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.
I,8(2) (2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.
I,8(3) (3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.
I,8(4) (4) The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [1869 J.R. 7; 1870 J.R. 3; 1870 c. 118; vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981]
DOUBLE JEOPARDY
Where, after a plea bargain, the state filed an amended complaint to which defendant pled guilty, but the court refused to accept the plea and reinstated the complaint, but the amended complaint was later reinstated, defendant cannot claim double jeopardy. Salters v. State, 52 W (2d) 708, 191 NW (2d) 19.
The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 W (2d) 769, 193 NW (2d) 704.
A person is not put in double jeopardy because convicted in separate trials of resisting an officer (946.11) and of battery to an officer (940.205) even though the acts charged arose from the same incident. State v. Elbaum, 54 W (2d) 213, 194 NW (2d) 660.
A defendant is not subjected to double jeopardy because the court finds him guilty of a lesser included offense. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
Where defendant is tried for one offense and convicted of a lesser included offense he is not placed in double jeopardy. Dunn v. State, 55 W (2d) 192, 197 NW (2d) 749.
Defendant is not subjected to double jeopardy when brought to trial a 2nd time after a mistrial is declared. State v. Elkinton, 56 W (2d) 497, 202 NW (2d) 28.
A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
Defendant, convicted of false imprisonment and rape committed in Waukesha county, was not subjected to double jeopardy by a second conviction of false imprisonment of the same victim in Milwaukee county, because the facts support 2 separate imprisonments. Baldwin v. State, 62 W (2d) 521, 215 NW (2d) 541.
Where a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there was a "manifest necessity" to terminate the proceedings because the indictment or information was fatally defective and the trial court lacked jurisdiction to try the case. State v. Russo, 70 W (2d) 169, 233 NW (2d) 485.
Defendant, convicted of fleeing an officer in Portage county, was not put in double jeopardy by a second conviction of fleeing a Wood county officer when defendant crossed county line during chase. State v. Van Meter, 72 W (2d) 754, 242 NW (2d) 206.
Where perjured testimony of key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, retrial after conviction was vacated does not place defendant in double jeopardy. Day v. State, 76 W (2d) 588, 251 NW (2d) 811.
Neither double jeopardy clause nor doctrine of collateral estoppel precludes parole revocation on grounds of parolee's conduct related to alleged crime for which parolee was charged and acquitted. State ex rel. Flowers v. H&SS Dept. 81 W (2d) 376, 260 NW (2d) 727.
When mistrial requested by defendant is justified by prosecutorial or judicial overreaching intended to prompt request, double jeopardy clause will bar reprosecution. State v. Harrell, 85 W (2d) 331, 270 NW (2d) 428 (Ct. App. 1978).
Double jeopardy provisions of U.S. and Wis. Constitutions are identical in scope and purpose; thus, U.S. Supreme Court decisions control both provisions. Multiplicitous rape charges discussed. Harrell v. State, 88 W (2d) 546, 277 NW (2d) 462 (1979).
Double jeopardy clause prohibits increase of valid sentence to offset erroneously lenient sentence. State v. North, 91 W (2d) 507, 283 NW (2d) 457 (Ct. App. 1979).
Where court of appeals reversed defendant's conviction on grounds of insufficiency of evidence, double jeopardy clause did not bar supreme court from reviewing case. State v. Bowden, 93 W (2d) 574, 288 NW (2d) 139 (1980).
Where the crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
Prosecutor's repeated failure to give notice under 971.24 was not prosecutorial overreaching which would bar reprosecution after defendant moved for mistrial. State v. Copening, 100 W (2d) 700, 303 NW (2d) 821 (1981).
Two sentences for one crime violated double jeopardy clause. State v. Upchurch, 101 W (2d) 329, 305 NW (2d) 57 (1981).
Trial court properly declared mistrial due to juror's injury. State v. Mendoza, 101 W (2d) 654, 305 NW (2d) 166 (Ct. App. 1981).
Double jeopardy clause did not bar retrial where judge declared mistrial due to jury deadlock. State v. DuFrame, 107 W (2d) 300, 320 NW (2d) 210 (Ct. App. 1982).
Double jeopardy clause did not bar prosecution of charge after it was considered as evidence of character in sentencing defendant on prior unrelated conviction. State v. Jackson, 110 W (2d) 548, 329 NW (2d) 182 (1983).
Without clear legislative intent to contrary, multiple punishment may not be imposed for felony-murder and underlying felony. State v. Gordon, 111 W (2d) 133, 330 NW (2d) 564 (1983).
Reimposition of sentence after defendant has been placed on probation, absent violation of probation condition, violates double jeopardy clause. State v. Dean, 111 W (2d) 361, 330 NW (2d) 630 (Ct. App. 1983).
Governmental action is punishment under double jeopardy clause if its principal purpose is punishment, retribution or deterrence. When principal purpose is nonpunitive, fact that punitive motive may also be present does not make action punishment. State v. Killebrew, 115 W (2d) 243, 340 NW (2d) 470 (1983).
