Note: See also the notes to Article I, Section 7—Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.
When a juror is struck after trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It is error to grant a nonsuit and then direct a verdict for the defendant because the plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 W (2d) 207, 177 NW (2d) 122.
Neither by constitution, statute, or common law is a right to trial by jury afforded in a will contest. Estate of Elvers, 48 W (2d) 17, 179 NW (2d) 881.
Where defendant, through his attorney, signed a notice of issue stating there was an issue of fact for the court, which was filed with the clerk, jury trial was effectually waived, because such conduct on the part of defendant's attorney amounted to written consent filed with the clerk as prescribed in 270.32, Stats. 1971. Theuerkauf v. Schnellbaecher, 64 W (2d) 79, 218 NW (2d) 295.
Requirement that defendant prepay jury fees in civil traffic forfeiture action is constitutional. State v. Graf, 72 W (2d) 179, 240 NW (2d) 387.
Jury fee did not violate right to trial by jury. County of Portage v. Steinpreis, 104 W (2d) 466, 312 NW (2d) 731 (1981).
Right to 12-member jury can only be waived personally by defendant. State v. Cooley, 105 W (2d) 642, 315 NW (2d) 369 (Ct. App. 1981).
Defendant has right to jury determination on each element of charged offense, and right can be waived only by defendant personally, on the record. State v. Villarreal, 153 W (2d) 323, 450 NW (2d) 519 (Ct. App. 1989).
The right to a jury trial does not extend to equitable actions; however defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms, 172 W (2d) 28, 492 NW (2d) 392 (Ct. App. 1992).
Use of collateral estoppel to prevent a civil defendant from testifying that he did not commit an act where in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant's right to a jury. Michelle T. v. Crozier, 173 W (2d) 681, 495 NW (2d) 327 (1993).
Where collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trail. Norwest Bank v. Plourde, 185 W (2d) 377, 518 NW (2d) 265 (Ct. App. 1994).
A party has a constitutional right to a jury trial on a statutory claim when the statute codifies an action known at common law in 1848 and the action was regarded as at law in 1848. State v. Ameritech, 185 W (2d) 686, 517 NW (2d) 705 (Ct. App. 1994).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 W (2d) 512, 546 NW (2d) 870 (Ct. App. 1996).
A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 US 528.
Juror intoxication is not external influence about which jurors may testify to impeach verdict. Tanner v. United States, 483 US 107 (1987).
I,6 Excessive bail; cruel punishments. Section 6. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.
Imposition of a 3-year sentence as a repeater is not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carries a maximum sentence of 6 months. Hanson v. State, 48 W (2d) 203, 179 NW (2d) 909.
It is not a cruel and unusual punishment to sentence a defendant to 25 years for armed robbery where the maximum would be 30 years, since by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State, 49 W (2d) 185, 181 NW (2d) 364.
Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court, 54 W (2d) 613, 197 NW (2d) 1.
A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler, 61 W (2d) 537, 213 NW (2d) 24.
Deliberate indifference to serious medical needs of prisoners constitutes cruel and unusual punishment. Santiago v. Leik, 179 W (2d) 786, 508 NW (2d) 456 (Ct. App. 1993).
Paddling students is not cruel and unusual punishment. Ingraham v. Wright, 430 US 651.
Defendant's life sentence was not cruel and unusual where defendant's 3 property crime felony convictions subjected him to recidivist penalty. Rummel v. Estelle, 445 US 263 (1980).
Prison term of 40 years and fine of $20,000 for possession and sale of 9 ounces of marijuana was not cruel and unusual punishment. Hutto v. Davis, 454 US 370 (1982).
Excessive fines clause of US Constitution does not apply to civil punitive damages award in action between private parties. Browning-Ferris v. Kelco Disposal, 492 US 257, 106 LEd 2d 219 (1989).
Exposure to unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual punishment. Risk from environmental tobacco smoke held to be a basis for a cause of action. Helling v. McKinney, 509 US 25, 125 LEd 2d 22 (1993).
Persons confined in central state hospital under 51.20, 51.37, 971.14, 971.17 and 975.06 are being subjected to punishment within meaning of cruel and unusual punishment clause. Flakes v. Percy, 511 F Supp. 1325 (1981).
Solitary confinement; punishment within the letter of the law or psychological torture? Thoenig, 1972 WLR 223.
Appellate sentence review. 1976 WLR 655.
I,7 Rights of accused. Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
CONFRONTATION AND COMPULSORY PROCESS
The right to have compulsory process to obtain witnesses in his behalf does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse. Elam v. State, 50 W (2d) 383, 184 NW (2d) 176.
An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State, 53 W (2d) 751, 193 NW (2d) 868.
When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either the constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 W (2d) 759, 193 NW (2d) 699.
