Due process requires that vindictiveness against a defendant for having successfully attacked his or her first conviction must play no part in the sentence received after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive. This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence, when it implements the original dispositional scheme, is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508.
There is not an exclusive possession requirement as an element of the due process test when apparently exculpatory evidence is not preserved by the state. In this case, while the physical evidence, cell phones, was solely within the state's possession, the concomitant electronic voicemail evidence was stored elsewhere and could have been accessed by both the state and the defense until it was destroyed by the phone service provider in the normal course of business. Given the facts of this case, however, it was reasonable for the defendant to expect that the state would preserve the voicemail recordings. State v. Huggett, 2010 WI App 69, 324 Wis. 2d 786, 783 N.W.2d 675, 09-1684.
A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810.
In order to establish that the state violated his or her due process rights by destroying apparently exculpatory evidence, the defendant must demonstrate that: 1) the evidence destroyed possessed an exculpatory value that was apparent to those who had custody of the evidence before the evidence was destroyed; and 2) the evidence is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. The mere possibility that evidence of a bullet having been lodged in a destroyed van after a detective thoroughly examined the van and specifically looked for just such a bullet or bullet strike did not support the argument that the van's purported exculpatory value was apparent. State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, 09-2658.
The public interest would be unduly harmed if the state were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders. On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant where he or she seeks to evade prosecution via equitable estoppel. State v. James M. Drown, 2011 WI App 53, 332 Wis. 2d 765, 797 N.W.2d 919, 10-1303.
A defendant has no due process right to proof beyond a reasonable doubt of elements not necessary to constitute the crime charged, including elements erroneously or unnecessarily charged to the jury. The evidence is measured against the actual elements of the charged offense and not an incorrect jury instruction that requires an unnecessary factual finding. State v. Beamon, 2011 WI App 131, 336 Wis. 2d 438, 804 N.W.2d 706, 10-2003.
When the complaint and information incorrectly stated that a mandatory minimum sentence of five years in prison was required upon conviction and throughout the entire proceedings the circuit court, the state, and the defendant and defense counsel all thought that a five-year mandatory minimum applied, the error affected the entire framework within which the defendant was prosecuted. The error affected the state's charging decision, the defendant's plea decision, communications and negotiations with state, and the circuit court's basic assumptions as to the defendant's sentence, violating the defendant's due process right to be sentenced upon accurate information. State v. Travis, 2012 WI App 46, 340 Wis. 2d 639, 813 N.W.2d 702, 11-0685.
A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. Courts review a prosecutor's charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor's decision to bring additional charges was rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1368.
Denial of a change of venue due to local prejudice solely because the offense is a misdemeanor is unconstitutional. Groppi v. Wisconsin, 400 U.S. 505.
The retention of 10% of a partial bail deposit, with no penalty for release on recognizance or when full bail is given, does not violate equal protection requirements. Schilb v. Kuebel, 403 U.S. 357.
A defendant convicted of selling heroin supplied by undercover police was not entrapped. Hampton v. United States, 425 U.S. 484.
Prisons must provide inmates with a law library or legal advisers. Bounds v. Smith, 430 U.S. 817.
Due process was not denied when a prosecutor carried out a threat to reindict the defendant on a more serious charge if the defendant did not plead guilty to the original charge. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
The plaintiff was not deprived of liberty without due process of law when arrested and detained pursuant to a lawful warrant, even though the police mistook the identity of the plaintiff. Baker v. McCollan, 443 U.S. 137 (1979).
The sentencing judge properly considered the defendant's refusal to cooperate with police by naming co-conspirators. Roberts v. United States, 445 U.S. 552 (1980).
The federal constitution does not prohibit electronic media coverage of a trial over the defendant's objections. Chandler v. Florida, 449 U.S. 560 (1981).
Due process does not require police to preserve breath samples in order to introduce breath-analysis test results at trial. California v. Trombetta, 467 U.S. 479 (1984).
After retrial and conviction following the defendant's successful appeal, sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing. Wasman v. U.S. 468 U.S. 559 (1984). See also Texas v. McCullough, 475 U.S. 134 (1986).
When an indigent defendant's sanity at the time of committing a murder was seriously in question, due process required access to a psychiatrist and the assistance necessary to prepare an effective defense based on the mental condition. Ake v. Oklahoma, 470 U.S. 68 (1985).
A prosecutor's use of a defendant's postarrest, post-Miranda warnings silence as evidence of the defendant's sanity violated the due process clause. Wainwright v. Greenfield, 474 U.S. 284 (1986).
Coercive police activity is a necessary predicate to a finding that a confession was not "voluntary" within the meaning of the due process clause. Colorado v. Connelly, 479 U.S. 157 (1986).
