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Guest Post: Hon. Richard J. Sankovitz, “Teachable Moments and Missed Opportunities in Funk and Denson”

On Point is very pleased to present this Guest Post discussion of State v. Funk and State v. Denson, by the Honorable Richard J. Sankovitz, Milwaukee County Circuit Court. Feel free to submit comments in the box at the end of the Post.

Trial judges monitor the flurry of end-of-term Wisconsin Supreme Court decisions for new rules of decision and new procedures to be followed in our courts.  We do this for ourselves, of course, but also as part of our work keeping jury instructions and judicial benchbooks up to date.  We look carefully at the mandates, holdings, recommendations and suggestions the Court often makes about how we conduct proceedings in the circuit court.  Supreme Court decisions often are intended as lessons for the trial bench and we read them that way.

So it was with a mixture of hope and dismay that we read State v. Funk, 2011 WI 62 and State v. Denson, 2011 WI 70.  Holding one up against the other reveals contrasting approaches to how the Supreme Court teaches and supervises trial courts, and missed opportunities in each to improve trial court performance.

A very brief, possibly even truncated, summary of Funk and Denson

In both cases the defendants were convicted, and in both cases the convictions ultimately were upheld.


Mr. Denson attempted to kill his girlfriend.  At trial he decided to testify in his own defense.  He took the stand without the court first asking him whether he understood the consequences and whether he was doing so voluntarily.  This failure to conduct a personal colloquy was questionable because such a colloquy is required in the obverse case, when a defendant decides not to testify.  State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485.

The Court declined to extend Weed, though. The Court recognized that the right to remain silent is a constitutional right of fundamental importance and that it cannot be waived unless done so knowingly and voluntarily.  But the Court declined to require an on-the-record personal colloquy to make sure, and settled for an after-the-fact evidentiary hearing in cases where a defendant complains.

The court’s reason was purely pragmatic:

Once a defendant, counseled by his or her attorney, makes the decision to testify, a circuit court’s inquiry into whether the defendant is aware of his or her corollary right not to testify runs a real risk of interfering with defense strategy and inadvertently suggesting to the defendant that the court disapproves of his or her decision to testify.”

Denson, 2011 WI 70, ¶ 65 (emphasis added).  The court went on to state that the risk “outweighs the benefit of” a colloquy that would nail down the deliberateness of the defendant’s waiver rather than leaving that question open to postconviction second-guessing.  Id., ¶¶ 66-67.

Curiously, however, the Court then recommended that we take that very risk:

At the same time, as a practical matter, we recognize that conducting an on-the-record colloquy “is the clearest and most efficient means” of ensuring that the defendant has validly waived his or her right not to testify “and of preserving and documenting that valid waiver for purposes of appeal and postconviction motions.”  [Citation omitted.]  Here, for instance, we are mindful of the fact that had the circuit court engaged Denson in an on-the-record colloquy regarding his right not to testify, this case likely would not be before us.  Accordingly, we recommend an on-the-record colloquy as the better practice.

Id., ¶ 67.  In other words, the postconviction benefits of a personal colloquy apparently do outweigh the risk that the court will inadvertently dissuade a defendant from testifying.  (In her concurrence, Chief Justice Abrahamson pointed out to the majority how confusing this inconsistency makes the Court’s recommendation.  Id., ¶¶ 90-91.)

Disjointed reasoning aside, Denson deserves credit for at least attempting to set expectations for how trial courts should handle these recurring issues.

If only the Court had set its sights as high in Funk . . .


Funk was a child sexual assault case in which one of the jurors did not reveal during jury selection that she herself twice had been the victim of sexual assault.

You ask, how could a prospective juror not reveal something so important?  Because she wasn’t asked. True story.  Mr. Funk’s lawyer did not ask, neither did the prosecutor, nor did the judge.  The trial judge told the jury that they might be asked whether they ever had been a victim of sexual assault, 2011 WI 62, ¶ 4, but then apparently everyone forgot to follow through.

The juror’s past came to light after Mr. Funk was convicted.  So he asked for a new trial.  The court conducted a hearing, but there wasn’t much to go on, because no one had asked about this part of the juror’s background.  There were some other questions which indirectly might have prompted a disclosure – whether anyone “would have a difficult time being fair and impartial,” whether anyone had ever testified as a witness (the juror had testified at a preliminary hearing in one of her cases), whether anyone had ever had contact with the district attorney’s office – and some evidence the juror had been less than forthcoming, but nothing head-on.

Furthermore, the juror denied that her past experience made any difference to her verdict or to deliberations.  She did not disclose her past to the other jurors.  And she explained why: “[b]ecause it’s my past.  I don’t go from day to day saying that this guy raped me, he did this.  It’s not the way I live my life.  I put it in the back of my head, and I don’t reveal it ever again.”  Id., ¶ 17.

