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Where a defamation plaintiff is a public figure there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice. Torgerson v. Journal/Sentinel, Inc. 210 Wis. 2d 525, 563 N.W.2d 472 (1997).

For purposes of libel law, a "public figure" who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy, which status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc. 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999).

A "public dispute" is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; its ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc. 2000 WI App 4, 232 Wis. 2d 236, 605 N.W.2d 881.

State libel laws are preempted by federal labor laws to the extent statements made without knowledge of falsity or reckless disregard for truth are at issue. Old Dominion Br. No. 496, Nat. Asso., Letter Car. v. Austin, 418 U.S. 264.

A public figure who sues media companies for libel may inquire into the editorial processes of those responsible where proof of "actual malice" is required for recovery. Herbert v. Lando, 441 U.S. 153 (1979).

"Public figure" principle in libel cases are discussed. Wolston v. Reader's Digest Assn., Inc. 443 U.S. 157 (1979).

Defamation law of Wisconsin. Brody, 65 MLR 505 (1982).

Limitations on damages awarded public officials in defamation suits. Kampen, 1972 WLR 574.

I,4 Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.

A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993).

The right to intrastate travel, including the right to move about one's neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 849 (1996).

The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8.

Section 947.06, Stats. 1969, which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci, 320 F. Supp. 223.

Wisconsin, a Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735.

I,5 Trial by jury; verdict in civil cases. Section 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [1919 J.R. 58; 1921 J.R. 17 A; 1921 c. 504; vote Nov. 1922]

Note: See also the notes to Article I, Section 7—Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.

When a juror is struck after the trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It is error to grant a nonsuit and then direct a verdict for the defendant because the plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122.

Neither the constitution, statutes or common law affords the right to trial by jury in a will contest. Estate of Elvers, 48 Wis. 2d 17, 179 N.W.2d 881.

Where defendant, through his attorney, signed a notice of issue stating there was an issue of fact for the court, which was filed with the clerk, jury trial was effectually waived, because such conduct on the part of defendant's attorney amounted to written consent filed with the clerk as prescribed in 270.32, Stats. 1971. Theuerkauf v. Schnellbaecher, 64 Wis. 2d 79, 218 N.W.2d 295.

Requirement that defendant prepay jury fees in civil traffic forfeiture action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387.

Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981).

The right to 12-member jury can only be waived personally by the defendant. State v. Cooley, 105 Wis. 2d 642, 315 N.W.2d 369 (Ct. App. 1981).

The right to a jury trial does not extend to equitable actions; however defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992).

Use of collateral estoppel to prevent a civil defendant from testifying that he did not commit an act where in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant's right to a jury. Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).

Where collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994).

There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 Wis. 2d 512, 546 N.W.2d 870 (Ct. App. 1996).

A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H & S Petroleum, Inc. 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177.

A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.

Juror intoxication is not external influence about which jurors may testify to impeach verdict. Tanner v. United States, 483 U.S. 107 (1987).

I,6 Excessive bail; cruel punishments. Section 6. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.

Imposition of a 3-year sentence as a repeater is not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carries a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909.

It is not a cruel and unusual punishment to sentence a defendant to 25 years for armed robbery where the maximum would be 30 years, since by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364.

Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court, 54 Wis. 2d 613, 197 N.W.2d 1.

A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler, 61 Wis. 2d 537, 213 N.W.2d 24.

Actions for the forfeiture of property which are commenced by the government and are driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad, 213 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997).

A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999).

Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate's condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant's knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, 625 N.W.2d 630.

Paddling students is not cruel and unusual punishment. Ingraham v. Wright, 430 U.S. 651.

Defendant's life sentence was not cruel and unusual where defendant's 3 property crime felony convictions subjected him to recidivist penalty. Rummel v. Estelle, 445 U.S. 263 (1980).

Prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces of marijuana was not cruel and unusual punishment. Hutto v. Davis, 454 U.S. 370 (1982).

Excessive fines clause of U.S. Constitution does not apply to civil punitive damages award in action between private parties. Browning-Ferris v. Kelco Disposal, 492 U.S. 257, 106 L. Ed. 2d 219 (1989).

Exposure to unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke held to be a basis for a cause of action. Helling v. McKinney, 509 U.S. 25, 125 L. Ed. 2d 22 (1993).

Persons confined in central state hospital under 51.20, 51.37, 971.14, 971.17 and 975.06 are being subjected to punishment within meaning of cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981).

A prisoner has no liberty interest in in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan, 161 F. Supp. 2d 972 (2001).

Solitary confinement; punishment within the letter of the law or psychological torture? Thoenig, 1972 WLR 223.

Appellate sentence review. 1976 WLR 655.

I,7 Rights of accused. Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

CONFRONTATION AND COMPULSORY PROCESS

The right to have compulsory process to obtain witnesses in one's behalf does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176.

An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State, 53 Wis. 2d 751, 193 N.W.2d 868.

When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either the constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 Wis. 2d 759, 193 N.W.2d 699.

