Constitutional Law—Closure of Trials—The Press and the Public Have a First Amendment Right of Access to Attend Criminal Trials, Which Cannot Be Closed Absent an Overriding Interest.
Richmond Newspapers, Inc. v. Virginia,
100 S. Ct. 2814 (1980). Morris. 64 MLR 717 (1981).
MISCELLANEOUS
A defendant may waive the right to be present at a proceeding when the court orders the defendant's case consolidated with another. It is not error at the start of a trial to revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State,
47 Wis. 2d 725,
177 N.W.2d 870 (1970).
A prisoner held in Dodge County, who escaped from a hospital in another county while being treated there, could be tried for the escape in Dodge County. Dolan v. State,
48 Wis. 2d 696,
180 N.W.2d 623 (1970).
A defendant is not prejudiced when the court amends the charge against the defendant to charge a lesser included offense without informing the defendant of the nature of the amended charge or allowing the defendant to plead to it. Moore v. State,
55 Wis. 2d 1,
197 N.W.2d 820 (1972).
It is not a violation of a defendant's rights if the defendant is prosecuted by information and not by grand jury indictment. State v. Lehtola,
55 Wis. 2d 494,
198 N.W.2d 354 (1972).
A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State,
58 Wis. 2d 671,
207 N.W.2d 589 (1973).
Participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretion in not granting a venue change. Briggs v. State,
76 Wis. 2d 313,
251 N.W.2d 12 (1977).
If a defendant acquiesces in counsel's decision that the defendant not testify, the defendant's right to testify is waived. State v. Albright,
96 Wis. 2d 122,
291 N.W.2d 487 (1980).
When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs,
117 Wis. 2d 293,
344 N.W.2d 149 (1984).
Constitutional error is harmless if the court can declare its belief that it is harmless beyond a reasonable doubt because there is no reasonable possibility the error contributed to the conviction. State v. Brecht,
143 Wis. 2d 297,
421 N.W.2d 96 (1988).
Two factors determine the sufficiency of a criminal charge: 1) whether it states an offense to which the defendant can plead; and 2) whether disposition will bar future prosecution for the same offense. Discussing additional factors. State v. Fawcett,
145 Wis. 2d 244,
426 N.W.2d 91 (Ct. App. 1988).
A judge's bias against counsel must be severe to translate into unconstitutional partiality against a litigant. State v. Hollingsworth,
160 Wis. 2d 883,
467 N.W.2d 555 (Ct. App. 1991).
Rules for pleadings in criminal obscenity cases are the same as for all other criminal cases. If a pleading fails to set forth all elements of a crime but includes correct citations, all elements are sufficiently alleged. State v. Petrone,
161 Wis. 2d 530,
468 N.W.2d 676 (1991).
Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial prejudices a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff,
170 Wis. 2d 608,
489 N.W.2d 689 (Ct. App. 1992).
A criminal defendant's right to testify is fundamental. In order to determine whether a criminal defendant is waiving the right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury consisting of a basic inquiry to ensure that the defendant is aware of the defendant's right to testify, and the defendant has discussed this right with counsel. State v. Weed,
2003 WI 85,
263 Wis. 2d 434,
666 N.W.2d 485,
01-1476.
Following an unchallenged colloquy wherein the defendant knowingly, voluntarily, and intelligently waived the defendant's right to testify, the defendant's failure to seek an offer of proof at the time of trial or in the postconviction motion operated as a waiver of the right to have decided the issue of whether the waiver to testify could be withdrawn. State v. Winters,
2009 WI App 48,
317 Wis. 2d 401,
766 N.W.2d 754,
08-0910.
When a trial court fails to satisfy the
Weed,
2003 WI 85, mandate to conduct an on-the-record colloquy to determine if the defendant knowingly waived the right to testify, an evidentiary hearing to determine whether the waiver was knowingly, voluntarily, and intelligently made is the proper procedural response. The state carries the burden to show that the defendant's waiver was knowing and voluntary and must do so by clear and convincing evidence. State v. Garcia,
2010 WI App 26,
323 Wis. 2d 531,
779 N.W.2d 718,
09-0516.
Weed,
2003 WI 85, does not address the situation here, in which a defendant prevented the trial court from conducting the on-the-record colloquy it required. By refusing to come to court so the trial court could personally explain what
Weed requires must be explained, the defendant made it, as a practical matter consistent with safety, impossible for the trial court to explain the defendant's right to testify and determine whether the decision to not testify was knowing, intelligent, and voluntary. State v. Vaughn,
2012 WI App 129,
344 Wis. 2d 764,
823 N.W.2d 543,
12-0094.
