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), 94-0899.
The right to confrontation was not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession was 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), 94-0727.
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), 95-0881.
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), 94-1213.
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), 97-1087.
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), 98-1905.
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, 99-2189.
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, 00-2830.
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, 00-3065.
When the privilege against self-incrimination prevents a defendant from directly questioning a witness about his or her testimony, it may be necessary to prohibit that witness from testifying or to strike portions of the testimony if the witness has already testified. A defendant's right of confrontation is denied in each instance that potentially relevant evidence is excluded. The question is whether the defendant could effectively cross-examine the witness. State v. Barreau, 2002 WI App 198, 257 Wis. 2d. 203, 651 N.W.2d 12, 01-1828.
When a witness's memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness's testimony. Admission of the unavailable witness's preliminary hearing testimony did not violate the defendant's constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.
A violation of the confrontation clause does not result in automatic reversal, but rather is subject to harmless error analysis. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1746.
Prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony. State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 593, 03-0417.
Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the state make a good-faith effort to produce that declarant at trial. If there is a remote possibility that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. State v. King, 2005 WI App 224, 287 Wis. 2d 756, 706 N.W.2d 181, 04-2694
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Crawford v. Washington, 541 U.S. 36, laid out 3 formulations of the core class of testimonial statements. 1) ex parte in-court testimony or its functional equivalen, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; 2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and 3) statements made under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583.
Casual remarks on the telephone to an acquaintance plainly were not testimonial. That an informant overheard the remarks does not transform the informant into a government officer or change the casual remark into a formal statement. Statements made in furtherance of a conspiracy by their nature are not testimonial. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583.
In applying the 3-part test under Crawford and Savanh, statements volunteered to officers at the scene of a traumatic event absent any interrogation or other police prompting generated by the desire of the prosecution or police to seek evidence against a particular suspect were found not to be testimonial. State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, 04-2827.
A witness's claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause if the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. In contrast to cases when the witness either invokes the 5th amendment and remains silent or refuses to be sworn in or testify, when a witness takes the stand, agrees to testify truthfully, and answers the questions posed by defense counsel, defense counsel is able to test the witness's recollection, motive, and interest and hold his or her testimony up so that the jury can decide whether it is worthy of belief. State v. Rockette, 2006 WI App 103, ___ Wis. 2d ___, 718 N.W.2d 269, 04-2732.
When officers did not go to the victim's house looking for evidence with which to prosecute the defendant, and, after they arrived their focus was not on building a case against the victim but, rather, trying to ensure the safety of the defendant and her daughter, and other members of the community the the out-of-court declarations of the victim and her daughter were not testimonial. State v. Rodriguez, 2006 WI App 163, ___ Wis. 2d ___, ___ N.W.2d ___, 05-1265.
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 when 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, did not 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 the defendant to have access to confidential child abuse reports. Due process requires the trial court to 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 that 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).
The 6th amendment confrontation clause demands unavailability and a prior opportunity for cross-examination. Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford v. Washington, 541 U.S. 36, 158 L. Ed 2d 177, 124 S. Ct. 1354 (2004).
When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. "Testimonial statements" includes at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford v. Washington, 541 U.S. 36, 158 L. Ed 2d 177, 124 S. Ct. 1354 (2004).
Statements are nontestimonial under Crawford when made in the course of police interrogationunder circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove pastevents potentially relevant to later criminal prosecution. A conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements. Davis v. Washington, 547 U.S. ___, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006).
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.
Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.
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 in which 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 the defendant 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 arrestee 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. The right to counsel exists only at or after the initiation of criminal proceedings. 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 when 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. When 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. Milwaukee 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 the 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 when 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 when 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 when 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 when 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).
The 5th and 6th amendment rights to counsel and Edwards v. Arizona are discussed. State v. McNeil, 155 Wis. 2d 24, 454 N.W.2d 742 (1990). See also the note hereunder citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). See also Texas v. Cobb, 532 U.S. 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 were 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: 1) trial counsel was ineffective; and 2) 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).
A 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 when 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).
If the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. When 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 when 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), 94-3369.
