Batson established a 3-step process for the constitutional review of allegedly race-based peremptory strikes: 1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose: 2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes; and 3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California,
545 U.S. 162 L. Ed. 2d 129,
125 S. Ct. 2410 (2005). See also Miller-El v. Dretke,
545 U.S. 231,
162 L. Ed. 2d 196,
125 S. Ct. 2317 (2005).
It was not intended that the first
Batson step be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with certainty, that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of
Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California,
545 U.S. 162,
162 L. Ed. 2d 129,
125 S. Ct. 2410 (2005).
The right to exercise peremptory challenges in state court is determined by state law. The U.S. Supreme Court has long recognized that peremptory challenges are not of federal constitutional dimension. States may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Rivera v. Illinois,
556 U.S. 148,
129 S. Ct. 1446;
173 L. Ed. 2d 483 (2009).
If the issue of jury bias surfaces during or before trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand,
374 F.3d 475 (2004).
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.
Unanimous verdict not constitutionally required in state criminal cases. Johnson, 1973 WLR 926.
SPEEDY AND PUBLIC TRIAL
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek,
53 Wis. 2d 563,
193 N.W.2d 682.
A delay of 5 weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive speedy trial. Taylor v. State,
55 Wis. 2d 168,
197 N.W.2d 805.
Failure to demand a speedy trial is weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State,
75 Wis. 2d 621,
250 N.W.2d 299.
The speedy trial provisions of the constitution were designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State,
75 Wis. 2d 631,
250 N.W.2d 305.
The controlling case concerning the right to a speedy trial is
Barker v. Wingo,
407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State,
76 Wis. 2d 87,
250 N.W.2d 354.
A delay of 84 days between the defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis,
81 Wis. 2d 454,
260 N.W.2d 696.
Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Circuit Court,
141 Wis. 2d 239,
414 N.W.2d 832 (1987).
The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay,
155 Wis. 2d 202,
455 N.W.2d 233 (1990).
The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen,
179 Wis. 2d 67,
505 N.W.2d 801 (Ct. App. 1993).
Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant's assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi,
222 Wis. 2d 506,
588 N.W.2d 89 (Ct. App. 1998),
98-0567.
The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck,
2001 WI App 288,
249 Wis. 2d 364,
638 N.W.2d 910,
01-0282.
The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams,
2004 WI App 56,
270 Wis. 2d 761,
677 N.W.2d 691,
03-0603.
When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial was violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl,
2005 WI App 191,
286 Wis. 2d 476,
704 N.W.2d 324,
04-3014.
The defendant's right to a public trial was violated when the courthouse doors were locked at 4:30 P.M., pursuant to county policy, and the public was denied access to the courtroom while he presented his case and the state presented its rebuttal. State v. Vanness,
2007 WI App 195,
06-2535.
Although a presumption of openness exists, the right to a public trial is not absolute. The closure of a trial is trivial and does not implicate the 6th amendment if the closure does not implicate the values served by the 6th amendment: 1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury. A circuit court's exclusion of every family member except the defendant's mother, who did not understand English, plainly implicated the values served by the right to a public trial. State v. Ndina,
2009 WI 21,
315 Wis. 2d 653,
761 N.W.2d 612,
07-0005.
Closure of a criminal trial is justified when 4 conditions are met: 1) the party who wishes to close the proceedings must show an overriding interest that is likely to be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect that interest; 3) alternatives to closure must be considered by the trial court; and 4) the court must make findings sufficient to support the closure. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure, but it was not necessary under the facts of this case. State v. Ndina,
2009 WI 21,
315 Wis. 2d 653,
761 N.W.2d 612,
07-0005.
Although a 14-month delay was presumptively prejudicial, that did not end the court's analysis. The defendant in this case was not actually prejudiced by the delay because he was already serving more than two life sentences for a conviction in a homicide case. The delay did not cause his pretrial incarceration; his homicide sentence would have kept him in prison anyway. State v. Lock,
2013 WI App 80,
348 Wis. 2d 334,
833 N.W.2d 189,
12-1514.
Delay between arrest and indictment may deny a speedy trial without a showing of actual prejudice. Dillingham v. United States,
423 U.S. 64.
A defendant may not, before trial, appeal the denial of a motion to dismiss based on the right to a speedy trial. United States v. MacDonald,
435 U.S. 850 (1978).
No right to a speedy trial arises until charges are pending. United States v. Mac Donald,
456 U.S. 1 (1982).
Any closure of a suppression hearing must advance an overriding interest likely to be prejudiced. Closure must be no broader than necessary to protect that interest. The court must consider alternatives and make a finding adequate to support closure. Waller v. Georgia,
