Wisconsin Statutes
Wis. Stat. § 972.02 (2026)
Jury trial; waiver
✓ current as of July 2026
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972.02(1)(1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08 (2), on the record, with the approval of the court and the consent of the state.
972.02(2)(2) At any time before the verdict, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than 12.
972.02(3)(3) In a case tried without a jury the court shall make a general finding and may in addition find the facts specially.
972.02(4)(4) No member of the grand jury which found the indictment shall be a juror for the trial of the indictment.
972.02 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 784; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1995 a. 427; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 2013 a. 164; 2021 a. 141.
972.02 NoteJudicial Council Note, 1988: Sub. (1) is amended to reflect that waiver of trial by jury may be made by telephone upon the defendant’s request, unless good cause to the contrary is shown. [Re Order effective Jan. 1, 1988]
972.02 NoteJudicial Council Note, 1996: This proposal changes “drawn” to “selected” whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. [Re Order effective 7-1-97]
972.02 AnnotationA defendant could claim that the defendant’s waiver of a jury, when the record was silent as to acceptance by the court and prosecution, made the subsequent jury trial invalid. Spiller v. State, 49 Wis. 2d 372, 182 N.W.2d 242 (1971).
972.02 AnnotationA defendant can waive a jury after the state has completed its case. Warrix v. State, 50 Wis. 2d 368, 184 N.W.2d 189 (1971).
972.02 AnnotationA defendant who demanded a jury trial cannot be held to have waived it by participating in a trial to the court and can raise this question for the first time on appeal. State v. Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899 (1971).
972.02 AnnotationA record demonstrating the defendant’s willingness and intent to waive a jury must be established before accepting a waiver. Krueger v. State, 84 Wis. 2d 272, 267 N.W.2d 602 (1978).
972.02 AnnotationThe defense’s participation in a misdemeanor court trial, without objection, did not constitute waiver of a jury trial. State v. Moore, 97 Wis. 2d 669, 294 N.W.2d 551 (Ct. App. 1980).
972.02 AnnotationThe court abused its discretion in discharging an ill juror during deliberations without making any record as to the circumstances of the discharge and without counsel being present. Unless the defendant consents, it is reversible error for the court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982).
972.02 AnnotationA trial court may not deny an accused’s motion to withdraw a jury waiver without showing that granting the withdrawal would substantially delay or impede the cause of justice. State v. Cloud, 133 Wis. 2d 58, 393 N.W.2d 123 (Ct. App. 1986).
972.02 AnnotationA waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989).
972.02 AnnotationA defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989).
972.02 AnnotationA waiver of a jury trial must be made by an affirmative action of the defendant; neither counsel nor the court may waive it on the defendant’s behalf. If the defendant has not personally waived the right, the proper remedy is a new trial rather than a postconviction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991).
972.02 AnnotationThe verdict of a 13 member jury panel agreed to by the defense and prosecution was valid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993).
972.02 AnnotationWhen there are grounds to believe the jury in a criminal case needs protection, the trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror’s names, employment, and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court’s discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), 95-0891.
972.02 AnnotationThe provision that a jury in a misdemeanor case shall consist of six persons violates article I, section 7, of the Wisconsin Constitution. State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), 97-0885.
972.02 AnnotationThe defendant was not automatically entitled to a new trial when, in waiving the right to a jury trial, the trial court did not advise that a jury verdict must be unanimous. The appropriate remedy is through a postconviction motion that, as a threshold requirement, must contain an allegation that the defendant did not know or understand the rights at issue. State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct. App. 1999), 98-2206.
972.02 AnnotationSub. (1) applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. The state has a legitimate interest in having the decision of mental responsibility decided by a jury. State v. Murdock, 2000 WI App 170, 238 Wis. 2d 301, 617 N.W.2d 175, 99-0566.
972.02 AnnotationTo prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: 1) makes a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) is aware that a jury trial consists of a panel of 12 people that must agree on all elements of the crime charged; 3) is aware that in a court trial the judge will make a decision on whether or not the defendant is guilty of the crime charged; and 4) has enough time to discuss the decision with counsel. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.
972.02 AnnotationIf a defendant waives the right to a jury trial and the circuit court fails to conduct a colloquy with the defendant regarding the waiver, a reviewing court may not find a valid waiver based on the record. As a remedy, the circuit court must hold an evidentiary hearing on whether the waiver was knowing, intelligent, and voluntary. If the state is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived a jury trial, the defendant is entitled to a new trial. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.
972.02 AnnotationWhether a defendant waived the right to have the jury determine all the elements of the crime or only some of them and whether the defendant gave up a jury trial in lieu of a determination by the circuit court or stipulated to the elements, the waiver analysis is the same. Any waiver must be made personally on the record by the defendant. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, 01-1668.
972.02 AnnotationIf a court withholds any juror information in open court, it must: 1) find that the jury needs protection; and 2) take reasonable precautions to avoid prejudicing the defendant. When jurors’ names are withheld, the court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant’s guilt or innocence. State v. Tucker, 2003 WI 12, 259 Wis. 2d 484, 657 N.W.2d 374, 00-3354.
972.02 AnnotationThere is no constitutional right to waive a jury and be tried by a judge. A prosecutor’s decision to withhold consent to a defendant’s requested waiver of the right to a jury trial is not reviewable. A trial court need not justify its refusal to approve the waiver. State v. Burks, 2004 WI App 14, 268 Wis. 2d 747, 674 N.W.2d 640, 03-0472.
