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).
Right to counsel is not violated by court's instruction to defendant that he not confer with his attorney during fifteen-minute recess between defendant's direct and cross examination. Perry v. Leeke, 488 US 272, 102 LEd 2d 624 (1989).
Sixth amendment right to counsel is offense specific; an accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 US 171, 115 LEd 2d 158 (1991).
An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. US, 511 US ___, 128 L Ed 2d 745 (1994).
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
JURY TRIAL AND JUROR QUALIFICATIONS
A resident of Menominee county may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, sec. 23, is not violated by using district-based jury lists. Pamanet v. State, 49 W (2d) 501, 182 NW (2d) 459.
Where 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed from the court prior to the time the case was submitted to the jury, there must be a showing of probable prejudice before a mistrial is ordered. Shelton v. State, 50 W (2d) 43, 183 NW (2d) 87.
Exclusion of young persons, students and teachers from a jury list discussed. If a challenge establishes discrimination, the jury list is invalid and defendant need not show prejudice. Brown v. State, 58 W (2d) 158, 205 NW (2d) 566.
Rules as to proving discrimination in compiling jury list and burden of proof discussed. Wilson v. State, 59 W (2d) 269, 208 NW (2d) 134.
Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases where the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 W (2d) 397, 210 NW (2d) 751.
The absence of persons of defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 W (2d) 105, 223 NW (2d) 889.
Defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive right to jury trial. Norwood v. State, 74 W (2d) 343, 246 NW (2d) 801.
A jury must unanimously find participation in a crime; the jury need not unanimously agree whether defendant (1) directly committed crime, (2) aided and abetted its commission, or (3) conspired with another to commit it. Holland v. State, 91 W (2d) 134, 280 NW (2d) 288 (1979).
Unanimity of criminal verdict discussed. Jackson v. State, 92 W (2d) 1, 284 NW (2d) 685 (Ct. App. 1979).
Excusing Native Americans from jury without individual examination denied defendant Native American a trial by impartial jury. State v. Chosa, 108 W (2d) 392, 321 NW (2d) 280 (1982).
Verdict was unanimous in battery case even though jury was not required to specify whether battery occurred when defendant threw object at victim or during ensuing fistfight. State v. Giwosky, 109 W (2d) 446, 326 NW (2d) 232 (1982).
Verdict was unanimous in rape case even though jury was not required to specify whether sexual assault was vaginal or oral. State v. Lomagro, 113 W (2d) 582, 335 NW (2d) 583 (1983).
Where accused refused to participate in trial, court erred by failing to inform accused of right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 W (2d) 21, 345 NW (2d) 892 (Ct. App. 1984).
Mandatory closure of hearing solely at request of complaining witness over objection of defendant violates right to public trial. Stevens v. Manitowoc Cir. Ct. 141 W (2d) 239, 414 NW (2d) 832 (1987).
Waiver of right to jury trial is effective if defendant understands basic purpose and function of jury trial; trial courts are prospectively ordered to advise defendants of unanimity requirement before accepting waiver. State v. Resio, 148 W (2d) 687, 436 NW (2d) 603 (1989).
Once defendant makes prima facie showing that prosecutor used peremptory challenges in purposefully discriminatory manner, burden shifts to prosecution to provide neutral explanation for challenging jurors. Discussion of Batson v. Kentucky, 476 US 79 (1986) provided. State v. Walker, 154 W (2d) 158, 453 NW (2d) 127 (1990).
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis, 156 W (2d) 470, 457 NW (2d) 484 (1990).
Waiver of jury trial must be made by affirmative action of defendant; neither counsel nor court may waive it on defendant's behalf. If defendant has not personally waived right, proper remedy is new trial rather than postconviction hearing. State v. Livingston, 159 W (2d) 561, 464 NW (2d) 839 (1991).
Juveniles's right to jury trial is purely statutory. In Interest of R.H.L. 159 W (2d) 653, 464 NW (2d) 848 (Ct. App. 1990).
Under rare circumstances, jury instruction creating conclusive presumption regarding element of crime may be harmless error; discussion of circumstances. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking venireperson. State v. Davidson, 166 W (2d) 35, 479 NW (2d) 181 (Ct. App. 1991).
Discussion of unanimity requirements where multiple occurrences of multiple acts are charged. State v. Marcum, 166 W (2d) 908, 480 NW (2d) 545 (Ct. App. 1992).
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 W (2d) 660, 482 NW (2d) 99 (1992).
A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 W (2d) 393, 489 NW (2d) 626 (Ct. App. 1992).
Where the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 W (2d) 676, 489 NW (2d) 715 (Ct. App. 1992).