Harmless error review applies to the circuit court's alleged denial of a defendant's right to testify because its effect on the outcome of the trial is capable of assessment. State v. Nelson,
2014 WI 70,
355 Wis. 2d 722,
849 N.W.2d 317,
12-2140.
A criminal defendant's right to testify may, in appropriate cases, be subject to forfeiture when conduct incompatible with the assertion of the right is at issue. A forfeiture determination may not be arbitrary or disproportionate to the purposes it is designed to serve. Stated differently, a complete denial of the right to testify must be reasonable under the circumstances of the case. State v. Anthony,
2015 WI 20,
361 Wis. 2d 116,
860 N.W.2d 10,
13-0467.
Two distinct interests formed the basis of the circuit court's complete denial of the defendant's right to testify in this case: 1) the circuit court's ability to control the presentation of evidence so as to ensure the fairness and reliability of the criminal trial process; and 2) the preservation of dignity, order, and decorum in the courtroom. State v. Anthony,
2015 WI 20,
361 Wis. 2d 116,
860 N.W.2d 10,
13-0467.
When, as here, a defendant repeatedly promises to disobey a circuit court's evidentiary ruling, the effect of which would seriously threaten the fairness and reliability of the criminal trial process, a circuit court has a legitimate interest in placing reasonable limitations on a defendant's right to testify. And, when a defendant displays disruptive conduct, as was the case here, a circuit court has a legitimate interest in placing reasonable limitations on the right to testify. State v. Anthony,
2015 WI 20,
361 Wis. 2d 116,
860 N.W.2d 10,
13-0467.
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 seven factors outlined in
Fawcett,
145 Wis. 2d 244 (1988), 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.
The fundamental right to testify on one's own behalf at a criminal trial does not exist at the responsibility phase of bifurcated not guilty by reason of mental disease or defect proceedings because the responsibility phase is not a part of a criminal trial. State v. Lagrone,
2016 WI 26,
368 Wis. 2d 1,
878 N.W.2d 636,
13-1424.
A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.
The absolute prohibition of paralegal-conducted jail interviews is an unjustifiable restriction of inmates' due process rights of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.
The trial court's wholesale exclusion of the defendant's proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial without valid justification violated the defendant's right to present a defense and to testify on the defendant's own behalf. Morgan v. Krenke,
72 F. Supp. 2d 980 (1999).
I,8
Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [
As amended Nov. 1870, April 1981, and April 2023]
I,8(1)(1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
I,8(2)
(2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious harm as defined by the legislature by law, or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court, or if the person is accused of a violent crime as defined by the legislature by law, only upon a finding that there is a reasonable basis to believe that the conditions are necessary based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.
I,8(3)
(3)
The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.
I,8(4)
(4)
The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [
1869 J.R. 7, 1870 J.R. 3, 1870 c. 118, vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981; 2021 J.R. 6, 2023 J.R. 2, vote April 2023]
DOUBLE JEOPARDY
When, after a plea bargain, the state filed an amended complaint to which the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State,
52 Wis. 2d 708,
191 N.W.2d 19 (1971).
The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State,
53 Wis. 2d 769,
193 N.W.2d 704 (1972).
A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum,
54 Wis. 2d 213,
194 N.W.2d 660 (1972).
When a defendant is tried for one offense and convicted of a lesser included offense, the defendant is not placed in double jeopardy. Dunn v. State,
55 Wis. 2d 192,
197 N.W.2d 749 (1972).
A defendant is not subjected to double jeopardy when brought to trial a second time after a mistrial is declared. State v. Elkinton,
56 Wis. 2d 497,
202 N.W.2d 28 (1972).
A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State,
60 Wis. 2d 325,
210 N.W.2d 695 (1973).
A defendant convicted of false imprisonment and rape committed in Waukesha County was not subjected to double jeopardy by a second conviction for false imprisonment of the same victim in Milwaukee County because the facts supported two separate prosecutions. Baldwin v. State,
62 Wis. 2d 521,
215 N.W.2d 541 (1974).
When a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there is a “manifest necessity" to terminate the proceedings because the indictment or information is fatally defective and the trial court lacks jurisdiction to try the case. State v. Russo,
