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SVP – Trial – Jury Instructions – Consequences of Discharge

State v. Joseph A. Lombard, 2004 WI App 52, PFR filed 3/19/04
For Lombard: David Karpe

Issue: Whether, in response to a jury question during deliberations in this SVP discharge trial, the trial court was obligated to instruct that if Lombard were discharged he would still be subject to 40 years of probation / parole supervision on the underlying offense.


¶13. We are not persuaded by Lombard’s argument. Lombard acknowledges there is no requirement in the case law or statutes that the court must instruct the jury on the consequences of discharge. In contrast, for example, Wis. Stat. § 971.165(2) requires the court to instruct the jury that if it finds a defendant not guilty by reason of insanity, the defendant will be placed in an appropriate institution unless the court determines the defendant would not pose a danger to himself/herself or others if released under conditions imposed by the court. In Lombard’s reply brief, he points out that, prior to the enactment of § 971.165(2), the court in State v. Shoffner, 31 Wis. 2d 412, 428-29, 143 N.W.2d 458 (1966), expressed a preference for juries to be informed that a defendant would not be released upon a finding of not guilty by reason of insanity. … To the extent Lombard is asking this court to express a preference that a jury hearing a petition for discharge under ch. 980 be given an instruction regarding the consequences of its verdict, similar to the preference expressed in Shoffner, that request is more appropriately addressed to the supreme court.

¶15. Because there is no case law or statutory requirement that the court advise a jury in a proceeding under ch. 980 of the consequences of a discharge, the court did not apply an incorrect standard of law. Therefore, the issue is whether the court made a reasonable decision based on the relevant facts. We conclude that it did.

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