A defendant has the right to have jurors individually polled on their verdict; reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 W (2d) 573, 492 NW (2d) 329 (Ct. App. 1992).
Where the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. To sustain a conviction when alternative methods of proof resting upon different evidentiary facts are presented to the jury the evidence must be sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof. State v. Chambers, 173 W (2d) 237, 496 NW (2d) 191 (Ct. App. 1992).
"Clearly erroneous" standard applies to all steps under Batson (476 US 79) analysis made by trial court in determining whether a peremptory challenge was discriminatory. State v. Lopez, 173 W (2d) 724, 496 NW (2d) 617 (Ct. App. 1992).
Verdict of thirteen member jury panel agreed to by defense and prosecution was not invalid. State v. Ledger, 175 W (2d) 116, 499 NW (2d) 199 (Ct. App. 1993).
A trial court's comments to a deliberating jury without the defendant and his or her counsel violates the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 W (2d) 68, 519 NW (2d) 621 (Ct. App. 1994).
A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony which bears on guilt or innocence prejudice must be assumed. State v. Turner, 186 W (2d) 277, 521 NW (2d) 148 (Ct. App. 1994).
In nonsummary criminal contempt proceedings, alleged contemnor has right to jury trial if sentences imposed aggregate more than 6 months. Codispoti v. Pennsylvania, 418 US 506.
Court erred by communicating with jury and agreeing to accept guilty verdict "with extreme mercy" without notifying defense counsel. Rogers v. United States, 422 US 35.
Missouri law which granted women exemption from jury duty on request, resulting in low representation of women on venires, violated "fair cross section" requirement of Sixth Amendment. Duren v. Missouri, 439 US 357 (1979).
Where community sentiment against accused had softened by time of trial 4 years after heinous crime, trial court did not commit "manifest error" in finding jury as a whole was impartial. Patton v. Yount, 467 US 1025 (1984).
Black defendant was denied equal protection through state's use of peremptory challenges to exclude all blacks from jury. Batson v. Kentucky, 476 US 79 (1986).
The "fair cross section" element to trial by jury right does not provide constitutional basis for challenge to prosecution's peremptory striking of jurors on basis of race. Holland v. Illinois, 493 US 474, 107 LEd 2d 905 (1990).
Statements taken in violation of Michigan v. Jackson, 475 US 625 (1986), involving statements initiated by law enforcement and in absence of counsel, are admissible to impeach defendant's testimony at trial. Michigan v. Harvey, 494 US 344, 108 LEd 2d 293 (1990).
Equal protection precludes prosecutor's use of peremptory challenge to exclude potential jurors solely by reason of race; criminal defendant can raise the equal protection claim that jurors were excluded because of their race whether or not there is racial identity between the defendant and the excluded jurors. Powers v. Ohio, 499 US 400, 113 LEd 2d 411 (1991).
Where potential jurors had seen news reports about defendant's alleged crime, judge's refusal to question those prospective jurors about the specific content of those reports did not violate right to impartial jury. Mu'Min v. Virginia, 500 US 415, 114 LEd 2d 493 (1991).
A criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges of potential jurors. Georgia V. McCollum, 505 US ___, 120 LEd 33 (1992).
A constitutionally deficient instruction regarding proof beyond a reasonable doubt can never be harmless error. Sullivan v. Louisiana, 508 US ___, 124 LEd 2d 182 (1993).
Gender-based peremptory strikes are barred by the equal protection clause. J.E.B. v. Alabama ex rel. T.B. 511 US ___, 128 LEd 2d (1994).
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
Unanimous verdict not constitutionally required in state criminal cases. Johnson, 1973 WLR 926.
SPEEDY TRIAL
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. Where the delay was caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 W (2d) 563, 193 NW (2d) 682.
A delay of 5 weeks because witnesses were hospitalized, where defendant was out on bail, does not amount to a failure of speedy trial. Taylor v. State, 55 W (2d) 168, 197 NW (2d) 805.
Failure to demand speedy trial is weighed less heavily against defendant unrepresented by counsel. Because defendant believed charge had been dropped it could not be said that a speedier trial would have prevented anxiety and concern about pending charges. Hipp v. State, 75 W (2d) 621, 250 NW (2d) 299.
Speedy trial provisions of constitution were designed to prevent oppressive pretrial incarceration, anxiety and concern by accused, impairment of defense and elimination of possibility that concurrent sentences be imposed. Green v. State, 75 W (2d) 631, 250 NW (2d) 305.
The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 US 514 (1972). Fifteen month delay held not prejudicial under facts of case. Scarbrough v. State, 76 W (2d) 87, 250 NW (2d) 354.
Delay of 84 days between defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise presumption of prejudice. State v. Mullis, 81 W (2d) 454, 260 NW (2d) 696.
