805.13 Jury instructions; note taking; form of verdict.

(1) Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record.

(2) Preliminary instructions and note taking.

(a) After the trial jury is sworn, the court shall determine if the jurors may take notes of the proceedings:

1. If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of the proceedings, except the opening statements and closing arguments, if they so desire and that the court will provide materials for that purpose if they so request. The court shall stress the confidentiality of the notes to the jurors. The jurors may refer to their notes during the proceedings and deliberation. The notes may not be the basis for or the object of any motion by any party. After the jury has rendered its verdict, the court shall ensure that the notes are promptly collected and destroyed.

2. If the court does not authorize note-taking, the court shall state the reasons for the determination on the record.

(b) The court may give additional preliminary instructions to assist the jury in understanding its duty and the evidence it will hear. The preliminary instructions may include, without limitation, a description of the nature of the case, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin. Any such preliminary jury instructions may be given again in the charge at the close of the evidence. The additional preliminary instructions shall be disclosed to the parties before they are given and either party may object to any specific instruction or propose instructions of its own to be given prior to trial.

(3) Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.

(4) Instruction. The court shall instruct the jury before or after closing arguments of counsel. Failure to object to a material variance or omission between the instructions given and the instructions proposed does not constitute a waiver of error. The court shall provide the jury with one complete set of written instructions providing the burden of proof and the substantive law to be applied to the case to be decided.

(5) Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate.

History: Sup. Ct. Order, 67 Wis. 2d 585, 703 (1975); 1975 c. 218; 1979 c. 128; 1981 c. 358; Sup. Ct. Order, 130 Wis. 2d xi (1987).

Judicial Council Note, 1986: Sub. (2) (b) is amended to provide that preliminary instructions may include a description of the nature of the case, what constitutes evidence and what does not, guidance regarding the burden of proof and the credibility of witnesses, and directions not to discuss the case until deliberations begin.

Specific evidentiary facts may be incorporated into an instruction provided they do not lead the jury to believe that the court has prejudged the evidence. State v. Dix, 86 Wis. 2d 474, 273 N.W.2d 250 (1979).

Under sub. (3), a failure to object waives errors of substance as well as of form. Gyldenvand v. Schroeder, 90 Wis. 2d 690, 280 N.W.2d 235 (1979).

It was proper to instruct a jury that it need not consider a lesser offense if it found the defendant guilty of a higher one. State v. McNeal, 95 Wis. 2d 63, 288 N.W.2d 874 (Ct. App. 1980).

Although failure to object at the verdict conference to a substantive defect in the verdict constituted waiver, failure to object did not preclude the court's consideration of the defect under s. 751.06. Clark v. Leisure Vehicles, Inc. 96 Wis. 2d 607, 292 N.W.2d 630 (1980).

When an objection at the verdict conference was not specific enough to preserve an appeal, the supreme court reversed the trial court under s. 751.06. Air Wisconsin, Inc. v. North Central Airlines, Inc. 98 Wis. 2d 301, 296 N.W.2d 749 (1980).

Under the separation of powers doctrine, ss. 805.13 (4) and 972.10 (5) require submission to the jury of written instructions on the substantive law but do not require an automatic reversal when the trial court fails to do so. Instructions on the burden of proof and presumption of innocence are procedural, not substantive law. In Matter of E. B. 111 Wis. 2d 175, 330 N.W.2d 584 (1983).

When an alleged error went to the integrity of the fact-finding process, the trial court exercised its discretion to review the circumstantial evidence instruction irrespective of the defendant's waiver of objection. State v. Shah, 134 Wis. 2d 246, 397 N.W.2d 492 (1986).

It is not error for the trial court to fail to instruct sua sponte on a lesser-included offense. The trial court should not interfere with the parties' trial strategy. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990).

Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).

If an attorney disagrees with an instruction that a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen, 204 Wis. 2d 115, 553 N.W.2d 820 (Ct. App. 1996), 92-2475.

Appellate courts have no power to reach waived issues concerning unobjected to jury instructions. State v. Ward, 228 Wis. 2d 301, 596 N.W.2d 887 (Ct. App. 1999), 98-2530.

A party is not held to a waiver under sub. (3) when a potentially inconsistent verdict is produced by the substance of the jury's verdict, as opposed to the wording of the verdict. LaCombe v. Aurora Medical Group, 2004 WI App 119, 274 Wis. 2d 771, 683 N.W.2d 532, 03-2093.

A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under sub. (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, 288 Wis. 2d 188, 708 N.W.2d 13, 04-0363.

A trial court's decision to read jury instructions on damages prior to certain testimony was a proper exercise of discretion and the court properly denied the defendant's motion for mistrial. Because the instructions were not disclosed to the parties before they were read by the court, the reading did not qualify as a preliminary instruction under sub. (2) (b). The trial court has broad discretion over the conduct of litigation and saw a need to orient the jury to the subject matter of the testimony when the evidence was jumping from expert testimony to fact testimony to damage testimony in a long and complex trial. Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003.

Defining the meaning of a word in a jury instruction is akin to defining the meaning of a word in a statute. Determining the meaning of the word in a jury instruction is a legal question that appellate courts review de novo. When the word is not defined in the jury instruction, the appellate court will assign the word its common, ordinary, and accepted meaning, which may be ascertained by resort to a dictionary. State v. Bowen, 2015 WI App 12, 359 Wis. 2d 659, 859 N.W.2d 166, 14-0767.