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).
The confrontation clause does not require allow the defendant access to confidential child abuse reports. Due process requires the trial court undertake an in camera inspection of the file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
Admission of a nontestifying codefendant's confession violates confrontation rights, even though the defendant's confession was also admitted. Cruz v. New York, 481 U.S. 186 (1987).
The confrontation clause does not require that the defendant be permitted to be present at a competency hearing of a child witnesses as long as the defendant is provided the opportunity for full and effective cross-examination at trial. Kentucky v. Stincer, 482 U.S. 730 (1987).
The confrontation clause prohibits the placement of a screen between a child witness and the defendant. Coy v. Iowa, 487 U.S. 1012 (1988).
If a state makes an adequate showing of necessity, it may use a special procedure, such as one-way closed-circuit television to transmit a child witness' testimony to court without face-to-face confrontation with the defendant. Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666 (1990).
In a joint trial, the confession of one defendant naming the other defendant which was read with the word "deleted" replacing the second defendant's name violated the second defendant's right of confrontation. Gray v. Maryland, 523 U.S. 185, 140 L. Ed. 2d 294 (1998).
The rights to be present at trial and to confront witnesses are not violated by a prosecutor's comment in closing argument that the defendant had the opportunity to hear all witnesses and then tailor his testimony accordingly. Portuondo v. Agard, 529 U.S. 61, 146 L. Ed. 2d 47 (2000).
A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront witnesses, but the error was harmless. Burns v. Clusen, 599 F. Supp. 1438 (1984).
The use of a child victim's statements to a psychologist under s. 908.03 (4) violated the accused sexual assaulter's confrontation rights. Nelson v. Ferrey, 688 F. Supp. 1304 (E. D. Wis. 1988).
The trial court's wholesale exclusion of the defendant's proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial, without valid state justification, violated the defendant's right to present a defense and to testify in her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).
State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.
COUNSEL
Note: See also the notes to Article I, Section 8—Self-incrimination.
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 Wis. 2d 75, 175 N.W.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 Wis. 2d 452, 177 N.W.2d 318.
A conference in chambers between defendant's counsel and the prosecutor in regard to a plea agreement, but without the defendant's presence was not violative of his constitutional rights, and not a manifest injustice, since the 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 Wis. 2d 460, 177 N.W.2d 322.
A disciplinary action against an attorney is a civil proceeding. An indigent attorney is not entitled to the appointment of an attorney. State v. Hildebrand, 48 Wis. 2d 73, 179 N.W.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 Wis. 2d 682, 184 N.W.2d 826.
ABA standards relating to the duty of defense counsel while approved by the court, do not automatically prove incompetency or ineffectiveness if violated. State v. Harper, 57 Wis. 2d 543, 205 N.W.2d 1.
An arrested man has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850.
A 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 Wis. 2d 488, 208 N.W.2d 815.
While it is not desirable, it is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 Wis. 2d 325, 210 N.W.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 Wis. 2d 506, 210 N.W.2d 873.
A conviction was not overturned because of the absence of counsel at an informal confrontation where the defendant was identified by the victim. Jones v. State, 63 Wis. 2d 97, 216 N.W.2d 224.
When a conflict arises in dual representation, a defendant must be granted a vacation of sentence and new hearing because a conflict at sentencing per se renders counsel representation ineffective and actual prejudice need not be shown. Hall v. State, 63 Wis. 2d 304, 217 N.W.2d 352.
Defense counsel's failure to cross-examine the state's principal witness at trial did not constitute ineffective representation where cross-examination had proved fruitless at the preliminary. Krebs v. State, 64 Wis. 2d 407, 219 N.W.2d 355.
The duty to appoint counsel is upon the judicial system as part of the superintending power of the judicial system. Where the appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, the power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milw. County, 65 Wis. 2d 130, 221 N.W.2d 902.
The trial judge must unconditionally and unequivocably demonstrate in the record that the defendant intelligently, voluntarily and understandingly waived the constitutional right to counsel, whether or not the defendant is indigent. Keller v. State, 75 Wis. 2d 502, 249 N.W.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 Wis. 2d 542, 249 N.W.2d 789.
One charged with a crime carrying a penalty of incarceration has the full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N.W.2d 791.
The mere fact that one attorney represents 2 defendants charged in same crime is not sufficient evidence of inadequate representation. The defendant has the burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State, 78 Wis. 2d 189, 254 N.W.2d 220.
A defendant has no right to be actively represented in the courtroom both by self and by counsel. Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978).
The test to determine if the denial of a continuance acted to deny a defendant either due process or effective assistance of counsel is discussed. State v. Wollman, 86 Wis. 2d 459, 273 N.W.2d 225 (1979).
The right to counsel does not extend to non-lawyer representatives. State v. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978).
Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979).