Because there was no showing that the witness was permanently ill, the defendant was denied his constitutional right to confrontation by the court allowing the use of Woods' deposition. Sheehan v. State, 65 W (2d) 757, 223 NW (2d) 600.
Whether a witness' refusal on 5th amendment grounds to answer otherwise permissible questions violates defendant's right to confrontation must be determined from the whole record. West v. State, 74 W (2d) 390, 246 NW (2d) 675.
Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
Introduction into evidence of victim's hospital records unsupported by testimony of the treating physician did not violate defendant's right of confrontation and cross-examination. State v. Olson, 75 W (2d) 575, 250 NW (2d) 12.
Trial court did not deny defendant's right to confront accusers by forbidding cross-examination of sole prosecution witness as to the witness' history of mental illness, since no showing was made that the history was relevant to the witness' credibility. The right of confrontation is also limited by 904.03 where probative value of desired cross-examination is outweighed by possibility of unfair or undue prejudice. Chapin v. State, 78 W (2d) 346, 254 NW (2d) 286.
Defendant's right of confrontation was not violated where preliminary examination testimony of deceased witness was admitted at trial, since defendant had unlimited opportunity to cross-examine the witness and the testimony involved same issues and parties as at trial. Nabbefeld v. State, 83 W (2d) 515, 266 NW (2d) 292 (1978).
Defendant's right to compulsory process does not require admission of unstipulated polygraph exam. Lhost v. State, 85 W (2d) 620, 271 NW (2d) 121 (1978).
Trial court did not err in favoring incrimination right of witness over compulsory process right of defendant. State v. Harris, 92 W (2d) 836, 285 NW (2d) 917 (Ct. App. 1979).
State's failure to use Uniform Extradition Act to compel presence of doctor whose hearsay testimony was introduced denied accused's right to confront witness and violated hearsay rule, but error was harmless. State v. Zellmer, 100 W (2d) 136, 301 NW (2d) 209 (1981).
Medical records as explained to jury by medical student were sufficient to support conviction; confrontation right was not denied. Hagenkord v. State, 100 W (2d) 452, 302 NW (2d) 421 (1981).
Court properly denied request to present defense witness who refused to answer relevant questions during offer of proof cross examination. State v. Wedgeworth, 100 W (2d) 514, 302 NW (2d) 810 (1981).
Admission of statement by co-conspirator did not violate right of confrontation. State v. Dorcey, 103 W (2d) 152, 307 NW (2d) 612 (1981).
Where witness died after testifying at preliminary examination, admission of transcript of testimony did not deny confrontation right. Constitutional standards for admission of hearsay evidence discussed. State v. Bauer, 109 W (2d) 204, 325 NW (2d) 857 (1982).
Cross-examination, not exclusion, is proper tool for challenging weight and credibility of accomplice testimony. State v. Nerison, 136 W (2d) 37, 401 NW (2d) 1 (1987).
Defendant waives confrontation right by failing to object to trial court's finding of witness unavailability. State v. Gove, 148 W (2d) 936, 437 NW (2d) 218 (1989).
Prosecutor who obtained incriminating statement from defendant is obliged to honor subpoena and testify at suppression hearing if there is reasonable probability testimony will lead to relevant evidence. State v. Wallis, 149 W (2d) 534, 439 NW (2d) 590 (Ct. App. 1989).
Statement of coconspirator under 908.01 (4) (b) 5 may be admitted without proof of declarant's unavailability or showing of particular indicia of reliability; court must determine whether circumstances exist warranting exclusion. State v. Webster, 156 W (2d) 510, 458 NW (2d) 373 (Ct. App 1990).
Defendant had no confrontation clause rights as to hearsay at pretrial motion hearing; trial court could rely on hearsay in making its decision. State v. Frambs, 157 W (2d) 700, 460 NW (2d) 811 (Ct. App. 1990).
Allegations of professional misconduct against prosecution's psychiatric expert initially referred to prosecutor's office but immediately transferred to special prosecutor for investigation and possible criminal proceeding were properly excluded as subject of cross examination of expert due to lack of logical connection between expert and prosecutor necessary to suggest bias. State v. Lindh, 161 W (2d) 324, 468 NW (2d) 168 (1991).
Ability of child witness to speak truth or communicate intelligently are matters of credibility for jury, not questions of competency to be determined by judge. State v. Hanna, 163 W (2d) 193, 471 NW (2d) 238 (Ct. App. 1991).
Where witness's "past-recollection recorded statement" was admitted after witness testified and was found "unavailable" as a result of having no current memory of murder in question, there was an opportunity for cross-examination and right to confrontation was not violated. State v. Jenkins, 168 W (2d) 175, 483 NW (2d) 262 (1992).
Defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at time of the alleged incident had relevant evidence. State v. Migliorino, 170 W (2d) 576, 489 NW (2d) 715 (Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 W (2d) 600, 499 NW (2d) 719 (Ct. App. 1993). See also State v. Speese, 191 W (2d) 205, 528 NW (2d) 63 (Ct. App. 1995.)
Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception, the Confrontation Clause is satisfied. State v. Patino, 177 W (2d) 348, 502 NW (2d) 601 (Ct. App. 1993).
An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a "particularized need" for the expert. State v. Kirschbaum, 195 W (2d) 11, 535 NW (2d) 462 (Ct. App. 1995).
The right to confrontation is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate any reference to the defendant's existence. State v. Mayhall, 195 W (2d) 53, 535 NW (2d) 473 (Ct. App. 1995).
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 W (2d) 210, 546 NW (2d) 501 (Ct. App. 1996).
The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 W (2d) 29, 549 NW (2d) 418 (1996).
When required by the right effectively to present a defense, the department of health and social services, having authority to do so, in the exercise of sound discretion must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
Admission into evidence of transcript of preliminary hearing testimony did not violate confrontation right where witness was, in effect, cross-examined at hearing. Ohio v. Roberts, 448 US 56 (1980).
Introduction of accomplice's confession for rebuttal purposes, not hearsay, didn't violate defendant's confrontation rights. Tennessee v. Street, 471 US 409 (1985).
Confrontation clause doesn't require showing of unavailability as condition of admission of out-of-court statements of non-testifying co-conspirator. United States v. Inadi, 475 US 387 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
Confrontation provision does not require defendant's access to confidential child abuse reports; due process requires that court undertake in camera inspection of file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie, 480 US 39 (1987).
Admission of nontestifying codefendant's confession violates confrontation rights, even though defendant's confession was also admitted. Cruz v. New York, 481 US 186 (1987).
Confrontation clause does not require that defendant be permitted to be present at competency hearing of child witnesses as long as defendant is provided opportunity for full and effective cross-examination at trial. Kentucky v. Stincer, 482 US 730 (1987).
Confrontation clause prohibits placement of screen between child witness and defendant; screen prevented witness from seeing defendant, but allowed defendant to dimly see witness. Coy v. Iowa, 487 US 1012 (1988).
If state makes adequate showing of necessity, it may use special procedure, such as one-way closed-circuit television to transmit child witness's testimony to court without face-to-face confrontation with defendant. Maryland v. Craig, 497 US 836, 111 LEd 2d 666 (1990).
Finding of unavailability of witness due to mental illness, made on basis of confused and stale record, deprived defendant of right to confront witness. Error was harmless. Burns v. Clusen, 599 F Supp. 1438 (1984).
Use of child victim's statements to psychologist under 908.03 (4) violated accused sexual assaulter's confrontation rights. Nelson v. Ferrey, 688 F Supp. 1304 (E. D. Wis. 1988).
State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.
COUNSEL
Note: See also the notes to Article I, Section 8—Self-incrimination.
A defendant is entitled to the presence of counsel at a post-warrant lineup but the attorney need not participate or object, and need not be the ultimate trial counsel. Wright v. State, 46 W (2d) 75, 175 NW (2d) 646.
A city attorney should not be appointed defense counsel in a state case where city police are involved unless the defendant, being fully informed, requests the appointment. Karlin v. State, 47 W (2d) 452, 177 NW (2d) 318.
Conference in chambers between defendant's counsel and the prosecutor in regard to the plea agreement without defendant's presence was not violative of his constitutional rights, thereby constituting a manifest injustice, since defendant had the benefit of counsel both during the entry of his plea and at the sentencing, and on the record expressly acquiesced in the plea agreement. Kruse v. State, 47 W (2d) 460, 177 NW (2d) 322.
A disciplinary action against an attorney is a civil proceeding and he is not entitled to the appointment of an attorney if he is indigent. State v. Hildebrand, 48 W (2d) 73, 179 NW (2d) 892.
An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State, 50 W (2d) 682, 184 NW (2d) 826.
ABA Standards relating to the duty of defense counsel approved, but their violation does not automatically prove incompetency or ineffectiveness. State v. Harper, 57 W (2d) 543, 205 NW (2d) 1.
An arrested man has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
Defendant has no right to counsel or to be present when photographs are shown to a witness. His right to counsel exists only at or after the initiation of criminal proceedings against him. Holmes v. State, 59 W (2d) 488, 208 NW (2d) 815.
It is not desirable, but is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor, 60 W (2d) 506, 210 NW (2d) 873.
Challenge to conviction because of absence of counsel at an informal confrontation when he was identified by the victim, is not sustained. Jones v. State, 63 W (2d) 97, 216 NW (2d) 224.
When conflict arises in dual representation, a defendant must be granted a vacation of sentence and a new hearing, because such a conflict at sentencing per se renders counsel representation ineffective and hence actual prejudice need not be shown. Hall v. State, 63 W (2d) 304, 217 NW (2d) 352.
