In a Wisconsin criminal jury trial, you will face 12 jury members for a felony case and sometimes 6 for a misdemeanor case. The jury faces the burden of proof which is beyond a reasonable doubt for criminal cases. You can think of this as the assertion is more than 90% or 95% true. In 10% of criminal cases, the jury is hung, or cannot agree, on the most serious charge.
Wisconsin Jury Trials Your Handbook to Criminal Jury Trials
If your case goes to trial, your case will be presented to a group of randomly selected jurors. The jury hears both sides of the case and then makes a decision based on the facts presented. Our lawyers handle all areas of criminal law, including OWI charges and drug possession. Contact Grieve Law today for the representation you need on your case.
Who are Your Jurors?
Every resident of the county served by a circuit court who is at least 18 years old, a U.S. citizen, and can understand the English language is qualified to serve as a juror in that court unless he or she has been convicted of a felony and has not had his or her civil rights restored.
In Wisconsin, a person is eligible for jury service once every 2-4 years. Jurors are selected at random from a source list using the Wisconsin Department of Transportation's list of people with motor vehicle licenses or identification cards who live in the area served by that circuit court.
Who is Exempt from Jury Duty in WI
In Wisconsin, no profession is exempt from jury duty. Your profession, regardless of what it is, is not a valid reason to be excused from jury duty.
| Situation | Jury Dury |
| Military | Not Excused |
| Elected Official | Not Excused |
| Student | Not Excused |
| Breastfeeding Mother | Not Excused |
| Police | Not Excused |
| Medical Worker | Not Excused |
| Firefighter | Not Excused |
| Disability | Not Excused |
A Jury Selection Summons Doesn't Mean You'll Be On A Jury
Keep in mind that the initial jury duty summons is only for attending jury selection day, where it will be decided if the individual will actually serve on a jury during the "Voir Dire" process.
Is There Such a Thing as Random Jury Selection?
No. There is no such thing as truly random jury selection in the United States. However, steps are taken to ensure juries are selected fairly and impartially from a cross-section of the community.
On the day of jury selection, the remaining pool of potential jurors is questioned by the judge and lawyers. The jury selection process is called voir dire. Questioning is meant to detect any biases or conflicts of interest that could impede their ability to be fair and impartial.
Lawyers are then allowed to remove a certain number of potential jurors from the pool for virtually any reason, as long as it's not based on race, ethnicity, or gender. This is called a peremptory challenge.
In Wisconsin, there are 3 types of juror bias:
- Statutory bias - This refers to the automatic disqualifications for jurors laid out in statutes. For example, people with felony convictions are barred from jury service by law in many states.
- Subjective bias - This covers biases that are personal to the potential juror and related to the facts of the specific case. If uncovered during voir dire, this can be grounds for the judge or lawyers to remove the juror. An example is a juror in a medical malpractice case who had a bad prior experience with the doctor defendant.
- Objective bias - This refers to inferences of bias based on the potential juror's background and experiences that would lead an objective observer to question their impartiality. For example, a juror who works for an insurance company in an insurance dispute case. Even if the juror claims impartiality, their background raises reasonable concerns.
How Many Jurors Will You Face?
| Trial Type | Jury Size | Agreement Needed for Verdict |
| Felony | 12 | 12/12 unanimous |
| Misdemeanor | 6 or 12 | 5/6 or 10/12 jurors agree |
| Misdemeanor | 6 | 6/6 unanimous |
How the Jury Decides Your Fate
Throughout a trial, the judge provides the jury with guidelines called jury instructions. These instructions guide the jurors through the legal process and their duties. The judge will read instructions covering various matters relevant to the specific case.
Potential instruction topics include how to evaluate evidence, the meaning of objections, assessing witness credibility, the legal elements comprising the alleged crime(s), and many other important concepts. There are hundreds of standardized instructions from which a judge may draw depending on applicability. The appropriate instructions are selected and read at strategic points during the trial to aid the jury in fulfilling their role.
What is the Burden of Proof in a WI Trial?
The burden of proof is different in criminal cases and civil cases in Wisconsin. In a criminal case, the burden of proof is beyond a reasonable doubt. In a civil case, the burden of proof is the preponderance of the evidence. In simple terms:
Beyond a Reasonable Doubt: The assertion is true.
It might help to think about “beyond a reasonable doubt” as greater than 90% likelihood of truth. Though many would argue it is more like 95% or more.
Preponderance of the Evidence: The assertion is more likely true than not true.
You could think of this standard as greater than 50% likelihood of truth.
Criminal v. Civil Jury Trials
| Criminal | Civil | |
|
Burden of Proof |
Beyond a Reasonable Doubt |
Preponderance of the Evidence |
| Explanation | The Prosecutor must eliminate any reasonable doubt in the jury's mind about the defendant's guilt | The plaintiff must show their version of events is slightly more likely to be true than the defendant's version |
| Standard | Very High | Lower than criminal cases |
| What's at Stake | Defendant's freedom, criminal record | Financial liability and civil damages |
| Example | Jury must be 99% sure of guilt to convict | Jury believes plaintiff's story 51% over defendant's 49% |
In a criminal case, the jury is read the following document from the Wisconsin State Law Library outlining the burden of proof and presumption of innocence. The document explains,
“Defendants are not required to prove their innocence. The law presumes every person charged with the commission of an offense to be innocent. This presumption requires a finding of not guilty unless in your deliberations, you find it is overcome by evidence which satisfies you beyond a reasonable doubt that the defendant is guilty.”