972.02 AnnotationHarmless error analysis applies when a court erroneously takes judicial notice of a fact that should have been submitted to the jury. State v. Smith, 2012 WI 91, 342 Wis. 2d 710, 817 N.W.2d 410, 10-1192.
972.02 AnnotationAbsent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time it is made. Walworth County Department of Health & Human Services v. Roberta J.W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860, 12-2387.
972.02 AnnotationThe 6th amendment right to a public trial extends to voir dire. A judge’s decision to close or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, 11-2424.
972.02 AnnotationCriminal Law—Waiver of Jury in Wisconsin Criminal Cases. 1971 WLR 626.
Notes of Decisions
Cited in 32
cases (4 in the last 5 years), 1971–2025 · leading case: State v. Anderson, 2002 WI 7 (Wis. 2002).
State v. Anderson, 2002 WI 7 (Wis. 2002). “This case is not the first opportunity for a Wisconsin appellate court to interpret Wis. Stat. § 972.02 (1). Rather, previous cases interpreting § 972.”
State v. Smith, 2012 WI 91 (Wis. 2012). “Smith's statutory argument revolves around Wis. Stat. § 972.02 (1), which provides that "criminal cases shall be tried by a jury .”
State v. Franklin, 2001 WI 104 (Wis. 2001). “[3] According to Wis. Stat. § 972.02 (1) (1999-2000), only the defendant can waive a 12-person jury and only by a personal and affirmative statement in open court.”
State v. Murdock, 2000 WI App 170 (Wis. Ct. App. 2000). “Murdock also indicated that he wanted to have a trial to the court instead of a jury on both the guilt and the responsibility phases of the bifurcated trial, but the State was not willing to consent to the jury waiver under Wis. Stat. § 972.02 (1). 2 Murdock then filed a motion…”
State v. Ledger, 499 N.W.2d 198 (Wis. Ct. App. 1993). “, does not expressly recognize a jury comprised of more than twelve members, his agreement to the contrary and the trial court's approval of the procedure is without legal effect. *125 Section 972.02, Stats., provides in relevant part: Jury trial; waiver.”
State v. Livingston, 464 N.W.2d 839 (Wis. 1991). “The issue in this case is whether a criminal jury trial waiver by defense counsel is a personal waiver by the defendant under sec. 972.02(1), Stats. 1 *564 A second issue raised by the state is whether the state is entitled to a remand for a hearing to inquire into the…”
State v. Warbelton, 2009 WI 6 (Wis. 2009). “He argued that under Wis. Stat. § 972.02 (1), the State must consent to a jury waiver, and "at this point in time the State's not willing to waive the right to jury trial on that issue.”
State v. Perkins, 2001 WI 46 (Wis. 2001). “[3] The Jury Clause of Article I, Section 7 provides: "In all criminal prosecutions [by indictment, or information,] the accused shall enjoy the right.”
State v. Burks, 2004 WI App 14 (Wis. Ct. App. 2003). “The postconviction court disagreed with the trial court's assessment of the law, and viewed the trial court's "approval" role under Wis. Stat. § 972.02 (1) as essentially limited to assuring that the defendant's waiver of the jury-trial right was knowing and voluntary.”
State v. Wingo, 2000 WI 31 (Wis. 2000). “Nor did the defendant agree, as required by Wis. Stat. § 972.02 (2), to be tried by a jury consisting of fewer than 12 persons.”
State v. Huebner, 2000 WI 59 (Wis. 2000). “§ 972.02 (1997-98) provides: (1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s.”
State v. Brunette, 583 N.W.2d 174 (Wis. Ct. App. 1998). “The ruling in Livingston was based on the interpretation of a statute, § 972.02(1), Stats., 1 which provides that a criminal defendant must be tried by a jury of twelve unless the defendant waives a jury in writing or by a statement in open court.”
— Wis. Stat. § 972.02(1) — 18 cases
State v. Anderson, 2002 WI 7 (Wis. 2002). “This case is not the first opportunity for a Wisconsin appellate court to interpret Wis. Stat. § 972.02 (1). Rather, previous cases interpreting § 972.”
State v. Livingston, 464 N.W.2d 839 (Wis. 1991). “The issue in this case is whether a criminal jury trial waiver by defense counsel is a personal waiver by the defendant under sec. 972.02(1), Stats. 1 *564 A second issue raised by the state is whether the state is entitled to a remand for a hearing to inquire into the…”
State v. Murdock, 2000 WI App 170 (Wis. Ct. App. 2000). “Murdock also indicated that he wanted to have a trial to the court instead of a jury on both the guilt and the responsibility phases of the bifurcated trial, but the State was not willing to consent to the jury waiver under Wis. Stat. § 972.02 (1). 2 Murdock then filed a motion…”
State v. Smith, 2012 WI 91 (Wis. 2012). “Smith's statutory argument revolves around Wis. Stat. § 972.02 (1), which provides that "criminal cases shall be tried by a jury .”
State v. Franklin, 2001 WI 104 (Wis. 2001). “[3] According to Wis. Stat. § 972.02 (1) (1999-2000), only the defendant can waive a 12-person jury and only by a personal and affirmative statement in open court.”
— Wis. Stat. § 972.02(2) — 1 case
State v. Wingo, 2000 WI 31 (Wis. 2000). “Nor did the defendant agree, as required by Wis. Stat. § 972.02 (2), to be tried by a jury consisting of fewer than 12 persons.”
— Wis. Stat. § 972.02(3) — 3 cases
State v. Bruckner, 447 N.W.2d 376 (Wis. Ct. App. 1989).
State v. Michael K. Brooks (Wis. Ct. App. 2023).
State v. Benjamin J. Horn (Wis. Ct. App. 2025).
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