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Defendant’s Presence — Jury Selection

State v. Garren G. Gribble, 2001 WI App 227

For Gribble: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether the trial court erred in questioning prospective jurors outside the presence of defendant and counsel, on “hardship and infirmity requests” not to serve.

Holding: Questioning jurors about undue hardships “does not implicate the purposes of voir dire that are the premise for a defendant’s constitutional entitlement to be present with counsel” (namely, introduction to substantive factual and legal issue, and disclosure of information relevant to bias): “We therefore conclude that Gribble did not have a federal or state constitutional right to be present with counsel when the court questioned the prospective jurors to determine whether to excuse or defer service of any under § 756.03.” ¶16. Nor did this procedure violate any statutory right: “¶18 … The legislature could not have intended to require the defendant’s presence when the judge or clerk is acting in an administrative capacity under § 756.03. In contrast, the procedure by which a court questions jurors to determine bias under Wis. Stat. § 805.08(1) takes place after the jurors are sworn in, with the jurors and parties present, and involves the judge ruling on objections-that is, functioning in a judicial capacity rather than in an administrative capacity. We conclude that the procedure described in § 805.08(1) is the ‘voir dire of the trial jury’ referred to in § 971.04(c).” (Nor is such “hardship questioning” a “proceeding” which must be reported under SCR 71.01(2). ¶19.)

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