70 Wis. 2d 169,
233 N.W.2d 485 (1975).
A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter,
72 Wis. 2d 754,
242 N.W.2d 206 (1976).
When the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated did not place the defendant in double jeopardy. Day v. State,
76 Wis. 2d 588,
251 N.W.2d 811 (1977).
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee's conduct related to an alleged crime for which the parolee is charged and acquitted. State ex rel. Flowers v. DHSS,
81 Wis. 2d 376,
260 N.W.2d 727 (1978).
When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell,
85 Wis. 2d 331,
270 N.W.2d 428 (Ct. App. 1978).
The double jeopardy provisions of the U.S. and Wisconsin Constitutions are identical in scope and purpose. U.S. Supreme Court decisions control both provisions. Discussing multiplicitous rape charges. Harrell v. State,
88 Wis. 2d 546,
277 N.W.2d 462 (Ct. App. 1979).
When the court of appeals reversed the defendant's conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden,
93 Wis. 2d 574,
288 N.W.2d 139 (1980).
When a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe,
96 Wis. 2d 48,
291 N.W.2d 809 (1980).
A prosecutor's repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening,
100 Wis. 2d 700,
303 N.W.2d 821 (1981).
The double jeopardy clause did not bar retrial when the judge declared a mistrial due to jury deadlock. State v. DuFrame,
107 Wis. 2d 300,
320 N.W.2d 210 (Ct. App. 1982).
The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson,
110 Wis. 2d 548,
329 N.W.2d 182 (1983).
Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W.2d 564 (1983).
Reimposition of a sentence after a defendant has been placed on probation, absent a violation of a probation condition, violates the double jeopardy clause. State v. Dean,
111 Wis. 2d 361,
330 N.W.2d 630 (Ct. App. 1983).
Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution, or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew,
115 Wis. 2d 243,
340 N.W.2d 470 (1983).
When probation was conditioned on the defendant's voluntary commitment to a mental hospital but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of three years' imprisonment. Double jeopardy was not violated. State v. Sepulveda,
120 Wis. 2d 231,
353 N.W.2d 790 (1984).
The double jeopardy clause was not violated when the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin,
121 Wis. 2d 670,
360 N.W.2d 43 (1985).
When police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon the defendant's return home confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel,
124 Wis. 2d 101,
369 N.W.2d 145 (1985). See also State v. Thierfelder,
174 Wis. 2d 213,
495 N.W.2d 669 (1993).
A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa,
127 Wis. 2d 155,
378 N.W.2d 883 (1985).
When the trial court declined to acquit the defendant but dismissed the criminal information after the jury deadlocked, double jeopardy barred the state's appeal of the dismissal. State v. Turley,
128 Wis. 2d 39,
381 N.W.2d 309 (1986).
The defendant waived a double jeopardy claim when failing to move for a dismissal of the charges at a retrial following a mistrial to which the defendant objected. State v. Mink,
146 Wis. 2d 1,
429 N.W.2d 99 (Ct. App. 1988).
A criminal prosecution for escape is not barred by the double jeopardy clause when commenced following an administrative disciplinary proceeding. State v. Quiroz,
149 Wis. 2d 691,
439 N.W.2d 621 (Ct. App. 1989).
A court may not, after accepting a guilty plea and ordering a presentence investigation, absent fraud or a party's intentionally withholding material information, vacate the plea and order reinstatement of the original information without violating the double jeopardy clause. State v. Comstock,
168 Wis. 2d 915,
485 N.W.2d 354 (1992).
For a defendant to invoke double jeopardy protection after successfully moving for a mistrial, the prosecutor must have acted with intent to subvert the double jeopardy protection to gain another chance to convict or to harass the defendant with multiple prosecutions. State v. Quinn,
169 Wis. 2d 620,
486 N.W.2d 542 (Ct. App. 1992).
Charges are multiplicitous if they are identical both in law and fact or if the legislature intended the allowable unit of prosecution for the offense to be a single count. State v. Davis,
171 Wis. 2d 711,
492 N.W.2d 174 (Ct. App. 1992).
Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the jury, and convening a second jury is prohibited absent “manifest necessity." Granting a mistrial due to the unavailability of a prosecution witness is to be given the most stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels,
174 Wis. 2d 173,
495 N.W.2d 341 (1993).
First offender driving while intoxicated prosecution is civil, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Thierfelder,
174 Wis. 2d 213,
495 N.W.2d 669 (1993).
The state supreme court will not interpret Wisconsin's double jeopardy clause to be broader than the U.S. Supreme Court's interpretation of the federal clause. State v. Kurzawa,
