Wis JI-Criminal SM-20

CONTENTS

Scope 1

I. Introduction 2

II. Juror Qualifications And Required Questions 3

A. Juror Qualifications – § 756.02 3

B. Required Questions – § 805.08(1) 3

C. Juror Qualification Forms; Supplemental Information;

Case-Specific Questionnaires 4

III. Voir Dire Of An Individual Juror Out Of The Presence Of

The Jury Panel 5

IV. Suggested Voir Dire Questions 6

A. The Purpose Of Voir Dire 6

B. Topics For Questions 8

V. Dismissal For Cause; Following Up On Affirmative Answers 9

A. Statutory bias 9

B. Subjective bias 10

C. Objective bias 11

D. Remedy 13

VI. Peremptory Challenges 13

A. Number 13

B. Claim that a challenge is race- or gender-based 14

VII. Concluding Questions 14

VIII. Instructions After The Jury Is Selected 15

IX. Anonymous And "Numbers" Juries 15

A. Individualized Determination 15

B. Precautionary Statement 16

Scope

The manner in which voir dire is conducted lies within the discretion of the court and

varies greatly among judges. This special material begins with a suggested script that

covers introductory and other general matters. Then it identifies the topics on which voir

dire questions are statutorily required and suggests additional topics that are often

covered. In both instances, the actual form of the question is left to the judge. The

current framework for analyzing potential juror bias is outlined. The Comment attempts

to collect relevant case law.

I. Introduction

VOIR DIRE IS TO BE CONDUCTED IN OPEN COURT, ABSENT FORFEITURE

OR WAIVER 1

ASSURE THAT THE DEFENDANT AND DEFENSE COUNSEL ARE

PRESENT. 2 AFTER THE CASE IS CALLED AND THE PANEL IS SWORN,

PROCEED WITH THE FOLLOWING:

"All members of the jury panel, including those (back of the rail) (outside the

jury box) should listen to all the questions that are directed to the panel until a

jury of (12) (14) is selected."

"This is a criminal case, not a civil case, and I will read the allegations of the

Information to you. An Information is nothing more than a written formal

accusation against the defendant, charging the commission of one or more

criminal acts. You are not to consider the Information as evidence against the

defendant in any way. It does not raise any inference of guilt."

[READ OR SUMMARIZE THE INFORMATION.]

"The defendant (name) has entered a plea of not guilty to (the) (each)

charge in the Information, which means the State must prove every element of

the offense charged beyond a reasonable doubt."

[IDENTIFY THE PROSECUTOR, DEFENDANT, DEFENSE COUNSEL, AND

ANY OTHERS AT COUNSEL TABLE. EACH PERSON SHOULD STAND

WHEN INTRODUCED.]

"I will now ask you some general questions about your qualifications to sit as

jurors in this case. Counsel should listen carefully to these general questions and

not repeat them. Counsel may ask the jurors generally any proper questions and

in addition ask proper questions of each juror as to matters specific to each

juror."

"If your answer to any of my questions is 'yes,' raise your hand."

II. Juror Qualifications And Required Questions 3

A. Juror Qualifications – § 756.02

Section 756.02 4 sets out the basic qualifications for being a juror. Although these

requirements are usually covered by juror qualification forms, judges may wish to review

them at the beginning of voir dire by asking the panel whether anyone:

• is not a United States citizen;

• is not currently a resident of _______________ County;

• is under the age of 18;

• is unable to understand English; 5 and,

• has been convicted of a felony and has not had his or her civil rights restored.

B. Required Questions – § 805.08(1)

Subsection 805.08(1) requires that questions on certain topics be asked by the judge.

An affirmative answer to questions on either of the following topics requires that the

juror be excused on the basis of "statutory bias": 6

• whether any juror is related by blood or marriage to the defendant 7 or to any

attorney; and

• whether any juror has any financial interest in the case.

Because case law requires excusing jurors who are related to a state witness, 8 an

additional question should be asked in every case:

• whether any juror is related to any witness for the state.

