Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion / Criminal Procedure — right to jury

Criminal Procedure — right to jury

Wisconsin Supreme Court


Criminal Procedure — right to jury

While a defendant has a constitutional right to a jury determination of the drug quantity, a violation is subject to harmless error review.

“Beginning with the plain language of the statute, as we must, State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110, we see nothing in Wis. Stat. § 972.02(1) that speaks to remedy at all. Smith emphasizes the ‘shall’ in the statute, but that term provides no guidance on how a court should proceed if the statutory requirement is not satisfied. Indeed, the constitutional protections of criminal jury rights include the same word. U.S. Const. amend. VI (‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .’) (emphasis added); Wis. Const. art. I, § 7 (‘In all criminal prosecutions the accused shall enjoy the right . . . to a speedy public trial by an impartial jury . . . .’) (emphasis added). Given that these constitutional provisions contain highly similar language to § 972.02(1), including the very word that supposedly requires retrial, it would be incongruous for us to ignore the binding and persuasive reasoning in Neder and Harvey simply because a statute, rather than a constitutional provision, is at issue. Such a result would also create disruptive conflict and confusion in the criminal justice system whereby radically different remedies become available depending on whether a defendant relies upon a statutory or constitutional provision, despite the fact that they say nothing different with respect to remedy.”

“Lastly, the same factors that led us to conclude that harmless error analysis was appropriate in the constitutional context carry the same weight in the statutory context. Regardless of whether the Sixth Amendment or Wis. Stat. § 972.02(1) are at issue, the fact remains that it makes no sense to order a new trial or reduce a sentence when a defendant is convicted and sentenced by a neutral adjudicator in accordance with a fact he admits in open court, simply because the fact is formally ‘found’ by the wrong neutral adjudicator.”


2010AP1192-CR State v. Smith

Gableman, J.

Attorneys: For Appellant: Schmaal, William E., Madison; For Respondent: Wellman, Sally L, Madison; Lasee, David L., Green Bay

Leave a Reply

Your email address will not be published. Required fields are marked *