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 the 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 was error to grant a nonsuit and then direct a verdict for the defendant because a plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122 (1970). Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Bermke v. Security First National Bank of Sheboygan, 48 Wis. 2d 17, 179 N.W.2d 881 (1970). The requirement that a defendant prepay jury fees in a civil traffic forfeiture action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387 (1976). Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981). 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 Associates, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992). Use of collateral estoppel to prevent a civil defendant from testifying that the defendant did not commit an act when 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 Wis. 2d 681, 495 N.W.2d 327 (1993). When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank Wisconsin Eau Claire, N.A. v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (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 Wis. 2d 512, 546 N.W.2d 870 (1996), 93-3182. A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493. While a defendant has a right to a jury trial in a civil case, there is no vested right under this section to the manner or time in which that right may be exercised or waived. Those are merely procedural matters to be determined by law. Phelps v. Physicians Insurance Co. of Wisconsin, Inc., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580. In order to deem the Village Food, 2002 WI 92, test satisfied, there need not be specific identity between the violation at bar and an 1848 cause of action, so long as there was an 1848 action that only differs slightly and is essentially a counterpart to the current cause. To the extent that the 1849 statutes recognize broad causes of action for civil forfeitures, they are insufficient to support a demand for a 12 person jury in every forfeiture action. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890, 03-1794. See also State v. Schweda, 2007 WI 100, 303 Wis. 2d 353, 736 N.W.2d 49, 05-1507. A party’s waiver of the right of trial by jury need not be a waiver in the strictest sense of that word, that is, an intentional relinquishment of a known right. Instead, a party may waive the right of trial by jury by failing to assert the right timely or by violating a law setting conditions on the party’s exercise of the jury trial right. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. It lies within the circuit court’s discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant’s right of trial by jury under this section when it denied the defendant’s motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court’s discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. Comparing the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart will be helpful in applying the first prong of the Village Food, 2002 WI 92, test. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396. An implied statutory right to trial by jury in situations in which the legislature has not prescribed such a right and in which the constitution does not afford such a right would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case, but would instead invite ad hoc argument whenever the statutes are silent. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396. A statute that creates a cause of action with an essential counterpart at common law becomes no less an essential counterpart simply because it addresses a narrower range of practices. If the legislature focuses and directs the principles of common law fraud to a specific realm, it does not strip a litigant of the litigant’s right to a jury trial when it would otherwise exist. Otherwise, a legislative enactment clearly modeled on a common law cause of action but applied to a specific context would carry no right to a jury trial. State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232. “Prescribed by law” as used in this section is not restricted to statutory law. Interpreting “prescribed by law” to mean “prescribed by the legislature” assigns to the legislature the task of defining all the possible ways a person might waive the person’s right to a jury trial. The text of this section does not limit the manner of jury trial waiver to those set forth by statute, and a court may look to other sources of law to determine whether a putative waiver of the right to a jury trial was valid. Parsons v. Associated Banc-Corp, 2017 WI 37, 374 Wis. 2d 513, 893 N.W.2d 212, 14-2581. I,6Excessive 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 three-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of two boxes of candy, which carried a maximum sentence of six months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909 (1970). It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration five other uncharged armed robberies. Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364 (1970). 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 Wis. 2d 613, 197 N.W.2d 1 (1972). A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler, 61 Wis. 2d 537, 213 N.W.2d 24 (1973). Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95-2669. A prison inmate does not possess a reasonable expectation of privacy in the inmate’s body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98-3020. Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate’s condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant’s knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, 625 N.W.2d 630, 00-0549. The defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of the defendant’s life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant’s life expectancy, it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974. In addressing whether a sentence constitutes cruel and unusual punishment and is excessive, a court looks to whether the sentence is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, 04-1163. A prisoner has a liberty interest in avoiding forced nutrition and hydration, but the Department of Corrections may infringe on the prisoner’s liberty interest by forcing the prisoner to ingest food and fluids against the prisoner’s will. A court may enter a temporary ex parte order for involuntarily feeding and hydration if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when the department’s allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. DOC v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750. Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do not have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, 08-1139. See also State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. While Saenz, 2007 WI App 25, addressed initial authorization for forced feeding, it is consistent with Saenz to require that, when the Department of Corrections seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In those circumstances the department must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue the inmate’s hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a “reliable medical opinion” within the meaning of the showing the Department of Corrections must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A prisoner’s objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when the Department of Corrections seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A proportionality test is utilized for determining whether a forfeiture is unconstitutionally excessive, considering the nature of the offense, the purpose of the statute, the maximum potential fine for the offense, and the harm that actually resulted from the defendant’s conduct. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. Forfeiture of a convicted drug seller’s financial interest in a vehicle did not violate the excessive fines clause, but forfeiture of a co-titleholder’s full financial interest in the vehicle was a different matter when undisputed testimony was that the co-titleholder had no knowledge of illegal activity and did not consent to it. The co-titleholder was entitled to any remaining proceeds beyond the drug seller’s financial interest in the vehicle after its sale. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. The basic precept underlying the prohibition against cruel and unusual punishment is one of proportionality that punishment for the crime should be graduated and proportional to both the offender and the offense. A punishment violates that prohibition if it is inconsistent with evolving standards of decency that mark the progress of a maturing society. In deciding a categorical challenge such as this, a court will first consider objective indicia of society’s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Second, notwithstanding such objective evidence, a court will exercise its own independent judgment to determine whether the punishment violates the constitutional prohibition. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The U.S. Supreme Court in Miller, 567 U.S. 460 (2012), did not foreclose a sentencer’s ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under s. 973.014 (1g) (a) 3. if the circumstances warrant it. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The mandatory minimum of 20 years’ imprisonment provided by s. 973.014 (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the U.S. and Wisconsin Constitutions. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. A defendant’s life sentence was not cruel and unusual when the defendant’s three property crime felony convictions subjected the defendant to a recidivist penalty. Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). The excessive fines clause of the U.S. Constitution does not apply to civil punitive damage awards in actions between private parties. Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Exposure to an 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 was a basis for a cause of action. Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). A sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the California three strikes law, is not grossly disproportionate and therefore does not violate the prohibition on cruel and unusual punishments. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. The state must give defendants some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, but the 8th amendment does not require the state to release that offender during the offender’s natural life. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). A mandatory life sentence without parole for those under the age of 18 at the time of their crimes violates the 8th amendment’s prohibition on cruel and unusual punishments. Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The excessive fines clause of the 8th amendment to the U.S. Constitution is an incorporated protection, applicable to the states under the 14th amendment’s due process clause. Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682, 203 L. Ed. 2d 11 (2019). A separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18 years of age. Jones v. Mississippi, 593 U.S. ___, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021). The “unnecessary and wanton infliction of pain” proscribed by the 8th amendment includes a prohibition on deliberate indifference to the serious medical needs of prisoners. To establish such a claim, a plaintiff must demonstrate that: 1) the prisoner’s condition was objectively serious; and 2) the defendants were deliberately indifferent to the prisoner’s health or safety. A serious medical condition is one that has been diagnosed by a physician or that is so obvious that even a lay person would perceive the need for a doctor’s attention. A medical condition need not be life threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated. The test for deliberate indifference is subjective: the plaintiff must show that the officials were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that they actually drew the inference. Orlowski v. Milwaukee County, 872 F.3d 417 (2017). Persons confined in the central state hospital under ss. 51.20, 51.37, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981). A prisoner has no liberty interest in avoiding transfer to any prison, whether within or without the state. Berdine v. Sullivan, 161 F. Supp. 2d 972 (2001). Incarcerating a person beyond the termination of the person’s sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate’s request to recalculate the inmate’s sentence and must place some procedure in place to address such requests. Russell v. Lazar, 300 F. Supp. 2d 716 (2004). With respect to juvenile offenders convicted of crimes other than homicide, Graham, 560 U.S. 48 (2010), suggests that there is a point when the 8th amendment to the U.S. Constitution prohibits parole officials from refusing to grant parole solely based on the seriousness of the offense. However, nothing in Graham prohibits the Wisconsin Parole Commission from considering the seriousness of the offense and the consequences to the victims in making parole decisions. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Solitary confinement—Punishment within the Letter of the Law, or Psychological Torture? Thoenig. 1972 WLR 223.