Subsection 805.08(1) also requires questions on the following topics; an affirmative

answer does not require excusing the juror but does require additional inquiry: 9

• whether any juror has expressed or formed any opinion; and

• whether any juror is aware of any bias or prejudice in the case.

C. Juror Qualification Forms; Supplemental Information; Case-Specific

Questionnaires

There are several different forms containing juror information that are often referred

to as "questionnaires." The Committee has concluded that there is value in using

different terms to describe them because their functions are different.

1. Juror Qualification Forms – § 756.04(6)(am)

These are the forms sent out by the clerk when jurors are summoned for service.

They cover the basic requirements for qualification for juror service. There is a standard

form – Circuit Court Form GF-132 – available to judges through the clerk of court.

Additional content varies by county.

2. Supplemental Information – § 756.04(6)(cm)

"The juror qualification form. . . may be supplemented to request other information

that the court requires to manage the jury system in an efficient manner, including

information that may be sought during voir dire examination." § 756.04(6)(cm)

3. Case-Specific Questionnaires

Additional questions may be submitted to potential jurors that relate to the specific

case on which they might serve. Drafted by counsel, their use requires approval by the

court and a cover letter explaining them. Their use is not feasible in counties where

potential jurors are summoned without reference to a particular case.

Positive aspects to using questionnaires:

• they can be helpful in cases where there has been extensive pretrial publicity;

• where sensitive topics are involved, jurors may be more forthcoming than in

open court;

• they can potentially save time in a case where extensive voir dire might be

necessary on specific issues.

Negative aspects to using questionnaires:

• approving their use and content can take considerable court time;

• issues can be addressed more efficiently during voir dire.

• the questions may prompt jurors to try to research the case.

4. Confidentiality – § 756.04(11)(a)

All juror information forms "shall remain confidential." They shall be used only for

trial and appeal; counsel and parties may not retain copies. § 756.04(11)(a).

III. Voir Dire Of An Individual Juror Out Of The Presence Of The Jury Panel

The court's discretion over the form and number of questions extends to whether

prospective jurors should be questioned collectively or individually out of the presence of

the other prospective jurors. State v. Koch, 144 Wis.2d 838, 847, 426 N.W.2d 586

(1988). Factors relevant to deciding whether to conduct a sequestered voir dire are:

(1) whether the circuit court conducted a thorough initial questioning of the panel

members; (2) whether the panel members were reluctant to state whether they

had a preconceived notion of the defendant's guilt or innocence; and (3) whether

the circuit court imposed any restrictions upon the extent of defense counsel's

questioning of the panel members on voir dire.

144 Wis.2d 838, 849, citing State v. Dean, 67 Wis.2d 513, 528, 227 N.W.2d 712 (1975).

Other cases dealing with requests for individual or sequestered voir dire include State v.

Smith, 117 Wis.2d 399, 344 N.W.2d 711 (Ct. App. 1983); State v. Herrington, 41 Wis.2d

757, 165 N.W.2d 120 (1969).

Individual voir dire is most often used in cases involving sexual assault or significant

pretrial publicity. While practice varies, an example of an explanation of the process and

questions to the full panel in a sexual assault case follows. [If a different potentially

sensitive crime or pretrial publicity is involved, the example must be modified.]

Jurors, at this point the court is going to ask you some general questions. I

ask that you raise your hand if "yes" would be your answer to any of these

questions.

In this case, the court is varying from its typical practice in that we will be

conducting individual voir dire of persons depending on how these particular

questions are answered. Listen carefully.

Has any member of the panel or any member of their family, or any friends,

relatives, or co-workers, been affected by unwanted sexual conduct, whether

reported or not?

[Note for the record the jurors – by name or number – who have raised their hands.]

Referring to the entire panel again now, have you or any family member or

close friend ever been investigated for, accused of, or charged with sexual

assault?

[Note for the record the jurors – by name or number – who have raised their hands.]

[Add the following if the case has generated significant publicity.

Is there anyone among you who has read or heard anything about this case?]

[Note for the record the jurors – by name or number – who have raised their hands.]