A defendant's request on the morning of trial to represent himself was properly denied as untimely. Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639 (1979).
A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
The trial court did not err in refusing the defendant's request on the 2nd day of trial to withdraw a waiver of the right to counsel. Self-representation is discussed. Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980).
The right to counsel did not preclude incarceration for a second operating while intoxicated conviction where the defendant was not represented by counsel in proceedings leading to the first conviction, since the first offense was a civil forfeiture case. State v. Novak, 107 Wis. 2d 31, 318 N.W.2d 364 (1982).
Counsel was ineffective for failing to raise the heat-of-passion defense in a murder case where a wife who had been maltreated during a 23-year marriage intentionally killed her husband while he lay sleeping. State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983).
A defendant's uncorroborated allegations will not support a claim of ineffective representation where counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik, 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983).
Effective assistance of counsel was denied where the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).
When a trial court fails to make adequate inquiry into a defendant's last-minute request to replace his or her attorney, the right to counsel is adequately protected by a retrospective hearing at which the defendant may present his or her own testimony. State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988).
Discussion of fifth and sixth amendment rights to counsel and Edwards v. Arizona. State v. McNeil, 155 Wis. 2d 24, 454 N.W.2d 742 (1990). See also note hereunder citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). See also Texas v. Cobb, 532 US 162, 149 LEd 2d 321 (2001).
Defense counsel's absence at the return of the jury verdict without the defendant's consent and the failure to poll the jury are grounds for automatic reversal. State v. Behnke, 155 Wis. 2d 796, 456 N.W.2d 610 (1990).
When a defendant accepts counsel, the decision to assert or waive a constitutional right is delegated to the attorney. The failure of the defendant to object to the attorney's waiver, is waiver. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: That trial counsel was ineffective and the defense was prejudiced so that absent error the result would have been different. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 (Ct. App. 1990).
A court may disqualify the defendant's chosen counsel over the defendant's objection and waiver of the right to conflict-free representation when actual or a serious potential for a conflict of interest exists. State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991).
A determination of indigency by the public defender under s. 977.07 is not the end of the court 's inquiry into the need to appoint counsel. State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991).
To bring a claim of ineffective appellate counsel, defendant must petition the court that heard the appeal for a writ of habeas corpus. State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
The 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 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992).
The defense attorney's ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista, 171 Wis. 2d 690, 492 N.W.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 Wis. 2d 1, N.W.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 Wis. 2d 333, 510 N.W.2d 799 (Ct. App. 1993).
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 Wis. 2d 587, 516 N.W.2d 362 (1994).
An appellate defendant represented by counsel has no right to have a pro se brief considered by the court where counsel has submitted a brief. State v. Debra A. E. 188 Wis. 2d 111, 523 N.W.2d 727 (Ct. App. 1994).
The decision to poll the jury may be delegated to counsel. Waiver by counsel without showing that the waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson, 188 Wis. 2d 537, 525 N.W.2d 165 (Ct. App. 1994).
Where the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. Where an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas, 190 Wis. 2d 339, 526 N.W.2d 818 (Ct. App. 1994).
The prejudice prong of the test for ineffective counsel was met where counsel failed to insure that a defense witness would appear without shackles. State v. Tatum, 191 Wis. 2d 548, 530 N.W.2d 407 (Ct. App. 1995).
A suspect's reference to an attorney who had previously 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 right to counsel and right 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).
A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and a waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone, 195 Wis. 2d 476, 536 N.W.2d 172 (Ct. App. 1995).
Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley, 195 Wis. 2d 580, 536 N.W.2d 202 (Ct. App. 1995).
A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Kessig, 199 Wis. 2d 397, 544 N.W.2d 605 (Ct. App. 1995).
In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found where the defendant constantly refused to cooperate with counsel while refusing to waive the right and where the court found the defendant's intent was to "delay, obfuscate and compound the process of justice". State v. Cummings, 199 Wis. 2d 722, 516 N.W.2d 406 (1996).
The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996).
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996).
Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996).
To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney's performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street, 202 Wis. 2d 534, 551 N.W.2d 830 (Ct. App. 1996)
Counsel is not ineffective where the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of the defense. State v. Eckert, 203 Wis. 2d 497, 553 N.W.2d 539 (Ct. App. 1996).
When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy, 206 Wis. 2d 628, 557 N.W.2d 494 (Ct. App. 1996).
Counsel was deficient when it failed to object at sentencing to a prosecutor's sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith, 207 Wis. 2d 259, 558 N.W.2d 379 (1997).
In every case where a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. Where there is no colloquy and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).
There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English and any disability which may affect the ability to communicate a defense. When there is no pretrial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).
It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997).
Where a defendant proves ineffective assistance of counsel at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 Wis. 2d 849, 569 N.W.2d 758 (Ct. App. 1997).
