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 the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19.
The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 Wis. 2d 769, 193 N.W.2d 704.
A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum, 54 Wis. 2d 213, 194 N.W.2d 660.
Where the defendant is tried for one offense and convicted of a lesser included offense he is not placed in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.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 Wis. 2d 497, 202 N.W.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 Wis. 2d 325, 210 N.W.2d 695.
A defendant convicted of false imprisonment and rape committed in Waukesha county was not subjected to double jeopardy by a 2nd conviction for false imprisonment of the same victim in Milwaukee county, because the facts support 2 separate imprisonments. Baldwin v. State, 62 Wis. 2d 521, 215 N.W.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 Wis. 2d 169, 233 N.W.2d 485.
A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206.
Where the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated does not place the defendant in double jeopardy. Day v. State, 76 Wis. 2d 588, 251 N.W.2d 811.
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727.
When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell, 85 Wis. 2d 331, 270 N.W.2d 428 (Ct. App. 1978).
The double jeopardy provisions of U.S. and Wisconsin Constitutions are identical in scope and purpose. Thus, U.S. Supreme Court decisions control both provisions. Multiplicitous rape charges are discussed. Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (1979).
The double jeopardy clause prohibits an increase of a valid sentence to offset an erroneously lenient sentence. State v. North, 91 Wis. 2d 507, 283 N.W.2d 457 (Ct. App. 1979).
Where the court of appeals reversed the defendant's conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980).
Where a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).
A prosecutor's repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching which would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981).
Two sentences for one crime violate the double jeopardy clause. State v. Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).
The trial court properly declared a mistrial due to juror's injury. State v. Mendoza, 101 Wis. 2d 654, 305 N.W.2d 166 (Ct. App. 1981).
The double jeopardy clause did not bar retrial where the judge declared a mistrial due to jury deadlock. State v. DuFrame, 107 Wis. 2d 300, 320 N.W.2d 210 (Ct. App. 1982).
The double jeopardy clause did not bar prosecution of charge after it was considered as evidence of character in sentencing the defendant on prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983).
Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983).
Reimposition of a sentence after the defendant has been placed on probation, absent violation of probation condition, violates the double jeopardy clause. State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983).
Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew, 115 Wis. 2d 243, 340 N.W.2d 470 (1983).
Where probation was conditioned on the defendant's voluntary commitment to a mental hospital but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of 3 years imprisonment. Double jeopardy was not violated. State v. Sepulveda, 120 Wis. 2d 231, 353 N.W.2d 790 (1984).
The double jeopardy clause was not violated where the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985).
Where police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon his return home confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).
The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel, 124 Wis. 2d 101, 369 N.W.2d 145 (1985). See also State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).
A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985).
Where the trial court declined to acquit the defendant but dismissed the criminal information after the jury deadlocked, double jeopardy barred the state's appeal of the dismissal. State v. Turely, 128 Wis. 2d 39, 381 N.W.2d 309 (1986).
The defendant waived a double jeopardy claim when failing to move for a dismissal of the charges at a retrial following a mistrial to which the defendant objected. State v. Mink, 146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988).
A criminal prosecution for escape is not barred by the double jeopardy clause when commenced following an administrative disciplinary proceeding. State v. Quiroz, 149 Wis. 2d 691, 439 N.W.2d 621 (Ct. App. 1989).
A court may not, after accepting a guilty plea and ordering a presentence investigation, absent fraud or a party's intentionally withholding material information, vacate the plea and order reinstatement of the original information without violating the double jeopardy clause. State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992).
Whether multiple charges constitute double jeopardy is discussed. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992).
For a defendant to invoke double jeopardy protection after successfully moving for a mistrial, the prosecutor must have acted with intent to subvert the double jeopardy protection to gain another chance to convict or to harass the defendant with multiple prosecutions. State v. Quinn, 169 Wis. 2d 620, 486 N.W.2d 542 (Ct. App. 1992).
Charges are multiplicitous if they are identical both in law and fact or if the legislature intended the allowable unit of prosecution for the offense to be a single count. State v. Davis, 171 Wis. 2d 711, 492 N.W.2d 174 (Ct. App. 1992).
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).
Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the jury and convening a 2nd jury is prohibited absent "manifest necessity". Granting a mistrial due to the unavailability of a prosecution witness is to be given the most stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels, 174 Wis. 2d 173, 495 N.W.2d 341 (1993).
