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Jury – Bailiff as Potential Witness

State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski

Issue/Holding: Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:

¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram’s potential influence for only a very limited period of time.

¶58 Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59 Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60 More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …

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