On Point: J. Verdicts

Question Presented:

Most states and the federal government have a rule of evidence generally prohibiting the introduction of juror testimony regarding statements made during deliberations when offered to challenge the jury’s verdict. Known colloquially as “no impeachment” rules, they are typically codified as Rule 606(b); in some states, they are a matter of common law.

The question presented is whether a “no impeachment” rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?

Question presented:

Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge’s presence, the judge may recall the jurors for further service in the same case.

State v. Wade M. Richey, 2014AP1758-CR, District 3, 3/17/15 (not recommended for publication); case activity (including briefs)

In this prosecution for reckless driving causing great bodily harm and homicide by operating with a detectable amount of a controlled substance, the circuit court erroneously excluded Richey’s medical records from evidence at trial, though the error was harmless. More interesting, perhaps, is the issue arising out of the trial court’s post-verdict meeting with the jury. While it wasn’t plain error for the trial judge to meet with the jury after receiving its verdict, what happened in this case causes the court of appeals to suggest trial judges tread carefully when doing so.

Warger v. Shauers, USSC No. 13-517, 2014 WL 6885952 (December 9, 2014), affirming Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013); Scotusblog page (includes links to briefs and commentary)

Resolving an issue that had split some federal circuit courts, the Supreme Court unanimously holds that Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit or testimony about what another juror said in deliberations to demonstrate the other juror was dishonest during voir dire.

State v. Michael T. Grant, 2013AP515-CR, District 2, 1/15/14; court of appeals decision (not recommended for publication); case activity

Grant was on trial for two counts of sexual assault involving two different victims. (¶¶1, 4-6). During deliberations the jury advised the court it had reached a verdict on one count but could not agree on the other. (¶8). In response the judge suggested taking the verdict the jury reached on the one count,

State v. Julian L. Perez, 2013AP750-CR, District 1, 12/10/13; court of appeals decision (not recommended for publication); case activity

Where the evidence at trial showed that the defendant possessed a firearm over a short span of time at two locations in the same apartment building, the jury did not need to be unanimous as to which location the possession occurred. Instead, unanimity was required only as to whether the defendant had possessed a firearm in the building in question on the date charged.

Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12

court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity

Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.

 ¶6        Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.  

State v. Carl Mills, 2010AP1746-CR, District 1, 9/7/11

court of appeals decision (not recommended for publication); for Mills: Randall E. Paulson, SPD, Milwaukee Appellate; case activity

Trail counsel was not ineffective for failing to object to jury instructions and verdict forms with respect to unanimity on multiple counts of sexual assault of a single victim, even though the verdict forms did not specify the types of sexual intercourse involved; 

State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity

Verdict Forms – Harmless Error

Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.

¶9        At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form. 

Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element

Click here for court of appeals decision, PFR filed 8/3/09

(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)

Pro se

Issue/Holding: State failure to argue,