What Happens When Jurors Don’t Agree?
When there are insufficient jurors voting one way or the other to deliver either a guilty or not guilty verdict, the jury is known as a “hung jury” or it might be said that jurors are “deadlocked”. Courts generally send an instruction back ordering the jurors to agree on a verdict. This direction is most commonly known as an Allen charge.
After a certain amount of time, if that does not occur, sometimes courts order mistrials. This does not result in a dismissal and allows the government to decide whether or not they would like to try the case again. So how often does it happen? A study by the National Institute of Justice reported the following:
| Finding | Statistic |
| Percentage of cases where jury hung on all counts | 8% |
| Percentage of cases where jury hung on most serious charge | 10% |
| Percentage of cases where jury hung on at least one count | 13% |
| Single defendant cases with hung jury | 12% |
| Multiple defendant cases with hung jury | 27% |
| Drug cases in total sample | 28% |
| Drug cases with hung jury | 12% |
| Murder cases in total sample | 13% |
| Murder cases with hung jury | 24% |
How Long Does a Criminal Trial Last in WI?
While there's no standard duration, most criminal trials in Wisconsin last anywhere from 2 days for a simple misdemeanor up to several weeks for complex felonies.
Simple Misdemeanor = 0.5 to 1 days
Misdemeanor = 1 to 3 days
Basic Felony = 3 to 7 days
Complex Felony = 1 to 2 weeks
Major Felony (murder, fraud, etc.) = 2 to 8 weeks
Factors Affecting Trial Length
- Number of witnesses
- Amount of evidence
- Need for expert testimony
- Complexity of charges
- Jury selection time
- Deliberations time
- Pre-trial motions
- Breaks during trial
Trial Proceedings: Order of Events
- Jury Selection - Potential jurors are questioned by the prosecution and defense (voir dire) and a 12-person jury is selected.
- Opening Statements - The prosecution and defense each outline their main arguments and what they intend to prove. This provides jurors with an overview of the case.
- Prosecution's Case - The prosecution calls witnesses and presents evidence trying to prove the defendant's guilt beyond a reasonable doubt. The defense can cross-examine witnesses.
- Motion for Acquittal - After the prosecution rests, the defense can argue there is insufficient evidence for a conviction. If denied, the trial continues.
- Defense's Case - The defense can call witnesses and present evidence to refute the prosecution. The prosecution can cross-examine defense witnesses.
- Closing Arguments - The prosecution and defense summarize their cases and argue why the jury should rule in their favor based on the trial evidence and testimony.
- Jury Instructions - The judge explains the law and charges to the jury before they deliberate.
- Jury Deliberations - The jury discusses the case in private and tries to reach a unanimous verdict of guilty or not guilty.
- Verdict - The jury's decision is read in court. If guilty, sentencing occurs later. If no verdict is reached, a hung jury is declared.
Sentencing in Criminal Cases
After a guilty verdict, the judge will schedule a sentencing hearing to take place several weeks later. This provides time for the Department of Corrections to prepare a pre-sentence investigation report. At the hearing, the judge considers the statutory sentencing guidelines and mandatory minimum/maximum sentences for that particular offense. Aggravating factors like prior convictions can raise the sentence while mitigating factors like cooperation may lower it. For felonies, the judge refers to Wisconsin's sentencing guideline grid, which provides an advisory sentence range based on the defendant's criminal history. The judge hears arguments from both sides and any victim impact statements before imposing a sentence within the legal range for that crime. While judges have discretion, sentences departing significantly from the guidelines require justification. Besides incarceration length, the judge may dictate probation, fines, counseling, community service and other conditions. Defendants can request a sentence review if their sentence diverges substantially from the guidelines.
Where the Trial will Take Place
Criminal trials in Southeast Wisconsin take place at the main county courthouses located in the county seats.
Milwaukee
Milwaukee County Courthouse
901 N 9th St, Milwaukee, WI 53233
Madison
Dane County Courthouse
215 S Hamilton St, Madison, WI 53703
Brookfield
Waukesha County Courthouse
515 W Moreland Blvd, Waukesha, WI 53188
Appleton
Outagamie County Justice Center
410 S Walnut St, Appleton, WI 54911
Mequon
Ozaukee County Justice Center
1201 S Spring St, Port Washington, WI 53074
Glendale
Milwaukee County Courthouse
901 N 9th St, Milwaukee, WI 53233
West Bend
Washington County Courthouse
432 E Washington St, West Bend, WI 53095
Racine
Racine County Courthouse
730 Wisconsin Ave, Racine, WI 53403