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 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,
344 Wis. 2d 101,
820 N.W.2d 433,
11-1368.
The circuit court's decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant's presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander,
2013 WI 70,
349 Wis. 2d 327,
833 N.W.2d 126,
11-0394.
The court's invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word" will create reversible error. The transcript reflects that the court's offhand religious references addressed proper secular sentencing factors. The judge's comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters,
2013 WI App 85,
349 Wis. 2d 428,
835 N.W.2d 249,
12-1339.
There are two approaches that courts use to see if an alleged enhancing conviction carries its burden of qualifying as an enhancing offense. Under the categorical approach, courts ordinarily look only to the fact of conviction and the statutory definition of the prior offense. When a statute defines an element in the alternative, however, the categorical approach is modified to determine which alternative formed the basis of conviction. Under the modified categorical approach, courts consult a limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions. The purpose of consulting such documents is to identify, from among several alternatives, the crime of conviction. State v. Guarnero,
2014 WI App 56,
354 Wis. 2d 307,
848 N.W.2d 329,
13-1753.
In order to satisfy the requirements of the U.S. and Wisconsin constitutions, the charges in the complaint and information must be sufficiently stated to allow the defendant to plead and prepare a defense. In child sexual assault cases, courts may apply the 7 factors outlined in
Fawcett, 145 Wis. 2d 244, and may consider any other relevant factors necessary to determine whether the complaint and information states an offense to which the defendant can plead and prepare a defense. No single factor is dispositive, and not every
Fawcett factor will necessarily be present in all cases. State v. Kempainen,
2015 WI 32,
361 Wis. 2d 450,
862 N.W.2d 587,
13-1531.
In the context of evidence preservation and destruction, the Wisconsin constitution does not provide greater due process protections under Article 1, Section 8, Clause 1 than the U.S. Constitution does under either the 5th or 14th amendments. Defendants must show that the state failed to preserve evidence that was apparently exculpatory or acted in bad faith by failing to preserve evidence that was potentially exculpatory. Bad faith can be shown only if : 1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence. The routine destruction of a driver's blood or breath sample, without more, does not deprive a defendant of due process. State v. Weissinger,
2015 WI 42, 362 Wis. 2d 1,
863 N.W.2d 592,
13-1737.
When a defendant seeks to present evidence that a 3rd party committed the crime for which the defendant is being tried, the defendant must show a legitimate tendency that the 3rd party committed the crime; in other words, that the 3rd party had motive, opportunity, and a direct connection to the crime. State v. Wilson,
2015 WI 48,
362 Wis. 2d 193,
864 N.W.2d 52,
11-1803.
A court of appeals' decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol content (PAC) as a 7th offense and impose sentence for a 7th offense violated the defendant's right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a 6th offense Because a 7th offense carries a greater range of punishment than does a 6th offense, the court of appeals' remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis,
2015 WI 53,
362 Wis. 2d 370,
864 N.W.2d 806,
12-2782.
When determining whether a defendant's right to an objectively impartial decisionmaker has been violated, the court considers the appearance of bias in addition to actual bias. When the appearance of bias reveals a great risk of actual bias, the presumption of impartiality is rebutted and a due process violation occurs. In this case, although the judge's statements about her sister were personal, they were used in an attempt to illustrate the seriousness of the crime and the need to deter drunk driving in our society and not as as an expression of bias against the defendant. State v. Herrmann,
2015 WI 84,
364 Wis. 2d 336,
867 N.W.2d 772,
13-0197.
A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant's right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. State v. Loomis,
2016 WI 68, ___ Wis. 2d ___,
881 N.W.2d 749,
15-0157.
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).
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. ___,
132 S. Ct. 716,
181 L. Ed. 2d 694 (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.
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,
343 Wis. 2d 434,
819 N.W.2d 305,
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.
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).
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).
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).