Because there was no showing that the witness was permanently ill, the defendant was denied his constitutional right to confrontation by the court allowing the use of the witness' deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600.

Whether a witness' refusal on 5th amendment grounds to answer otherwise permissible questions violates defendant's right to confrontation must be determined from the whole record. West v. State, 74 Wis. 2d 390, 246 N.W.2d 675.

Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80.

Introduction into evidence of victim's hospital records unsupported by testimony of the treating physician did not violate defendant's right of confrontation and cross-examination. State v. Olson, 75 Wis. 2d 575, 250 N.W.2d 12.

The trial court did not deny the defendant's right of confrontation by forbidding cross-examination of the sole prosecution witness as to the witness' history of mental illness, since no showing was made that the history was relevant to the witness' credibility. The right of confrontation is also limited by s. 904.03 where the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286.

The defendant's right of confrontation was not violated where preliminary examination testimony of a deceased witness was admitted at trial, since defendant had unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978).

A defendant's right to compulsory process does not require admission of unstipulated polygraph exam. Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978).

The trial court did not err in favoring the witness' right against self-incrimination over the compulsory process rights of the defendant. State v. Harris, 92 Wis. 2d 836, 285 N.W.2d 917 (Ct. App. 1979).

The state's failure to use the Uniform Extradition Act to compel the presence of a doctor whose hearsay testimony was introduced denied the accused's right to confront witnesses and violated the hearsay rule, but the error was harmless. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).

Medical records as explained to the jury by a medical student were sufficient to support a conviction and did not deny the right of confrontation. Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981).

The trial court properly denied a request to present a defense witness who refused to answer relevant questions during an offer of proof cross-examination. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981).

Admission of a statement by a deceased co-conspirator did not violate the right of confrontation. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981).

Where a witness died after testifying at a preliminary examination, admission of the transcript of the testimony did not deny the right of confrontation. Constitutional standards for admission of hearsay evidence is discussed. State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982).

Guidelines set for admission of testimony of hypnotized witness. State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).

Cross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony. State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987).

A defendant waives the right of confrontation by failing to object to the trial court's finding of witness unavailability. State v. Gove, 148 Wis. 2d 936, 437 N.W.2d 218 (1989).

A prosecutor who obtained an incriminating statement from a defendant is obliged to honor a subpoena and to testify at a suppression hearing if there is a reasonable probability that testifying will lead to relevant evidence. State v. Wallis, 149 Wis. 2d 534, 439 N.W.2d 590 (Ct. App. 1989).

The statement of a coconspirator under s. 908.01 (4) (b) 5. may be admitted without proof of the declarant's unavailability or a showing of particular indicia of reliability. The trial court must determine whether circumstances exist warranting exclusion. State v. Webster, 156 Wis. 2d 510, 458 N.W.2d 373 (Ct. App 1990).

A defendant had no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).

Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as the subject of cross-examination of the expert due to the lack of a logical connection between the expert and prosecutor necessary to suggest bias. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).

The ability of a child witness to speak the truth or communicate intelligently are matters of credibility for the jury, not questions of competency to be determined by the judge. State v. Hanna, 163 Wis. 2d 193, 471 N.W.2d 238 (Ct. App. 1991).

Where a witness' "past-recollection recorded statement" was admitted after the witness testified and was found "unavailable" as a result of having no current memory of the murder in question, there was an opportunity for cross-examination and the right to confrontation was not violated. State v. Jenkins, 168 Wis. 2d 175, 483 N.W.2d 262 (1992).

A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 715 (Ct. App. 1992).

To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). See also State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995.)

Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception, the confrontation clause is satisfied. State v. Patino, 177 Wis. 2d 348, 502 N.W.2d 601 (Ct. App. 1993).

An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a "particularized need" for the expert. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995).

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 Wis. 2d 53, 535 N.W.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 Wis. 2d 210, 546 N.W.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 Wis. 2d 29, 549 N.W.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 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997).

Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999)

Confrontation promotes the reliability of evidence by rigorously testing it in an adversarial proceeding before the jury. A defendant must have the opportunity to meaningfully cross-examine witnesses, and the right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable rules of evidence. State v. Dunlap, 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398.

For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277.

Cross-examination of a highly qualified witness, who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders his or her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919.

When required by the right effectively to present a defense, the state, 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 a transcript of preliminary hearing testimony did not violate confrontation rights where the witness was, in effect, cross-examined at the hearing. Ohio v. Roberts, 448 U.S. 56 (1980).

Introduction of an accomplice's confession for rebuttal purposes, not hearsay, didn't violate the defendant's confrontation rights. Tennessee v. Street, 471 U.S. 409 (1985).

The confrontation clause does not require a showing of unavailability as a condition of admission of out-of-court statements of a non-testifying co-conspirator. United States v. Inadi, 475 U.S. 387 (1986).

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Wisconsin Constitution updated by the Legislative Reference Bureau. Published March 22, 2014. Click for the Coverage of Annotations for the Annotated Constitution. Report errors at (608) 266-3561, FAX 264-6948.