First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).
The state Supreme Court will not interpret Wisconsin's double jeopardy clause to be broader than the U.S. Supreme Court's interpretation of the federal clause. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993).
A criminal conviction for violating terms of bail resulting from the conviction for another crime committed while released on bail does not constitute double jeopardy. State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993).
Collateral estoppel is incorporated into the protection against double jeopardy and provides that when an ultimate issue of fact has once been determined, that issue cannot be relitigated between the same parties. The test is whether a rational jury could have grounded its verdict upon a separate issue. State v. Jacobs, 186 Wis. 2d 219, 519 N.W.2d 746 (Ct. App. 219).
To determine whether charges are improperly multiplicitous the following two-prong test is applied: (1) Whether the charged offenses are identical in law and fact, and (2) the legislative intent as to the allowable unit of prosecution for the offense. State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 108 (Ct. App. 1994).
An acquittal does not prove innocence. Evidence of a crime for which a defendant was acquitted may be offered to show motive, plan and other matters authorized under s. 904.04 if a jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995).
The extension of a previously entered juvenile dispositional order due to the juvenile's participation in an armed robbery while subject to the order was not a "disposition" of the armed robbery charge. Subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 (now 938.39) or the protection against double jeopardy. State v. Stephens, 201 Wis. 2d 82, 548 N.W.2d 108 (Ct. App. 1996).
Whether a statute is criminal or civil for purposes of double jeopardy analysis depends on whether the legislature intended the statute to provide a remedial civil sanction and whether there are aspects of the statute which are so punitive either in effect or nature as to render the overall purpose punishment. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996).
Student disciplinary action under University of Wisconsin system administrative rules does not constitute punishment which triggers double jeopardy protection. City of Oshkosh v. Winkler, 206 Wis. 2d 537, 557 N.W.2d 464 (Ct. App. 1996).
Absent an express waiver, the right to assert a violation of the double jeopardy clause is not waived by the entry of a guilty plea. State v. Hubbard, 206 Wis. 2d 650, 558 N.W.2d 126 (Ct. App. 1996).
Service in prison of time successfully served on parole and forfeited through revocation does not constitute punishment within the meaning of the double jeopardy clause. State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App. 1997).
A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. Where one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998).
Whether a single course of conduct has been impermissibly divided into separate violations of the same statute requires consideration of whether each offense is identical in fact and law and whether the legislature intended to allow multiple convictions. For each victim there is generally a separate offense. Legislative intent is shown by whether the statute punishes an individual for each act or for the course of conduct those acts constitute. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998).
The protection against double jeopardy embraces the defendant's right of having his or her trial completed by a particular tribunal. When the state moves for a mistrial over the objections of the defense, the trial court may not grant the motion unless there is a manifest necessity for the act. State v. Collier, 220 Wis. 2d 825, 584 N.W.2d 689 (Ct. App. 1998).
The double jeopardy clause prevents retrial where there was no motion for mistrial but where prosecutorial misconduct, the motivation for and effect of which were not known to the defendant at trail, had been committed. State v. Lettice, 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998).
Multiple criminal punishments are appropriate for multiple acts, but not multiple thoughts. Multiple punishments for a single act of enticement where the defendant intended to commit multiple illegal acts was not allowable. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998).
If the legislature unambiguously has enacted 2 distinct prohibitions, each requiring proof of an element the other does not, the Blockburger presumption of intent to allow multiple punishment applies. But when the statue is language is ambiguous, the rule of lenity applies, requiring resolving the ambiguity against allowing multiple punishment. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998).
An ultimate issue of fact that has been necessarily litigated cannot be relitigated although the judgment may have been influenced by the defendant's untruthful testimony. That a perjury trial would decide whether the defendant lied about the ultimate fact, rather than deciding the ultimate fact itself, is a distinction without a difference, as proving the lie would require proving the fact itself. State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999).
The prohibition against double jeopardy does not prevent convictions for both attempt and conspiracy. to commit the same offense. State v. Moffett, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733.
When the judge dismissed a charge after the jury returned a guilty verdict, the prosecution's appeal did not constitute double jeopardy. United States v. Wilson, 420 U.S. 332.
Where a juvenile court found the defendant guilty but unfit for treatment as a juvenile, the defendant would be put in double jeopardy if tried in a criminal court. Breed v. Jones, 421 U.S. 519.
