The state's failure to disclose that it took samples but failed to have them analyzed affected the defendant's right to a fair trial because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal,
225 Wis. 2d 565,
593 N.W.2d 461 (Ct. App.1999),
97-1480.
When defense counsel has appeared for and represented the state in the same case in which he or she later represents the defendant, and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney's former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant's interests. State v. Love,
227 Wis. 2d 60,
594 N.W.2d 806 (1999),
97-2336.
A new rule of criminal procedure applies to all cases pending on direct review or that are not yet final that raised the issue that was subject to the change. There is no retroactive application to cases in which the issue was not raised. State v. Zivcic,
229 Wis. 2d 119,
598 N.W.2d 565 (Ct. App. 1999),
98-0909.
Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson,
2000 WI 12,
232 Wis. 2d 679,
605 N.W.2d 846,
97-1360.
When an indigent defendant requests that the state furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to him or her. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219.
A pretrial detainee, including the subject of an arrest, is entitled to receive medical attention. The scope of this due process protection is not specifically defined, but is at least as great as the 8th amendment protection available to convicted prisoners. Robinson v. City of West Allis,
2000 WI 126,
239 Wis. 2d 595,
619 N.W.2d 692,
98-1211.
While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis,
2000 WI 126,
239 Wis. 2d 595,
619 N.W.2d 692,
98-1211.
A defendant is denied due process when identification evidence stems from a pretrial procedure that is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Whether an identification is impermissible is decided on a case-by-case basis. State v. Benton,
2001 WI App 81,
243 Wis. 2d 54,
625 N.W.2d 923,
00-1096.
The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard and whether the state's conduct was a substantial and material breach is a question of law. State v. Williams,
2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733,
00-0535.
A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams,
2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733,
00-0535.
Due process demands that a conviction not be based on unreliable evidence obtained through coerced witness statements resulting from egregious police practices. There are several factors to consider in determining whether police misconduct is so egregious that it produces statements that are unreliable as a matter of law and must be suppressed. State v. Samuel,
2002 WI 34,
252 Wis. 2d 26,
643 N.W.2d 423,
99-2587.
Although there is no place in a criminal prosecution for gratuitous references to race, the state may properly refer to race when it is relevant to the defendant's motive. A racial remark is improper if it is intentionally injected into volatile proceedings when the prosecutor has targeted the defendant's ethnic origin for emphasis in an attempt to appeal to the jury's prejudices. State v. Chu,
2002 WI App 98,
253 Wis. 2d 666,
643 N.W.2d 878,
01-1934.
Cases addressing the pretrial destruction of evidence and a defendant's due process rights apply to posttrial destruction as well. A defendant's due process rights are violated by the destruction of evidence: 1) if the evidence destroyed was apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or 2) if the evidence was potentially exculpatory and was destroyed in bad faith. State v. Parker,
2002 WI App 159,
256 Wis. 2d 154,
647 N.W.2d 430,
01-2721.
A trial court did not erroneously exercise its discretion in denying the defendant's request that his alibi witnesses be allowed to testify in street clothes rather than jail attire due to the difficulty associated with having the in-custody witnesses brought to the courtroom while keeping them separate, because allowing the clothing changes would create security risks, and because the witnesses had prior convictions that the jury would hear about anyway. State v. Reed,
2002 WI App 209,
256 Wis. 2d 1019,
650 N.W.2d 855,
01-2973.
When an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are substantially related such that the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. This test applies in a criminal serial representation case when the defendant raises the issue prior to trial. The actual prejudice standard in
Love applies when a defendant raises a conflict of interest objection after trial. State v. Tkacz,
2002 WI App 281,
258 Wis. 2d 611,
654 N.W.2d 37,
02-0192.
Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following reversal of a conviction on appeal, the prosecutor offered a less favorable plea agreement than had been offered prior to the initial trial. A presumption of vindictiveness is limited to cases in which a realistic likelihood of vindictiveness exists; a mere opportunity for vindictiveness is insufficient. To establish actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his or her legal rights. State v. Tkacz,
2002 WI App 281,
258 Wis. 2d 611,
654 N.W.2d 37,
02-0192.