Speedy trial right attaches when complaint and warrant are issued; pretrial determination that right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 W (2d) 202, 455 NW (2d) 233 (1990).
Right to speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 W (2d) 67, 505 NW (2d) 801 (Ct. App. 1993).
Delay between arrest and indictment may deny speedy trial without showing of actual prejudice. Dillingham v. United States, 423 US 64.
Defendant may not, before trial, appeal denial of motion to dismiss based on right to speedy trial. United States v. MacDonald, 435 US 850 (1978).
No right to speedy trial arises until charges are pending. United States v. MacDonald, 456 US 1 (1982).
Time during which defendants were neither under indictment nor subjected to any official restraint does not weigh towards defendant's speedy trial claims. United States v. Loud Hawk, 474 US 302 (1986).
Following guilty plea, defendant could not raise speedy trial issue. United States v. Gaertner, 583 F (2d) 308 (1978).
MISCELLANEOUS
A defendant can waive his right to be present at a proceeding where the court ordered his case consolidated with another. It is not error at the start of a trial to revoke bail and remand defendant to the custody of the sheriff. Beverly v. State, 47 W (2d) 725, 177 NW (2d) 870.
A prisoner at Fox Lake, Dodge county, who escapes from university hospitals while being treated there, may be tried for the escape in Dodge county. Dolan v. State, 48 W (2d) 696, 180 NW (2d) 623.
Defendant is not prejudiced when the court amends the charge against him to charge a lesser included offense without informing him of the nature of the amended charge or allowing him to plead to it. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
It is not a violation of defendant's rights if he is prosecuted by information and not by indictment. State v. Lehtola, 55 W (2d) 494, 198 NW (2d) 354.
A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State, 58 W (2d) 671, 207 NW (2d) 589.
Although a complaint need not allege with precision the time of commission of a crime where such is not a material element of the offense charged, the state's latitude in the charging process is restricted by a defendant's constitutional right to be informed of the nature and cause of the accusation; and the sufficiency of a complaint is determined by: (1) Whether the accusation states an offense to which defendant is able to plead and prepare a defense and (2) whether conviction or acquittal is a bar to another prosecution for the same offense. State v. George, 69 W (2d) 92, 230 NW (2d) 253.
Participation of state in promulgating adverse publicity is relevant in determining whether trial court abused its discretion in not granting venue change. Briggs v. State, 76 W (2d) 313, 251 NW (2d) 12.
Only defendant may waive right to venue where the crime was committed. State v. Mendoza, 80 W (2d) 122, 258 NW (2d) 260.
Where defendant was not relying on alibi defense and did not file notice of alibi, judge did not abuse discretion in barring alibi testimony. State v. Burroughs, 117 W (2d) 293, 344 NW (2d) 149 (1984).
If defendant acquiesces in counsel's decision that defendant not testify, defendant's right to testify is waived. State v. Albright, 96 W (2d) 122, 291 NW (2d) 487 (1980).
Constitutional error is harmless if court can declare belief that it was harmless beyond a reasonable doubt because there is no reasonable possibility error contributed to conviction. State v. Brecht, 143 W (2d) 297, 421 NW (2d) 96 (1988).
Two factors determine sufficiency of criminal charge: whether it states offense to which defendant can plead and whether disposition will bar future prosecution for same offense; additional factors discussed. State v. Fawcett, 145 W (2d) 244, 426 NW (2d) 91 (Ct. App. 1988).
Judge's bias against counsel must be severe to translate into unconstitutional partiality against litigant. State v. Hollingsworth, 160 W (2d) 883, 467 NW (2d) 555 (Ct. App. 1991).
Rule for pleadings in criminal obscenity cases shall be same as for all other criminal cases; where pleading fails to set forth all elements of crime but includes correct citation, all elements are sufficiently alleged. State v. Petrone, 161 W (2d) 530, 468 NW (2d) 676 (1991).
Notice of the nature and cause of the accusations is a key factor in determining whether an amended charging document has prejudiced a defendant. State v. Neudorff, 170 W (2d) 608, 489 NW (2d) 689 (Ct. App. 1992).
A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.
Absolute prohibition of paralegal-conducted jail interviews is unjustifiable restriction of inmates' due process right of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.
Any closure of suppression hearing must advance overriding interest likely to be prejudiced; closure must be no broader than necessary to protect that interest; court must consider alternatives; and court must make finding adequate to support closure. Waller v. Georgia, 467 US 39 (1984).
The press and public have a first amendment right to access to attend criminal trials, which cannot be closed absent an overriding interest. 64 MLR 717 (1981).
I,8 Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [As amended Nov. 1870 and April 1981]
I,8(1) (1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
