, the Court resorted to extrinsic evidence to ascertain the intent of the framers of our constitution.

The Court looked to records from the constitutional conventions of 1846 and 1847. However, they found almost no debate about the guarantee of the right to a jury trial let alone as to the number of jurors. What the Court did find was a comment by a delegate to the convention, Charles H. Lakin, during a debate regarding whether Article I, Section 5 should prohibit judges from instructing juries other than as provided by statute. In his remarks, Lakin stated, "If it be the name of trial by jury that enamours you, you can get something that will do as well, perhaps better, than flesh, and blood, and bones. Erect within your temples of justice twelve hollow, graven, brazen images. Have them so constructed that they will case an echo; and as the dicta of the bench shall be hurled at them, the same will be reflected back to record; and if you will, you may call this, trial by jury." Far from definitive, but the starting point.

In Norval v. Rice, 2 Wis. 17 (1853), the Wisconsin Supreme Court concluded that the right to trial jury guaranteed by the Wisconsin Constitution is the right to a jury of twelve persons as recognized by common law as it existed at the time the constitution was adopted. Subsequent cases - Bennett v. State, 57 Wis. 69 (1883), In re Staff, 63 Wis. 285 (1885), Jennings v. State, 134 Wis. 307 (1908) and State ex rel Sauk County District Attorney v. Gollmar, 32 Wis.2d 406 91966) - reaffirmed this conclusion. It does not matter whether the accused is charged with a misdemeanor or a felony. The jury shall consist of twelve person.

In ensuring the right to a twelve person jury for all persons charged with a crime, the Wisconsin Constitution parted ways from the United States Constitution. Wisconsin provides greater protection to its citizens than the 6th Amendment to the United State Constitution does. In Williams v. Florida, 399 U.S. 78 (1970), SCOTUS concluded that the refusal to impanel a jury of more than six persons did not violate the criminal defendant's rights to a trial by jury guaranteed by the 6th Amendment. SCOTUS reasoned that although juries at common law generally consisted of twelve members, there is "absolutely no indication" that the framers intended to "equate the constitutional and common-law characteristics of the jury." SCOTUS held that a twelve person jury is not "an indispensable component of the 6th Amendment."

In the final analysis, when it comes to the right to a jury trial in a criminal case, Wisconsin affords great protection to persons charged than is afforded to those accused of crimes than the United States Constitution provides.

Jury Trial Issues - The Anonymous Jury

2010-10-26T06:27:00.004-05:00

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.

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

2010-10-22T14:45:00.003-05:00

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.

Jury Trial Issues -- The Right to a Public Trial

2010-10-12T07:18:00.004-05:00

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.

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

2010-10-08T13:08:00.005-05:00

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!

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

2010-10-05T07:20:00.002-05:00

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.

Termination of Parental Rights Law in Wisconsin - Permanency Planning

2010-09-24T05:00:00.000-05:00

By John DiMotto

Whenever a child is removed from the parental home, federal and state law requires that a Permanency Plan be created and implemented to ensure that a child is reunified with the child's family whenever appropriate, or that the child quickly attain a placement or home providing long term stability.

The first Permanency Plan must be prepared and filed with the court within 60 days after the child is removed from the parental home. Furthermore, the plan must be updated and reviewed by the court every six months until the child is returned to the parental home or until permanency is achieved by an adoption following the termination of parental rights.

The Permanency Plan must address:

1) The names of all of the interested parties.

2) Date of removal.

3) Description of services offered and provided to address the circumstances.

4) Basis for the current placement.

5) Statement as to availability of a safe and appropriate family placement.

6) Statement of reasonable efforts to reunite family.

7) Educational information.

8) Medical information.

9) Plan for future.

10) Goals of the Permanency Plan.

11) Conditions that must be met to ensure safe return to parental home.

12) Statement as to ability of child to consult with court regarding the Permanency Plan.

At the Permanency Plan Review Hearing, the court must consider the following:

1) Continuing necessity for and the safety and appropriateness of the out of home placement.

2) Extent of compliance with the most recent plan by agency, service providers and family.

3) Efforts of Agency to provide appropriate services.

4) Progress towards eliminating causes that prevent return of child to parental home.

5) Potential date by which child can be returned to parental home.

6) Appropriateness of Permanency Plan if child has been out of parental home for 15 of the most recent 22 months.

7) Whether reasonable efforts have been made to achieve the most recent Permanency Plan goals, including through out of state placement if appropriate.

At the hearing, the court will hear from:

1) Attorney for State.

2) Social worker from Agency.

3) Parents.

4) Parents attorneys.

5) Guardian ad Litem.

6) Child, if age appropriate.

What is of the utmost importance is that the Agency involved in monitoring the case, in Milwaukee County it is the Bureau of Milwaukee Child Welfare (BMCW), must make reasonable efforts towards reunification or, if not viable, a permanent placement to provide stability for the child. If the court determines that the Agency has not done "reasonable efforts", their failure to comply with their duties will result in the loss of federal funds which is provided to the states to achieve permanency.

The Permanency Plan Review Process ensures that "no stone is left unturned" in the drive to provide safe permanency for vulnerable children.

In my next blog, I will discuss the Adoption and Safe Families Act (ASFA) and its role in TPR cases.

Termination of Parental Rights Law in Wisconsin -- The Dispositional Phase

2010-09-22T12:19:00.002-05:00

By John DiMotto

If the trier of fact (jury or judge) in the Fact Finding Phase of a TPR action, finds that involuntary grounds have been proven by clear, convincing and satisfactory evidence, the case then proceeds to a Dispositional Phase. In the Dispositional Phase, the judge alone evaluates all of the evidence submitted and determines whether the Best Interests of the child warrants termination as the disposition. "Best Interests of the Child" is the "polestar" in the Dispositional Phase.

In the Dispositional Phase, the Court (ie. judge) must make findings of fact from the evidence submitted in determining what is in the best interest of the child. In the Dispositional Phase:

1) The Court may take judicial notice of the evidence offered in the Fact Finding Phase.

2) An Agency Court Report should be introduced.

3) The Rules of Evidence are relaxed -- not unlike at sentencing in a criminal case.

The Agency Court Report address:

1) The social and medical history of the child, including prior court involvement.

2) Statement of services needed.

3) Likelihood of adoption.

4) Plans for permanency.

Relevant evidence may include:

1) Expert testimony.

2) Other evidence having probative value regarding disposition.

3) Foster parent input.

In considering the Best Interest Standard, the Court looks at the "egregiousness" of the parent's conduct and must consider the following factors:

1) Likelihood of adoption after TPR.

2) Age and health of child.

3) Time child has been removed from the parental home.

4) Whether child has a substantial relationship with parents.

5) Whether child has a substantial relationship with other family members.

6) Whether it will be harmful to sever substantial relationships.

7) Wishes of the child.

8) Duration of separation of child from parents.

9) Whether child will be able to enter into more stable and permanent family relationship as result of the termination considering results of prior placements, current conditions of placement and likelihood of future placements.

In light of the above, the Court determines whether Best Interests dictates termination or some alternative such as:

1) Guardianship.

2) Dismissal with continuation of CHIPS order.

There is a debate as to whether there is a specific burden of proof (ie. preponderance, clear and convincing or beyond a reasonable doubt) in the Dispositional Phase. In the Fact Finding Phase, by statute, the burden of proof is clear, convincing and satisfactory evidence. However, no where in the statutes or in case law is there a reference to a specific burden of proof in the Dispositional Phase. There are those who say "Best Interests" governs, and that there is no specific burden of proof. While that seems to make sense, in CHIPS cases, where Best Interests drives the Disposition, case law states that there IS a burden of proof -- preponderance of the evidence. If there is a specific burden of proof in a CHIPS case, it would seem that there should be one in a TPR case. If there is, given the severe consequence of termination -- a civil death penalty, an argument can be made that it should be clear and convincing just as it is in the Fact Finding Phase. However, this is an unanswered question.

In my next blog, I will look at Permanency Plan Reviews -- hearings that are mandated by federal law to ensure that permanency is obtained for children whose parental rights have been terminated.

Blog Will Resume Next Week

2010-09-17T07:15:00.001-05:00

By John DiMotto

I was on vacation the week of 9/6 and at a juvenile law judicial seminar this week and have not been able to blog. I will "return to action" the week of 9/20.

Termination of Parental Rights Law in Wisconsin -- The Fact Finding Phase

2010-09-06T09:54:00.003-05:00

By John DiMotto

There are two phases to a termination of parental rights (TPR) action;

1) The fact finding phase, where a jury or a judge determines whether "grounds" exist for termination. The key consideration in this phase is on the conduct of the parents. and,

2) The dispositional phase, where, if "grounds" are found, a judge determines whether to terminate or consider an alternative such as guardianship or continued CHIPS (child in need of protection or services) jurisdiction. The key consideration in this phase is on the best interests of the child.

In today's blog, I will discuss the fact finding phase.

The fact finding phase is a "trial." The rules that govern the trial are as follows:

1) The parents and the child have a right to request a jury trial. (The request on behalf of the child is made by the child's Guardian ad Litem -- a lawyer appointed by the court to represent the best interests of the child.) If either of the parents or the GAL request a jury, the grounds will be determined by a jury of 12. Since a TPR action is a civil case, the jury does not have to be unanimous in its decision to return a verdict. A "5/6 verdict" is acceptable; that is only 10 of the 12 jurors need agree to all questions on the verdict. If the right to a jury trial is waived, then the judge will be the trier of fact and decide whether "grounds" exist.

2) The burden of proof in the fact finding phase is on the petitioner, usually the assistant district attorney who brings the case. The middle burden of proof -- clear, convincing and satisfactory evidence -- applies.

3) While there are multiple grounds that a TPR action can be based upon, most cases proceed on the ground of "continuing CHIPS" -- that is, there has been in place a court order in a CHIPS case that the parents have not complied with or on the ground of "failing to assume parental responsibility." When these are the grounds alleged, proof usually entails a broad spectrum of evidence of the life of the parents. It can involve criminal conduct, drug use and a lack of commitment towards one's family. Because of this broad spectrum, the fact finding phase can take 4 or 5 days.

4) The rules of evidence apply in the fact finding phase.

5) The rules regarding jury selection in Chapter 757 and 805 apply in a TPR action.

6) Evidence regarding what is in the best interest of the child is not the consideration in this phase. The focus is on the parents. If grounds are found, then in the dispositional phase the focus in on the child.

In a fact finding phase, the trier of fact - either a jury or the judge - is presented with evidence that focuses on the good and the bad of a person as a parent. It is not pretty.

In my next blog, I will discuss the dispositional phase of a TPR case.