At this point the court is going to conduct an individual voir dire of those

persons who raised their hand in response to the questions. The process we will

follow is that the prospective juror, the attorneys, the defendant, court personnel,

and any members of the general public who wish to attend will go to [a jury

room] [(designate other room)] where questions will be asked of the individual

juror outside the presence of the other jurors.

This will take a few minutes. Please continue to be patient. The group of

jurors whose names have been called must maintain their same seating order.

While we are doing this you can stand up if you need to stretch or relax. If

someone needs to use the restroom let the bailiff know and the bailiff will see

that you are able to do that. But the group must maintain the same seating order

that you are in.

The court, court reporter, clerk, security officer, the parties and their attorneys (and

the alleged victim if requested) move to another room out of the presence of the rest of

the panel. Those jurors who raised their hands are then invited in one at a time escorted

by a bailiff. The court begins the questioning followed by questions by the prosecutor

and the defense counsel. The court rules on whether or not a juror is to be excused.

When everyone has returned to the courtroom the process may have to be repeated if

additional jurors are called.

IV. Suggested Topics For Voir Dire Questions 10

A. The Purpose Of Voir Dire

The Committee suggests that the court explain to the panel that the purpose of voir

dire is to assure that persons chosen to serve will be fair and impartial jurors. An

example follows.

Impartiality

I would like to tell you what I mean by the term fair and impartial juror. I

want you to all assume that you have heard all the evidence in this case, listened

to my instructions on the law, deliberated with the other jurors, and you are

thinking that the State has not proved this case beyond a reasonable doubt, you

are thinking the defendant is not guilty. Is there anything in your background,

your life experiences, your view of the criminal justice system, anything at all

that makes you think that you would vote to find the defendant guilty anyway,

even though the State had not proved him guilty?

The flip side of that question is equally important. You listened to all the

evidence and my instructions and you are thinking he is guilty, the State has

proved the case beyond a reasonable doubt. Is there anything in your

background, life experiences, your view of the justice system that makes you feel

that you would vote to find him not guilty even though the State has proved the

case?

Or to put it a little more simply, are you going to decide this case based on

anything other than what you hear from the witness stand and the rules of law

that I instruct you on?

That is what I mean by being a fair and impartial juror. As you sit here right

now without knowing much about this case, is there anyone who thinks, for any

reason that they can not be a fair and impartial juror?

Bias

[It is obvious to everyone in the courtroom that Mr. ___________________

is (African-American) with respect to his racial background.] 11 I think we all

walk around realizing we are different from everyone else. Those differences

might be based on race, gender, ethnicity, body size, hair color or any number of

factors, but when we let those kind of differences control how we judge someone

or a situation we call that bias or prejudice or discrimination.

What is very important to me and everyone involved with this case is that we

end up with 12 jurors who will decide this case on the evidence you hear from

the witnesses and the rules of law I instruct you on and not on any of these kinds

of difference.

Now I realize what I am about to ask you is pretty difficult. I am asking you

to tell me if you don't think you can be fair. That is pretty hard even in a one on

one conversation let alone in front of a room full of strangers, but it is critically

important. I am not going to argue with you or try to convince you to feel

differently but I do need to know if you don't think you can be fair for this or any

other reason.

Is there anyone who has concerns about or simply feels that they cannot be a

fair juror in this case?

B. Topics For Questions

Questions on the following topics are often included in a judge's voir dire and are

recommended for consideration in all cases. Other topics may be appropriate depending

on the facts of the case.

1. Whether the estimated length of trial makes it impossible for anyone to serve.

2. Whether anyone has a physical or medical condition that makes it impossible to

serve or makes it difficult to hear or understand the testimony. 12

3. Whether there are any circumstances such as work schedule, medication, etc.,

that may make it difficult for a juror to pay attention or stay alert. 13

4. Advise that it is alright to ask for a recess if a juror is having trouble staying

alert.

5. Whether anyone knows any member of the defendant's family.

6. Whether anyone knows the defense attorney or the prosecutor or the judge.

7. Whether anyone knows the complaining witness or other witnesses who are

expected to testify.

