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Criminal Procedure – Due process – impartial jury

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

Criminal Procedure – Due process – impartial jury

By: WISCONSIN LAW JOURNAL STAFF//September 15, 2011//

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Criminal Procedure
Due process; impartial jury

A defendant’s right to due process was not violated, although a juror was unable to hear some of the testimony, where the testimony was consistent with other testimony.

“[I]n Turner we rejected the proposition that it does not matter if a juror does not hear a material witness because the juror could get the same information from other witnesses. Id. In this case, the juror heard S.K. testify at trial and was able to observe her demeanor then; and she saw S.K.’s demeanor on the videotape, although she was not able to relate it to specific answers. Moreover, those answers were consistent with the answers S.K. gave at the trial. We will assume for purposes of discussion that significant information could be lost to a juror who was unable to hear a videotaped interview of a witness, even though the juror was able to hear the witness’s consistent testimony at trial. However, Kettner does not explain why that is true in this case, and we cannot identify any instance of this from our review of the videotape and the trial transcript.”

“We also consider it significant that the juror heard ‘substantially all’ of defense counsel’s cross-examination of S.K. at trial. This cross-examination suggested several different grounds on which to question S.K.’s credibility.”
“In summary, Kettner does not make an argument that the juror’s inability to hear particular testimony of S.K. on the videotape resulted in the juror not having significant information about S.K.’s account of the relevant events or about her credibility. Instead, Kettner relies on general propositions in asserting that he is entitled to a new trial on this ground. However, general assertions of materiality or prejudice are not sufficient to establish a violation of the rights to an impartial jury and due process when we are able to see and hear the precise interview the juror saw but did not hear and are able to compare that to the transcript of that witness’s trial testimony, which the juror did hear. Given the consistency of S.K.’s videotaped answers with those she gave in person at trial and in the absence of any factor identified by Kettner that indicates some specific source of prejudice, we conclude that Kettner’s rights to an impartial jury and due process were not violated.”


Recommended for publication in the official reports.

2011AP85-CR State v. Kettner

Dist. III, Outagamie County, McGinnis, J., Vergeront, J.

Attorneys: For Appellant: Olsen, Jefren E., Madison; For Respondent: Balistreri, Thomas J., Madison; Schneider, Carrie A., Appleton

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