Termination of Parental Rights Law in Wisconsin - Voluntary Consent to Termination

2010-09-02T05:21:00.000-05:00

By John DiMotto

If a parent wishes to contest a TPR, the State must prove to a jury or to the court by clear, convincing and satisfactory evidence that involuntary grounds under 48.415 are present. If this burden of proof is met, then the court must find that the parent is unfit and the case proceeds to Disposition. If ultimately the court orders TPR, this finding constitutes a separate ground which can be the basis of a TPR on another child. However, a parent can voluntarily consent to termination and if accepted by the court the parent is not found to be unfit and the ultimate TPR judgment cannot be used as the basis for a future TPR action.

Before the court can accept the voluntary consent of a parent, the court must engage in a detailed colloquy with the parent to ensure that the decision is being made freely, voluntarily, intelligently and understandingly. This is critical since termination affects one of the, if not the most important fundamental right of any person -- the right to be a parent.

There is an interplay with a number of statutes that must be considered.

1) 48.41 recognizes the right of a parent to voluntarily consent to termination of one's parental rights.

2) 48.42(1) addresses the nature of the TPR petition and recognizes that voluntary consent exists as a ground separate and distinct from involuntary grounds.

3) 48.422 (3) and (7) set forth the statutory requirements that must be considered by the court when a parent wants to voluntarily consent to TPR.

In addition to the statutory mandates, two appellate cases have addressed the voluntary consent issue.

1) In Interest of A.B., 151 Wis.2d 312(Ct. App. 1989) makes it clear that the court must be satisfied that the decision is informed and voluntary. A careful analysis of the circumstances of the parent must be undertaken.

2) In Interest of D.L.S., 112 Wis.2d 180(1983) discusses the tremendous interests at stake and how the court must ensure that due process is afforded.

In making sure that due process is honored, the court must inquire about, and obtain directly from the parent, information regarding education, physical and mental health, employment, medication issues and drug issues. The court must be satisfied that:

1) there have been no threats, promises, force or coercion brought to bear upon the parent.

2) the parent understands that he/she is giving up important rights: right to jury trial or court trial; right to confront witnesses; right to call witness; right to testify; right to make the state meet its burden of proof.

3) the parent and counsel have thoroughly discussed the decision being made and its consequences.

4) the parent understands that the decision will result in the parent forfeiting any say in the life of the child.

5) the parent realizes that there are alternatives to TPR that may be available.

In the final analysis, if the court is sure that the parent is making his/her decision with his/her eyes wide open and that the decision has been carefully thought out with full understanding of all that is being done, the court can accept the voluntary consent and then proceed to disposition.

Notwithstanding the voluntary consent, however, the court must be independently satisfied that TPR is warranted by considering all the evidence in light of the "polestar" standard -- Best Interest of Child in light of factors in 48.426(3).

In my next blog, I will discuss the Fact Finding Phase in a TPR case.

Termination of Parental Rights Law in Wisconsin - The Initial Appearance

2010-08-30T05:28:00.000-05:00

By John DiMotto

One of the most important court proceedings in a termination of parental rights (TPR) action is the Initial Appearance. It is during this proceedings that the "groundwork" for the entire case is laid.

The "Initial Appearance" is usually a bifurcated proceeding. The first part is for the purpose of getting the parents into court, establishing personal jurisdiction, briefly advising them of the nature of the case and the rights available to them, and referring them to the Public Defenders Office in order to obtain counsel for them. The case is then adjourned for a short time in order to give the Public Defender time to appoint counsel. The second part is much more substantive. During this part of the Initial Appearance, the court engages in a detailed colloquy with the parents and their counsel about the substance of the Petition, the sufficiency of the Petition, nature of the TPR proceedings, the Rights that the parents have during the proceedings, the parent's "plea" to the Petition, the discovery process and the importance of the parents co-operating with counsel in order to ensure that justice is done in the case. The court then sets dates for a final pretrial and jury/court trial.

1) Substance of Petition -- somewhat similar to a criminal complaint, a TPR Petition must set forth probable cause; that is, it must set forth facts and circumstances that support the elements of the "Grounds" alleged by the State. It provides everyone with a road map for the case.

2) Sufficiency of Petition -- the court must determine if the Petition is legally sufficient. If it does not provide information connecting the parents with the child and connecting the parents' behavior to "Grounds," the case cannot proceed.

3) A TPR proceeding is a two phase proceeding. The first phase is the "Grounds" phase. The State bears the burden of proof to establish "Grounds" for termination. There is a right to a jury trial in the "Grounds" phase and the rules of evidence apply. The second phase is the "Disposition" phase. This is a trial to the court without the right to a jury and the rules of evidence do not apply. Best Interests of the Child is the standard in this phase.

4) Rights -- the parents have the right to counsel, right to a jury trial, right of confrontation, right to present evidence, right to testify, right to substitute for a new judge.

5) Plea to Petition -- the parents will either "Denial" to the allegations in the Petition or enter an "Admission."

6) Necessity for co-operation -- it is critical that the judge ensure not only that the parents understand the rights they have and the nature of the case but that they fully understand the need to co-operate and communicate with their counsel, comply with discovery and make all court appearances. A judge should make it clear, in no uncertain terms. that if a parent fails to appear in court or in discovery that this may result in a default judgment in the "Grounds" phase and potentially even in the "Disposition" phase.

7) Scheduling -- the court usually sets two dates; a final pretrial and a jury/court trial.

The "Initial Appearance" is the foundation upon which the case is based. The court must ensure that all the "t's" are crossed and all the "i's" are dotted. The court must also try to connect with the parents regarding the importance of the case and the dire consequences of not taking the case seriously.

In my next blog in this series, I will discuss the availability/consequences of entering a Voluntary Consent or an Admission to a TPR Petition.

Termination of Parental Rights Law in Wisconsin -- Grounds for Termination

2010-08-23T15:26:00.003-05:00

By John DiMotto

In Wisconsin, termination of parental rights can result either voluntarily or involuntarily. The vast majority of cases filed seek involuntary termination. These cases are almost always brought by the State and the petition sets forth detailed information and facts to support the grounds alleged. There are instances, however, when a parent makes the decision to consent to termination of his/her rights because he/she believes that it is in the child's best interests. Many of these cases are filed by the parent himself/herself under 48.41 although in some instances they are brought by the State allege the parent's consent as the grounds. see 48.42.

In a voluntary consent scenario, the grounds consist of giving a free, knowing, intelligent consent. In these cases the Court must undertake a colloquy with the parent to be sure that termination is what the parent wants and be convinced that the parent fully understands the consequences of the decision. see 48.422(7). If the court accepts a voluntary consent after an in depth colloquy with a parent, it can proceed to disposition. A finding of unfitness is not a condition precedent to disposition.

In an involuntary TPR scenario, a parent disputes the allegations of the State and will demand either a jury trial or a court trial. The grounds alleged must be proven by the State by clear, convincing and satisfactory evidence. There are seventeen grounds that can be alleged:

1) Abandonment. Child left without provision for care or support and parents can not be found for 60 days. see 48.415(1)(a)1.

2) Abandonment. Child left without provision for care or support in a place where child is exposed to substantial risk or great bodily harm or death. see 48.415(1)(a)1m.

3) Abandonment. Child abandoned at less than one year of age. see 48.415(1)(a)1r.

4) Abandonment. Child out of parent home and parent does not visit or communicate with child for 3 months. see 48.415(1)(a)2.

5) Abandonment. Child away from parent, parent could visit or communicate but does not for 6 months. see 48.415(1)(a)3.

6) Relinquishment. This occurs when a parent gives up custody within the first 72 hours of the child's life. see 48.415(1m).

7) Child in Continuing Need of Protection or Services. This occurs where there is in place a dispositional order that governs a child in need of protection or services, reasonable efforts have been made to help the child and family reunite but the parent has failed to take advantage of the programming and services offered. see 48.415(2)(a).

8) Child in Continuing Need of Protection or Services - Three Strikes. see 48.415(2)(am).

9) Continuing Parental Disability. For two of the last five years the parent has been under disability, the condition is likely to go on indefinitely and the child is not being properly cared for. see 48.415(3).

10) Continuing Denial of Periods of Physical Placement or Visitation. This occurs when an order affecting a family has denied placement or visitation for at least one year. see 48.415(4).

11) Child Abuse. see 48.415(5).

12) Failure to Assume Parental Responsibility. This occurs where a parent does not have a significant parental relationship. see 48.415(6).

13) Incestuous Parenthood. This is utilized against the father. see 48.415(7).

14) Homicide or Solicitation to Commit Homicide against a parent by the other parent. see 48.415(8).

15) Parenthood as a result of a Sexual Assault. see 48.415(9).

16) Serious Felony against One of the Person's Children. see 48.415(9m).

17) Prior Involuntary TPR. see 48.415(10).

Of these 17 grounds, most oftentimes the State alleges three grounds: Abandonment - 3 or 6 months, Continuing Need for Protection or Services, and Failure to Assume Parental Responsibility. Regardless of what grounds are alleged, the allegations brought by the State provide the basis upon which the case will proceed.

In my next blog, I will look at the responsibilities of the Court at the Initial Appearance in the case.

Termination of Parental Rights Law in Wisconsin -- An Overview

2010-08-16T06:43:00.006-05:00

By John DiMotto

After 20 years as a circuit court judge in Milwaukee County, I have taken an assignment at our Children's Court Center and I am serving as one of the two full time Termination of Parental Rights (TPR) judges in Milwaukee County. I have the honor of serving along with Judge Christopher Foley who is know statewide for being the expert in these types of cases. Today, I am being a series on the law and procedure governing TPR cases.

One of the most fundamental rights any person has is to be a parent. In the case of Steven V. v. Kelly H., 271 Wis.2d 1 (2004), the Wisconsin Supreme Court reiterated the overriding principle that a parent's interest in the parent-child relationship and in the care, custody and management of a child is recognized as a fundamental liberty interest protected by the 14th Amendment to the United States Constitution. The Court further recognized that the termination of parental rights is very consequential in that it permanently destroys all legal recognition of the parental relationship. The "stakes" are so high in TPR cases that every reasonable effort must be made to keep a family intact before the parent-child relationship may be forever severed.

A TPR generally occurs in one of two ways. First, parents may voluntarily seek to have their rights terminated. Second, the State can bring an action to seek the involuntary termination of rights.

With respect to the involuntary petition to TPR, grounds must be established by clear, convincing and satisfactory evidence in a "fact finding" phase. There are thirteen different grounds upon which a TPR action can be based. The rules of evidence are in full force and effect during this phase. This phase can be a trial to the court or a jury trial. If the burden of proof is met, the court will then conduct a "dispositional phase" where the court alone determines whether there is clear, convincing and satisfactory evidence to warrant the TPR. The fact that grounds are found to exist is not dispositive of the outcome. The standard in the dispositional phase is Best Interest of the Child (BIC). In this phase, the rules of evidence are not binding. It is also important to note, that given the importance of the issues in a TPR case there are restrictive timelines that apply so these cases can be adjudicated in a timely manner, although the deadlines can be extended for good cause.