A defendant who denies elements of an offense is entitled to an entrapment instruction as long as there is sufficient evidence from which a jury could find entrapment. Mathews v. United States, 485 U.S. 58 (1988).
Unless the defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate due process. Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 (1988).
New constitutional rules announced by the U.S. Supreme Court that place certain kinds of primary individual conduct beyond the power of the states to proscribe, as well as water-shed rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and incases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. These rules do not constrain the authority of state courts to give broader effect to new rules of criminal procedure. Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008).
Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Accordingly, when the state withholds from a defendant evidence that is material to the defendant's guilt or punishment, it violates the right to due process of law. Evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true, however. Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769; 173 L. Ed. 2d 701 (2009).
The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness. Perry v. New Hampshire, 564 U. S. ___, 181 L. Ed. 2d 694, 132 S. Ct. 716 (2012).
Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100.
Pretrial publicity; the Milwaukee 14. 1970 WLR 209.
Due process; revocation of a juvenile's parole. Sarosiek, 1973 WLR 954.
HABEAS CORPUS AND BAIL
Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on a motion to suppress evidence when constitutional issues are involved. State ex rel. Warrender v. Kenosha County Ct. 67 Wis. 2d 333, 227 N.W.2d 450.
The scope of inquiry in extradition habeas corpus cases is discussed. State v. Ritter 74 Wis. 2d 227, 246 N.W.2d 552.
Relief under habeas corpus is not limited to the release of the person confined. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573.
Application of bail posted by third parties to the defendant's fines was not unconstitutional. State v. Iglesias, 185 Wis. 2d 118, 517 N.W.2d 175 (1994).
A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the Supreme Court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534.
A question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97-3841.
As an extraordinary writ, habeas corpus is available to a petitioner only under limited circumstances. A party must be restrained of his or her liberty, must show that the restraint was imposed by a body without jurisdiction or that the restraint was imposed contrary to constitutional protections, and there must be no other adequate remedy available in the law. Haas v. McReynolds, 2002 WI 43, 252 Wis. 2d 133, 643 N.W.2d 771, 00-2636.
Laches is available as a defense to a habeas petition. When a habeas petition is brought by a Wisconsin prisoner, the burden is on the state to show that: 1) the petitioner unreasonably delayed in bringing the claim; 2) the state lacked knowledge that the claim would be brought; and 3) the state has been prejudiced by the delay. Washington v. State of Wisconsin, 2012 WI App 74, ___ Wis. 2d ___, ___ N.W.2d ___, 09-0746.
SELF-INCRIMINATION AND CONFESSION
Granting a witness immunity and ordering him to answer questions does not violate his constitutional rights. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210.
Although a person may invoke the right against self incrimination in a civil case in order to protect himself in a subsequent criminal action, an inference against the person's interest may be drawn as a matter of law based upon an implied admission that a truthful answer would tend to prove that the witness had committed the criminal act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292.
A hearing to determine the voluntariness of a confession is not necessary when a defendant knowingly fails to object to the evidence for purposes of trial strategy. Police officers need not stop all questioning after a suspect requests an attorney, since the suspect can change his mind and volunteer a statement. Sharlow v. State, 47 Wis. 2d 259, 177 N.W.2d 88.
The admission of evidence of the spending of money after a burglary did not unconstitutionally require the defendant to testify against himself in order to rebut it. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497.
When the defendant volunteered an incriminatory statement outside the presence of retained counsel, the statement was admissible. State v. Chabonian, 50 Wis. 2d 574, 185 N.W.2d 289.
There is no requirement that a hearing as to the voluntariness of a confession be separated into 2 stages as to the circumstances leading up to it and then as to its content. The content of Miranda warnings is discussed. Bohachef v. State, 50 Wis. 2d 694, 185 N.W.2d 339.
The argument by the district attorney that certain evidence was uncontroverted does not amount to a comment on the defendant's failure to testify. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46.
Questions of investigational versus custodial interrogation in relation to a confession are discussed. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748.
A defendant who, believing he was seriously wounded, began to tell what happened and was given Miranda warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742.
The privilege against self-incrimination does not extend to the production of corporate records by their custodian, even though the records may tend to incriminate the custodian personally. State v. Balistrieri, 55 Wis. 2d 513, 201 N.W.2d 18.
A defendant who waived counsel and who agreed to sign a confession admitting 18 burglaries in return for an agreement that he would be prosecuted for only one, could not claim that the confession was improperly induced. The state has the burden of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. 2d 135, 205 N.W.2d 775.
The administration of a blood or breathalyzer test does not violate the defendant's privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850.
Factors to be considered in determining whether a confession is voluntary are discussed. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855.
A voluntary confession is not rendered inadmissible because the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213.
While Miranda does require that upon exercise of the defendant's 5th amendment privilege the interrogation must cease, Miranda does not explicitly state that the defendant may not, after again being advised of his rights, be interrogated in the future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359.
