2002 WIAPP 104 - Grice Engineering, Inc. v. Szyjewski

ROGGENSACK, J.

¶1¶ 30. (concurring). The majority applies the beyond a reasonable doubt standard in this civil case as the quantum of proof required to correct a jury's answer to a question on a special verdict. Majority at ¶ 27. I write separately to note that the parties have not suggested that a different standard applies in this civil context; therefore, we do not decide whether a lower burden of proof is sufficient.11 observe *760that the supreme court has, in a civil context, applied the clear and convincing burden of proof to verdict impeachment based on alleged extraneous information. After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis. 2d 734, 744, 324 N.W.2d 686, 692 (1982) (changing an answer to a question in a special verdict requires clear and convincing proof that extraneous, prejudicial information was improperly brought to the jury's attention). Additionally, when the evidence of jury misconduct is competent, a court must be persuaded only by "clear and satisfactory" proof that a juror engaged in misconduct in order to overturn a criminal conviction. State v. Eison, 194 Wis. 2d 160, 177, 533 N.W.2d 738, 744 (1995). Accordingly, I concur in the result, but not in the majority's application of the beyond a reasonable doubt burden of proof.

¶2 To the extent that the majority opinion incorporates the burden used in State v. Williquette, 190 Wis. 2d 677, 526 N.W.2d 144 (1995), which also applied the beyond a reasonable doubt burden of proof for the correction of a jury verdict, I note that the burden of proof was applied to determine whether Willi-quette sexually assaulted a victim other than the victim reported on the verdict. Conviction of a crime always requires proof beyond a reasonable doubt. Therefore, the court's opinion did not focus on the burden it applied to the requested verdict change, nor did it change its past precedent in regard to the burden of proof required to overturn a criminal conviction. Instead, the court, as it reasoned to a conclusion that all twelve jurors must be in agreement in order to change a verdict in a criminal case that resulted in the conviction of a different crime, applied the beyond a reasonable doubt burden without *760discussion. Id. at 696-98, 526 N.W.2d at 151-52. It should be noted that there is ample supreme court precedent showing that a lesser quantum of proof is sufficient to change a jury's verdict when the change does not result in the conviction of a crime. See State v. Eison, 194 Wis. 2d 160, 177, 533 N.W.2d 738, 744 (1995); State v. Messelt, 185 Wis. 2d 254, 281, 518 N.W.2d 232, 243 (1994); After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis. 2d 734, 744, 324 N.W.2d 686, 692 (1982). See also State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225, 231 (1999) (decided after Williquette and relying on "clear, satisfactory, and convincing evidence" as that quantum of proof required for a finding of jury misconduct).