In a TPR case not only is the petitioner, usually the State, represented by counsel, but a guardian ad litem (GAL) is appointed to represent the best interest of the child and each parent is entitled to counsel. Also, if the child is 12 years of age or older, the child is entitled to his or her own counsel in addition to the involvement of a GAL. Furthermore, these proceedings are so sensitive that these hearings are closed to the public.

In my next blog, I will take an in depth look at the various grounds that can be the basis for a TPR case.

Service of Process and Jurisdiction in Civil Actions

2010-08-11T06:52:00.000-05:00

By John DiMotto

Now that I have completed my series on Impeachment and Rehabilitation Evidence in Wisconsin, I would like to look at some Juvenile law issues. Today, I will start out with service of process and jurisdiction both generally and as it pertains in TPR (Termination of Parental Rights) cases.

Before a court may act in a civil lawsuit, the court must have both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is conferred by the constitution and statutes of the state and by statutes of the United States. It cannot be conferred by consent of the parties.

see 801.04(1).

In most cases, in order for the court to have personal jurisdiction over a defendant in a civil lawsuit, the person must be served with a summons pursuant to 801.11, although service may be dispensed with if the person appears in the action and does not, by motion or responsive pleading, raise the defense of lack of jurisdiction over the person, insufficiency of process or untimeliness or insufficiency of service of process over his or her person. see 801.04(2), 801.06 and 802.06(8).

In most cases, to effectuate service and obtain personal jurisdiction over a defendant in a civil lawsuit, a summons must ordinarily be personally served upon a defendant. In most cases, if with reasonable diligence the defendant cannot be personally served then substituted service upon a family member who is at least 14 years of age or a competent adult living at the defendant's residence may be done. Furthermore, in most cases, if with reasonable diligence neither personal or substituted service can be effectuated, service may be done by class three publication (three times) and mailing. see 801.11.

In TPR cases, the service of process rules are different. Under 48.42(4)(a), the summons and petition must be served personally upon the parties, if known, at least 7 days before the date of the initial hearing on the petition. Under 48.42(4)(b), if with reasonable diligence a party cannot be personally served, service may be made by class one publication (one time only) and mailing. Substituted service is not permitted in TPR cases. However, proper service is not a condition precedent if the party appears in court and submits to the jurisdiction of the court.

The issue of what constitutes reasonable diligence has been subject to much litigation. A number of principles are articulated in case law:

1) The purpose of a summons is to give notice to a defendant and confer jurisdiction on the court over a defendant. see Useni v. Bourdron, 264 Wis.2d 783 (Ct. App. 2003).

2) In order for service to be effective, statutes must be complied with. Improper service is a fundamental defect. see Hagen v. MERS, 262 Wis.2d 113 (2003).

3) Strict compliance with the rules of statutory service is required even though the consequences may appear to be harsh. see Bar Code Resources v. Ameritech, 229 Wis.2d 287 (Ct. App. 1999).

4) The burden to establish jurisdiction is on the plaintiff. see Laska v. House, 169 Wis.2d 510 (Ct. App. 1992).

5) In order for the court to have personal jurisdiction, a summons must be served according to the statutes. A defendant's knowledge of a pending action is not equivalent to service. what amounts to due diligence depends on the facts in each case. Slipshod and hap hazard attempts to serve are not sufficient. Two attempts, under some circumstances, may be sufficient. see Heaston v. Austin, 47 Wis.2d 67 (1969).

6) Reasonable diligence requires pursuit of "leads or information reasonably calculate to make personal service possible. see Welty v. Heggy, 124 Wis.2d 318 (Ct. App. 1984).

7) Diligence needed is reasonable, not all possible diligence. see Haselow v. Gauthier, 212 Wis.2d 580 (Ct. App. 1997).

8) Fundamental to due process requirement is provision of notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Process server must not stop short of pursuing a viable lead. see Loppnow v. Bielik, 2010 WI App 66, ___Wis.2d ___ (Ct. App. 2010).

It is incumbent upon the trial court to ensure that before it takes action in a case, that it is satisfied that the jurisdictional requirements in the particular matter have been met. This is critical when a default judgment is being sought. If service was not effective, the validity of a default judgment is in question. Justice demands nothing less.

Impeachment and Rehabilitation Evidence in Wisconsin - Prior Criminal Convictions

2010-08-09T04:54:00.001-05:00

By John DiMotto

One of the most compelling types of evidence used to impeach the credibility of a witness is evidence of prior criminal convictions (or juvenile adjudications of delinquency). When a jury learns about a prior conviction/juvenile adjudication, although the accompanying jury instruction advises the jury that it should only be used in assessing the credibility of what the witness is saying, the temptation to apply the old adage "once a criminal always a criminal" is front and center. Rules exist to try to ensure the proper use of this type of evidence.

The use of prior criminal convictions/juvenile adjudications is governed by 906.09. It sets forth the general rule that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. Furthermore, the party cross examining the witness is not concluded by the witness's answer if it is incorrect. However, there is an exclusion clause which indicates that such conviction/adjudication may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In other words, the trial judge is the gatekeeper with respect to what convictions/adjudications can be considered.

There is a presumption that a person who has been convicted of a crime/adjudicated delinquent may not be as truthful as someone who has never been convicted/adjudicated and, therefore, questioning in this area is relevant. Also, the number of convictions/juvenile adjudications is relevant because the law further presumes that a person who has been convicted/adjudicated multiple times is considerably less credible that someone with fewer convictions/adjudications. However, it should be noted that while the fact of conviction/adjudication is relevant and admissible, the fact that a person has never been convicted/adjudicated is not considered relevant and is not admissible. The theory is that everyone is expected to follow the law and be law abiding and in so doing a person does not gain or enhance his/her credibility. Furthermore, the fact that a person has no convictions/adjudications does not mean that he/she IS law abiding.

In terms of how the trial court approaches the issue of prior convictions/juvenile adjudications, before any question is asked of a witness regarding prior criminal convictions/juvenile adjudications, a hearing must be held outside the presence of the jury where the trial judge, as gatekeeper, determines which, if any convictions/adjudications may be used. Considerations such as passage of time, nature of prior convictions, involvement of dishonesty in the crimes or witness's rehabilitation since the convictions are taken into account before the trial judge rules on the issue.

Once the trial judge has made his/her decision then two questions may be asked of a witness. First, have you ever been convicted of a crime (or adjudicated delinquent)? Second, how many times? If the witness answers truthfully, and usually the witness does because the witness is present when the judge enters the ruling, that forecloses any further questioning. If the witness does not answer the two questions correctly, the witness may be asked questions regarding the specifics of the convictions to "refresh" the witness's recollection as to the correct answers.

There is another exception to when the specifics may be brought to the attention of the jury. If it is the defendant who is testifying, at his/her option, specifics may be elicited by the defendant's counsel. This may occur if the prior convictions are few in number and totally different in nature than the charge at hand. For example, if a defendant is on trial for a sexual assault and he has a prior conviction for disorderly conduct, his attorney may want to bring that fact out so the jury does not think the prior conviction is for a sexual assault.

While prior convictions and juvenile adjudications are admissible:

1) Arrests are not admissible.

2) Ordinance violations are not admissible.

3) Deferred Prosecution Agreements are not admissible.

4) Expunged convictions are not admissible.

When addressing the use of prior conviction/juvenile adjudication evidence, the is incumbent on the trial court to carefully address to what extent this evidence may be used and to ensure that the jury understands for what purpose it can be used and for what purposes it may not be used.

Impeachment and Rehabilitation Evidence in Wisconsin -- "Profile" Evidence

2010-08-04T06:03:00.002-05:00

By John DiMotto

After a brief hiatus from blogging in order to make my move to my new assignment in the Juvenile Division at our Children's Court Center, I return to continue my series on the myriad forms of Impeachment and Rehabilitation Evidence in Wisconsin. Today I want to look at the use of "Profile" Evidence in sexual assault prosecutions.

Profile Evidence is usually offered in sexual assault cases as Rehabilitation Evidence. It is usually offered as expert testimony from a psychologist or psychiatrist. It is most often used by the prosecutor to provide an explanation for some act of a sexual assault victim which, on the surface, appears to be odd or strange or inconsistent with what a juror believes the reaction of a sexual assault victim should be. However, it is also used, though less often, by defense counsel to explain that the defendant does not exhibit character traits consistent with a sexual disorder such as pedophilia. When Profile Evidence is offered by the prosecutor it is referred to as "Jensen" evidence. [State v. Jensen, 147 Wis.2d 240 (1988)]. When it is offered by defense counsel it is referred to as "Richard A.P." evidence. [State v. Richard A.P., 223 Wis.2d 777 (Ct. App. 1998)].

The Court in Jensen held that::

1) An expert can testify that a victim's conduct, or acting out, is consistent with child sexual abuse victims.

2) An expert can explain the context in which a victim did something to rebut the defendant's suggestion that the victim fabricated the complaint.

3) Expert testimony on post assault behavior of sexual assault victim is admissible in certain cases to explain the meaning of the behavior and can be used to prevent false assumptions about sexual assault complaints.

4) An expert may be asked to describe the victim's behavior and that of sexual assault victims to help the jury understand the victim's reactive behavior.

Since Jensen, the rule on the use of this type of Profile evidence has been expanded.

In State v. Richardson, 189 Wis.2d 418 (Ct. App. 1984), the Court indicated that an expert may describe behavior of the specific victim in the case and give an opinion on whether this victim's behavior is consistent with other victims. In other words, comparative testimony may be admissible. However the expert may not give conclusions about the victim's actual beliefs at the time of the offense or about the victim's state of mind.

In State v. DeSantis, 155 Wis.2d 774 (1990), the Court indicated that a sexual assault counselor would be allowed to testify how sexual assault victims react to educate the jury and disabuse the jury about widely held misconceptions about how sexual assault victims respond to an assault.

In State v. Delgado, 250 Wis.2d 689 (Ct. App. 2002), the Court set forth some general rules about Jensen testimony:

1) A witness may testify as an expert if 907.02 is complied with.

2) Expert testimony may include opinions regarding symptomatology common to sexual assault victims.

3) Expert testimony may include descriptions of symptoms exhibited by the victim.

4) Expert testimony can include an opinion as to whether the victim's behavior is consistent with behavior of other sexual assault victims.

5) An expert cannot testify that the victim is totally truthful. [Such testimony would run afoul of the rule in State v. Hazeltine, 120 Wis.2d 92 (Ct. App. 1984) where the court indicated that no witness should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. Credibility is for the jury to determine on its own.]

