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in repeated sexual assaults of the same child during 2007 and 2008, and during that time period s. 948.025 (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred.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.
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).
The prosecution may comment on an accused's pre-
Miranda silence when the accused elects to testify on his own behalf. State v. Sorenson,
143 Wis. 2d 226,
421 N.W.2d 77 (1988).
The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs,
146 Wis. 2d 116,
430 N.W.2d 353 (Ct. App. 1988).
The use of
Goodchild testimony to impeach the defendant's trial testimony does not violate the privilege against self-incrimination. State v. Schultz,
152 Wis. 2d 408,
448 N.W.2d 424 (1989).
An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats,
156 Wis. 2d 74,
457 N.W.2d 299 (1990).
