A defendant who denies elements of an offense is entitled to an entrapment instruction as long as there is sufficient evidence from which a jury could find entrapment. Mathews v. United States, 485 U.S. 58 (1988).
Unless the defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate due process. Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 (1988).
Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100.
Pretrial publicity; the Milwaukee 14. 1970 WLR 209.
Due process; revocation of a juvenile's parole. Sarosiek, 1973 WLR 954.
HABEAS CORPUS AND BAIL
Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on motion to suppress evidence where constitutional issues are involved. State ex rel. Warrender v. Kenosha County Ct. 67 Wis. 2d 333, 227 N.W.2d 450.
The scope of inquiry in extradition habeas corpus cases is discussed. State v. Ritter 74 Wis. 2d 227, 246 N.W.2d 552.
Relief under habeas corpus is not limited to the release of the person confined. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573.
Application of bail posted by third parties to the defendant's fines was not unconstitutional. State v. Iglesias, 185 Wis. 2d 118, 517 N.W.2d 175 (1994).
A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the Supreme Court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999).
A question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999).
SELF-INCRIMINATION AND CONFESSION
Granting a witness immunity and ordering him to answer questions does not violate his constitutional rights. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210.
A hearing to determine the voluntariness of a confession is not necessary where a defendant knowingly fails to object to the evidence for purposes of trial strategy. Police officers need not stop all questioning after a suspect requests an attorney, since the suspect can change his mind and volunteer a statement. Sharlow v. State, 47 Wis. 2d 259, 177 N.W.2d 88.
The Admission of evidence of spending of money after a burglary does not unconstitutionally require a defendant to testify against himself in order to rebut it. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497.
Where the defendant volunteered an incriminatory statement outside the presence of retained counsel, the statement is admissible. State v. Chabonian, 50 Wis. 2d 574, 185 N.W.2d 289.
There is no requirement that a hearing as to the voluntariness of a confession be separated into 2 stages as to the circumstances leading up to it and then as to its content. The content of Miranda warnings is discussed. Bohachef v. State, 50 Wis. 2d 694, 185 N.W.2d 339.
The argument by the district attorney that certain evidence was uncontroverted does not amount to a comment on the defendant's failure to testify. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46.
Questions of investigational versus custodial interrogation in relation to a confession are discussed. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748.
Where the defendant, believing he was seriously wounded, began to tell what happened and was then given the Miranda warnings, his further continuation amounted to a waiver of his rights. He need not expressly state that he was waiving them, where the record shows he was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742.
The privilege against self-incrimination does not extend to the production of corporate records by their custodian, even though they may tend to incriminate him personally. State v. Balistrieri, 55 Wis. 2d 513, 201 N.W.2d 18.
A defendant who waived counsel and who agreed to sign a confession admitting 18 burglaries in return for an agreement that he would be prosecuted for only one, cannot claim that the confession was improperly induced. The state has the burden of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. 2d 135, 205 N.W.2d 775.
The administration of a blood or breathalyzer test does not violate the defendant's privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850.
Factors to be considered in determining whether a confession is voluntary are discussed. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855.
A voluntary confession is not rendered inadmissible although the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213.
While Miranda does require that, upon exercise of the defendant's 5th amendment privilege, the interrogation must cease, Miranda does not explicitly state that the defendant may not, after again being advised of his rights, be interrogated in the future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359.
Statements given to police without Miranda warnings, while the defendant was injured and in bed, that he was the driver and had been drinking, while voluntary, were inadmissible since at that time accusatorial attention had focused on him. Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286.
The voluntariness of a confession must be determined by examining all the surrounding facts under a totality of circumstances test. Brown v. State, 64 Wis. 2d 581, 219 N.W.2d 373.
Requirements of a claim of immunity are discussed. State v. Hall, 65 Wis. 2d 18, 221 N.W.2d 806.
The validity of a juvenile confession is determined by an analysis of the totality of the circumstances surrounding the confession. The presence of a parent, guardian or attorney is not an absolute requirement for the juvenile to validly waive the right to remain silent but only one of the factors to be considered in determining the voluntariness of the confession. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850.
A written confession is admissible in evidence although it is not signed by the defendant, so long as the defendant has read the statement and adopted it as his own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750.
Where the defendant claimed to understand his Miranda rights but agreed to talk to police without counsel because of a stated inability to afford a lawyer, further questioning by police was improper and the resulting confession was inadmissible. Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458.
The state may compel a probationer's testimony in a revocation proceeding if the probationer is first advised that the testimony will be inadmissible in criminal proceedings arising out of the alleged probation violation, except for purposes of impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664.