6) An expert cannot testify that the expert has no doubt whatsoever that the victim was a victim of moral turpitude.

The use of Profile evidence by the defense was recognized in the Richard A.P. case. In the spirit of "what's good for the goose is sauce for the gander", the Court of Appeals held that a defendant may introduce character "profile" evidence which seeks to explain conduct or absence of it - to explain that the defendant does not exhibit character traits consistent with sexual disorder such as pedophilia. This is defense Jensen evidence.

In State v. Davis, 254 Wis.2d 1 (2002), the Court indicated that the evidence that a defendant lacks psychological characteristics of a sex offender and unlikely to commit a sexual offense may be admissible both as character and expert testimony. However, the trial court must carefully scrutinize the evidence for relevancy, probative value and unfair prejudice.

In State v. Walters, 269 Wis.2d 142 (2004), the Court held that Davis did not compel the admissibility of Richard A.P. evidence but rather it is subject to discretionary determination by the trial court and the trial court should undertake a 904.03 analysis with respect to this type of evidence.

One huge problem with the introduction of Jensen and Richard A.P. evidence is that under certain circumstances, the trial court may grant a request to allow an independent psychological examination of the victim or defendant. Obviously, this can be very intrusive and therefore before Jensen or Richard A.P. evidence is going to be offered the prosecutor and defense counsel should carefully analyze his/her case to see whether the nature of the evidence will allow for such a request and order from the court for the independent examination.

In conclusion, Jensen and Richard A.P. evidence can provide an explanation for conduct not otherwise understood by layperson jurors. However, care must be used so that the focus of the trial - did a crime occur - is not overshadowed and lost in the maze of expert testimony.

In my next blog I will look at the use of Prior Criminal Record Evidence as Impeachment and Rehabilitation Evidence in Wisconsin.

Rotation into the Juvenile Division

2010-07-26T06:04:00.004-05:00

By John DiMotto

Today, I am going to divert from my series on Impeachment and Rehabilitation Evidence in Wisconsin to briefly discuss my upcoming rotation to our Juvenile Division. I will return to the I/RE series next week.

In Milwaukee County, because of the high volume of cases of every sort, a judge serves in a special division and handles only one type of case during a rotation. We have six divisions: Civil, Probate, Juvenile, Family, Misdemeanor and Felony. Every four years our judge in Milwaukee County must change his/her assignment.

I am currently in the midst of a transition from my Civil/Probate assignment at the downtown Milwaukee County Courthouse to my new assignment in the Juvenile Division at the Watertown Plank Vel Phillips Children's Court Center. The new assignment officially begins on Monday, August 2nd. However, I have been going to the VPCCC over the past week to sit and mentor with the judges who are presently assigned to that Division.

I have served in every division except the Juvenile Division during my 20 year tenure on the bench. I made the decision to serve there because I would like the opportunity to serve children and families in crisis. I know that it will be a daunting challenge but I look forward to it.

There are three types of cases that are handled at Children's Court: Delinquency, CHIPS and TPR cases. Delinquency are the juvenile equivalent of criminal cases. CHIPS are cases where a child is at risk and is in need of protection and services. TPR cases are termination of parental rights matters. I will be assigned to a TPR court. These cases can be very intense because of the stakes involved. Many, many TPR cases go to trial. I know I will be busy but I do enjoy jury trials. They are very challenging and bring out the best in a judge.

During my mentoring days, I have had the chance to see the law "in action." I am big on outlines and checklists to make sure cases are handled properly. (I believe in "crossing the t's and 'dotting the i's") What I have learned is what I read in the statutes and the case law sometimes plays out a little differently in real time. Mentoring is a must -- even after 20 years of judging.

I had my choice of divisions when our rotation selection process arose earlier this year. I knew I could get whatever choice I wanted based on my seniority. I chose the Juvenile Division for the chance to help children and families. After just a few days of mentoring, I know it was the right choice.

I will return next week once I am settled in my new position to take up the issues of Impeachment and Rehabilitation once again.

Impeachment and Rehabilitation Evidence in Wisconsin - Character for Good/Evil

2010-07-19T08:35:00.003-05:00

By John DiMotto

The use of "general" character evidence is much more restrictive than other forms of character evidence (ie. character for truthfulness; prior criminal convictions) It's admission is governed by the interplay between 904.04(1), 904.05, 904.01 and 904.03.

904.04(1) sets forth that evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion with six exceptions:

1) Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecutions to rebut the same.

2) Evidence of a pertinent trait of character of the victim of a crime [subject to 972.11(2) -- rape shield law] offered by an accused, or by the prosecution to rebut the same.

3) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

4) Evidence to impeach a witness.

5) Evidence of Truthfulness/Untruthfulness.

6) Evidence of prior convictions.

It is important to note that the first three exceptions only apply in criminal cases. It is also important to note that in criminal cases, it is the defendant who controls when this form of character evidence is admissible in the first instance. Only the defendant can open the door regarding one of his/her character traits or one of the victim's character traits. If the defendant does open the door, then it is fair game for the prosecution to rebut the evidence.

When it comes to character evidence regarding good or evil, a defendant must be very careful. For example if he introduces evidence that he is a "good" person, subject to 904.03, the State is permitted to introduce evidence that he is a "bad" or "evil" person. Like wise, if a defendant introduces evidence that the victim is a "bad" person, the State can, subject to 904.03, rehabilitate with evidence that the victim is a "good" person.

904.05 sets forth the methods of proving character. Proof may be made by testimony as to reputation or testimony in the form of an opinion [ala 906.08]. Once the door is opened, on cross-examination, inquiry is allowable, subject to 904.03, into relevant specific instances of conduct. Relevancy is, of course, governed by 904.01. The two conditions precedent to relevancy are that the evidence goes to a matter of consequence in the case and that the evidence makes the matter of consequence more probable or less probable.

Furthermore, with respect to specific instances of conduct, where the character or trait of character is an essential element of a charge, claim or defense, proof may also be made of specific instances of the person's conduct. A prime example of this is when a defendant relies on self defense as his/her defense. What he/she actually knew about the character of the victim for violence vis a vis specific instances is admissible. Also, to the extent others are knowledgeable of those same instances they may be admitted via others to corroborate the testimony of the defendant.

The overriding principle with respect to character evidence for good or evil is that while it may be admitted, it is subject to a 904.03 analysis. That is, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Whenever a party intends to introduce character evidence for good or evil, the trial court should always do a 904.04(1) analysis followed by a 904.05 analysis, followed by a 904.01 analysis and a 904.03 analysis. It is the duty of the trial court to protect the rights of the parties and to protect the record.

Impeachment and Rehabilitation Evidence in Wisconsin - Character Evidence: Truthfulness/Untruthfulness

2010-07-14T08:41:00.003-05:00

By John DiMotto

A powerful method of impeaching or rehabilitating the credibility of a witness -- but which is oftentimes overlooked or avoided -- is the introduction of character evidence in the form of opinion or reputation of the untruthfulness or truthfulness of a witness. This method of impeachment or rehabilitation requires the proponent of such evidence to understand the parameters of 906.08 and to be familiar with the case law that explains its use.

906.08(1)(a) sets forth that the credibility of a witness may be attacked or supported by evidence in the form of reputation OR opinion that refers to character for truthfulness or untruthfulness. 906.08(1)(b) sets forth that, except with respect to an accused who testifies in his/her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Finally, 906.08(2) provides that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than [906.09 circumstances] may not be proved by extrinsic evidence. However, specific instances of conduct, if probative of truthfulness or untruthfulness and not remote in time, maybe inquired into on cross-examination of the witness or cross examination of the witness who testifies to his/her own character for truthfulness or untruthfulness.

From 906.08 we receive the following "bright line" rules:

1) Evidence of a witness's character for truthfulness or untruthfulness can be elicited by reputation OR opinion.

2) Only an accused in a criminal case can elicit evidence of his/her character for truthfulness BEFORE there is an attack.

3) Once a witness's character for truthfulness is attacked by reputation or opinion testimony, evidence of the witness's character for truthfulness may be introduced.

4) Specific instances of conduct bearing upon character for truthfulness or untruthfulness to attack or support credibility can be inquired into on cross examination but may NOT be proved by extrinsic evidence.

Case law gives us further insight as to what evidence is admissible.

906.08 was a major change in Wisconsin law and a return to early 19th century Wisconsin cases that permitted opinion evidenced in special instances. Opinion evidence is not geographically limited and does not require foundation that the witness giving the opinion is familiar with the community of the person at issue. Furthermore, there is no requirement that the witness giving the opinion testimony have a long acquaintance or have recent information since cross examination can expose lack of familiarity. However, opinion evidence regarding character for truthfulness is not automatically admissible. If the witness lacks personal knowledge or if there are 904.03 concerns, the evidence can be prohibited. see State v. Cuyler, 110 Wis.2d 133 (1983); State v. Gonzalez, 2010 WI App ___ (recommended for publication).

Most contradictions in testimony do not put a witness's character for truthfulness in issue. There is a difference between credibility and character for truthfulness. However, where the nature of the defense and tone of the examination as a whole puts a witness's character for truthfulness in issue, the court may allow supportive rehabilitation character evidence. see State v. Anderson, 163 Wis.2d 342 (Ct. App. 1991).

It is not absolute that a person must testify before the person's character for truthfulness be attacked. If a hearsay statement is admitted, the hearsay declarant's credibility is open to attack by evidence that would be admissible if the declarant had testified. However, specific instances of conduct may not be proved by extrinsic evidence. see State v. Evans, 187 Wis.2d 66 (Ct. App. 1994).

An attack in opening statement on the character of a witness for truthfulness opens the door for rehabilitative evidence even before the witness testifies. see State v. Eugenio, 219 Wis.2d 391 (1998). Asking a witness if he/she lied is an attack on character for truthfulness. see State v. Tutlewski, 231 Wis.2d 379 (Ct. App. 1999).

In terms of cross examination of a witness with respect to specific instances of conduct, it is important to keep in mind that the cross examiner is "stuck" with whatever answer is given by the witness. Even if the cross examiner has positive evidence that the witness has lied, it cannot be introduced via another source since this would be extrinsic evidence which is not admissible under 906.08(2). see State v. Rognrud, 156 Wis.2d 783 (Ct. App. 1990).

Finally, it must be noted that introducing evidence as to "character" for truthfulness or untruthfulness is not testimony or evidence that a person IS telling the truth. Case law is clear that no witness may testify that another witness did or did not tell the truth in the proceedings or with respect to the event in question. Evidence as to "character" is not evidence that the witness did or did not tell truth in this case. It is only general character evidence so the jury can assess the overall credibility of the witness.