Courts employ two tests to determine whether a defendant's due process right to trial by an impartial judge is violated: 1) a subjective test based on the judge's own determination of his or her impartiality;and 2) an objective test that asks whether objective facts show actual bias. In applying the objective test, there is a presumption that the judge is free of bias. To overcome this presumption the defendant must show by a preponderance of the evidence that the judge is in fact biased an not that there is an appearance of bias or that the circumstance might lead one to speculate that the judge is biased. State v. O'Neill,
2003 WI App 73,
261 Wis. 2d 534,
663 N.W.2d 292,
02-0808.
Following the reversal of one of multiple convictions on multiplicity grounds an increased sentence was presumptively vindictive, in violation of the right to due process. In order to assure the absence of a vindictive motive whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. State v. Church,
2003 WI 74,
262 Wis. 2d 678,
665 N.W.2d 141,
01-3100.
Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss,
2003 WI App 239,
267 Wis. 2d 772,
672 N.W.2d 125,
03-0436.
The defendant's due process rights were violated when the investigating detective gave a sentencing recommendation, written on police department letterhead and forwarded by the court to the presentence investigation writer to assess and evaluate, that undermined the state's plea bargained recommendation, in effect breaching the plea agreement. State v. Matson,
2003 WI App 253,
268 Wis. 2d 725,
674 N.W.2d 51,
03-0251.
The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion. A trial court must consider whether the likely value of the defendant's testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief. State v. Arredondo,
2004 WI App 7,
269 Wis. 2d 369,
674 N.W.2d 647,
02-2361.
Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases under s. 974.06. Booker v. Schwarz,
2004 WI App 50,
270 Wis. 2d 745,
678 N.W.2d 361,
03-0217.
In considering prosecutorial vindictiveness when charges are increased following a successful appeal, whether the defendant is facing stiffer charges arising out of a single incident is important. The concern is that the defendant will be discouraged from exercising his or her right to appeal because of fear the state will retaliate by substituting a more serious charge for the original one on retrial. That concern does not come into play when the new charges stem from a separate incident. State v. Williams,
2004 WI App 56,
270 Wis. 2d 761,
677 N.W.2d 691,
03-0603.
Evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. State v. Dubose,
2005 WI 126,
285 Wis. 2d 143,
699 N.W.2d 582,
03-1690
A deaf defendant who was shackled during trial and sentencing had the burden to show that he in fact was unable to communicate, not that he theoretically might have had such difficulty. State v. Russ,
2006 WI App 9,
289 Wis. 2d 65,
709 N.W.2d 483,
04-2869.
Dubose does not directly control cases involving identification evidence derived from accidental confrontations resulting in spontaneous identifications. However, in light of developments since it's time,
Marshall,
92 Wis. 2d 101, a case in which the court determined that identification evidence need not be scrutinized for a due process violation unless the identification occurs as part of a police procedure directed toward obtaining identification evidence, does not necessarily resolve all such cases. The circuit court still has a limited gate-keeping function to exclude such evidence under s. 904.03. State v. Hibl,
2006 WI 52,
290 Wis. 2d 595,
714 N.W.2d 194,
04-2936.
When analyzing a judicial bias claim, there is a rebuttable presumption that the judge was fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant's due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the state and the accused, denies the latter due process of law. State v. Gudgeon,
2006 WI App 143,
295 Wis. 2d 189,
720 N.W.2d 114,
05-1528.
Absent a pervasive and perverse animus, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez,
2006 WI App 163,
295 Wis. 2d 801,
722 N.W.2d 136,
05-1265.
Under
Dubose a showup is necessary when officers lack other constitutional means to obtain a suspect's identification. However, when probable cause to arrest exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. State v. Nawrocki,
2008 WI App 23,
308 Wis. 2d 227,
746 N.W.2d 509,
06-2502.
