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  • Hearing impaired juror heard enough to bar new trial, appeals court concludes

    Appeals court examines “sleeping juror” cases to conclude that missed testimony was insignificant in light of all the testimony the juror did hear.

    Joe Forward

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    Hearing impaired juror heard enough 
to bar new trial, appeals court concludes Sept. 15, 2011 – A hearing impaired juror could not hear parts of video testimony played in court during trial, but heard other testimony sufficient to bar a new trial, a Wisconsin appeals court recently ruled.

    Defendant James Kettner was convicted of child abuse after his 10-year old daughter claimed he spanked her so hard it caused bruising. The child testified to this in a video interview with a social worker, and again in open court. A nurse’s testimony also supported the abuse claim.

    Kettner admitted spanking his daughter, but said the bruising resulted from sitting in the rear “basket” of an all-terrain vehicle two days before the spanking occurred. Kettner also claimed his daughter was lying so she could live with her mother instead of him.

    After the jury returned a guilty verdict, one juror told the court a hearing device available for the hearing impaired was not sufficient, and she missed parts of the child’s video interview with the social worker, but heard all other testimony after obtaining additional hearing aids.

    Kettner filed a post-conviction motion for a new trial, arguing his constitutional rights to an impartial jury and due process were violated because the juror missed material testimony. The circuit court denied the motion, and the appeals court affirmed in State v. Kettner, 2011AP85-CR (Sept. 15, 2011).

    Kettner relied on State v. Turner, 186 Wis.2d 277, 521 N.W.2d 148 (Ct. App. 1994). In Turner, a constitutional violation occurred when two jurors were unable to hear the testimony of material witnesses. The Turner court stated that prejudice must be assumed “once it is determined that a juror missed material testimony which bears on a defendant’s guilt or innocence.” Id. at 284-85.

    But the appeals court ruled that Kettner was not prejudiced by the juror’s inability to hear the video testimony because, in light of the testimony the juror did hear, it was insignificant.

    The appeals court examined two “sleeping juror” cases to reiterate that a defendant won’t get a new trial when it can be determined that prejudice did not result from inattentiveness.

    “When it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent he or she did not receive a fair trial …,” wrote Judge Margaret Vergeront.

    Although the juror did not hear the video testimony between the child and the social worker, the appeals court explained, the juror heard “substantially all” of the in-court testimony of both, including the cross-examination of the child at trial.

    “Given the consistency of [the child’s] videotaped answers with those she gave in person at trial and in the absence of any factor identified by Kettner that indicates some specific source of prejudice, we conclude that Kettner’s rights to an impartial jury and due process were not violated,” Judge Vergeront wrote.

    The appeals court also rejected Kettner’s argument that the nurse who examined the child improperly testified, under State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), that he believed the truthfulness of her story. Even if impermissible, it was harmless error, the court concluded. 

    By Joe Forward, Legal Writer, State Bar of Wisconsin