In my next blog with respect to impeachment and rehabilitation evidence, I will look at the parameters of Character Evidence for "Good and Evil."

Impeachment and Rehabiliation Evidence in Wisconsin - Prior Consistent and Inconsistent Statements

2010-07-11T07:35:00.003-05:00

By John DiMotto

My three week civil jury trial is now in the hands of the jury so today I would like to resume my series on Impeachment and Rehabilitation Evidence in Wisconsin by looking at the use of prior consistent statements and prior inconsistent statements.

Under our Wisconsin Rules of Evidence, hearsay is ordinarily not admissible. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [908.01(3)]. Furthermore, hearsay is not admissible except as provided by these rules [rules of evidence] or by other rules adopted by the supreme court or by statute. [908.02]. This means that just because the witness is on the stand subject to cross examination that anything the witness said at some previous time is automatically admissible. The statement must either not be hearsay or a hearsay exception must apply. Two such statements that are not hearsay are prior inconsistent statements [908.01(4)(a)1.] and prior consistent statements [908.01(4)(a)2.]. Prior inconsistent statements are used to impeach. Prior consistent statements are used to rehabilitate.

Prior inconsistent statements constitute the most often used form of impeachment. If during a hearing a witness says "A" about a subject but previously said "B" about that subject, the witnessed can be confronted with the difference in order to challenge and weaken the credibility of the witness in the eyes of the trier of fact. Rarely does a trial go by where a witness does not say something inconsistent with something the witness said at some earlier time. It is a fact of life that sometimes memories may fail for various and sundry valid reasons. It is also a fact of life that sometimes a witness may lie. It is in the context of the entire trial that the trier of fact will determine if the inconsistency is "honest" or "dishonest" and how it affects the overall credibility of the witness.

Prior consistent statements constitute the most often used form of rehabilitation. If during a hearing a witness says "A" about a subject and the cross examiner makes either an express charge or implies that the witness has recently fabricated his/her testimony or there has been recent improper influence or motive, then the witness can be rehabilitated with a prior statement that predates the fabrication/improper influence/motive. This evidence is admissible to rebut the charge of recent fabrication/improper influence/motive. What is critical is that the prior statement must predate the fabrication/improper influence/motive claim. For example, if a defendant is charged with the sexual assault of his ex-wife and during the cross examination of the ex-wife the defense brings out the fact that prior to the alleged assault she filed a motion for contempt in family court alleging he has willfully refused to pay child support, her prior account to the police, which postdated the alleged sexual assault, would not be admissible as a prior consistent statement. However, if the motion had been filed after the alleged sexual assault, the prior statement, having predated the claim of fabrication/improper influence/motive, would be admissible. The timing of the prior statement is the key to admissibility.

The significance of prior inconsistent statements and prior consistent statements is intertwined with the credibility of the witness and the weight to be given to the testimony of the witness.

The Senate Supreme Court Confirmation Hearings

2010-07-05T10:44:00.004-05:00

By John DiMotto

I will soon return to my series on Impeachment and Rehabilitation Evidence in Wisconsin, however, today I would like to reflect on the Senate Supreme Court Confirmation Hearing Process.

Many people ask me "what is the purpose of the Senate Supreme Court Confirmation Hearings?" I tell them that I believe it is to determine whether the nominee is qualified by knowledge, intelligence and experience to be a member of the Court. Whether the nominee is a political Conservative, Moderate or Liberal is not the standard.

Article II, Section 2 of the US Constitution grants the President, with the advice and consent of the Senate, the power to appoint judges of the supreme court. So long as the nominee is "qualified", I believe that selection should be honored. People may strongly disagree with decisions of perceived conservatives (Chief Justice Roberts, Justices Alito, Thomas and Scalia) or perceived liberals (Justices Stevens, Ginsberg, and Sotomayor) but no one can honestly say they are not qualified for the position. I was not in favor of some of the above justices when they were nominated, but they were qualified and as such I supported their confirmation. When the voters of our country elect a President, with that election comes the power and the right to choose any qualified person for the Court.

There are some "single issue" people (abortion, right to bear arms, same sex marriage, campaign finance) who take the position that if a nominee does not agree with their view of the issue or will not express an opinion on the issue that they should not be confirmed. I disagree. The fact that the nominee may not agree with their position does not make the nominee unqualified.

There are some people who believe that all justices on the Court should think alike. I disagree. I think that is unhealthy for the law and the country. You need a Court with members who will debate and challenge each other on the meaning of the Constitution and legislation and how it applies in each case. Debate causes the members of the Court to justify their positions; to think through their approach. For two interesting articles on the differing viewpoints on Elana Kagan and the Confirmation process, I would direct you to one by Marquette University Law Professor Ed Fallone and one by Marquette University Law Professor Rick Esenberg. They appeared in July Fourth edition of the Milwaukee Journal Sentinel "Crossroads" section.

In a word, the Senate Confirmation hearings should be about legal "qualifications" and not about political "rhetoric."

Celebrating our Independence

2010-07-04T08:23:00.003-05:00

By John DiMotto

I have been super busy the past two weeks with a complicated civil jury trial and have not had time to tend to this blog. The trial will go for at least one more week so my time to blog will be limited. I hope my posts have been interesting and thought provoking. I intend to keep them up.

Today, I want to deviate from my "legal" blogging to briefly reflect, as a judge, on the significance of the Fourth of July.

We celebrate our freedom and independence.

1) We have the right to say what is on our mind, regardless of how brilliant or stupid the thought may be (freedom of speech). This means that people have the right to rant and rave as much as they want regardless of whether they have a legitimate point to make or not.

2) We have the right to practice our religious faith unfettered by government intrusion (freedom of religion). This means that we can believe or not believe as we choose without fear of recrimination by our government.

3) We have the right to associate with whomever you want - with some limitations - (freedom of association).

4) We have the right to write and convey our thoughts without censorship (freedom of the press).

5) We have the right to petition our government for redress of wrongs.

6) We have the right to bear arms.

7) We have the right to be free from unauthorized governmental intrusions - searches and seizures.

8) We have the right not to incriminate ourselves.

9) We have the right to due process.

10) We have the right to equal protection under the law.

11) and the list goes on and on and on. And what is that list - it is our Constitution.

Just why was this document enacted? I cannot say it any better than in its own Preamble:

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

We ALL have the obligation to WORK to make this happen. As a judge, I work to achieve justice for every party, witness and person who comes before me. Every single one of us must do our part bring about domestic tranquility, promote the general welfare and secure the blessings of liberty. As we reflect on "freedom" and "independence" we must remember that the Constitution is not a one way street. Our Constitution confers upon all of us many rights. we must never forget that if we want to maintain them we need to live up to and embrace the responsibilities that come with those rights. Some people have forgotten that our Constitution is this two way street. It is time for all of us to recommit to the original intent of our founding fathers/mothers.

Happy Fourth of July.

Impeachment and Rehabiliation Evidence in Wisconsin - Testimonial Capacity

2010-06-28T06:56:00.002-05:00

By John DiMotto

In Wisconsin, every person is competent to be a witness. However, this does not mean that what a witness says is automatically worthy of belief. The credibility, that is, the believability of what a witness says when he/she give testimony, is affected by cross examination and by contradiction by other witnesses and evidence. Ultimately, the trier of fact will determine which witnesses to believe and what evidence to accept.

One of the ways that the credibility of a witness is challenged is by attacking the testimonial capacity of a witness. Testimonial capacity implicates the ability to perceive, remember or narrate. If it can be established that a witness was unable to perceive an event, remember an event or relate what he/she saw, the trier of fact may discount the testimony to the point where it is given no weight. Testimonial capacity relates to whether the witness is innocently mistaken not if the witness is lying.

A witness may be cross examined regarding his/her mental or physical condition where such matters have bearing on his/her credibility. For example, if a witness is hard of hearing, needs a hearing aid, and was not wearing his/her hearing aid, that is a fact that a trier of fact may consider in determining whether to believe the witness' testimony regarding a conversation the witness says he/she heard.

In terms of the cross examination of a witness as to a mental or physical condition, it must be one that was in existence:

1) at the time of testifying, or

2) at the time to which the testimony refers, and

3) the condition must be relevant.

Relevancy is an important consideration when considering testimonial capacity. For example, a person may color blind but if the witness' testimony is based on hearing something the color blind condition (vision defect) would be irrelevant. It is further important to note that mere physical or mental impairment, without more, is not sufficient to affect credibility. There must be a connection between the affliction and the reliability of the witness' testimony. The fact that a person has been intemperate in the past regarding drug or alcohol use, or the fact that a person has had a mental condition (i.e. bipolar diagnosis) in and of itself is not generally admissible.

Defects in testimonial capacity are a non-collateral form of impeachment. This means that if the witness denies having a hearing problem, this denial can be challenged by calling a witness or introducing affirmative evidence of a hearing problem. However, the right to attack one's condition is not unlimited. The trial court must always exercise discretion and weigh the potential unfairness and embarrassment against the materiality and relevancy of the evidence.

In my next post in this series on Impeachment and Rehabilitation Evidence, I will look at bias, prejudice and interest issues.

Impeachment and Rehabilitation Evidence in Wisconsin - Credibility of Witnesses

2010-06-23T08:07:00.003-05:00

By John DiMotto

One of the most important decisions a jury must make is a determination of the credibility of the witnesses who testify at trial and the weight of evidence. In fact, in the preliminary jury instructions that are read to a jury prior to the introduction of evidence, the jury is instructed:

As a juror, your most important function is to weigh the credibility or believability of the witnesses. You cannot discuss intelligently any question on the verdict that will be submitted to you without first collectively discussing the testimony that you have heard which bears upon that question. It is mot important for you to consider, as you listen to the testimony of the various witnesses in this trial, whether they are believable.

Recognizing the critical nature of the credibility of witnesses determination, in every trial attorneys attack the credibility of the witnesses on the other side of the case. These attacks are usually directed towards four facets of credibility:

1) Accuracy of Perception.

2) Accuracy of Memory.

3) Accuracy of Narration.

4) The Witness's Sincerity.

Accuracy of Perception:

People perceive the world around them through five senses:

1) Seeing.

2) Hearing.

3) Speaking.

4) Smelling.

5) Feeling.

Depending on how the witness has perceived and obtained information will dictate how the accuracy of the perception is challenged. If a witness claims to have heard something, the circumstances in existence at the time the witnesses states he/she heard something will be critical. For example, if a witness claims to have heard people engaged in a conversation in which they were whispering, whether the witness had the ability to hear the whispering is critical. If the witness has hearing problems and ordinarily wears a hearing aid but on the day in question was not wearing it, this fact may well undermine the credibility of the witness.

