Juror Conduct During the Trial

By John J. DiMotto

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

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

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

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

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

1) Talk to people about the case.

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

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

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

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

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

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

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

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

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?

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

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

(c) encourage witnesses to come forward, and

(d) discourage perjury,

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

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

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

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.