A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino,
170 Wis. 2d 576,
489 N.W.2d 715 (Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra,
175 Wis. 2d 600,
499 N.W.2d 719 (Ct. App. 1993). See also
State v. Speese,
191 Wis. 2d 205,
528 N.W.2d 63 (Ct. App. 1995.)
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.
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.
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 equivalent, 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,
294 Wis. 2d 611,
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,
295 Wis. 2d 801,
722 N.W.2d 136,
05-1265.
The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. When evidence is irrelevant or not offered for a proper purpose, the exclusion of that evidence does not violate a defendant's constitutional right to present a defense. There is no abridgement on the accused's right to present a defense so long as the rules of evidence used to exclude the evidence offered are not arbitrary or disproportionate to the purposes for which they are designed. State v. Muckerheide,
2007 WI 5,
298 Wis. 2d 553,
725 N.W.2d 930,
05-0081.
Despite the state constitution's more direct guarantee to defendants of the right to meet their accusers face to face, the Wisconsin Supreme Court has generally interpreted the state and federal rights of confrontation to be coextensive. The U.S. Supreme Court's decision in
Crawford v. Washington,
541 U.S. 36 (2004), does not represent a shift in confrontation-clause jurisprudence that overturns state and federal precedents permitting a witness to testify from behind a barrier upon a particularized showing of necessity. State v. Vogelsberg,
2006 WI App 228,
297 Wis. 2d 519,
724 N.W.2d 649,
05-1293.
The confrontation clause places no constraints on the use of prior testimonial statements when the declarant appears for cross-examination. It made no difference in this case where oral statements of a witness were not disclosed until a subsequent police witness testified whether the burden was on the state or the defendant to show that the witness was available for further cross-examination after the court told the witness he could step down. The witness testified and was cross-examined concerning his statements to the police; therefore, defendant's right to confrontation was not violated. State v. Nelis,
2007 WI 58,
300 Wis. 2d 415,
733 N.W.2d 619,
05-1920.
In determining whether a statement is testimonial under
Crawford, a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. The government does not need to be involved in the creation of a testimonial statement. A statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his or her statement might be used in the investigation or prosecution of a crime. It does not matter if a crime has already been committed or not. Statements made to loved ones or acquaintances are not the memorialized type of statements that
Crawford addressed. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481. See also Giles v. California,
554 U.S. 353,
128 S. Ct. 2678,
171 L. Ed. 2d 488 (2008).
The forfeiture by wrongdoing doctrine is adopted in Wisconsin. Essentially, the forfeiture by wrongdoing doctrine states that an accused can have no complaint based on the right to confrontation about the use against him or her of a declarant's statement if it was the accused's wrongful conduct that prevented any cross-examination of the declarant. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481.
In applying the the forfeiture by wrongdoing doctrine the circuit court must determine whether, by a preponderance of the evidence, the defendant caused the witness's unavailability, thereby forfeiting his or her right to confrontation. While requiring the court to decide the evidence the very question for which the defendant is on trial may seem troublesome, equitable considerations demand such a result. State v. Jensen,
2007 WI 26,
299 Wis. 2d 267,
727 N.W.2d 518,
04-2481.
Under the doctrine of forfeiture by wrongdoing announced in
Jensen, the statement of an absent witness is admissible against a defendant who the trial court determines by a preponderance of the evidence caused the witness's absence. When a jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his or her own misconduct, the right to confront that witness. State v. Rodriguez,
2007 WI App 252,
306 Wis. 2d 129,
743 N.W.2d 460,
05-1265.
Inasmuch as a criminal defendant does not have an unqualified right to require the appearance of any persons as witnesses for trial, and a defendant's right to compulsory process at trial must satisfy certain standards, the compulsory process rights of a defendant at the preliminary stage of criminal proceedings also must be subject to reasonable restrictions. The court declines to expand a criminal defendant's compulsory process rights to encompass a right to subpoena police reports and other non-privileged investigatory materials for examination and copying in anticipation of a preliminary hearing. State v. Schaefer,
2008 WI 25,
308 Wis. 2d 279,
746 N.W.2d 457,
06-1826.