Accuracy of Memory:

Not only must a person be able to perceive, but a person must be able to remember. If a person suffers from dementia, that fact may be critical in whether he/she has the ability to remember what the person claims to have perceived. If a person was using hallucinogenic drugs at the time of a perception, this fact may be critical in whether the person could truly remember what the person claims was perceived.

Accuracy of Narration:

While a person may have no impediments to perception and while a person may be able to remember what was perceived, if the person has difficulty communicating what he/she perceived and remembered, the trier of fact may not give it much weight. The ability to communicate is very important in terms of whether a witness will be believed.

Witness's Sincerity:

One of the most important aspects of credibility is the sincerity of the witness. What a witness says must have a "ring of truth" if it is to be given credit by the trier of fact. Sincerity makes a witness likable, and whether a person is or is not likable may be of the utmost importance to the trier of fact.

The four facets of credibility go to the "aura" and "gravitas" of the witness.

In my next post, I will look at Testimonial Capacity - how it can be impeached and how it can be rehabilitated.

Impeachment and Rehabilitation Evidence in Wisconsin - Overview

2010-06-19T03:43:00.002-05:00

By John DiMotto

This past week, I had the opportunity to present at the Wisconsin Judicial Criminal Evidence Workshop put on by the Office of Judicial Education. One of the presentations that I gave, with Judge Guy Dutcher of Waushara County, dealt with Impeachment and Rehabilitation Evidence in Wisconsin. It is a fascinating area of the law because at the heart of every case is the credibility of witnesses and the weight of evidence. Based on the material that we presented, today I am beginning a series concerning impeachment and rehabilitation evidence.

In any court proceeding, criminal or civil, the proponent of a proposition ordinarily has the burden of proof. In order to meet that burden, the proponent must bring forth evidence that is worthy of belief. The evidence is most often offered through the testimony of witnesses. Establishing the credibility of one's witnesses is essential. If those witnesses are deemed credible by the trier of fact, the proponent usually will meet his/her burden of proof and prevail.

The opponent to the proposition must challenge the the evidence proffered by the proponent if he/she hopes to defeat the proposition. The challenge comes via impeachment which comes in many forms. If the opponent is able to successfully impeach the proponent's evidence, the proponent will usually come forward with evidence to rehabilitate one's witnesses and evidence to defeat the challenge.

Impeachment evidence and rehabilitation evidence is offered to attack or enhance the credibility of witnesses and the weight of evidence. The areas of impeachment and rehabilitation that I will look at in my next series of blogs include:

1) Testimonial capacity

2) Bias, prejudice and Interest

3) Contradiction by other witnesses

4) Character Evidence - Truthfulness or Untruthfulness

5) Character Evidence - Good or Evil

6) Character Evidence - Expert testimony

7) Prior Criminal Record

8) Prior Inconsistent/Consistent Statements

9) Rebuttal Evidence

I hope you find this series interesting and enlightening.

Judges and the Code of Judicial Conduct - Political Activity after Seifert v. Alexander (Seventh Circuit decision)

2010-06-15T07:29:00.002-05:00

By John DiMotto

In my first blog on the interplay between the Wisconsin Code of Judicial Conduct and political activity, I noted that the Code provisions against a judge being a member of a political party, against a judge from endorsing a candidate in a partisan election and against a judge from directly soliciting campaign contributions had been ruled unconstitutional by United States District Court Judge Barbara Crabb in Seifert v. Alexander. I also noted that the case was before the Seventh Circuit and a decision was forthcoming. It is no longer forthcoming, it is here.

Yesterday, in a 2-1 decision, the Seventh Circuit Court of Appeals affirmed in part and reversed in part Judge Crabb's decision in Seifert v. Alexander. The Court held:

1) The ban on a judge joining a political party was unconstitutional.

2) The ban on a judge endorsing a candidate in a partisan election was constitutional.

3) The ban on a judge directly soliciting campaign contributions was constitutional.

With respect to the ban on a judge joining a political party, the Court held that it was not narrowly tailored to serve a compelling state interest. The Court stated "...the partisan affiliation ban acts to prohibit his [Seifert's] speech on both his political views and his qualifications for office. Therefore, the clause is a content-based restriction on speech subject to strict scrutiny." The Court further stated that "the state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy. Nor can casting the argument in terms of the 'appearance of bias' save it - because 'avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the appearance of that type of impartiality can hardly be a compelling state interest either."The Court went on to state that the fact that a judge is associated with a political party would not implicate concerns of bias for or against a party unless the judge were in some way involved in the case beyond simply being a member of a political party. "Without some specific, individualized relationship, the affiliation between a judge who is a member of a political party and other members of that political party is simply too diffuse to make it reasonable to assume that the judge will exhibit bias in favor of his fellow party members."

With respect to the ban on a judge being allowed to endorse a partisan candidate for election, the Court found that an endorsement is a different from of speech. It held that a balancing approach, not strict scrutiny applies. It found that endorsements involve a judge's entry into the political arena for the candidate not for the judge and that this implicates potential abuse of the prestige of office. Thus, the state has the right to place such a restriction on endorsements.

With respect to the ban on a judge directly soliciting campaign contributions, the Court indicated that this is a finance regulation and the state has a compelling interest in preventing corruption or the appearance of corruption in elections via such regulations. The Court stated "Wisconsin's personal solicitation ban serves the anti-corruption rationale articulated in Buckley and acts to preserve judicial impartiality. A contribution given directly to a judge, in response to a judge's personal solicitation of that contribution, carries with it both a greater potential for a quid pro quo and a greater appearance of a quid pro quo than a contribution given to the judge's campaign committee at the request of someone other than the judge, or in response to a mass mailing sent above a judge's signature." The Court concluded "...the solicitation ban is drawn closely enough to the state's interest in preserving impartiality and preventing corruption to be constitutional."

While this ruling allows judges to join political parties, I do not intend to do so. I believe that the ban on joining a political party serves the public and I ran for judge 20 years ago to serve the public. As I have stated previously, judges must be above the fray. Judges must be separate from "politics." When I decided to run for judge, I made the decision to "leave" partisan politics. It is a choice I made - one that I have never regretted.

Judge Seifert has been quoted in the media as saying he intends to seek review by the SCOTUS. so, for now, this matter is "To Be Continued."

Judges and the Code of Judicial Conduct - Extra-Judicial Activities (Part One)

2010-06-13T17:44:00.003-05:00

By John DiMotto

SCR 60.05 makes it clear that in non-judicial activities, a judge must be very careful that he/she does not:

1) cast reasonable doubt of the judge's capacity to act impartially as a judge;

2) demean the judicial office;

3) interfere with the proper performance of judicial duties.

So what does this mean?

Judges can speak, write, lecture, teach and engage in activities outside of the courtroom concerning the law, the legal system, the administration of justice and nonlegal subjects. For example, a judge can participate in continuing legal education for lawyers; speak about the law publicly and privately to groups, appear at and speak at public hearings on matters concerning the law, the legal system or administration of justice.

A judge may not accept appointment to governmental committees or commissions concerned with issues of fact or policy on matters other than the improvement of the law, although a judge may represent government on ceremonial occasions or in connection with historical, educational or cultural activities.

A judge may serve as an officer, director, trustee or nonlegal advisor of an organization or governmental agency devoted to the improvement of the law... or nonprofit educational, religious, charitable, fraternal or sororal or civic organizations so long as it is likely that the organization will not engage in proceedings that will come before the judge or engage frequently in adversary proceedings in the court of which the judge is a member.

A judge, in any capacity,

1) may assist an organization in planning fund-raising activities and participate in the management of the organizations funds but,

2) may not personally participate in the solicitation of funds except from other judges over whom the judge does not exercise supervisory or appellate authority;

3) may make recommendations to fund-granting organizations on projects and programs concerning the law, legal system or administration of justice;

4) may not personally participate in membership solicitation if it may be perceived as coercive or if it is essentially a fund-raising mechanism.

In essence, judges may engage in activities related to the law so long as they are not direct fund-raising activities. Judges may engage in some activities not related to the law so long as they will not end up before the judge or so long as they do not compromise the judges ability to be fair and impartial in judicial work. Judges may not act as legal advisors to organizations.

Judges live in the world. Judges need not isolate themselves from their communities. However, judges may not engage in activities that will be coercive and they may not engage in activities that are fund-raising in nature, not even for charity.

Perception is very important. The appearance of impropriety is as bad as engaging in impropriety. Judges must put themselves above the fray. Outside of the courtroom they may advocate for the law and must stay away from activities that put their ability to be fair in question.

A judge must always remember that most people hold judges in high regard. Most people do not want to upset a judge. People want to be on the good side of a judge. The title "judge" bring with it great power and awesome responsibility. The Code of Judicial Conduct with respect to extra-judicial activities exists to guide judges to avoid putting them in compromising situations.

Judges and the Code of Judicial Conduct - The Prestige of Office

2010-06-05T09:18:00.003-05:00

By John DiMotto

There is no doubt that there is "prestige" that attends the judicial office. Whether it is in or outside of the courtroom, most people refer to a judge by his/her title. In the courtroom, when a judge enters everyone rises , even before the bailiff announces the presence of the judge. When addressing the court, staff, lawyers and parties will start out by saying "Your Honor" or "Judge." Outside of the courtroom, when a judge walks into a gathering, people usually address the judge with "hello, judge, how are you today" or words to that effect. When I walk into a restaurant where I have dined in the past, I am usually greeted with "Good evening, Judge, nice to see you again."

Quite frankly, even after 20 years as a judge, I am sometimes uncomfortable by this salutation when it is used outside the courtroom. I know the people are showing me respect that comes with my profession, but I am really no different a person than they are. I "put my shirt on one arm at a time" just like they do. I eat, drink, sleep, etc. no different than they do. If it is in a private setting and people call me judge, I oftentimes tell them my parents gave me the name "John" and I like it and it is OK for them to use my name since we are not in the courtroom.

While the title "judge" is part of the prestige of the office, a judge may not use his/her position to advance his/her or other's private interests. SCR Chapter 60 specifically addresses the "prestige of the office" issue head on.

SCR 60.03(1) states:

"A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

This rule governs conduct both on and off the bench. We are judges 24/7. It encompasses not just behavior but the appearance given by the behavior. In essence, judges must avoid not just inappropriate conduct but even the appearance of impropriety. A common sense "rule of thumb" that a judge can apply in every circumstance is "how would this look if it appeared on the front page of the local newspaper or was the lead story on the 10:00 news."

SCR 60.03(2) states:

A judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge may not lend the prestige of judicial office to advance the private interest of the judge or of others or convey or permit others to convey the impression that they are in a special position to influence the judge. A judge may not testify voluntarily as a character witness.

