Cross-examination, not exclusion, is proper tool for challenging weight and credibility of accomplice testimony. State v. Nerison, 136 W (2d) 37, 401 NW (2d) 1 (1987).
Defendant waives confrontation right by failing to object to trial court's finding of witness unavailability. State v. Gove, 148 W (2d) 936, 437 NW (2d) 218 (1989).
Prosecutor who obtained incriminating statement from defendant is obliged to honor subpoena and testify at suppression hearing if there is reasonable probability testimony will lead to relevant evidence. State v. Wallis, 149 W (2d) 534, 439 NW (2d) 590 (Ct. App. 1989).
Statement of coconspirator under 908.01 (4) (b) 5 may be admitted without proof of declarant's unavailability or showing of particular indicia of reliability; court must determine whether circumstances exist warranting exclusion. State v. Webster, 156 W (2d) 510, 458 NW (2d) 373 (Ct. App 1990).
Defendant had no confrontation clause rights as to hearsay at pretrial motion hearing; trial court could rely on hearsay in making its decision. State v. Frambs, 157 W (2d) 700, 460 NW (2d) 811 (Ct. App. 1990).
Allegations of professional misconduct against prosecution's psychiatric expert initially referred to prosecutor's office but immediately transferred to special prosecutor for investigation and possible criminal proceeding were properly excluded as subject of cross examination of expert due to lack of logical connection between expert and prosecutor necessary to suggest bias. State v. Lindh, 161 W (2d) 324, 468 NW (2d) 168 (1991).
Ability of child witness to speak truth or communicate intelligently are matters of credibility for jury, not questions of competency to be determined by judge. State v. Hanna, 163 W (2d) 193, 471 NW (2d) 238 (Ct. App. 1991).
Where witness's "past-recollection recorded statement" was admitted after witness testified and was found "unavailable" as a result of having no current memory of murder in question, there was an opportunity for cross-examination and right to confrontation was not violated. State v. Jenkins, 168 W (2d) 175, 483 NW (2d) 262 (1992).
When required by the right effectively to present a defense, the department of health and social services, having authority to do so, in the exercise of sound discretion must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
Admission into evidence of transcript of preliminary hearing testimony did not violate confrontation right where witness was, in effect, cross-examined at hearing. Ohio v. Roberts, 448 US 56 (1980).
Introduction of accomplice's confession for rebuttal purposes, not hearsay, didn't violate defendant's confrontation rights. Tennessee v. Street, 471 US 409 (1985).
Confrontation clause doesn't require showing of unavailability as condition of admission of out-of-court statements of non-testifying co-conspirator. United States v. Inadi, 475 US 387 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
Confrontation provision does not require defendant's access to confidential child abuse reports; due process requires that court undertake in camera inspection of file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie, 480 US 39 (1987).
Admission of nontestifying codefendant's confession violates confrontation rights, even though defendant's confession was also admitted. Cruz v. New York, 481 US 186 (1987).
Confrontation clause does not require that defendant be permitted to be present at competency hearing of child witnesses as long as defendant is provided opportunity for full and effective cross-examination at trial. Kentucky v. Stincer, 482 US 730 (1987).
Confrontation clause prohibits placement of screen between child witness and defendant; screen prevented witness from seeing defendant, but allowed defendant to dimly see witness. Coy v. Iowa, 487 US 1012 (1988).
See note to 967.04, citing Maryland v. Craig, 497 US , 111 LEd 2d 666 (1990).
Finding of unavailability of witness due to mental illness, made on basis of confused and stale record, deprived defendant of right to confront witness. Error was harmless. Burns v. Clusen, 599 F Supp. 1438 (1984).
Use of child victim's statements to psychologist under 908.03 (4) violated accused sexual assaulter's confrontation rights. Nelson v. Ferrey, 688 F Supp. 1304 (E. D. Wis. 1988).
State v. Thomas: Face to Face With Coy and Craig -- Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.
COUNSEL
A defendant is entitled to the presence of counsel at a post-warrant lineup but the attorney need not participate or object, and need not be the ultimate trial counsel. Wright v. State, 46 W (2d) 75, 175 NW (2d) 646.
A city attorney should not be appointed defense counsel in a state case where city police are involved unless the defendant, being fully informed, requests the appointment. Karlin v. State, 47 W (2d) 452, 177 NW (2d) 318.
Conference in chambers between defendant's counsel and the prosecutor in regard to the plea agreement without defendant's presence was not violative of his constitutional rights, thereby constituting a manifest injustice, since defendant had the benefit of counsel both during the entry of his plea and at the sentencing, and on the record expressly acquiesced in the plea agreement. Kruse v. State, 47 W (2d) 460, 177 NW (2d) 322.
A disciplinary action against an attorney is a civil proceeding and he is not entitled to the appointment of an attorney if he is indigent. State v. Hildebrand, 48 W (2d) 73, 179 NW (2d) 892.
An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State, 50 W (2d) 682, 184 NW (2d) 826.
