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 836, 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).
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).
Suspect's question to interrogator, "Do you think I need an attorney?", was an equivocal question insufficient to invoke the right to counsel. Such an equivocal statement requires the police to cease all interrogation except to attempt to clarify the suspect's desire for counsel. State v. Walkowiak, 183 W (2d) 478, 515 NW (2d) 863 (1994).
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).
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).
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).
Because individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, individual may not insist upon implementation of Anders v. California, 386 US 738 (1967) procedures. 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).
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.