8. Whether anyone or a member of their immediate family is employed in a law

enforcement capacity. 14

9. Whether anyone would give more or less weight to the testimony of a police

witness because that person is a police officer.

10. Whether anyone has heard or read anything about the case.

11. Whether anyone has expectations about the conduct of the court and counsel,

the nature of the evidence that will be presented, or the law that will be

applied to this case based on descriptions of criminal investigations and trials

from books, movies, television programs or the media. 15

12. Whether anyone has previously served on a jury and, if so, whether that jury

reached a verdict. 16

13. Whether anyone has been the victim of a crime. 17

14. Whether racial bias or prejudice may affect anyone.

15. Whether anyone has a religious or philosophical belief that prohibits them from

sitting in judgment on another person.

16. If the case involves an interpreter, whether anyone speaks or understands the

language involved. 18

V. Dismissal For Cause; Following Up On Affirmative Answers 19

If a panel member indicates that an answer to a question would be "yes," further

inquiry is required. In any situation, the mere fact of an affirmative response is not

enough to disqualify a person from jury service. The ultimate test is whether, the

affirmative response notwithstanding, the juror can decide the case fairly and impartially

on the evidence that is presented in court. 20

In a group of four cases decided on the same day, the Wisconsin Supreme Court

identified and implemented a new set of three terms for classifying juror bias. 21 State v.

Faucher, 227 Wis.2d 700, 596 N.W.2d 770 (1999), was the lead decision. It held that the

usefulness of the old terms for types of juror bias had "run full course" and that the terms

"implied bias," "actual bias," and "inferred bias" should no longer be used. In their place,

the following are adopted: statutory bias, subjective bias, and objective bias.

A. Statutory bias

"Statutory bias" refers to prospective jurors who are excluded from jury service under

§ 805.08(1):

• those related by blood or marriage to any party;

• those related by blood or marriage to any attorney appearing in the case; and

• those who have a financial interest in the case.

A person meeting one of these descriptions may not serve regardless of his or her ability

to be impartial.

A prospective juror who is the brother-in-law of a state witness must be struck for

cause on the basis of statutory bias. State v. Czarnecki, 231 Wis.2d 1, 604 N.W.2d 891

(Ct. App. 1999). 22

Note: § 805.08(1) also refers to those who have expressed or formed an opinion or

are aware of any bias or prejudice in the case; they are not considered to fall into the

"statutory bias" class but are more accurately described as those for whom evidence of

"subjective bias" exists. Faucher, supra, 227 Wis.2d 700, 717. Thus, an individual

inquiry is required before they are to be dismissed.

In addition to those jurors falling within the "statutory bias" category, one other class

of jurors must always be excused: jurors who are related to a state witness. 23 With these

exceptions, it is improper to exclude any class of jurors without individual inquiry into

ability fairly to decide the case. 24

B. Subjective bias

"Subjective bias" refers to a prospective juror who has opinions or feelings about the

case that the juror is unable or unwilling to set aside. It refers to the juror's actual state of

mind and is usually revealed by a prospective juror during voir dire. Faucher, supra, 227

Wis.2d 700, 719; State v. T. Oswald, 2000 WI App 2, ¶19, 232 Wis.2d 62, 606 N.W.2d

207. 25

The inquiry into subjective bias involves determining whether the prospective juror

has expressed or indicated an opinion or a bias and, if so, whether the juror has the

willingness and ability to set those feelings aside and consider the case on the evidence

presented in court. As to the latter issue, courts should seek to elicit a clear expression of

impartiality by asking a question like the following:

Are you able to put your feelings or opinions aside and decide this case

based solely on the evidence presented and the law as the court defines it for

you?