By the judge's reading at a criminal trial the transcript of a hearing at which the defendant appeared to be intoxicated, resulting in additional charges, the jury was essentially provided with the judge's and the prosecutor's conclusions at the hearing about the defendant's guilt with the circuit court and the prosecutor essentially testifying against the defendant, denying the right to cross-examination. State v. Jorgensen,
2008 WI 60,
310 Wis. 2d 138,
754 N.W.2d 77,
06-1847.
Affidavits verifying nontestimonial bank records in compliance with s. 891.24 are nontestimonial and their admission does not violate the confrontation clause. The affidavits fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. State v. Doss,
2008 WI 93,
312 Wis. 2d 570,
754 N.W.2d 150,
06-2254.
Applying the
St. George test in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer,
2010 WI 6,
322 Wis. 2d 265,
778 N.W.2d 629,
07-1898.
The U.S. Supreme Court in
Giles, 554 U.S. 353, held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. In doing so, the Court reaffirmed the doctrine's viability generally, but chose a narrower view of its scope than
Jensen, 2007 WI 26. State v. Baldwin,
2010 WI App 162,
330 Wis. 2d 500,
794 N.W.2d 769,
09-1540.
Nontestimonial statements are not excluded by the confrontation clause and thereby may be analyzed for purposes of a hearsay objection. The broad version of the forfeiture by wrongdoing analysis, specifically approved in
Giles,
554 U.S. 353, for nontestimonial statements, deems nontestimonial statements admissible if the witness's unavailability to testify at any future trial was a certain consequence of the murder. State v. Jensen,
2011 WI App 3,
331 Wis. 2d 440,
794 N.W.2d 482,
09-0898.
The admission of a dying declaration statement violates neither the 6th amendment right to confront witnesses nor the corresponding right under the state constitution. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state's interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp,
2011 WI 27,
333 Wis. 2d 1,
796 N.W.2d 780,
09-0806.
A criminal defendant states a violation of the confrontation clause by showing that he or she was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. The right to cross-examination, and thereby confrontation, is not, however, absolute. Whether they are faced with the danger of undue prejudice or the specter of psychological trauma to victims, circuit courts can weigh the probative value of the evidence proffered with the dangers it brings. State v. Rhodes,
2011 WI 73,
336 Wis. 2d 64,
799 N.W.2d 850,
09-0025.
The trial court did not violate the defendant's right to confrontation by allowing a crime lab technician to rely on a scientific report that profiled the DNA left on the victims by their attacker. State v. Deadwiller,
2013 WI 75,
350 Wis. 2d 138,
834 N.W.2d 362,
10-2363.
The availability of a well qualified expert, testifying as to his or her independent conclusion about the ethanol testing of the defendant's blood as evidenced by a report from another state lab analyst, was sufficient to protect the defendant's right to confrontation. Under
Williams,
253 Wis. 2d 99, the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and 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.
Williams is still good law, because nothing "prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion." State v. Griep,
2014 WI App 25,
353 Wis. 2d 252;
845 N.W.2d 24,
09-3073.
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.
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 interrogation under 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 past events 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. 813,
165 L. Ed. 2d 224,
126 S. Ct. 2266 (2006).
A defendant does not forfeit the right to confront a witness when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial. The "forfeiture by wrongdoing" doctrine applies only when the defendant engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. The requirement of intent means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable. Giles v. California,
554 U.S. 353,
128 S. Ct. 2678,
171 L. Ed. 2d 488 (2008).
Under
Crawford, analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements and the analysts were "witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts,
557 U.S. 305,
129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009).
When an "ongoing emergency," as discussed in
Davis, extends beyond an initial victim to a potential threat to the responding police and the public at large, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. Michigan v. Bryant, 562 U.S. ___,
131 S. Ct. 1143,
179 L. Ed. 2d 93 (2011).
The Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification made for the purpose of proving a particular fact through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Bullcoming v. New Mexico, 564 U.S. ___,
180 L. Ed. 2d 610,
131 S. Ct. 2705 (2011).
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.
A Bad Case of Indigestion: Internalizing Changes in the Right to Confrontation After Crawford v. Washington Both Nationally and in Wisconsin. Kinnally. 89 MLR 625 (2005).
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).
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).
