Wis. Stat. § 805.13
Wis. Stat. § 805.13
Specific evidentiary facts may be incorporated into an instruction provided they do not lead the jury to believe that the court has prejudged the evidence. State v. Dix, 86 Wis. 2d 474, 273 N.W.2d 250 (1979). Under sub. (3), a failure to object waives errors of substance as well as of form. Gyldenvand v. Schroeder, 90 Wis. 2d 690, 280 N.W.2d 235 (1979). It was proper to instruct a jury that it need not consider a lesser offense if it found the defendant guilty of a higher one. State v. McNeal, 95 Wis. 2d 63, 288 N.W.2d 874 (Ct. App. 1980). Although failure to object at the verdict conference to a substantive defect in the verdict constituted waiver, failure to object did not preclude the court's consideration of the defect under s. 751.06. Clark v. Leisure Vehicles, Inc. 96 Wis. 2d 607, 292 N.W.2d 630 (1980). When an objection at the verdict conference was not specific enough to preserve an appeal, the supreme court reversed the trial court under s. 751.06. Air Wisconsin, Inc. v. North Central Airlines, Inc. 98 Wis. 2d 301, 296 N.W.2d 749 (1980). Under the separation of powers doctrine, ss. 805.13(4) and 972.10(5) require submission to the jury of written instructions on the substantive law but do not require an automatic reversal when the trial court fails to do so. Instructions on the burden of proof and presumption of innocence are procedural, not substantive law. In Matter of E. B. 111 Wis. 2d 175, 330 N.W.2d 584 (1983). When an alleged error went to the integrity of the fact-finding process, the trial court exercised its discretion to review the circumstantial evidence instruction irrespective of the defendant's waiver of objection. State v. Shah, 134 Wis. 2d 246, 397 N.W.2d 492 (1986). It is not error for the trial court to fail to instruct sua sponte on a lesser-included offense. The trial court should not interfere with the parties' trial strategy. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990). Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995). If an attorney disagrees with an instruction that a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen, 204 Wis. 2d 115, 553 N.W.2d 820 (Ct. App. 1996), 92-2475. Appellate courts have no power to reach waived issues concerning unobjected to jury instructions. State v. Ward, 228 Wis. 2d 301, 596 N.W.2d 887 (Ct. App. 1999), 98-2530. A party is not held to a waiver under sub. (3) when a potentially inconsistent verdict is produced by the substance of the jury's verdict, as opposed to the wording of the verdict. LaCombe v. Aurora Medical Group, 2004 WI App 119, 274 Wis. 2d 771, 683 N.W.2d 532, 03-2093. A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under sub. (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, 288 Wis. 2d 188, 708 N.W.2d 13, 04-0363. A trial court's decision to read jury instructions on damages prior to certain testimony was a proper exercise of discretion and the court properly denied the defendant's motion for mistrial. Because the instructions were not disclosed to the parties before they were read by the court, the reading did not qualify as a preliminary instruction under sub. (2) (b). The trial court has broad discretion over the conduct of litigation and saw a need to orient the jury to the subject matter of the testimony when the evidence was jumping from expert testimony to fact testimony to damage testimony in a long and complex trial. Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252. A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003. Defining the meaning of a word in a jury instruction is akin to defining the meaning of a word in a statute. Determining the meaning of the word in a jury instruction is a legal question that appellate courts review de novo. When the word is not defined in the jury instruction, the appellate court will assign the word its common, ordinary, and accepted meaning, which may be ascertained by resort to a dictionary. State v. Bowen, 2015 WI App 12, 359 Wis. 2d 659, 859 N.W.2d 166, 14-0767. In this case, the defendant waived his objection to the use of a jury instruction by failing to object at the jury instruction and verdict conference as required under sub. (3). The defendant's post-conviction challenge to the jury instruction could have been made at trial, and the fact that law review articles that the defendant claims support his position were published after the defendant's conviction did not render his objection "unknowable" at the time of the conference. State v. Trammell, 2019 WI 59, 387 Wis. 2d 156, 928 N.W.2d 564, 17-1206. The court of appeals has no power to reach an unobjected-to jury instruction under sub. (3) because the court of appeals lacks a discretionary power of review. However, the supreme court possesses a discretionary power of review that the court may exercise when a matter is properly before the court. State v. Trammell, 2019 WI 59, 387 Wis. 2d 156, 928 N.W.2d 564, 17-1206.