The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. To be admissible, the in-court identification must rest on an independent recollection of the witness's initial encounter with the suspect. State v. Nawrocki,
2008 WI App 23,
308 Wis. 2d 227,
746 N.W.2d 509,
06-2502.
When the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence, the statements are impermissible. Improper comments do not necessarily give rise to a due process violation. For a due process violation, the court must ask whether the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Jorgensen,
2008 WI 60,
310 Wis. 2d 138,
754 N.W.2d 77,
06-1847.
Due process requires that vindictiveness against a defendant for having successfully attacked his or her first conviction must play no part in the sentence received after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive. This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence, when it implements the original dispositional scheme, is not tainted by vindictiveness. State v. Sturdivant,
2009 WI App 5,
316 Wis. 2d 197,
763 N.W.2d 185,
07-2508.
There is not an exclusive possession requirement as an element of the due process test when apparently exculpatory evidence is not preserved by the state. In this case, while the physical evidence, cell phones, was solely within the state's possession, the concomitant electronic voicemail evidence was stored elsewhere and could have been accessed by both the state and the defense until it was destroyed by the phone service provider in the normal course of business. Given the facts of this case, however, it was reasonable for the defendant to expect that the state would preserve the voicemail recordings. State v. Huggett,
2010 WI App 69,
324 Wis. 2d 786,
783 N.W.2d 675,
09-1684.
A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris,
2010 WI 79,
326 Wis. 2d 685,
786 N.W.2d 409,
08-0810.
In order to establish that the state violated his or her due process rights by destroying apparently exculpatory evidence, the defendant must demonstrate that: 1) the evidence destroyed possessed an exculpatory value that was apparent to those who had custody of the evidence before the evidence was destroyed; and 2) the evidence is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. The mere possibility that evidence of a bullet having been lodged in a destroyed van after a detective thoroughly examined the van and specifically looked for just such a bullet or bullet strike did not support the argument that the van's purported exculpatory value was apparent. State v. Munford,
2010 WI App 168,
330 Wis. 2d 575,
794 N.W.2d 264,
09-2658.
The public interest would be unduly harmed if the state were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders. On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant where he or she seeks to evade prosecution via equitable estoppel. State v. James M. Drown,
2011 WI App 53,
332 Wis. 2d 765,
797 N.W.2d 919,
10-1303.
A 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,
371 Wis. 2d 235,
881 N.W.2d 749,
15-0157.
When the state alleged that the defendant engaged in repeated sexual assaults of the same child during 2007 and 2008, and during that time period s. 948.025 (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred. Although the defendant should have been charged under the 2007-08 law, the defendant was mistakenly charged under the 2005-06 law. Nevertheless, the defendant was charged with a crime that existed at law. Class C criminal liability attached under the 2005-06 and 2007-08 laws to the same conduct as it pertained to the defendant. The wording difference was immaterial as the elements, as applied to the defendant, were the same. The technical charging error did not prejudice the defendant, nor did it affect the circuit court's subject matter jurisdiction. State v. Scott,
2017 WI App 40,
376 Wis. 2d 430,
899 N.W.2d 728,
16-1411.
If a prosecutor's statements are fairly characterized as impressing on the jury the importance of assessing a witness's credibility, there is no error. In this case, a verdict would necessarily follow the jury's determination of the victims' credibility; therefore, the state's argument that the jurors should not find the defendant not guilty unless they conclude the victims lied was equivalent to asking the jurors to carefully weigh the victims' credibility. There was no error and no denial of due process. State v. Bell,
2018 WI 28,
380 Wis. 2d 616,
909 N.W.2d 750,
15-2667.
The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute's primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in
Mendoza-Martinez,
372 U.S. 144: 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction's operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow,
2018 WI 52,
381 Wis. 2d 492,
912 N.W.2d 74,
16-0740.
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 in cases 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,
565 U.S. 228,
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.