However, "a prospective juror need not respond to voir dire questions with

unequivocal declarations of impartiality." State v. Erickson, 227 Wis.2d 758, 776, 596

N.W.2d 749 (1999). "Magical words" are not required. State v. Jimmie R.R., 2000 WI

APP 5, ¶28, 232 Wis.2d 138, 606 N.W.2d 196. Also see State v. Ferron, 219 Wis.2d

481, 579 N.W.2d 654 (1998), where a prospective juror's statement that he could

"probably" set his feelings aside was not considered to be a strong enough statement. 26

In State v. Carter, 2002 WI App 55, 250 Wis.2d 851, 641 N.W.2d 517, the court

found that subjective bias was established as a matter of law where a prospective juror

clearly stated that his own experience with a sexual assault in his family would influence

his ability to be fair and impartial and where no follow-up questions qualified that

statement. The trial court's finding that no subjective bias was shown was clearly

erroneous and defense counsel provided ineffective assistance by failing to question the

juror's statement or move to strike the juror. 2002 WI App 55, ¶¶13, 15.

Appellate courts reviewing these cases will look carefully at the answers to voir dire

questions but evaluating the juror's sincerity also depends on the juror's conduct,

demeanor, and nonverbal cues. Jimmie R.R., supra, 232 Wis.2d 138, ¶29. Thus,

substantial deference will be accorded to the trial judge who can observe these qualities.

The value of reliance on answers to voir dire questions is further reduced because lawyers

ask leading questions and intentionally elicit contradictory answers, Jimmie R.R., supra

232 Wis.2d 138, ¶30, and sometimes present confusing and ambiguous questions. State

v. Gilliam, 2000 WI App 152, ¶¶12-14, 238 Wis.2d 1, 615 N.W.2d 1.

C. Objective bias

Objective bias refers to a prospective juror whose opinions or feelings are such that a

reasonable person in the juror's position could not set them aside. Objective bias may

involve a direct, critical, personal connection between the individual juror and crucial

evidence or a dispositive issue in the case or an intractable negative attitude toward the

justice system in general. State v. J. Oswald, 2000 WI App 3 ¶8, 232 Wis.2d 103, 606

N.W.2d 238. 27

In State v. Faucher, 227 Wis.2d 700, 596 N.W.2d 770 (1999), a prospective juror had

a strong opinion about the credibility of a crucial state's witness. The supreme court

found that objective bias was established because the juror "could not truly set aside his

strongly held belief that [the witness] would not lie" despite his apparently sincere

intentions to do so. 227 Wis.2d 700, 733. 28

In State v. Lindell, 2001 WI 108, ¶4, 245 Wis.2d 689, 629 NW.2d 223, the court held

that objective juror bias was established as a matter of law where the juror knew the

homicide victim as a friend of the family and business associate.

In State v.Erickson, 227 Wis.2d 758, 776, 596 N.W.2d 749 (1999), a juror in a sexual

assault case had been a victim of sexual abuse as a child. But the supreme court found

that objective bias was not established because the juror's connection was remote.

Objective bias may also be established if the prospective juror has a direct connection

to a dispositive issue in the case, such as the defense theory, coupled with a personal

belief regarding the outcome of that issue. In State v. Kiernan, 227 Wis.2d 736, 596

N.W.2d 760 (1999), the supreme court held that "veteran jurors" who had rejected a

breathalyzer defense in a preceding case should have been dismissed from service in a

second drunk driving case involving the same defense. Veteran jurors are not to be

dismissed solely on the basis of their having served as jurors in a similar case, but "these

veteran jurors did exhibit bias in that reasonable jurors in their position could not set

aside expressed opinions and prior knowledge relating to the veracity of breathalyzer

results." 227 Wis.2d 736, 751.

A third situation where objective bias may be present is where jurors demonstrate an

intractable or ingrained negative attitude towards the justice system. In State v.

Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), the supreme court held that

prospective jurors with negative experience with the justice system cannot be

automatically excluded but must be excluded if their experience is recent and left them

with negative feelings.

The Mendoza decision advised that trial courts should err on the side of caution when

considering a request to remove a juror for cause, especially where objective bias is

concerned:

The circuit courts are. . . advised to err on the side of striking prospective jurors

who appear to be biased, even if appellate courts 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.