ABA Standards relating to the duty of defense counsel approved, but their violation does not automatically prove incompetency or ineffectiveness. State v. Harper, 57 W (2d) 543, 205 NW (2d) 1.
An arrested man has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
Defendant has no right to counsel or to be present when photographs are shown to a witness. His right to counsel exists only at or after the initiation of criminal proceedings against him. Holmes v. State, 59 W (2d) 488, 208 NW (2d) 815.
It is not desirable, but is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor, 60 W (2d) 506, 210 NW (2d) 873.
Challenge to conviction because of absence of counsel at an informal confrontation when he was identified by the victim, is not sustained. Jones v. State, 63 W (2d) 97, 216 NW (2d) 224.
When conflict arises in dual representation, a defendant must be granted a vacation of sentence and a new hearing, because such a conflict at sentencing per se renders counsel representation ineffective and hence actual prejudice need not be shown. Hall v. State, 63 W (2d) 304, 217 NW (2d) 352.
Defense counsel's omission to cross-examine the state's principal witness at trial did not constitute ineffective representation, since such cross-examination had proved fruitless at the preliminary. Krebs v. State, 64 W (2d) 407, 219 NW (2d) 355.
The legal duty to appoint counsel is upon the judicial system as a matter of the superintending power of the judicial system; where the problem of appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, such power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milw. County, 65 W (2d) 130, 221 NW (2d) 902.
Trial judge must unconditionally and unequivocably demonstrate in the record that defendant intelligently, voluntarily and understandingly waived the constitutional right to counsel, whether or not defendant is indigent. Keller v. State, 75 W (2d) 502, 249 NW (2d) 773.
When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass, 75 W (2d) 542, 249 NW (2d) 789.
One charged with a crime carrying a penalty of incarceration has full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris, 75 W (2d) 547, 249 NW (2d) 791.
Where defendant claimed to understand Miranda rights but agreed to talk to police without counsel because of stated inability to afford a lawyer, further questioning by police was improper and resulting confession was inadmissible. Micale v. State, 76 W (2d) 370, 251 NW (2d) 458.
Mere fact that attorney represents 2 defendants charged in same crime is not sufficient evidence of inadequate representation. Defendant has burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State, 78 W (2d) 189, 254 NW (2d) 220.
Defendant has no right to be actively represented in courtroom both by self and by counsel. Moore v. State, 83 W (2d) 285, 265 NW (2d) 540 (1978).
Test to determine if denial of continuance acted to deny defendant either due process or effective right of counsel discussed. State v. Wollman, 86 W (2d) 459, 273 NW (2d) 225 (1979).
Right to counsel does not extend to non-lawyer representatives. State v. Kasuboski, 87 W (2d) 407, 275 NW (2d) 101 (Ct. App. 1978).
Withdrawal of guilty plea on grounds of ineffective representation by trial counsel discussed. State v. Rock, 92 W (2d) 554, 285 NW (2d) 739 (1979).
Defendant's request on morning of trial to represent self was properly denied as untimely. Hamiel v. State, 92 W (2d) 656, 285 NW (2d) 639 (1979).
Where suspect undergoing custodial interrogation requests counsel, prior to reinterrogation, the 5 factors under Michigan v. Mosley, 423 US 96 (1975) must be present and 1) suspect must be given chance to obtain counsel, or 2) police must take reasonable steps to obtain counsel and inform suspect as to steps taken. Wentela v. State, 95 W (2d) 283, 290 NW (2d) 312 (1980).
Trial court did not err in refusing defendant's request on 2nd day of trial to withdraw waiver of right to counsel. Self-representation discussed. Pickens v. State, 96 W (2d) 549, 292 NW (2d) 601 (1980).
Right to counsel did not preclude incarceration for second conviction for operating while intoxicated, although accused was not represented by counsel in proceedings leading to first conviction, since first offense was mere civil forfeiture case. State v. Novak, 107 W (2d) 31, 318 NW (2d) 364 (1982).
Effective assistance of counsel discussed. State v. Fencl, 109 W (2d) 224, 325 NW (2d) 703 (1982).
Counsel was ineffective for failure to raise heat-of-passion defense in murder case where wife who had been maltreated during 23-year marriage intentionally killed husband while he lay sleeping. State v. Felton, 110 W (2d) 485, 329 NW (2d) 161 (1983).
Defendant's uncorroborated allegations will not support claim of ineffective representation where counsel is unavailable to rebut claim of ineffectiveness. State v. Lukasik, 115 W (2d) 134, 340 NW (2d) 62 (Ct. App. 1983).
Effective assistance of counsel was denied where defense attorney did not properly inform client of personal right to accept plea offer. State v. Ludwig, 124 W (2d) 600, 369 NW (2d) 722 (1985).
Effective assistance of counsel discussed. State v. Pitsch, 124 W (2d) 628, 369 NW (2d) 711 (1985).
When trial court fails to make adequate inquiry into defendant's last-minute request to replace attorney, right to counsel is adequately protected by retrospective hearing at which defendant may present own testimony. State v. Lomax, 146 W (2d) 356, 432 NW (2d) 89 (1988).