180 Wis. 2d 502,
509 N.W.2d 712 (1994).
A criminal conviction for violating terms of bail resulting from the conviction for another crime committed while released on bail does not constitute double jeopardy. State v. West,
181 Wis. 2d 792,
512 N.W.2d 207 (Ct. App. 1993).
Collateral estoppel is incorporated into the protection against double jeopardy and provides that when an ultimate issue of fact has once been determined, that issue cannot be relitigated between the same parties. The test is whether a rational jury could have grounded its verdict upon a separate issue. State v. Jacobs,
186 Wis. 2d 219,
519 N.W.2d 746 (Ct. App. 1994).
To determine whether charges are improperly multiplicitous, the following two-prong test is applied: 1) whether the charged offenses are identical in law and fact; and 2) the legislative intent as to the allowable unit of prosecution for the offense. State v. Richter,
189 Wis. 2d 105,
525 N.W.2d 168 (Ct. App. 1994).
An acquittal does not prove innocence. Evidence of a crime for which a defendant was acquitted may be offered to show motive, plan, and other matters authorized under s. 904.04 if a jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum,
191 Wis. 2d 107,
528 N.W.2d 36 (Ct. App. 1995).
The extension of a previously entered juvenile dispositional order due to the juvenile's participation in an armed robbery while subject to the order was not a “disposition" of the armed robbery charge. Subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 [now s. 938.39] or the protection against double jeopardy. State v. Stephens,
201 Wis. 2d 82,
548 N.W.2d 108 (Ct. App. 1996),
95-2103.
Whether a statute is criminal or civil for purposes of double jeopardy analysis depends on whether the legislature intended the statute to provide a remedial civil sanction and whether there are aspects of the statute that are so punitive either in effect or nature as to render the overall purpose punishment. State v. McMaster,
206 Wis. 2d 30,
556 N.W.2d 673 (1996),
95-1159.
Student disciplinary action under University of Wisconsin system administrative rules does not constitute punishment triggering double jeopardy protection. City of Oshkosh v. Winkler,
206 Wis. 2d 538,
557 N.W.2d 464 (Ct. App. 1996),
96-0967.
Service in prison of time successfully served on parole and forfeited through revocation does not constitute punishment within the meaning of the double jeopardy clause. State ex rel. Ludtke v. DOC,
215 Wis. 2d 1,
572 N.W.2d 864 (Ct. App. 1997),
96-1745.
A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. When one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses, which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998),
96-2830.
Whether a single course of conduct has been impermissibly divided into separate violations of the same statute requires consideration of whether each offense is identical in fact and law and whether the legislature intended to allow multiple convictions. For each victim there is generally a separate offense. Legislative intent is shown by whether the statute punishes an individual for each act or for the course of conduct those acts constitute. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998),
96-2830.
The protection against double jeopardy embraces a defendant's right of having the defendant's trial completed by a particular tribunal. When the state moves for a mistrial over the objections of the defense, the trial court may not grant the motion unless there is a manifest necessity for the act. State v. Collier,
220 Wis. 2d 825,
584 N.W.2d 689 (Ct. App. 1998),
97-2589.
The double jeopardy clause prevented retrial when there was no motion for a mistrial but prosecutorial misconduct, the motivation for and effect of which were not known to the defendant at trial, had been committed. State v. Lettice,
221 Wis. 2d 69,
585 N.W.2d 171 (Ct. App. 1998),
97-3708.
Multiple criminal punishments are appropriate for multiple acts, but not multiple thoughts. Multiple punishments for a single act of enticement when the defendant intended to commit multiple illegal acts was not allowable. State v. Church,
223 Wis. 2d 641,
589 N.W.2d 638 (Ct. App. 1998),
97-3140.
If the legislature unambiguously has enacted two distinct prohibitions, each requiring proof of an element the other does not, the
Blockburger,
284 U.S. 299 (1932), presumption of intent to allow multiple punishment applies. But, when the language of the statute is ambiguous, the rule of lenity applies, requiring resolving the ambiguity against allowing multiple punishment. State v. Church,
223 Wis. 2d 641,
589 N.W.2d 638 (Ct. App. 1998),
97-3140.
Double jeopardy was not violated when the trial court realized it made an error in speech in pronouncing sentence and took immediate steps to correct the sentence before the judgment was entered into the record. State v. Burt,
2000 WI App 126,
237 Wis. 2d 610,
614 N.W.2d 42,
99-1209.