A volunteered confession made while in custody and prior to Miranda warnings was held to be admissible despite an earlier inadmissible statement in response to custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221.
No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210.
Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a "target" of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910.
The defendant's confession was admissible although it was obtained through custodial interrogation following the defendant's request for a lawyer. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978).
Where a "conversational" visit was not a custodial interrogation, the defendant's voluntary statement was admissible despite a lack of Miranda warnings. State v. Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979).
A confession after a 28-hour post-arrest detention was admissible. Wagner v. State, 89 Wis. 2d 70, 277 N.W.2d 849 (1979).
Immunity for compelled testimony contrary to the 5th amendment privilege extends to juvenile court proceedings. State v. J.H.S. 90 Wis. 2d 613, 280 N.W.2d 356 (Ct. App. 1979).
The defendant's voluntary statements were admissible for impeachment even though they were obtained in violation of Miranda. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).
Where the accused cut off the initial interrogation but was interrogated by another officer 9 minutes later following fresh Miranda warnings, the confession was admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980).
By testifying as to his actions on the day a murder was committed, the defendant waived his self-incrimination privilege on cross-examination as to prior actions, related to the murder, which were the subject of the pending prosecution. Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980).
Miranda warnings were unnecessary where an officer entered the defendant's home in the belief that the defendant might have killed his wife 4 days earlier, and asked, "Where is your wife?". State v. Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980).
A prosecutor's comment on the failure of an alibi witness to come forward with an alibi story did not infringe on the defendant's right of silence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982).
The defendant's silence both before and after Miranda warnings may not be referred to at trial by the prosecution. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982).
Videotapes of sobriety tests were properly admitted to show physical manifestations of the defendant driver's intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).
A John Doe subpoena requiring the production of income tax returns violated the self-incrimination right. B. M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App. 1983).
A statement given to police, without Miranda warnings, while the accused was in an emergency room, that the accused was the driver in a fatal crash, was admissible. State v. Clappes, 117 Wis. 2d 277, 344 N.W.2d 141 (1984).
After a guilty plea, the privilege against self-incrimination continues at least until sentencing. State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984).
Where the defendant does not testify but presents his own argument to the jury, the prosecutor may caution the jury that the defendant's statements are not evidence. State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984).
Where a relative of the accused contacted police and asked if anything could be done to help the accused, a subsequent confession elicited from the accused by the relative was inadmissible. Factors to be considered in determining when a civilian becomes an agent of the police are discussed. State v. Lee, 122 Wis. 2d 266, 362 N.W.2d 149 (1985).
Where police knew that a suspect had asked his wife to contact an attorney and didn't inform the suspect when the attorney arrived at the police station, a confession obtained after the attorney's arrival was inadmissible. State v. Middleton, 135 Wis. 2d 297, 399 N.W.2d 917 (Ct. App. 1986).
Police had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect's family was present. State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987).
Incriminating statements by an intoxicated defendant undergoing medical treatment for painful injuries was voluntary since there was no affirmative police misconduct compelling the defendant to answer police questioning. State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987).
The "rescue doctrine" exception to the Miranda rule is discussed. State v. Kunkel, 137 Wis. 2d 172, 404 N.W.2d 69 (Ct. App. 1987).
A probationer's answers to a probation agent's questions are "compelled" and may not be used for any purpose in a criminal trial. State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987).
The prosecution may comment on an accused's pre-Miranda silence when the accused elects to testify on his own behalf. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
The "functional equivalent" of direct custodial interrogation is discussed. State v. Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988).
The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988).
The use of Goodchild testimony to impeach the defendant's trial testimony does not violate the privilege against self-incrimination. State v. Schultz, 152 Wis. 2d 408, 448 N.W.2d 424 (1989).
An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 Wis. 2d 299 (1990).
Where a psychiatrist did not comply with Miranda, the constitution does not require exclusion of the results of the interview with the defendant from the competency phase of the trial. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).
Miranda does not require warning a suspect that he has the right to stop answering questions. State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992).
Miranda safeguards are not required where a suspect is simply in custody, but are required where the suspect in custody is subjected to interrogation. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).
A criminal defendant may be compelled to submit a voice sample consisting of specific words for purposes of identification. The words do not require a revelation of the contents of the mind to impart an admission of or evidence of guilt. Commenting on a refusal to give a sample does not violate the right against self-incrimination. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).
Miranda safeguards are applicable to questions during booking concerning name and residence where the questions relate to an element of the crime. State v. Stevens, 173 Wis. 2d 290, 496 N.W.2d 201 (Ct. App. 1992).