Mendoza, supra, at 868 (quoting State v. Ferron, 219 Wis.2d 481, 503, 579 N.W.2d 654

(1998). This admonition was repeated in State v. Lindell, supra, ¶49. Also see State v. J.

Oswald, 2000 WI App 3 ¶¶52-53, 232 Wis.2d 103, 606 N.W.2d 238, J. Nettesheim,

concurring.

A different aspect of objective bias was considered in State v. Neumann, 2013 WI

58, 348 Wis.2d 455, 832 N.W.2d 560, a case involving extensive pretrial publicity. Both

parents of an 11-year-old were convicted of 2nd degree reckless homicide under § 940.06

after the girl died from diabetic ketoacidosis resulting from untreated juvenile onset

diabetes. The wife was tried first and convicted. The jury in trial of the father was told

of the result of the mother's trial. The court stated: "We recognize that evidence of a co-defendant's guilt, under some circumstances, can be prejudicial to the defendant on trial,

and in cases in other jurisdictions, convictions have been overturned on this ground. . . .

Nevertheless, circumstances in the present case justified informing the jury about the

mother's status." 2103 WI 58, ¶¶158, 159.

In State v. Tody, 2009 WI 31, 316 Wis.2d 689, 764 N.W.2d 737, all six members of

the court who participated agreed that it was error for the trial judge to fail to strike the

judge's mother from the jury panel. Three justices concluded that the circumstances

showed "objective bias." 29 Three justices concluded that the judge's error was in not

removing the juror or recusing himself under the trial court's inherent authority to

administer justice.

In State v. Sellhausen, 2012 WI 5, 338 Wis.2d 243, 808 N.W.2d 390, the issue was

whether a new trial was required where the trial judge failed to disqualify his daughter-in-law from sitting on the jury. All members of the court apparently agreed that a new trial

was not required because the defense removed the juror by using a peremptory challenge

and received a fair trial from an impartial jury. Justice Ziegler concurred, adopting her

concurring opinion in the Tody case. Three justices joined her, meaning that the

concurring opinion in Tody is now the law on this issue.

D. Remedy

The erroneous failure to excuse a juror for cause does not require retrial where the

defense used a peremptory challenge to strike that juror, resulting in an impartial jury.

State v. Lindell, 2001 WI 108, ¶5, 245 Wis.2d 689, 629 NW.2d 223. Lindell overruled

State v. Ramos, 211 Wis.2d 12, 564 N.W.2d 328 (1997), which had required an

automatic reversal when a defendant used a peremptory strike to remove a prospective

juror who should have been excused for cause. 30

VI. Peremptory Challenges

A. Number – § 972.03

In a felony case, both the state and the defendant receive 4 peremptory challenges.

The number increases to 6 if the crime is punishable by life imprisonment. 31 An

additional peremptory challenge is to be allowed each side if additional jurors [commonly

referred to as "alternate jurors"] are selected under § 972.04(1), bringing the total to 7.

The number for the defense also increases if there are multiple defendants. 32 Trial courts

lack authority to allow correction of an allegedly mistaken exercise of a peremptory

challenge once the jury is impaneled. 33

B. Claim that a challenge is race- or gender-based

Peremptory challenges may not be used to exclude a prospective juror on the basis of

the juror's race. 34 This rule applies even though the members of a jury panel are of a

different race than the defendant. 35 The same rule applies to the exercise of peremptory

challenges based on the juror's gender. 36

In order to constitute a class for these purposes, "the group must be objectively

identifiable from the rest of the community, be large enough that the general community

recognizes it as an identifiable group, and its members share ethnic and cultural traditions

and customs, and, perhaps most important, share discrimination because of their identity

and 'differentness.'" State v. Guerra-Reyna, 201 Wis.2d 751, 756, 549 N.W.2d 779 (Ct.

App. 1996). Mexican-Americans are a class entitled to equal protection of the law in

connection with jury service. Id.

