The government violated the defendant's right to counsel by placing a paid informant in the same cell who deliberately elicited incriminating statements. United States v. Henry,
447 U.S. 264 (1980).
When the right to counsel was infringed but no prejudice to the defendant was shown, the court erred in dismissing indictment. United States v. Morrison,
449 U.S. 361 (1981).
Since a criminal defendant has no constitutional right to counsel to pursue a discretionary state appeal, the defendant could not be deprived of effective counsel by counsel's failure to timely file an application for certiorari. Wainwright v. Torna,
455 U.S. 586 (1982).
The right to counsel does not guarantee a "meaningful attorney-client relationship." Morris v. Slappy,
461 U.S. 1 (1983).
Counsel appealing a conviction need not present every nonfrivolous issue requested by the defendant. Jones v. Barnes,
463 U.S. 745 (1983).
Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic,
466 U.S. 648 (1984).
To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668 (1984).
Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. U.S. v. Gouveia,
467 U.S. 180 (1984).
An accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illinois,
469 U.S. 91 (1984).
Due process guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right. Evitts v. Lucey,
469 U.S. 387 (1985).
The right to assistance of counsel wasn't violated when an attorney refused to cooperate with the defendant in presenting perjured testimony at trial. Nix v. Whiteside,
475 U.S. 157 (1986).
Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, the individual may not insist upon implementation of
Anders v. California,
386 U.S. 738 (1967), procedures. Pennsylvania v. Finley,
481 U.S. 551 (1987).
Though the trial court must recognize the presumption that a defendant is entitled to his or her counsel of choice, the presumption is overcome by actual conflict and a serious potential for actual conflict. Wheat v. United States,
486 U.S. 153 (1988).
The right to counsel was not violated by the court's instruction to the defendant that he not confer with his attorney during a 15 minute recess between the defendant's direct and cross-examination. Perry v. Leeke,
488 U.S. 272,
102 L. Ed. 2d 624 (1989).
The sixth amendment right to counsel is offense specific. An accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under
Miranda arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin,
501 U.S. 171,
115 L. Ed. 2d 158 (1991).
An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. U.S.,
511 U.S. 738,
128 L. Ed. 2d 745 (1994).
To void a conviction due to a 6th amendment violation when a trial court has failed to inquire into a potential conflict of interest that the court knew or should have known of, the defendant must establish that the conflict adversely affected counsel's performance. Failure of the trial court to inquire into the conflict did not reduce the defendant's burden of proof. Mickens v. Taylor,
535 U.S. 162,
152 L. Ed. 2d 291 (2002).
The 6th amendment right to counsel of choice commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he or she believes to be best. When that right is violated because the deprivation of counsel is erroneous, no additional showing of prejudice is required to make the violation complete, and the violation is not subject to harmless-error analysis. United States v. Gonzalez-Lopez,
548 U.S. 140,
165 L. Ed. 2d 409,
126 S. Ct. 2557 (2006).
The Constitution does not forbid a state to insist that the defendant proceed to trial with counsel when the state court found the defendant mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. Indiana v. Edwards,
554 U.S. 164,
171 L. Ed. 2d 345,
128 S. Ct. 2379 (2008).
The right to counsel applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him or her and restrictions are imposed on his or her liberty. Attachment of the right does not require that a public prosecutor as distinct from a police officer be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County,
554 U.S. 191,
171 L. Ed. 2d 366,
128 S. Ct. 2578 (2008).
Michigan v. Jackson,
475 U.S. 625, which provided that if police initiate interrogation after the defendant's assertion of the right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid, is overruled. Courts are not required to presume that such a waiver is invalid under those circumstances. Montejo v. Louisiana,
556 U.S. 778,
129 S. Ct. 2079,
173 L. Ed. 2d 955 (2009).
A defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of the 6th amendment right to counsel, was admissible at trial to impeach the defendant's conflicting statement. Kansas v. Ventris
556 U.S. 586,
129 S. Ct. 1841;
172 L. Ed. 2d 454 (2009).
Counsel has an obligation to advise a defendant that a guilty plea will result in the defendant's deportation from this country. Advice regarding deportation is not categorically removed from the ambit of the 6th amendment right to counsel. When the deportation consequence is truly clear, the duty to give correct advice is equally clear. Padilla v. Kentucky, 559 U.S. ___,
130 S. Ct. 1473;
176 L. Ed. 2d 284 (2010).
As a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. When defense counsel allowed an offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the constitution requires. Missouri v. Frye, 565 U. S. ___,
182 L. Ed. 2d 379,
132 S. Ct. 1399 (2012).
When ineffective advice led to a plea offer's rejection and caused the defendant to stand trial, rather than to waive the right to trial, a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were imposed. Lafler v. Cooper, 566 U. S. ___,
182 L. Ed. 2d 398,
132 S. Ct. 1376 (2012).
When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank,
343 F.3d 901 (2003).
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
How do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant's Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997).
