The right to confrontation is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate any reference to the defendant's existence. State v. Mayhall, 195 W (2d) 53, 535 NW (2d) 473 (Ct. App. 1995).
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 W (2d) 210, 546 NW (2d) 501 (Ct. App. 1996).
The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 W (2d) 29, 549 NW (2d) 418 (1996).
Once a witness is found to be unavailable his or her out-of-court statements are admissible if they bear adequate indicia of reliability. The confrontation clause right to cross-examination guarantees only the opportunity for effective cross-examination not cross-examination that is effective to the extent the defense may wish. State v. Kevin L.C. 216 W (2d) 166, 576 NW (2d) 62 (Ct. App. 1997).
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).
If state makes adequate showing of necessity, it may use special procedure, such as one-way closed-circuit television to transmit child witness's testimony to court without face-to-face confrontation with defendant. Maryland v. Craig, 497 US 836, 111 LEd 2d 666 (1990).
In a joint trial, the confession of one defendant naming the other defendant which was read with the word "deleted" replacing the second defendant's name violated the second defendant's right of confrontation. Gray v. Maryland, 523 US ___, 140 L Ed 2d 294 (1998).
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
Note: See also the notes to Article I, Section 8—Self-incrimination.
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.
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).
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).
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). See also note hereunder citing McNeil v. Wisconsin, 501 US 171, 115 LEd 2d 158 (1991).
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).
Paternity respondent does not have constitutional right to effective assistance of counsel; paternity action is not a criminal prosecution. 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).
Question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel's errors would have had a reasonable doubt respecting guilt. State v. Glass, 170 W (2d) 146, 488 NW (2d) 432 (Ct. App. 1992).
Defense attorney's ex parte petition to withdraw was improperly granted; a minimal due process hearing was required. State v. Batista, 171 W (2d) 690, 492 NW (2d) 354 (Ct. App. 1992).
Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed pro se, courts are advised to mandate full representation by counsel. State v. Haste, 175 W (2d) 1, NW (2d) (Ct. App. 1993).
The proper test of attorney performance is reasonableness under prevailing professional norms; counsel is not required to have a total and complete knowledge of all criminal law no matter how obscure. State v. Hubert, 181 W (2d) 333, 510 NW (2d) 799 (Ct. App. 1993).
Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 W (2d) 587, 516 NW (2d) 362 (1994).
An appellate defendant represented by counsel has no right to have a pro se brief considered by the court where counsel has submitted a brief. State v. Debra A. E. 188 W (2d) 111, 523 NW (2d) 727 (Ct. App. 1994).
Decision of whether to poll jury may be delegated to counsel; waiver by counsel without showing that waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson, 188 W (2d) 537, 525 NW (2d) 165 (Ct. App. 1994).
Where the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. Where an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas, 190 W (2d) 339, 526 NW (2d) 818 (Ct. App. 1994).
The prejudice prong of the test for ineffective counsel was met where counsel failed to insure that a defense witness would appear without shackles. State v. Tatum, 191 W (2d) 548, 530 NW (2d) 407 (Ct. App. 1995).
A suspect's reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 W (2d) 78, 532 NW (2d) 79 (1995).
The right to counsel and right to remain silent are the defendant's. An attorney not requested by the defendant could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones, 192 W (2d) 78, 532 NW (2d) 79 (1995).
A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone, 195 W (2d) 476, 536 NW (2d) 172 (Ct. App. 1995).
Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley, 195 W (2d) 580, 536 NW (2d) 202 (Ct. App. 1995).
A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Kessig, 199 W (2d) 397, 544 NW (2d) 605 (Ct. App. 1995).
In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found where the defendant constantly refused to cooperate with counsel while refusing to waive the right and where the court found the defendant's intent was to "delay, obfuscate and compound the process of justice". State v. Cummings, 199 W (2d) 722, 516 NW (2d) 406 (1996).
The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez, 201 W (2d) 219, 548 NW (2d) 69 (1996).
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 W (2d) 246, 548 NW (2d) 45 (1996).
Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang, 201 W (2d) 721, 549 NW (2d) 769 (Ct. App. 1996).
To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney's performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street, 202 W (2d) 534, 551 NW (2d) 830 (Ct. App. 1996)
Counsel is not ineffective where the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of defense. State v. Eckert, 203 W (2d) 497, 553 NW (2d) 539 (Ct. App. 1996).
When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy, 206 W (2d) 628, 557 NW (2d) 494 (Ct. App. 1996).
Counsel was deficient when it failed to object at sentencing to a prosecutor's sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith, 207 W (2d) 259, 558 NW (2d) 379 (1997).
In every case where a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. Where there is no colloquy, and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 W (2d) 194, 564 NW (2d) 716 (1997).
There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English and any disability which may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 W (2d) 194, 564 NW (2d) 716 (1997).
It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 W (2d) 284, 569 NW (2d) 48 (Ct. App. 1997).
Where a defendant proves ineffective assistance of counsel at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 W (2d ) 849, 569 NW (2d) 758 (Ct. App.1997).
An in-court identification subsequent to a lineup in violation of an accused's right to counsel is admissible only if the state carries the burden of showing that the in-court identification was based on observations of the suspect other than the lineup. State v. McMorris, 213 W (2d) 156, 570 NW (2d) 384 (1997).
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.
