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  • WisBar News
    July 30, 2013

    Defendant Had No Right to Be Present for In-Chambers Discussions with Jurors

    July 30, 2013 – Criminal defendants have a constitutional right to be present at their own trials. But that right does not extend to in-chambers discussions between judge and juror during trial, the Wisconsin Supreme Court has clarified.

    Demone Alexander was on trial for first-degree murder when two jurors informed the court of potential bias issues. One juror knew the mother of Alexander’s child.

    The other knew a defense witness. The trial judge, after in-chambers discussions with these jurors, struck them from the jury. Both defense counsel and prosecuting attorneys were present for these discussions. Ultimately, Alexander was convicted.

    He filed a motion for postconviction relief, asserting that his right to be present at his trial was violated when the judge met with both jurors in-chambers outside his presence.

    Alexander also argued that the in-chambers discussions violated his statutory right to be present “during voir dire” under Wis. Stat. section 971.04(1)(c).

    In State v. Alexander, 2013 WI 70 (July 12, 2013), all seven justices affirmed the conviction. However, the court disagreed (4-3) on the reasons to affirm.

    A majority ruled that Alexander had neither a constitutional nor statutory right to be present. A minority ruled that Alexander had both a constitutional and statutory right to be present, but he waived those rights by voluntarily agreeing to be excluded.

    Majority Rules

    Due process guarantees a defendant’s “right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure,” the majority explained, citing U.S. Supreme Court precedent.

    In deciding whether in-chambers discussions between judge and juror require a defendant’s presence, courts must consider several factors, the majority explained.

    Courts must consider “whether the defendant could meaningfully participate, whether he would gain anything by attending, and whether the presence of the defendant would be counterproductive,” Justice Michael Gableman explained in a majority opinion.

    Alexander’s due process right to be present at his trial did not extend to the in-chamber discussions between the judge and jurors in this case, the majority concluded, because Alexander’s presence was not required to ensure his fair and just trial.

    That is, Alexander would not have contributed to the discussion, and his presence may have intimidated the jurors. The majority noted that defense counsel was present.

    “All that is required when the court communicates with members of the jury is that the defendant’s attorney be present,” wrote Justice Michael Gableman.

    This holding upholds May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980). However, it overrules State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983).

    In Burton, the trial judge spoke with jurors outside the presence of attorneys and the defendant. The Wisconsin Supreme Court ruled that a defendant must waive the constitutional right to be present when a judge communicates with a juror.

    Now, the supreme court majority clarifies that a defendant does not have an absolute right to be present when a judge speaks with jurors in-chambers. Thus, a waiver is not required. Only considerations of fairness may require a defendant to be present.

    Finally, the majority ruled that excluding Alexander from in-chambers discussions did not violate his statutory right to be present for voir dire.

    “Voir dire is a preliminary examination of whether an individual can serve on a jury,” Justice Gableman wrote. “In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose.”


    Justice Annette Ziegler tipped the scales, joining Justice Gableman’s opinion with Justices David Prosser and Patience Roggensack to form a majority.

    But she wrote separately “to point out that even if we were to conclude that a constitutional or statutory protection was violated,” the error was harmless.

    Justice Patrick Crooks wrote a concurring opinion, joined by Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson. Crooks said Alexander had both a constitutional and statutory right to be present at the in-chambers discussions, but he voluntarily waived those rights because he did not assert them at the time.

    Justice Crooks noted that Wis. Stat. section 971.04(1)(b) specifically gives defendant’s a right to be present “at trial,” and defendants thus have a statutory right to be present when in-chambers discussions concern a jurors’ continuing jury service.

    “The definition of what constitutes ‘at trial’ is settled and uncontroversial, and it certainly encompasses the in-chambers conferences at issue in this case,” Crooks wrote.

    The majority did not consider section 971.04(1)(b) because “Alexander did not make that argument before this court,” but Crooks said it was disingenuous not to consider it.

    In addition, Crooks said the majority “erred in concluding that Alexander had no constitutional right to be present at the in-chambers conferences at issue.”

    “An in-chambers conference that deals with the ability of sworn jurors to continue to serve on the jury is an exceedingly important occurrence in a criminal trial,” Crooks noted. “I would hold that Alexander had a constitutional right to be present. …”

    The chief justice also wrote separately to argue that Alexander’s statutory right to be present under section 971.04(1)(c) was violated, because legislation originally required defendant’s to be present “when the jury is being selected.”

    However, a 1997 rule change by the Wisconsin Supreme Court amended the statute to require a defendant’s presence “during voir dire of the trial jury,” and voir dire ordinarily means jury selection “before trial,” not jury selection at some point during trial.

    The chief justice said the court was without power to curtail a defendant’s legislatively granted rights to be present “during jury selection.”

    “In changing the language of Wis. Stat. § 971.04(1)(c), the court did not have in mind a proceeding in which a challenge is made to a juror mid-trial, as in the present case; such a challenge is not a usual occurrence,” she wrote.

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