The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.
Zdzieblowski argued the promise elicited, and then referred to, by the prosecutor diminished his constitutional right to a jury trial by eliminating the jury’s power to exercise its nullification authority—that is, its power to find a defendant not guilty even though it concludes the state has proven all the elements of the offense beyond a reasonable doubt, State v. Bjerkaas, 163 Wis. 2d 949, 960-61, 472 N.W.2d 615 (Ct. App. 1991).
With regard to plain error, the court concludes no case has held that the kind of promise questioning engaged in by the prosecutor in this case violated a defendant’s right to a trial by jury, and the court agrees with the State that: 1) even if the questioning did constitute error, it was harmless because the evidence establishing the elements of the crimes charged was overwhelming, such that a rational jury would have found Zdzieblowski guilty absent the error; and 2) the harmless error analysis does not include consideration of the availability of the jury’s power of nullification. (¶21).
As to the interest of justice, the court concludes the real controversy was fully tried. The prosecutor’s questioning of prospective jurors referred only to the elements of the crimes charged, not to any hypothetical facts that might predispose a juror before any evidence was presented; the parties fully tried those elements; the circuit court properly instructed the jury on the elements of the crimes and told them to follow the law and consider only the evidence presented, and that remarks by counsel were not evidence; finally, “the prosecutor’s reference to the promise elicited during voir dire was only a brief reference during rebuttal closing argument, and that the promise was not referred to at all in the State’s closing argument. The focus of the prosecutor’s closing and rebuttal arguments was on how the evidence established, beyond a reasonable doubt, the elements of the crimes charged. The brief reference to the jurors’ pre-trial promise to convict, should the State prove the elements of those crimes beyond a reasonable doubt, did not prevent a full trial of the controversy presented.” (¶¶25-27).
While Zdzieblowski doesn’t prevail, don’t conclude the prosecutor’s conduct in this case was all hunky-dory. For one thing, in the court of appeals the State (represented now by the AG) conceded that eliciting a promise to convict “could be seen as unfair” because the defense can’t respond by telling the jury that it can acquit even if the State meets its burden of proving the elements of the crime; therefore, what the prosecutor did here is a “practice to avoid.” (¶17). That prompted this from the court of appeals:
¶29 …[I]n posing the “promise” questions here, the prosecutor appears to have chosen his words with care, focusing the jury exclusively on a scenario in which the State has in fact proven the elements beyond a reasonable doubt, without taking even one step in the direction of discussing how the State might prove the elements or the ways in which the defense might seek to undermine the State’s case. Regardless whether this was proper or not, it is easy for us to envision variations in attempts to emulate, or expand on, this approach that would be improper. Examples of such attempts include using hypothetical facts or eliciting promises to pre-judge based on references to particular forms or modes of proof, or based on different ways of framing legal standards. In other words, questions that might be reasonably interpreted to lead prospective jurors to think that they are committing to reaching a particular factual conclusion, or that they are cabining their consideration of relevant factors regarding an element or defense, might rise to the level of a violation of a defendant’s right to a jury trial. …
¶30 Timely pre-trial motions or objections, along with the circuit court’s authority to exercise its discretion to supervise voir dire in virtually all respects, are available to protect against such potential violations. Indeed, given the chance for some forms of “promise” questions to generate at least confusion among potential jurors, if not possible violations of the constitutional rights of defendants, some circuit courts might find it advisable to limit counsel in this area in advance of any voir dire conducted by counsel.