This rule is designed so that the judicial office is not denigrated. A judge should not be given consideration because he/she is a judge. If this rule did not exist, people might bend over backwards to do things for a judge in order to get something in return -- a favorable ruling on a motion, a favorable verdict at the end of a court trial, etc. Likewise, judges cannot seek an advantage in a matter because he/she is a judge. For example, a judge cannot use his/her judicial letterhead for conducting a judge's personal business. For example, a judge cannot allude to his/her judgeship to seek preferential treatment if stopped for a traffic violation or when making a purchase such as a car, etc.

SCR 60.03(3) states:

A judge may not hold membership in any organization that practices invidious discrimination on the basis of race, gender, religion or national origin.

This rule is obvious. How could any litigant believe a judge will be fair is the judge practices discrimination.

In addition to the rules, there Advisory Opinions can be sought to aid judges in making decisions.

The bottom line is this:

1) The judicial office comes great prestige.

2) A judge cannot use that prestige for his/her or another person's/entity's advantage.

Judges and the Code of Judicial Conduct - Judicial Civility and Decorum

2010-06-01T07:21:00.002-05:00

By John DiMotto

In addition to the Judicial Code of Conduct in SCR 60, the provisions of SCR 62 - Standards of Courtesy and Decorum for the Courts of Wisconsin - also apply to judges. In many respects, the dictates of SCR 62 are the foundation for SCR 60.

SCR 62.01 sets forth the scope of the standards in SCR 62. It states that they are adopted "to enhance the administration of justice by promoting good manners and civility among all who participate in the administration of justice in [Wisconsin], are applicable to judges, court commissioners, lawyers court personnel, and the public in all Wisconsin courts."

SCR 62.02 sets forth the actual standards of conduct. They are standards to be followed at all times, regardless of how trying the circumstances may be. Under these standards:

1) Judges must maintain a cordial and respectful demeanor and be guided by a fundamental sense of integrity and fair play in all their professional activities.

2) Judges must be civil in their dealings with one another and with the public and conduct all court and court related proceedings, whether written or oral, ... with civility and respect for each of the participants.

3) Judges must abstain from making disparaging, demeaning or sarcastic remarks or comments about [one another, lawyers, court commissioners, parties, witnesses, etc.]

4) Judges must abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.

5) Judges must ... promote proper conduct and address disorder and disruptions.

6) Judges must be considerate and reasonable in scheduling matters.

7) Judges must conduct themselves in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process.

8) Judges must be punctual in convening proceedings.

These standards are not merely aspirational but must be followed regardless of the circumstances. Any judge can tell you how, at times, lawyers, parties, and witnesses "push the envelope" and try the patience of the court. However, judges must not succumb to the pressures of the moment. Judges must maintain an equilibrium of patience lest they lose control of the proceedings. Lose of control will result in chaos, lead to injustice and may subject a judge to potential discipline. A review of Wisconsin Judicial Commission Annual Reports reveals that each year complaints of demeanor/injudicious temperament rank near the top of all complaints made against judges.

These standards do not prevent a judge from imposing sanctions on inappropriate conduct or behavior of lawyers, parties, witnesses or the public in the courtroom. At times, judges can and must be "forceful" in taking control of a situation in the courtroom lest "all hell break loose." These standards do not tie judges hands or prevent judges from taking action. They do, however, require judges to do so in a dignified and respectful manner. To address incivility with incivility promotes incivility. Judges must rise above the fray, take control and set an example for all. Justice requires nothing less.

Judges and The Code of Judicial Conduct - Political Activity

2010-05-25T06:53:00.007-05:00

By John DiMotto

The Code of Judicial Conduct in Wisconsin is designed to provide guidance to judges so they will "respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system." (SCR 60 Preamble) When people come to court they expect that they will be treated fairly by the judge. They expect that their case will be judged and decided on its merits and not on outside influences, particularly political influences. In order to promote these precepts, the Code has provisions addressing political activity by judges.

SCR 60.06(2)(b)1 prohibits a judge from being a member of any political party.

SCR 60.06(2)(b)2 prohibits a judge from participating in the activities of a political party or candidate for partisan office.

SCR 60.06(2)(b)3 prohibits a judge from making or soliciting financial contributions for a political party or candidate.

SCR 60.06(2)(b)4 prohibits a judge from endorsing a political party's candidate or platform.

SCR 60.06(4) prohibits a judge from personally soliciting or accepting campaign contributions.

SCR 60.06(2)(d) and (e) allow a judge to attend a political party event as a member of the public and allow attend partisan political gatherings to promote his/her own candidacy.

SCR 60.06(4) allows a judge to establish a committee to solicit and accept lawful campaign contributions and the judge may serve on the committee although the judge must avoid direct involvement with the committee's fundraising efforts.

SCR 60.06(5) allows a judge to solicit or accept endorsements supporting his/her election.

These provisions were enacted to extract a judge from partisan politics; to put a judge above the fray; to assure the public and litigants that the facts and the law, not political influences and biases, will rule the day in court. However, these provisions do put limits on a judge's First Amendment right to free expression. Therein lies a problem for some judges. This "clash" between the Code and the First Amendment has resulted in litigation. In litigation, the above Code provisions has been forced to give way to the First Amendment.

In 2008, Milwaukee County Circuit Court Judge John Seifert commenced a lawsuit against the Executive Director and Members of the Wisconsin Judicial Commission to enjoin them from enforcing provisions of SCR 60.06 against him. In Seifert v. Alexander, he sought a Declaratory Judgment that the prohibitions against a judge being a member of a political party, against a judge speaking on behalf of a political party's candidate or platform and against a judge personally soliciting or accept campaign contributions were unconstitutional and that the Commission be enjoined from enforcing these rules. He relied heavily on the 2002 United States Supreme Court decision in Republican Party of Minnesota v. White as well as the subsequent 2005 Eighth Circuit Court of Appeals decision in that same case. He claimed that the above code provisions violated his right to free speech. The Commission defendants contended that the rules were necessary to keep judges from being improperly influenced by partisan considerations, to maintain public confidence in the Wisconsin judiciary and to prevent potential donors from feeling coerced into giving money. In a lengthy decision, Judge Barbara Crabb declared that the above rules [SCR 60.06(2)(b)1, 60.06(2)(b)4 and 60.06(4)] were unconstitutional because they violated the First Amendment and she enjoined the Commission defendants from enforcing the rules against Judge Seifert. The Commission defendants have appealed this decision to the Seventh Circuit Court of Appeals.

As a member of the Wisconsin judiciary for the past 20 years, I have been guided by the Code - particularly the provisions at issue in the Seifert v. Alexander case. While I cherish the First Amendment, I do not mind the restrictions that the Code imposes on me. I accept those restrictions because I believe that the public's perception of a judge's independence and impartiality is critical to the confidence the public has in the judiciary. I believe that if judges immerse themselves in partisan politics it will severely dilute their independence and the public's confidence in the judiciary; and without the public's confidence, the judiciary cannot be effective.

Judges and The Code of Judicial Conduct - Propriety in All Activities

2010-05-21T06:19:00.002-05:00

By John DiMotto

In everything that a judge does, he/she is subject to all of the provisions of the Judicial Code. It does not matter if it is in court or out of court, a judge is always subject to public and judicial commission scrutiny.

SCR 60.03 sets forth the general principle that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." This is a broad charter that every judge must regard at all times. In SCR 60.03(1), it states: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." It cannot be stated with more clarity -- a judge must accept restrictions on his/her conduct. This includes both the professional and personal conduct of a judge. If a judge is with a group of people who decide to get "wild and crazy", the judge must back off and not participate.

So, how far must this provision be taken? Is it limited to violations of criminal law or municipal law or does it encompass more? In the comments, it is made clear that actual improprieties include violations of all law, all court rules or other specific provisions of Chapter SCR 60. In terms of a test for the appearance of impropriety, the comments set forth that it is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

The best, practical tests to apply to what a judge should or should not do are twofold. The first test is the "smell test." If it doesn't smell right, don't do it. The second test is the "Headline" test. In other words, would you want the conduct to be the top headline in your local newspaper. If you would not feel comfortable reading about the conduct, it would be wise to avoid the conduct.

Having been on the bench for almost twenty years, I do not find this provision to be onerous. I do not find that it deprives me of any fundamental freedoms enjoyed by all other people. It is a reasonable conduct standard. A judge should never engage in conduct that will demean the judge or the office. Respect for the office and confidence in the officer is critical to the effective operation of the judiciary and the delivery of justice.

Judges and The Code of Judicial Conduct - Ex Parte Communications

2010-05-17T06:46:00.002-05:00

By John DiMotto

If there is one thing lawyers (and this includes judges) love to do, it is to talk. It does not matter what the subject, legal or nonlegal, we love to talk. We are never at a loss for an opinion. However, when it comes to specific cases, while lawyers are free to discuss their cases with anyone, at any time, the same does not hold true for judges. In Wisconsin, under Supreme Court Rule (SCR) 60.04(1)(g), judges may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except in some very limited circumstances. Herein lies the problem for a judge when he/she has a high profile case which has garnered the attention of the media and the public. Anything the judge has to say must be said in open court, on the record with all parties and lawyers present. Once the case is no longer before the court on the record in the courtroom, the judge is prohibited from commenting on it or answering any questions about it.

The prohibition on a judge talking about cases pending before him/her is not well understood by the media or the public. When a judge is asked questions about a decision he/she made, the judge must decline to answer. This is often interpreted by the public as arrogance on the part of the judge or is viewed as a tacit admission by the judge that he/she committed error or has something to hide. In high profile cases, the judge may be roundly criticized and attacked, yet the judge must silently "take it." The judge may not defend himself/herself without violating the Code of Judicial Conduct provision against ex parte communications.

An example of this dilemma can be found in a criminal case. A judge may have a parent who has neglected or abused one of his/her children before the court for sentencing. If the judge places the defendant on probation and this fact is reported by the media, the report usually does not give the judges rationale, rather just "vivid" details of the offense and the "light" sentence. If there is a public outcry against the sentence, the judge cannot publicly defend himself/herself. The judge cannot give a further explanation. The judge can release the transcript, but that usually is unacceptable to the media and the public. They want more but the judge cannot give them more.

There are some who say that this prohibition actually fosters lack of confidence in the judicial office as a public trust. That is, if a judge will not answer questions about a decision he/she made when asked by the media or the public, he/she is violating the public trust. However, just the opposite is true. A judge makes decisions based on the facts and the law. A judge explains decisions on the record where the lawyers can respond. The rationale is in the record. A judge must do his/her talking in the courtroom setting. The courtroom is the public forum for a judge. All judges realize that in this day and age where the media has limited time and is looking for catchy "sound bites;" where people want information immediately without having to wait or wade through a transcript, the above procedure is not embraced by the public. However, the integrity of the judicial process demands that judges not engage in ex parte communications.

