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).
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 738, 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.
How do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant's Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997).
JURY TRIAL AND JUROR QUALIFICATIONS
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
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 Ba tson 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).
Where polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircherz, 189 W (2d) 392, 525 NW (2d) 788 (Ct. App. 1994).
Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. Where the shackles cannot be viewed by the jury no prejudicial harm may occur. State v. Grinder, 190 W (2d) 541, 527 NW (2d) 326 (1995).
A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However failure to allow the the defendant's presence may be harmless error. State v. David J.K. 190 W (2d) 726, 528 NW (2d) 434 (Ct. App. 1994).
When it is conceded that a juror was sleeping, summarily foreclosing inquiry into the juror's inattentiveness is an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton, 201 W (2d) 661, 549 NW (2d) 756 (Ct. App. 1996).
The prosecutor's motive of protecting the defendant cannot justify a peremptory challenge based solely on a juror's race. Excluding a prospective juror because of race can never be "neutral" regardless of the prosecutor's good faith. State v. Guerra-Reyna, 201 W (2d) 747, 549 NW (2d) 779 (Ct. App. 1996).
Where there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror's names, employment and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court's discretion. State v. Britt, 203 W (2d) 25, 553 NW (2d) 528 (Ct. App. 1995).
Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 W (2d) 182, 556 NW (2d) 90 (1996).
A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 W (2d) 577, 563 NW (2d) 188 (Ct. App. 1997).
A potential juror who expressed that she could not be fair and impartial should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror which resulted in the defendant being denied one of the peremptory strikes guaranteed under s. 972.03 and required a new trial. State v. Ramos, 211 W (2d) 12, 564 NW (2d) 328 (1997).
If a court fials to instruct a jury on an essential element of a crime, there is an automatic reversal of the verdict. If there is an instruction, albeit an erroneous one, and the jury is told it must find the element beyond a reasonable doubt, harmless error analysis applies. State v. Howard, 211 W (2d) 269, 564 NW (2d) 753 (1997).
A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror which violated the defendant's right to due process. State v. Ferron, 214 W (2d) 268, 570 NW (2d) 883 (Ct. App. 1997).
A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics were also considered. State v. King, 215 W (2d) 294, 572 NW (2d) 530 (Ct. App. 1997).
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). See also Purkett v. Elem 514 US , Ed 2d 834 (1995).
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 42, 120 LEd 33 (1992).
A constitutionally deficient instruction regarding proof beyond a reasonable doubt can never be harmless error. Sullivan v. Louisiana, 508 US 275, 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 127, 128 LEd 2d 89 (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.