JURY TRIAL AND JUROR QUALIFICATIONS
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State,
46 Wis. 2d 151,
174 N.W.2d 521.
A resident of Menominee county may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, sec. 23, is not violated by using district-based jury lists. Pamanet v. State,
49 Wis. 2d 501,
182 N.W.2d 459.
When 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State,
50 Wis. 2d 43,
183 N.W.2d 87.
Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State,
52 Wis. 2d 453,
190 N.W.2d 208.
The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper because the prosecutor expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee,
52 Wis. 2d 736,
190 N.W.2d 893.
When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew,
54 Wis. 2d 361,
195 N.W.2d 615.
The exclusion of young persons, students, and teachers from a jury list is discussed. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State,
58 Wis. 2d 158,
205 N.W.2d 566.
Rules for proving discrimination in compiling a jury list and the burden of proof are discussed. Wilson v. State,
59 Wis. 2d 269,
208 N.W.2d 134.
Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch,
60 Wis. 2d 397,
210 N.W.2d 751.
The absence of persons of the defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State,
66 Wis. 2d 105,
223 N.W.2d 889.
A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State,
74 Wis. 2d 343,
246 N.W.2d 801.
A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether defendant: 1) directly committed crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State,
91 Wis. 2d 134,
280 N.W.2d 288 (1979).
Excusing Native Americans from a jury without individual examination denied the Native American defendant a trial by an impartial jury. State v. Chosa,
108 Wis. 2d 392,
321 N.W.2d 280 (1982).
The verdict was unanimous in a battery case even though the jury was not required to specify whether the battery occurred when the defendant threw an object at the victim or during an ensuing fistfight. State v. Giwosky,
109 Wis. 2d 446,
326 N.W.2d 232 (1982).
The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro,
113 Wis. 2d 582,
335 N.W.2d 583 (1983).
When the accused refused to participate in the trial, the court erred by failing to inform the accused of the right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes,
118 Wis. 2d 21,
345 N.W.2d 892 (Ct. App. 1984).
A waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio,
148 Wis. 2d 687,
436 N.W.2d 603 (1989).
A defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal,
153 Wis. 2d 323,
450 N.W.2d 519 (Ct. App. 1989).
Once the defendant makes a prima facie showing that the prosecutor used peremptory challenges in a purposefully discriminatory manner, the burden shifts to the prosecution to provide a neutral explanation for challenging the jurors.
Batson v. Kentucky,
476 U.S. 79 (1986) is discussed. State v. Walker,
154 Wis. 2d 158,
453 N.W.2d 127 (1990).
Waiver of a jury trial must be made by affirmative action of the defendant. Neither counsel nor the court may waive it on the defendant's behalf. If the defendant has not personally waived the right, the proper remedy is a new trial, not a postconviction hearing. State v. Livingston,
159 Wis. 2d 561,
464 N.W.2d 839 (1991).
Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz,
160 Wis. 2d 722,
467 N.W.2d 531 (1991).
Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking a member of the jury panel. State v. Davidson,
166 Wis. 2d 35,
479 N.W.2d 181 (Ct. App. 1991).
Unanimity requirements where multiple occurrences of multiple acts are charged are discussed. State v. Marcum,
166 Wis. 2d 908,
480 N.W.2d 545 (Ct. App. 1992).
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch,
167 Wis. 2d 660,
482 N.W.2d 99 (1992). But for a review of this case to apply new terminology regarding juror bias see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor,
170 Wis. 2d 393,
489 N.W.2d 626 (Ct. App. 1992).
When the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block,
170 Wis. 2d 676,
489 N.W.2d 715 (Ct. App. 1992).
A defendant has the right to have jurors individually polled on their verdict. Reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard,
171 Wis. 2d 573,
492 N.W.2d 329 (Ct. App. 1992).
When the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. To sustain a conviction when alternative methods of proof resting upon different evidentiary facts are presented to the jury, the evidence must be sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof. State v. Chambers,
