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Waiver of Issue: Judicial Intervention, § 906.14

State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148, 266 Wis. 2d 168, 667 N.W.2d 800
For Carprue: Stephanie G. Rapkin

Issue/Holding:

¶34 Subsection (3) of § 906.14 authorizes objections, and it “defers the requirement of a timely objection . . . to the next available opportunity when the jury is not present.” Id. R202. This subsection appears to focus more on situations where the judge questions witnesses in front of a jury than where a judge questions a witness in a bench trial or outside the presence of a jury.¶35 Given the explicit authority to object to a judge’s action, Carprue could have challenged Judge Schellinger’s decision to call Kenneth Morrow to the stand. He did not. He could have objected to a particular line of inquiry. He did not. He could have offered a motion in limine to bar the State from calling Morrow as a rebuttal witness. He did not. Consequently, Carprue waived his right to object to the judge’s actions.

¶36 There are several reasons why we are disinclined to overlook the defendant’s failure to timely object. First, the general rule in Wisconsin is that issues not raised in the circuit court are deemed waived. …

¶37 Second, the policies underlying the waiver rule are especially well illustrated in this case. …

¶38 Here, the judge acted outside the presence of the jury. The defendant would not have been embarrassed in front of the jury by launching an immediate objection to either of the judicial actions about which he now complains. …

¶39 Finally, because appellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning, circuit courts are likely to be very cautious when they are given fair notice that their conduct raises concerns.…

¶46 We presume that circuit judges try to be fair and impartial in their conduct of trials, and this presumption must be overcome by proof except in extreme cases of structural error. A defendant’s failure to promptly raise concerns or object when he believes a judge is committing error constitutes waiver.

 

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