A claim that a peremptory challenge was improperly based on race or gender must be

raised by motion before the jury is sworn or it will be considered waived. 37 Upon the

defendant's timely motion, a three-step process is used to evaluate the claim: 38

• there must be a prima facie showing that the peremptory challenge was based

on race or gender; 39

• the burden shifts to the opposing party to articulate a race- or gender-neutral

explanation for striking the juror; 40 and

• the court must determine whether the objecting party has carried the burden

of proving purposeful discrimination.

VII. Concluding Questions

At the end of the court-conducted voir dire, many judges review one or more of the

important jury instructions with the jury. An example follows.

If you are selected as a juror, following the completion of all of the

testimony and the arguments of counsel, I will instruct you on the principles of

law that will govern you in your consideration of the evidence, weighing the

testimony, and reaching your verdict. One of the instructions is on burden of

proof and presumption of innocence. It reads as follows:

[READ WIS JI-CRIMINAL 140]

Is there anyone who believes that he or she could not follow that

instruction?"

Another instruction relates to the credibility of witnesses. It reads as

follows:"

[READ WIS JI-CRIMINAL 300]

Is there anyone who believes that he or she could not follow that

instruction?"

VIII. Instruction After Jury is Selected 41

HERE INSERT PRELIMINARY INSTRUCTIONS IF DESIRED. SEE,

FOR EXAMPLE, WIS JI-CRIMINAL 50.

IX. Anonymous And "Numbers" Juries

Whenever a court restricts any juror information, including referring to a juror by

number instead of by name, the court must make an individualized determination that the

restriction of information is necessary and must take reasonable precautions to minimize

any prejudicial effect to the defendant.

In State v. Britt, 203 Wis.2d 25, 553 N.W.2d 528 (Ct. App. 1996), the trial court had

ruled that the jurors' names, addresses, and places of employment could not be publicly

revealed in open court or on the record; however, both parties had access to all juror

information via written questionnaires. This was considered to be an "anonymous jury"

and its use upheld by the court of appeals because there was a strong reason to believe

that the jury needed protection and reasonable precautions were taken to minimize any

prejudicial effect to the defendant.

In State v. Tucker, 2003 WI 12, 259 Wis.2d 484, 657 N.W.2d 374, the trial court

used only numbers to refer to the jurors, although both parties had access to all juror

information, including the jurors' names. The Wisconsin Supreme Court held that this

practice, termed a "numbers jury," was subject to the same requirements as those that

apply to an anonymous jury42 and found that the trial court erred in two respects. First,

the trial court did not make an individualized determination that the jurors needed

protection based on the specific circumstances of the case. Second, the trial court did not

take adequate precautions to minimize any prejudicial effect.

A. Individualized Determination

Before a trial court restricts any juror information, the court must make an

individualized determination that the facts and circumstances of the case require that the

jury be protected. Among the factors that may be taken into account:

(1) the defendant's involvement in organized crime;

(2) the defendant's participation in a group with the capacity to harm jurors;

(3) the defendant's past attempts to interfere with the judicial process; and

(4) extensive publicity that could enhance the possibility that jurors' names would

become public and expose them to intimidation or harassment.

State v. Tucker, 2003 WI 12, ¶22 [citing United States v. Darden, 70 F.3d 1507, 1532

(8th Cir. 1995); United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994).]

B. Precautionary Statement

When juror information is restricted, there is a danger that the jurors will interpret the

special measures as reflecting on the defendant's guilt or character. The general

instruction on the presumption of innocence is not sufficient to address this issue.

Therefore, "the circuit court, at a minimum, must make a precautionary statement to the

jury that the use of numbers instead of names should in no way be interpreted as a

reflection of the defendant's guilt or innocence. . . A precautionary statement must not

mislead a jury, but must be based on factors and influences that are relevant in a

particular case." State v. Tucker, 2003 WI 12, ¶23, ¶24. 43

While it may be necessary to tailor the precautionary statement for the facts of a

particular case, the Committee offers the following as a general model: 44

I have decided that for the convenience of court and counsel, we will refer to

jurors by numbers. This should not influence your verdict in any manner.