Statements given to police without Miranda warnings, while the defendant was injured and in bed that he was the driver and had been drinking, while voluntary, were inadmissible since at that time accusatorial attention had focused on him. Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286.
The voluntariness of a confession must be determined by examining all the surrounding facts under a totality of circumstances test. Brown v. State, 64 Wis. 2d 581, 219 N.W.2d 373.
Requirements of a claim of immunity are discussed. State v. Hall, 65 Wis. 2d 18, 221 N.W.2d 806.
The validity of a juvenile confession is determined by an analysis of the totality of the circumstances surrounding the confession. The presence of a parent, guardian, or attorney is not an absolute requirement for the juvenile to validly waive the right to remain silent but only one of the factors to be considered in determining voluntariness. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850.
A written confession is admissible in evidence, although it is not signed by the defendant, so long as the defendant has read the statement and adopted it as his or her own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750.
When the defendant claimed to understand his Miranda rights but agreed to talk to police without counsel because of a stated inability to afford a lawyer, further questioning by police was improper and the resulting confession was inadmissible. Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458.
The state may compel a probationer's testimony in a revocation proceeding if the probationer is first advised that the testimony will be inadmissible in criminal proceedings arising out of the alleged probation violation, except for purposes of impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664.
A volunteered confession made while in custody and prior to Miranda warnings was held to be admissible despite an earlier inadmissible statement in response to custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221.
No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210.
Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a "target" of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910.
The defendant's confession was admissible although it was obtained through custodial interrogation following the defendant's request for a lawyer. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978).
When a "conversational" visit was not a custodial interrogation, the defendant's voluntary statement was admissible despite a lack of Miranda warnings. State v. Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979).
A confession after a 28-hour post-arrest detention was admissible. Wagner v. State, 89 Wis. 2d 70, 277 N.W.2d 849 (1979).
Immunity for compelled testimony contrary to the 5th amendment privilege extends to juvenile court proceedings. State v. J.H.S. 90 Wis. 2d 613, 280 N.W.2d 356 (Ct. App. 1979).
The defendant's voluntary statements were admissible for impeachment even though they were obtained in violation of Miranda. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).
When the accused cut off the initial interrogation but was interrogated by another officer 9 minutes later following fresh Miranda warnings, the confession was admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980).
By testifying as to his actions on the day a murder was committed, the defendant waived his self-incrimination privilege on cross-examination as to prior actions related to the murder that were the subject of the pending prosecution. Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980).
Miranda warnings were unnecessary when an officer entered the defendant's home in the belief that the defendant might have killed his wife 4 days earlier, and asked, "Where is your wife?" State v. Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980).
A prosecutor's comment on the failure of an alibi witness to come forward with an alibi story did not infringe on the defendant's right of silence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982).
The defendant's silence both before and after Miranda warnings may not be referred to at trial by the prosecution. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982).
Videotapes of sobriety tests were properly admitted to show physical manifestations of the defendant driver's intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).
A John Doe subpoena requiring the production of income tax returns violated the self-incrimination right. B. M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App. 1983).
A statement given to police, without Miranda warnings, while the accused was in an emergency room that the accused was the driver in a fatal crash was admissible. State v. Clappes, 117 Wis. 2d 277, 344 N.W.2d 141 (1984).
After a guilty plea the privilege against self-incrimination continues at least until sentencing. State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984).
When the defendant does not testify but presents his own argument to the jury, the prosecutor may caution the jury that the defendant's statements are not evidence. State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984).
When a relative of the accused contacted police and asked if anything could be done to help the accused, a subsequent confession elicited from the accused by the relative was inadmissible. Factors to be considered in determining when a civilian becomes an agent of the police are discussed. State v. Lee, 122 Wis. 2d 266, 362 N.W.2d 149 (1985).
Police had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect's family was present. State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987).
Incriminating statements by an intoxicated defendant undergoing medical treatment for painful injuries was voluntary since there was no affirmative police misconduct compelling the defendant to answer police questioning. State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987).
The "rescue doctrine" exception to the Miranda rule is discussed. State v. Kunkel, 137 Wis. 2d 172, 404 N.W.2d 69 (Ct. App. 1987).
A probationer's answers to a probation agent's questions are "compelled" and may not be used for any purpose in a criminal trial. State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987).
The prosecution may comment on an accused's pre-Miranda silence when the accused elects to testify on his own behalf. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
The "functional equivalent" of direct custodial interrogation is discussed. State v. Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988).
The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988).
The use of Goodchild testimony to impeach the defendant's trial testimony does not violate the privilege against self-incrimination. State v. Schultz, 152 Wis. 2d 408, 448 N.W.2d 424 (1989).
An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 N.W.2d 299 (1990).