Judges and The Code of Judicial Conduct

2010-05-13T06:42:00.002-05:00

By John DiMotto

I am now back from a brief vacation that my wife, Judge Jean DiMotto, and I took to Brussels, Belgium. It was nice to get away and see a different part of the world. It was like a trip back in time. Very enjoyable and rewarding.

Now that I am back, I have decided to do a series on The Code of Judicial Conduct that governs both the "on the bench" and "off the bench" conduct of judges in Wisconsin. Every state has its own Code and provisions do vary from state to state. My focus will be on the Wisconsin Code since it governs my life 24/7.

My judicial code is found in Supreme Court Rule (SCR) Chapter 60. In the Preamble to the chapter, it sets forth the propositions that:

1) The judiciary which must interpret and apply the laws that govern people and it must do so in an independent, fair and competent manner.

2) The role of the judiciary is central to the concepts of justice and the rule of law.

3) Judges must individually and collectively respect and honor the judicial office as a public trust.

4) Judges are the arbiters of facts and law for the resolution of disputes.

5) Judges are a highly visible symbol of government under the rule of law.

In order to facilitate these propositions, the Code provisions provide:

1) Guidance to judges as to their behavior.

2) Govern the conduct of judges and are binding upon judges.

The ultimate purpose of the Code is to enhance public confidence in the integrity, independence and impartiality of the judiciary.

These are not mere platitudes to make people feel good. These are important propositions to ensure that it is the rule of law and not the vagaries of men/women which govern our lives.

The judiciary is the "Third Branch" of government. It is independent of the First and Second Branches -- the legislative and executive branches -- not an appendage of them. In order to remain so, the judiciary must be separate from politics and the political process. It must be an "uber-referee." As I explain to students who come through the courthouse, in some ways what judges do is analogous to what umpires and referees do in sporting events.

1) Referees and umpires do not "play" the game rather they enforce the rules of the game to ensure that the game is played fairly. Judges do this in the courtroom when they enforce the rules of evidence or procedure.

2) Referees and umpires make judgment calls as to whether "fouls" are committed or whether a pitch was a ball or a strike or whether a catch was made in or out of bounds or whether a basket was a two or three point shot. Judges similarly make judgment calls when they decide whether a question may or may not be asked or whether certain evidence will or will not be admissible.

3) Referees and umpires interpret whether player conduct did or did not violate a rule of the game. Judges interpret whether conduct did or did not violate a law or whether conduct did or did not violate a standard of care or whether conduct did or did not breach a contract.

In order for a judge to do his/her job, a judge must make rulings of law. However, the rulings must be within the context of the law or legal principle at issue. Judges interpret the law/principles as expressed by the legislature not as the judge would have done if he/she was in the legislature. Judicial decisions are to be made "without regard to persons" -- this means decisions are not to be based on who the litigants are but what the law dictates.

In the final analysis, judges must be independent and above the fray. It may sound like a simple proposition but it is not. I will address why this is the case in this series on "Judges and The Code of Judicial Conduct."

Judges and the Internet -- Blogging

2010-05-06T07:10:00.003-05:00

By John DiMotto

Not only can judges keep up with colleagues and friends, past and present, via the social networks of facebook, twitter, MySpace, etc.; and not only can judges do research on the internet - via social networks and legal websites; judges can express their views to the world via blogging.

I decided to start this blog in December, 2009 after encouragement from my friend and court commissioner, Anne Willis Reed, and from my friend, Michael Horne - former reporter with the Milwaukee Sentinel and current operator of the website, MilwaukeeWorld. They both told me that most people do not truly understand the life of a judge -- what they do, how they do it, why they do what they do and the ethical constraints that limit what judges can say outside of the courtroom. While they do not know each other, Anne -- a lawyer (and now the Executive Director of the Wisconsin Humane Society in Milwaukee) and Michael -- a journalist were "united" in their opinion that I could help people better understand the role of a judge in the legal system. They convinced me to head out into the uncharted waters of cyberspace and now, five months and 101 blogs later, here I am.

While I am not alone in doing a "judge's" blog, as best I can tell from a survey I did of the Wisconsin Circuit Court and Wisconsin Court of Appeals judges, I am currently the only state judge in Wisconsin who does a "judge's" blog. (If there are others who did not respond to my survey, I apologize.)

I try to convey a "typical day in the life" of a judge via what I do. I also use this blog as a vehicle to address current and upcoming issues that judges face/will face and what we can do to head off problems that come with the issues. A good example of this has been my blogging about the problems that have arisen based on juror use of the internet and their personal social networking via the internet. On a daily basis, I am being directed to articles about the "juror and the internet" issue from people I follow on twitter and from my friends on facebook.

What I do not do is talk about specific cases before me. Under our Code of Judicial Conduct (SCR Chapter 60) we may not engage in ex parte communications about specific cases that we are handling. We do our talking about these cases on the record in open court. This is crucial in contributing to the fairness of the proceedings.

I am thoroughly enjoying my blogging experience and hope that other judges will join me in this terrific experience.

Judges and the Internet - Research via Social Networking

2010-05-04T05:28:00.002-05:00

By John DiMotto

The vast "social network" (ie twitter, facebook, etc.) that is open to everyone is more that just a vehicle to socialize with friends, past and present. For judges, depending on who we friend or follow, it can provide a wealth of information that we can use in our everyday "judicial lives."

On twitter, I "follow" a number of individuals who post articles and papers on issues related to jury selection, jury service and trials. Dr. SunWolf -- "Jury Talk," Dr. Rita Handrich -- "The Jury Expert," Julie Campanini -- "trialinsights," Dr. Dennis Elias -- "Jury Vox," Online Legal News, Blawgreview, The Wisconsin Law Journal, and Anne Reed, my good friend and one of my court commissioners do a terrific job of providing fascinating and thought provoking information that I can and do use in my everyday work. Based on information I have gleaned from their work, I have modified my preliminary jury instruction regarding the "Conduct of Jurors" in order to stress the utmost importance that jurors selected for a case not engage in any efforts to secure information on their own to help them decide their case.

On facebook, I have a number of "friends" who post articles they have found dealing with legal issues that I have found helpful in my approach to my work. Judge Daniel Anderson, Judge Dennis Cimpl and Judge Richard Sankovitz have found fascinating articles from various and sundry newspapers (New York Times, Washington Post, Boston Globe, etc.) as well as legal websites such as law.com which provide information on issues that come up in court every day. Furthermore, these articles direct me to other sources for additional information.

The social networks that are open to all of us have their own "road" on the vast superhighway that is the internet. People that we judges friend and follow can provide us with "maps" to assist us in researching the challenging issues we confront on a daily basis.

Judges and the Internet -- Social Networking

2010-05-02T09:00:00.002-05:00

By John DiMotto

In my last two posts, I have discussed the use of the internet as it pertains to cases. Today, I would like to look at the use of the internet as a social networking tool.

Much has been written about judges being on Facebook, Twitter, etc. The ethics of judicial networking is an issue that has been written about and even addressed by the judicial commissions of some states. Some articles and opinions see no problem at all. Some articles and opinions advise caution by judges who want to be on the social networking bandwagon. Some articles and opinions, particularly an opinion from Florida, take the position that judges should not engage in it at all. So, what is a judge to do.

In Wisconsin, this issue has not yet been addressed. I am of the opinion that when it is -- and it will be addressed sooner than later -- that our Judicial Commission (JC) will take the position that judges may engage in internet social networking but must do so with care and caution. I believe that our JC will indicate that to the same extent that judges can have relationships with lawyers and the public in general in person that judges can do so via internet social networking.

This would be a reasonable approach since judges do live and breath in the real world. We do not live or work in ivory towers. Of course, we must be neutral. Of course, we must avoid not just the appearance of impropriety but actual impropriety in our interactions with others. However, we can maintain our ethical obligations and still engage in internet social networking.

I have both a Twitter and a Facebook account.

With respect to my Twitter account, I like to post interesting articles that I find in the New York Times, Washington Post and Milwaukee Journal Sentinel pertaining to how our government effectively or ineffectively addresses the issues of the day. I also like to follow legal consultants and jury consultants such as Jury Talk, trial insights, and The Jury Expert to see what is going on around the country with respect to jury related issues. I also use my Twitter account to post my blogs. It is a way to engage in the public. I do not discuss my cases, share my views on cases or solicit opinions regarding cases. I have a life on the bench and a life off the bench and I respect the line that divides them.

With respect to my Facebook account, I like to post sports articles and report what each day has in store for me -- generally but not "case specifically." On Facebook, I keep up on what other people think and feel about life around us and I participate in the social give and take of life. However, as with my Twitter account, I can and do keep separate my cases. I keep them in a "lockbox" of sorts since I do not want to know or solicit from others what they think about my cases. I should also point out that none of my friends have ever given me their thoughts or opinions about any of my cases. They know that there are lines that they too must not cross.

Social Networking keeps a judge in tune with life.

Judges and the Internet - Juror Information

2010-04-28T06:08:00.002-05:00

By John DiMotto

In my last post, I began a discussion on how judges must be careful with respect to using the internet to obtain information as it relates to fact finding. A much more tenuous circumstance, for which there may not be a definitive answer, is the use of the internet by judges to obtain information on prospective jurors.

In most cases, the desire/need to "google" a prospective juror for information will not be present. However, if it is a case involving millions of dollars or a case in which the verdict will have far reaching ramifications on a party or an industry, having more information about prospective jurors may be critical. I am sure that lawyers may in fact be doing this, and of course, there is no impediment to them. However, whether a judge can do so raises ethical issues that must be considered. Here is a hypothetical:

Assume a judge "googles" a prospective juror and discovers that:

1) the prospective juror has blogged on an issue that is at the forefront of the case and

2) the prospective juror has set forth very strong opinions about the issue.

Assume that in response to voir dire questions the prospective juror gives answers that are totally inconsistent with statements in the prospective juror's blog.

What is the judge's obligation?

Since the prospective juror may have sworn falsely -- if in fact that blog statement was the truth and not just posturing by the prospective juror for attention -- the judge must share this information with the lawyers so it can be followed up. The lawyers will then be in a position to potentially move to strike the prospective juror for cause or at least to intelligently exercise a peremptory challenge.

A solution to this problem is to fend off the problem before it occurs.

I would suggest that at the beginning of the trial that the judge ask the lawyers if they have any objection to the judge doing a "google" search of prospective jurors if at any time during the voir dire the judge believes that doing so will contribute to a just verdict with the understanding that the judge will share the information with the lawyers. I am certain they will agree since any information obtained will be useful to all in empanelling an unbiased jury.

No judge wants to retry a case. To have accurate information and truthful answers from prospective jurors before the trial can help reduce the need for a retrial because of juror "misconduct" during the voir dire. In fact, it may prevent such juror "misconduct."