A guilty plea does not waive the defense of double jeopardy. Menna v. New York, 423 U.S. 61.
Where defense counsel's improper opening statement prompted the trial judge to grant a mistrial over defense objections, and where the record provided sufficient justification for the mistrial ruling, the judge's failure to make explicit findings of "manifest necessity" did not support the defendant's claim of double jeopardy. Arizona v. Washington, 434 U.S. 497 (1978).
The protection against double jeopardy did not bar federal prosecution of an American Indian previously convicted in a tribal court of a lesser included offense arising out of the same incident. United States v. Wheeler, 435 U.S. 313 (1978).
The double jeopardy clause bars a second trial after reversal of a conviction for insufficiency of evidence, as distinguished from reversal for trial error. Burks v. United States, 437 U.S. 1 (1978).
There is no exception permitting a retrial once defendant has been acquitted, no matter how egregiously erroneous. Sanabria v. United States, 437 U.S. 54 (1978).
The test for determining whether 2 offenses are the same for purposes of barring successive prosecutions is discussed. Illinois v. Vitale, 447 U.S. 410 (1980).
A statute authorizing the government to appeal a sentence did not violate the double jeopardy clause. United States v. Di Franceseo, 449 U.S. 117 (1980).
Where the judge granted the defendant's motion for a new trial on the ground that the evidence was insufficient to support the jury's guilty verdict, the double jeopardy clause barred a second trial. Hudson v. Louisiana, 450 U.S. 40 (1981).
A criminal defendant who successfully moves for a mistrial may invoke the double jeopardy clause to bar a retrial only if the mistrial was based on prosecutorial or judicial conduct intended to provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982).
Reversal based on the weight of the evidence, unlike reversal based on insufficient evidence, does not preclude retrial. Tibbs v. Florida, 457 U.S. 31 (1982).
The defendant's conviction and sentence by Missouri for both armed criminal action and first-degree robbery in single trial did not constitute double jeopardy. Missouri v. Hunter, 459 U.S. 359 (1983).
The double jeopardy clause did not bar prosecution on more serious charges after the defendant pled guilty to lesser included offenses. Ohio v. Johnson, 467 U.S. 493 (1984).
Where the jury acquitted on one count but was unable to agree on 2 others, the double jeopardy clause did not bar retrial on the remaining 2 counts. Richardson v. U.S. 468 U.S. 317 (1984).
Under the dual sovereignty doctrine, successive prosecutions by 2 states for the same conduct does not constitute double jeopardy. Heath v. Alabama, 474 U.S. 82 (1985).
An appellate court remedied a double jeopardy violation by reducing a jeopardy-barred conviction to that of lesser included offense that wasn't jeopardy-barred. Morris v. Mathews, 475 U.S. 237 (1986).
Where the defendant breaches a plea agreement and a 2nd degree murder conviction is vacated as a result, a subsequent prosecution for 1st degree murder does not constitute double jeopardy. Ricketts v. Adamson, 483 U.S. 1 (1987).
The double jeopardy clause does not prohibit retrial after the reversal of a conviction based upon improperly admitted evidence which, once suppressed, would result in evidence insufficient to support the conviction. Lockhart v. Nelson, 488 U.S. 33, 102 L. Ed. 2d 265 (1988).
The double jeopardy clause bars a subsequent prosecution if, to establish an essential element of the offense charged, the prosecution will prove conduct constituting the offense for which the defendant was previously prosecuted. Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990).
The Grady v. Corbin "same conduct" test is overruled. United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556 (1993).
Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected the petitioner to multiple penalties for one offense in excess of the maximum statutory penalty and in violation of the guarantee against double jeopardy. Taylor v. Gray, 375 F. Supp. 790.
Double jeopardy was not violated where the defendant was convicted of separate offenses under s. 161.41 [now 961.41] f\or simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Inst. 631 F. Supp. 1403 (1986).
Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
State v. Grayson: Clouding the Already Murky Waters of Unit Prosecution Analysis in Wisconsin. Leslie. 1993 WLR 811.
DUE PROCESS
It is not necessary to hold a 2nd Goodchild type hearing before admitting testimony of a 2nd witness to the same confession. State v. Watson, 46 Wis. 2d 492, 175 N.W.2d 244.
