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Right to be Present – Trial Court Communication with Jury

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony — that these items were “not available” — without first seeking defense input was error.

Holding: The defendant’s presence is required at any critical stage, but not where a mere point of law is discussed. Although the jury’s requests in this case were doubtfully mere points of law, any error was harmless — the report was never moved into evidence and therefore couldn’t have been sent to the jury, and the witness’s testimony raised nothing complicated or difficult to remember. ¶¶65-66. (The court reiterates “strong” disapproval of ex parte judicial communication with a deliberating jury. ¶64 n. 7.)

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