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SCOW to decide whether directing a verdict for the State at the close of its case is structural error

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity

1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?

2. If the error in this case is not structural, then was it harmless?

This issue may ring a bell. It is similar to the issue in State v. Angelica Nelson, where SCOW held that when the circuit court denies a defendant the right to testify in her own defense, there is not structural, which would lead to a new trial. Instead, an appellate court conducts a harmless error analysis.

C.L.K.’s case is a little different. See our post on the court of appeals opinion here. During the grounds phase of a TPR proceeding the State called C.L.K., the father, as its only witness to prove abandonment. The court, the GAL, and defense counsel examined him but then the court directed a verdict without letting C.L.K. present his case in chief. The court of appeals held that this was an error but since a directed verdict is not on the list of structural errors in State v. Pinno, 2014 WI 74, ¶50, 356 Wis. 2d 106, 850 N.W.2d 207, it conducted a harmless error analysis and held the error harmless.

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