972.10 Order of trial.

(1)

(a) After the selection of a jury, 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, the elements of any offense charged, 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. The additional 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.

(2) In a trial where the issue is mental responsibility of a defendant, the defendant may make an opening statement on such issue prior to the defendant's offer of evidence. The state may make its opening statement on such issue prior to the defendant's offer of evidence or reserve the right to make such statement until after the defendant has rested.

(3) The state first offers evidence in support of the prosecution. The defendant may offer evidence after the state has rested. If the state and defendant have offered evidence upon the original case, the parties may then respectively offer rebuttal testimony only, unless the court in its discretion permits them to offer evidence upon their original case.

(4) At the close of the state's case and at the conclusion of the entire case, the defendant may move on the record for a dismissal.

(5) When the evidence is concluded and the testimony closed, if either party desires special instructions to be given to the jury, the instructions shall be reduced to writing, signed by the party or his or her attorney and filed with the clerk, unless the court otherwise directs. Counsel for the parties, or the defendant if he or she is without counsel, shall be allowed reasonable opportunity to examine the instructions requested and to present and argue to the court objections to the adoption or rejection of any instructions requested by counsel. The court shall advise the parties of the instructions to be given. No instruction regarding the failure to call a witness at the trial shall be made or given if the sole basis for such instruction is the fact the name of the witness appears upon a list furnished pursuant to s. 971.23. Counsel, or the defendant if he or she is not represented by counsel, shall specify and state the particular ground on which the instruction is objected to, and it shall not be sufficient to object generally that the instruction does not state the law, or is against the law, but the objection shall specify with particularity how the instruction is insufficient or does not state the law or to what particular language there is an objection. All objections shall be on the record. 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.

(6) In closing argument, the state on the issue of guilt and the defendant on the issue of mental responsibility shall commence and may conclude the argument.

(7) If additional jurors have been selected under s. 972.04 (1) and the number remains more than required at final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them.

History: 1979 c. 128; 1981 c. 358; 1983 a. 226; Sup. Ct. Order, 130 Wis. 2d xi (1986); 1993 a. 486; 1995 a. 387; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

Judicial Council Note, 1986: Sub. (1) (b) is amended to provide that preliminary instructions may include the elements of any offense charged, 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.

The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because he expressed his opinion as to defendant's guilt, when it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893 (1971).

No potential coercion was exerted by the trial court in its statement made to the jury requesting it to continue its deliberations for the next half hour or hour, and if not then agreed, overnight hotel arrangements would be made. Ziegler v. State, 65 Wis. 2d 703, 223 N.W.2d 442 (1974).

An objection to jury instructions will not be waived when the instructions misstate the law. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978).

If the defendant moves for dismissal at the close of the state's case and then presents evidence, the appellate court will consider all evidence of guilt in ruling on a motion. State v. Gebarski, 90 Wis. 2d 754, 280 N.W.2d 672 (1979).

A refusal to give a jury special instructions on identification was not an abuse of discretion. Hampton v. State, 92 Wis. 2d 450, 285 N.W.2d 868 (1979).

Control of the content and duration of closing argument is within the discretion of the trial court. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979).

A special instruction need not be given because a witness has been granted immunity. Linse v. State, 93 Wis. 2d 163, 286 N.W.2d 554 (1980).

A defendant who chose to be represented by counsel had no right to address the jury personally in closing arguments. Robinson v. State, 100 Wis. 2d 152, 301 N.W.2d 429 (1981).

A defendant is entitled to an instruction on a valid theory of defense if the instruction is supported by the evidence and is relevant to the to the issue being tried. It was not error to refuse to give an instruction regarding the defendant's theory of defense relating to the legal basis for the motive of a witness who was not a defendant. State v. Dean, 105 Wis. 2d 390, 314 N.W.2d 151 (Ct. App. 1981).

Unless the defendant consents, it is reversible error for the court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982).

Under the separation of powers doctrine, ss. 805.13 (4), and 972.10 (5) require submission of written instructions to the jury on the substantive law but do not require 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).

Entrapment instructions are upheld. State v. Saternus, 127 Wis. 2d 460, 381 N.W.2d 290 (1986).

The court must inform counsel of changes it makes to jury instructions following an instructions conference. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

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).

Sub. (7) does not address whether a court may substitute an alternate juror for a deliberating juror with the consent of the parties under the procedure set forth in Lehman. In this case the defendant consented to the substitution and that consent satisfied the procedural requirements of Lehman. State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, 10-0411.

The right to counsel includes the right to make a closing summary of the evidence to trier of fact. Herring v. New York, 422 U.S. 853 (1975).

Absent an overriding interest articulated in findings, a criminal trial must be open to the public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

NOTE: See also the notes to Article I, section 7, of the Wisconsin Constitution.