467 U.S. 39 (1984).
The time during which defendants were neither under indictment nor subjected to any official restraint does not weigh toward a defendant's speedy trial claims. United States v. Loud Hawk,
474 U.S. 302 (1986).
The speedy-trial right is "amorphous," "slippery," and "necessarily relative." There is a balancing test in which the conduct of both the prosecution and the defendant are weighed. Some of the factors that courts should weigh include length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. The attorney is the defendant's agent when acting, or failing to act, in furtherance of the litigation, and delay caused by the defendant's counsel is charged against the defendant. The same principle applies whether counsel is privately retained or publicly assigned. Assigned counsel's failure to move the case forward does not warrant attribution of delay to the state. However, delay resulting from a systemic breakdown in the public defender system could be charged to the state. Vermont v. Brillon,
556 U.S. 81,
129 S. Ct. 1283;
172 L. Ed. 2d 768 (2009).
Following guilty plea, defendant could not raise speedy trial issue. United States v. Gaertner,
583 F.2d 308 (1978).
The press and public have a 1st amendment right to access to attend criminal trial which cannot be closed absent an overriding interest. 64 MLR 717 (1981).
MISCELLANEOUS
A defendant may waive his right to be present at a proceeding when the court ordered his case consolidated with another. It is not error at the start of a trial to revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State,
47 Wis. 2d 725,
177 N.W.2d 870.
A prisoner held in Dodge County, who escaped from a hospital in another county while being treated there, could be tried for the escape in Dodge County. Dolan v. State,
48 Wis. 2d 696,
180 N.W.2d 623.
The defendant is not prejudiced when the court amends the charge against him to charge a lesser included offense without informing him of the nature of the amended charge or allowing him to plead to it. Moore v. State,
55 Wis. 2d 1,
197 N.W.2d 820.
It is not a violation of the defendant's rights if he is prosecuted by information and not by grand jury indictment. State v. Lehtola,
55 Wis. 2d 494,
198 N.W.2d 354.
A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State,
58 Wis. 2d 671,
207 N.W.2d 589.
Participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretion in not granting a venue change. Briggs v. State,
76 Wis. 2d 313,
251 N.W.2d 12.
When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs,
117 Wis. 2d 293,
344 N.W.2d 149 (1984).
If the defendant acquiesces in counsel's decision that the defendant not testify, the defendant's right to testify is waived. State v. Albright,
96 Wis. 2d 122,
291 N.W.2d 487 (1980).
Constitutional error is harmless if the court can declare its belief that it was harmless beyond a reasonable doubt because there is no reasonable possibility the error contributed to the conviction. State v. Brecht,
143 Wis. 2d 297,
421 N.W.2d 96 (1988).
Two factors determine the sufficiency of a criminal charge: 1) whether it states an offense to which the defendant can plead; and 2) whether disposition will bar future prosecution for the same offense. Additional factors are discussed. State v. Fawcett,
145 Wis. 2d 244,
426 N.W.2d 91 (Ct. App. 1988).
A judge's bias against counsel must be severe to translate into unconstitutional partiality against a litigant. State v. Hollingsworth,
160 Wis. 2d 883,
467 N.W.2d 555 (Ct. App. 1991).
Rule for pleadings in criminal obscenity cases are the same as for all other criminal cases. If a pleading fails to set forth all elements of a crime but includes correct citations, all elements are sufficiently alleged. State v. Petrone,
161 Wis. 2d 530,
468 N.W.2d 676 (1991).
Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial has prejudiced a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff,
170 Wis. 2d 608,
489 N.W.2d 689 (Ct. App. 1992).
A criminal defendant's right to testify is fundamental. In order to determine whether a criminal defendant is waiving the right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury consisting of a basic inquiry to ensure that the defendant is aware of his or her right to testify, and the defendant has discussed this right with counsel. State v. Weed,
2003 WI 85,
263 Wis. 2d 434,
666 N.W.2d 485,
01-1746.
Following an unchallenged colloquy wherein the defendant knowingly, voluntarily, and intelligently waived his right to testify, the defendant's failure to seek an offer of proof at the time of trial or in the postconviction motion operated as a waiver of the right to have decided the issue of whether the waiver to testify could be withdrawn. State v. Winters,
2009 WI App 48,
317 Wis. 2d 401,
766 N.W.2d 754,
08-0910.
When a trial court fails to satisfy the
Weed mandate to conduct an on-the-record colloquy to determine if the defendant knowingly waived the right to testify, an evidentiary hearing to determine whether the waiver was knowingly, voluntarily, and intelligently made is the proper procedural response. The state carries the burden to show that the defendant's waiver was knowing and voluntary and must do so by clear and convincing evidence. State v. Garcia,
2010 WI App 26,
323 Wis. 2d 531,
779 N.W.2d 718,
09-0516.