Discussion of fifth and sixth amendment right to counsel and Edwards v. Arizona. State v. McNeil, 155 W (2d) 24, 454 NW (2d) 742 (1990).
Defense counsel's absence at return of jury verdict without defendant's consent and failure to poll jury are grounds for automatic reversal. State v. Behnke, 155 W (2d) 796, 456 NW (2d) 610 (1990).
See note to 767.52, citing In re Paternity of P.L.S., 158 W (2d) 712, 463 NW (2d) 403 (Ct. App. 1990).
When defendant accepts counsel, decision to assert or waive constitutional right is delegated to attorney. Failure of defendant to object to attorney's waiver, is waiver. State v. Wilkens, 159 W (2d) 618, 465 NW (2d) 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: That trial counsel was ineffective and that the defense was prejudiced such that absent error result would have been different. State v. Wilkens, 159 W (2d) 618, 465 NW (2d) 206 (Ct. App. 1990).
Court may disqualify defendant's chosen counsel over defendant's objection and waiver of right to conflict-free representation when actual or serious potential for conflict of interest exists. State v. Miller, 160 W (2d) 646, 467 NW (2d) 118 (1991).
Determination of indigency by public defender under 977.07 is not end of court inquiry of right to counsel. State v. Dean, 163 W (2d) 503, 471 NW (2d) 310 (Ct. App. 1991).
To bring claim of ineffective appellate counsel, defendant should petition appellate court that heard appeal for writ of habeas corpus. State v. Knight, 168 W(2d) 509, 484 NW(2d) 540 (1992).
Preliminary hearing to determine probable cause for detention pending further proceedings is not "critical stage" in prosecution requiring appointed counsel. Gerstein v. Pugh, 420 US 103.
State may not force lawyer upon defendant who intelligently insists upon conducting own defense. Faretta v. California, 422 US 806.
Right to counsel includes right to make closing summary of evidence to trier of fact. Herring v. New York, 422 US 853.
Right to counsel includes right to consult with attorney during trial recess. Geders v. United States, 425 US 80.
Prisoners facing disciplinary charges which also constitute crimes have no right to counsel. Baxter v. Palmigiano, 425 US 308.
Where defendant's right to counsel was violated by corporeal identification conducted in court without counsel, prosecution could not introduce identification evidence even though identification had independent source. Moore v. Illinois, 434 US 220 (1977).
Right to counsel was not violated where permissible jury instruction, intended for defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 US 333 (1978).
Whenever trial court improperly requires joint representation over timely objection, reversal is automatic. Holloway v. Arkansas, 435 US 475 (1978).
Indigent is not entitled to appointed counsel when charged with offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 US 367 (1979).
Uncounseled misdemeanor conviction is valid if no incarceration results, but conviction may not be used under enhanced penalty statute to convert subsequent misdemeanor into felony with incarceration. Baldasar v. Illinois, 446 US 222 (1980).
In order to demonstrate violation of right to counsel, defendant must establish that an actual conflict of interest adversely affected counsel's performance. Cuyler v. Sullivan, 446 US 335 (1980).
Government violated defendant's right to counsel by placing paid informant in same cell who deliberately elicited incriminating statements. United States v. Henry, 447 US 264 (1980).
Where right to counsel was infringed but no prejudice to defendant was shown, court erred in dismissing indictment. United States v. Morrison, 449 US 361 (1981).
Since criminal defendant has no constitutional right to counsel to pursue discretionary state appeal, defendant could not be deprived of effective counsel by lawyer's failure to file timely application for certiorari. Wainwright v. Torna, 455 US 586 (1982).
Right to counsel does not guarantee "meaningful attorney-client relationship". Morris v. Slappy, 461 US 1 (1983).
Counsel appealing conviction need not present every nonfrivolous issue requested by defendant. Jones v. Barnes, 463 US 745 (1983).
Without surrounding circumstances making it unlikely defendant received effective assistance of counsel, claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 US 648 (1984).
To support claim of ineffective assistance of counsel, defendant must show probability, sufficient to undermine confidence in outcome, that but for counsel's unprofessional errors result of proceeding would have been different. Strickland v. Washington, 466 US 668 (1984).
Indigent inmates held in administrative segregation during investigation of prison murder were not entitled to counsel prior to initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 US 180 (1984).
Accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on clarity of initial request for counsel. Smith v. Illinois, 469 US 91 (1984).
Due process guarantees criminal defendant the effective assistance of counsel on first appeal as of right. Evitts v. Lucey, 469 US 387 (1985).
Right to assistance of counsel wasn't violated when attorney refused to cooperate with defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 US 157 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
See note to 974.06, citing Pennsylvania v. Finley, 481 US 551 (1987).
Though trial court must recognize presumption that defendant is entitled to counsel of choice, presumption is overcome by actual conflict and serious potential for actual conflict. Wheat v. United States, 486 US 153 (1988).
Police may not interrogate suspect held in custody after suspect has previously requested counsel even when interrogation relates to offense different from that for which suspect requested counsel. Arizona v. Roberson, 486 US 675 (1988).