173 Wis. 2d 237,
496 N.W.2d 191 (Ct. App. 1992).
The "clearly erroneous" standard applies to all steps under the
Batson, 476 U.S. 79, analysis made by a trial court in determining whether a peremptory challenge was discriminatory. State v. Lopez,
173 Wis. 2d 724,
496 N.W.2d 617 (Ct. App. 1992).
The verdict of a 13 member jury panel agreed to by the defense and prosecution was not invalid. State v. Ledger,
175 Wis. 2d 116,
499 N.W.2d 199 (Ct. App. 1993).
A trial court's comments to a deliberating jury without the presence of the defendant and his or her counsel violated the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon,
186 Wis. 2d 68,
519 N.W.2d 621 (Ct. App. 1994).
A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony that bears on guilt or innocence prejudice must be assumed. State v. Turner,
186 Wis. 2d 277,
521 N.W.2d 148 (Ct. App. 1994).
When polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircherz,
189 Wis. 2d 392,
525 N.W.2d 788 (Ct. App. 1994).
Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. Where the shackles cannot be viewed by the jury no prejudicial harm may occur. State v. Grinder,
190 Wis. 2d 541,
527 N.W.2d 326 (1995).
A defendant's presence is required during all proceedings when the jury is being selected, including in camera
voir dire. However, failure to allow the defendant's presence may be harmless error. State v. David J.K.
190 Wis. 2d 726,
528 N.W.2d 434 (Ct. App. 1994).
When it was conceded that a juror was sleeping, summarily foreclosing inquiry into the juror's inattentiveness was an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton,
201 Wis. 2d 662,
549 N.W.2d 756 (Ct. App. 1996),
95-0152.
The prosecutor's motive of protecting the defendant cannot justify a peremptory challenge based solely on a juror's race. Excluding a prospective juror because of race can never be "neutral" regardless of the prosecutor's good faith. State v. Guerra-Reyna,
201 Wis. 2d 751,
549 N.W.2d 779 (Ct. App. 1996),
93-3464.
When there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror's names, employment, and addresses while providing the defense with copies of the juror questionnaires during
voir dire was within the court's discretion. State v. Britt,
203 Wis. 2d 25,
553 N.W.2d 528 (Ct. App. 1995),
95-0891.
Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier,
205 Wis. 2d 183,
556 N.W.2d 90 (1996),
94-2187.
A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky,
209 Wis. 2d 577,
563 N.W.2d 188 (Ct. App. 1997),
95-1946.
A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror, which violated the defendant's right to due process. State v. Ferron,
214 Wis. 2d 268,
570 N.W.2d 883 (Ct. App. 1997),
96-3425. But for a review of this case to apply new terminology regarding juror bias see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics were also considered. State v. King,
215 Wis. 2d 295,
572 N.W.2d 530 (Ct. App. 1997),
97-1509.
An objection that peremptory challenges were racially motivated in violation of
Basten must be made prior to the time the jury is sworn. State v. Jones,
218 Wis. 2d 599,
581 N.W.2d 561 (Ct. App. 1998),
97-1002.
A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette,
220 Wis. 2d 431,
583 N.W.2d 174 (Ct. App. 1998),
97-2111.
Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette,
220 Wis. 2d 431,
583 N.W.2d 174 (Ct. App. 1998),
97-2111.
Failure to respond truthfully to
voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams,
220 Wis. 2d 458,
583 N.W.2d 845 (Ct. App. 1998),
97-1276.
A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant's agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher,
220 Wis. 2d 689,
584 N.W.2d 157 (Ct. App. 1998),
97-2702. Affirmed,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect responses to questions during
voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado,
223 Wis. 2d 270,
588 N.W.2d 1 (1999),
96-2194. But for a review of this case to apply new terminology regarding juror bias see
State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
The terms "statutory bias," subjective bias," and "objective bias" are adopted as the proper terms for referring to types of jury bias, replacing the terms "implied bias," "subjective bias," and "objective bias." State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
Statutory bias refers to those situations described in s. 805.08 (1); a person falling within one of the descriptions there may not serve regardless of the ability to be impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed an opinion, that situation more properly qualifies as subjective bias. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on
voir dire; it refers to the juror's state of mind. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
State v. Wyss,
124 Wis. 2d 470,
Louis, Gescch,
State v. Messelt, 185 Wis. 2d 254,
Ferron, Delgado, and
State v. Broomfield, 223 Wis. 2d 465, are cases through which jury bias jurisprudence has evolved; where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher,
227 Wis. 2d 700,
596 N.W.2d 770 (1999),
97-2702.