Despite this explanation, the trial court concluded that the juror was both subjectively and objectively biased.  A divided panel of the court of appeals affirmed.  Judge Lundsten dissented, reasoning that the juror’s explanation for not disclosing the assaults precluded a finding of subjective bias, and that there simply wasn’t enough evidence to conclude, as an objective matter, that a reasonable person in her circumstances could be impartial.  The Supreme Court divided over the same issues – whether the record was sufficient to support a finding of subjective or objective bias.

No matter the ultimate outcome . . .

I’m not critical of these decisions for robbing either defendant of an acquittal.  In Mr. Funk’s case, we can’t say with certainty that he was convicted because one of the jurors was a victim of a sexual assault.  While victims can be overly suspicious of accused perpetrators, they aren’t always or necessarily so.  Sometimes their experience makes them overly skeptical of victims.

The real problem is not that sex assault victims are necessarily partial, it’s that the experience can be so traumatic that they might not be able to put aside their own experience and judge the evidence on its own merits.  Sometimes they can, sometimes they can’t.  However, regardless of the outcome, getting this issue out in the open during jury selection would have spared squads of appellate lawyers and judges from having to wrestle with this case.

Similarly, in Mr. Denson’s case, it cannot be said that by taking the stand he necessarily snatched defeat from the jaws of victory.  He may have had no choice but to testify; he was asserting self-defense and there were no other witnesses.  Further, the State’s evidence may have been so damning that he would have been convicted whether he testified or not.  But a proper colloquy about the choice he was making would have cut off second-guessing about the matter, and probably would have spared another squad of appellate lawyers and judges.

. . . the Court could have issued more effective decisions

Funk and Denson can be criticized for a different reason: the Supreme Court had the opportunity to promulgate more effective procedures for trial courts to follow in cases like these and to raise the level of performance in our trial courts, but in each case it stopped short.

Although the Court has broad rule-making authority, it often relies on case law to convey the rules of engagement in proceedings in the lower courts, as in Weed.  A prime example is State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Mandates such as these are reliable guides to trial judges for addressing recurring procedural challenges.

And the problems that the Court confronted in Funk and Denson are recurring.  Consider jury selection in sexual assault cases.  Sexual misconduct is so common that on a panel of 25-30 citizens, you can pretty much count on one or more with first-hand experience, or at least up-close second-hand experience of a friend or relative who has been victimized.  As a result we routinely order larger jury selection panels in sexual assault cases.  Many prospective jurors, relatively speaking, ask not to serve so as not to be reminded of a difficult experience.

Indeed, the issue arises so frequently that we think about that question – have you ever been a victim of sexual assault? – more than any other jury selection question.  We think about how to frame the question (more on that below), and about how to give the victim space to answer such a difficult question.  We think about how the answer might require inoculating the rest of the panel.  We think about whether this might be the first time a victim has ever told anyone about such a traumatic event and whether we should have in place the means to refer a victim to support services.

Consider the recurring issue of defendants taking the stand in assault cases in which there is a viable self-defense, and not just aggravated cases like Denson.  In such cases, a defendant’s choice whether to testify almost always will be a tough one.  And as we know, tough choices are fertile ground for postconviction hindsight.

When the prospect of postconviction litigation is recurring, we often rely on standard protocols, such as a Weed-type personal colloquy, to build clarity into the preconviction record and thereby foreclose postconviction claims.  And we look to the Supreme Court for reliable guidance.

Shortcomings in Funk

So, hold Funk up against Denson and the missed opportunity in Funk becomes clear: The Court was willing to make a recommendation in Denson about how to reduce uncertainties that foster postconviction claims about the decision whether to testify, but the Court made no such offering in Funk.  Not even a simple suggestion that if neither of the parties ask prospective jurors whether any have been victims, the judge should make sure to ask.

There are no rules systematically dividing the labors of jury selection between the judge and the lawyers.  And there are only a few questions that the judge is required to ask prospective jurors.  See Wis. Stat. § 805.08(1) (“Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case”).  A judge’s discretion in this field is broad, see Hammill v. State, 89 Wis. 2d 404, 278 N.W.2d 821 (1979), and at no time has the Court suggested that effectively supervising the process entails taking on any other questioning.

But Funk would have been a good candidate for an exception.  Parties in sexual assault cases may have strategic reasons for not delving into sensitive matters.  And sometimes lawyers are simply inattentive or inexperienced.  But these excuses won’t do for the court, which has a systemic interest in removing any clouds that might hang over a jury verdict, and resolving uncertainties, if possible, which might fuel postconviction litigation.  When a case presents a concern as obvious as the possibility that a victim of sexual assault might sit in judgment on a person accused of sexual assault, the trial judge is the backstop for making sure that this concern is addressed while something can be done about it.