A waiver of Miranda rights needs to be made knowingly and intelligently as well as voluntarily. A knowing and intelligent waiver must be shown by a preponderance of the evidence as determined from an objective assessment of the circumstances. State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 258 (Ct. App. 1993).
If police do not use coercive tactics, that a defendant is undergoing medical treatment or experiencing pain is not determinative on the issue of voluntariness. State v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).
When a defendant pleads guilty then appeals the denial of a suppression motion under s. 971.31 (10), the harmless error rule may not be applied where a motion to suppress was erroneously denied. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).
Miranda protections come into play when a reasonable person in the defendant's position would consider himself to be in custody. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).
Failure to give Miranda warnings during a telephone conversation initiated to encourage the defendant's surrender following an armed robbery police suspected was committed by the defendant did not require suppression of admissions made to the police. State v. Stearns, 178 Wis. 2d 845, 506 N.W.2d 165 (Ct. App. 1993).
The defendant's intoxication for purposes of motor vehicle statutes did not per se demonstrate an inability to knowingly waive Miranda rights. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).
The suspect's question to an 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 Wis. 2d 478, 515 N.W.2d 863 (1994). But see the note to Davis v. United States, 129 L. Ed. 2d 362 below. See also State v. Long, 190 Wis. 2d 387, 526 N.W.2d 826 (Ct. App. 1994).
Coercive police activity is a predicate to establishing involuntariness but does not itself establish involuntariness. Officer dissatisfaction with a defendant's answers and statements by the officer that cooperation would benefit the defendant is not coercion without a promise of leniency. State v. Deets, 187 Wis. 2d 629, 523 N.W.2d 180 (Ct. App. 1994).
A refusal to perform a field sobriety test is not testimony and not protected by the constitution. The refusal to submit to the test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994).
Edwards v. Arizona requires interrogation to cease once a suspect requests an attorney. It does not prohibit questions designed to accommodate the request. When in response to being asked his attorney's name a suspect gave a name and then stated that the person was not an attorney, the interrogating officer was not prevented from continuing interrogation. State v. Lagar, 190 Wis. 2d 423, 526 N.W.2d 836 (Ct. App. 1994).
A forced confession as a condition of probation does not violate the right against self-incrimination. The constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of those statements in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).
A suspect's reference to an attorney who had represented or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).
The rights to counsel and 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 Wis. 2d 78, 532 N.W.2d 79 (1995).
Once given, it is not necessary to repeat the Miranda warnings during an investigation of the same person for the same crime. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).
The privilege against self-incrimination extends beyond sentencing as long as a defendant has a real fear of further incrimination, as where an appeal is pending, before an appeal as of right or plea withdrawal has expired, or where the defendant intends or is in the process of moving for sentence modification and shows a reasonable chance of success. State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995).
A defendant may selectively waive Miranda rights. Refusal to answer specific questions does not assert an overall right to to silence, if there is an unequivocal expression of selective invocation. State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Ct. App. 1995).
Whether incriminating statements made following an illegal arrest are admissible depends on whether the statements were obtained by means sufficiently attenuated from the illegal act. The factors to be considered are voluntariness, proximity of conduct to the confession, the presence of intervening circumstances and flagrancy of the misconduct. State v. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. App. 1995).
The right to counsel under Miranda must be personally invoked by the suspect. Simply retaining counsel is not an unequivocal statement that the suspect wishes to deal with the police only in the presence of counsel. State v. Coerper, 199 Wis. 2d 216, 544 N.W.2d 423 (1996).
Once a suspect invokes the right to counsel, judicial inquiry into voluntariness is beside the point. Physical evidence derived from statements made in violation of the asserted right must be suppressed. However, evidence admitted in violation of this rule is subject to a harmless error analysis. State v. Harris, 199 Wis. 2d 227, 544 N.W.2d 545 (1996).
Prosecution comments on a defendant's claimed lack of memory and subsequent silence during a police interview conducted shortly after the incident when the defendant testified at length at trial on the same subject did not violate the right against self-incrimination where the comments were intended to impeach the defendant's testimony and not to ask the jury to infer guilt from the defendant's silence. State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996).
A suspect's declaration that he did not wish to speak to a specific police officer is not an invocation of the right to remain silent. Police adoption of "good cop/bad cop" roles did not render an interrogation coercive and its results inadmissible. State v. Owen, 202 Wis. 2d 621, 551 N.W.2d 50 (Ct. App. 1996).