Weed did not address the situation here, where a defendant prevents the trial court from conducting the on-the-record colloquy it required. By refusing to come to court so the trial court could personally explain what
Weed requires must be explained, the defendant made it, as a practical matter consistent with safety, impossible for the trial court to explain his right to testify and determine whether his decision to not testify was "knowing, intelligent, and voluntary." State v. Vaughn,
2012 WI App 129,
344 Wis. 2d 764,
823 N.W.2d 543,
12-0094.
Harmless error review applies to the circuit court's alleged denial of a defendant's right to testify because its effect on the outcome of the trial is capable of assessment. State v. Nelson,
2014 WI 70, ___ Wis. 2d ___,
849 N.W.2d 317,
12-2140.
A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.
The absolute prohibition of paralegal-conducted jail interviews is an unjustifiable restriction of inmates' due process right of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.
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 without valid justification violated the defendant's right to present a defense and to testify on her own behalf. Morgan v. Krenke,
72 F. Supp. 2d 980 (1999).
I,8
Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [
As amended Nov. 1870 and April 1981]
I,8(1)(1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
I,8(2)
(2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.
I,8(3)
(3)
The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.
I,8(4)
(4)
The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [
1869 J.R. 7; 1870 J.R. 3; 1870 c. 118; vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981]
DOUBLE JEOPARDY
When, after a plea bargain, the state filed an amended complaint to which the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State,
52 Wis. 2d 708,
191 N.W.2d 19.
The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State,
53 Wis. 2d 769,
193 N.W.2d 704.
A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum,
54 Wis. 2d 213,
194 N.W.2d 660.
When the defendant is tried for one offense and convicted of a lesser included offense the defendant is not placed in double jeopardy. Dunn v. State,
55 Wis. 2d 192,
197 N.W.2d 749.
A defendant is not subjected to double jeopardy when brought to trial a 2nd time after a mistrial is declared. State v. Elkinton,
56 Wis. 2d 497,
202 N.W.2d 28.
A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State,
60 Wis. 2d 325,
210 N.W.2d 695.
A defendant convicted of false imprisonment and rape committed in Waukesha county was not subjected to double jeopardy by a 2nd conviction for false imprisonment of the same victim in Milwaukee county, because the facts supported 2 separate prosecutions. Baldwin v. State,
62 Wis. 2d 521,
215 N.W.2d 541.
When a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there was a "manifest necessity" to terminate the proceedings because the indictment or information was fatally defective and the trial court lacked jurisdiction to try the case. State v. Russo,
70 Wis. 2d 169,
233 N.W.2d 485.
A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter,
72 Wis. 2d 754,
242 N.W.2d 206.
When the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated did not place the defendant in double jeopardy. Day v. State,
76 Wis. 2d 588,
251 N.W.2d 811.
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS,
81 Wis. 2d 376,
260 N.W.2d 727.
When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell,
85 Wis. 2d 331,
270 N.W.2d 428 (Ct. App. 1978).
The double jeopardy provisions of the U.S. and Wisconsin constitutions are identical in scope and purpose. U.S. Supreme Court decisions control both provisions. Multiplicitous rape charges are discussed. Harrell v. State,
88 Wis. 2d 546,
277 N.W.2d 462 (1979).
When the court of appeals reversed the defendant's conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden,
93 Wis. 2d 574,
288 N.W.2d 139 (1980).
When a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe,
96 Wis. 2d 48,
291 N.W.2d 809 (1980).
A prosecutor's repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening,
100 Wis. 2d 700,
303 N.W.2d 821 (1981).
The double jeopardy clause did not bar retrial when the judge declared a mistrial due to jury deadlock. State v. DuFrame,
107 Wis. 2d 300,
320 N.W.2d 210 (Ct. App. 1982).
The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson,
110 Wis. 2d 548,
329 N.W.2d 182 (1983).
Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W.2d 564 (1983).
Reimposition of a sentence after the defendant has been placed on probation, absent violation of probation condition, violates the double jeopardy clause. State v. Dean,
111 Wis. 2d 361,
330 N.W.2d 630 (Ct. App. 1983).
Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution, or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew,
115 Wis. 2d 243,
340 N.W.2d 470 (1983).
When probation was conditioned on the defendant's voluntary commitment to a mental hospital but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of 3 years' imprisonment. Double jeopardy was not violated. State v. Sepulveda,
120 Wis. 2d 231,
353 N.W.2d 790 (1984).
The double jeopardy clause was not violated when the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin,
121 Wis. 2d 670,
360 N.W.2d 43 (1985).
When police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon his return home confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel,
124 Wis. 2d 101,
369 N.W.2d 145 (1985). See also
State v. Thierfelder,
174 Wis. 2d 213,
495 N.W.2d 669 (1993).
A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa,
127 Wis. 2d 155,
378 N.W.2d 883 (1985).