The missed opportunity in Funk is inconsequential in counties where there is a higher volume of sensitive crime litigation, because lawyers and judges in those counties already have a well-established practice of asking the right questions.  But Funk demonstrates that the practice is not well established across the state, and so the Court might have better served its supervisory role if it had taken the additional step in Funk that it often takes in other cases.

Shortcomings in Denson

Then, hold Denson up against itself – in particular, hold ¶ 67 up against ¶¶ 65 and 66 – and the missed opportunity in Denson becomes clear.  If the question whether to mandate a personal colloquy before a defendant decides to testify or not boils down to pragmatics – to a risk/benefit analysis – then either it makes pragmatic sense to do so or it does not.  It can’t be both.  And yet that’s what the Court seems to have ruled in deciding that a mandate like Weed’s was not justified.

A dissonant directive like Denson, it seems to me, is a lot less likely to take root in our regular practice than a firm mandate, like Weed. There really wasn’t a good reason to apply apparently different rules in such similar circumstances.

Furthermore, I think the balance of risk and benefits tips more decidedly than it may have appeared to the Court.  I believe that the risk of dissuading a defendant who otherwise plans to testify is minor and easily contained by making that concern explicit for the defendant when conducting the colloquy, so it is clear for the defendant that the court is not suggesting that he or she choose differently.

I routinely conduct a personal colloquy whether the defendant decides to testify or not.    I always preface the colloquy with a comment along these lines:

I need to ask a few questions.  I don’t mean to challenge your decision [to testify] [not to testify].  It’s completely up to you.  I’m given a job at this point in the trial, and I have to do just two things: make sure you understand the choice you are making and make sure you are making the choice you want to make.  Whichever choice you make is fine with me as long as you understand what you are doing and are making your choice voluntarily.

Since Weed, coincidentally, I have been tracking whether the defendant took the stand.  That was 60 jury trials ago.  In a little fewer than half of those cases the defendant decided to testify.  None of these defendants were dissuaded by the colloquy.  Among those who remained silent, I recall a few who had stated an intention to testify and then decided not to, but it was clear to me that they had not understood what taking the stand entails.

A few related thoughts

Ineffective assistance?

Could Mr. Funk’s attorney be accused of ineffective assistance of counsel for failing to ask what would seem to be an obvious question?  In a broad sense, yes, to the extent that serving clients well means sparing them angst over whether a conviction was tainted by bias.

But in an actionable sense, no.  The Court’s decision seems to foreclose Mr. Funk from demonstrating prejudice.  Indeed, speaking generally, proving prejudice in cases like these may be impossible, given the strictures in place that prevent us from probing jury deliberations.  In some cases involving jury selection errors, prejudice is presumed – but one upshot of Funk is that in this type of case, it can’t be.

Prejudice might be presumed if you subscribe to the broad view, stated in Justice Prosser’s uncharacteristically terse concurrence, that no reasonable person who had been subjected to sexual misconduct of the kind inflicted on this juror could be impartial.  But those of us in the field who deal with these cases with perhaps greater frequency know that the experiences and character of sexual assault victims and the wide variety of sexual assault scenarios are simply too diverse to generalize like that.

A windfall for defendants?

If the Funk court had made an explicit recommendation to trial judges about making sure jurors were asked about previous experience with sexual impropriety, could a failure to heed the recommendation result in the reversal of a conviction?  Not necessarily.  As in Weed­-progeny cases, a lapse on the court’s part merely sets up further proceedings at which the dispositive decision is actually made – i.e., in Weed-type cases whether the waiver was valid, and in Funk-type cases whether the juror was subjectively or objectively biased.  Only if bias is demonstrated will a new trial be necessary.  The benefit of an explicit Supreme Court recommendation along the lines I have suggested is that the need for postconviction hearings like these would diminish if issues like these were weeded out during jury selection.

How to frame the critical question

Probing whether prospective jurors may be biased by prior sexual experiences calls for delicacy, but also for insight into the plight of those who have been subjected to unwanted sexual advances.  Those who are recovering from such experiences may eschew the “victim” label.  Many do not report the crime, for a variety of reasons, and for that reason do not believe themselves to be “victims” in the sense in which they believe lawyers and judges employ that term.

Thus, in Milwaukee, where the judge typically conducts the lion’s share of jury selection, some of us ask the standard question (“Have you ever been a victim of sexual assault?”) and then follow up with question that we put a bit more broadly:  “Have you ever been subjected to any sexual impropriety of any kind?”


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