Constitutional Law—Eighth Amendment—Appellate Sentence Review. Graupner. 1976 WLR 655.
I,7Rights 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. I,7confrontation and compulsory process The right to have compulsory process to obtain witnesses in one’s 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 when it is clearly shown that there has been an abuse of discretion. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176 (1971). 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 Wis. 2d 751, 193 N.W.2d 868 (1972). 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 constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 Wis. 2d 759, 193 N.W.2d 699 (1972). Because there was no showing that the witness was permanently ill, the defendant was denied the constitutional right to confrontation by the court allowing the use of the witness’s deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600 (1974). Whether a witness’s refusal on 5th amendment grounds to answer otherwise permissible questions violates the defendant’s right to confrontation must be determined from the whole record. West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 (1976). Admission of double hearsay did not violate the defendant’s right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976). Introduction into evidence of a victim’s hospital records unsupported by testimony of the treating physician did not violate the defendant’s right of confrontation and cross-examination. State v. Olson, 75 Wis. 2d 575, 250 N.W.2d 12 (1977). The trial court did not deny the defendant’s right of confrontation by forbidding cross-examination of the sole prosecution witness as to the witness’s history of mental illness, since no showing was made that the history was relevant to the witness’s credibility. The right of confrontation is also limited by s. 904.03 if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286 (1977). The defendant’s right of confrontation was not violated when preliminary examination testimony of a deceased witness was admitted at trial when the defendant had unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978). A defendant’s right to compulsory process did not require admission of an unstipulated polygraph exam. Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978). The trial court did not err in favoring a witness’s right against self-incrimination over the compulsory process rights of the defendant. State v. Harris, 92 Wis. 2d 836, 285 N.W.2d 917 (Ct. App. 1979). The state’s failure to use the Uniform Extradition Act to compel the presence of a doctor whose hearsay testimony was introduced denied the accused’s right to confront witnesses and violated the hearsay rule, but the error was harmless. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981). Medical records, as explained to the jury by a medical student, were sufficient to support a conviction and did not deny the right of confrontation. Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981). The trial court properly denied a request to present a defense witness who refused to answer relevant questions during an offer of proof cross-examination. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981). Admission of a statement by a deceased co-conspirator did not violate the right of confrontation. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981). Cross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony. State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987). A defendant waives the right of confrontation by failing to object to the trial court’s finding of witness unavailability. State v. Gove, 148 Wis. 2d 936, 437 N.W.2d 218 (1989). A prosecutor who obtains an incriminating statement from a defendant is obliged to honor a subpoena and to testify at a suppression hearing if there is a reasonable probability that testifying will lead to relevant evidence. State v. Wallis, 149 Wis. 2d 534, 439 N.W.2d 590 (Ct. App. 1989). A defendant had no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990). Allegations of professional misconduct against the prosecution’s psychiatric expert initially referred to the prosecutor’s office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as the subject of cross-examination of the expert due to the lack of a logical connection between the expert and prosecutor necessary to suggest bias. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991). The ability of a child witness to speak the truth or communicate intelligently are matters of credibility for the jury, not questions of competency to be determined by the judge. State v. Hanna, 163 Wis. 2d 193, 471 N.W.2d 238 (Ct. App. 1991). When a witness’s “past-recollection recorded statement” was admitted after the witness testified and was found “unavailable” as a result of having no current memory of the murder in question, there was an opportunity for cross-examination and the right to confrontation was not violated. State v. Jenkins, 168 Wis. 2d 175, 483 N.W.2d 262 (Ct. App. 1992). A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 678 (Ct. App. 1992). 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 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995), 94-0899. In this case, the defendant’s right to confrontation was violated when the trial court failed to give the jury a limiting instruction regarding out-of-court statements made by a nontestifying codefendant. State v. Mayhall, 195 Wis. 2d 53, 535 N.W.2d 473 (Ct. App. 1995), 94-0727. But see Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998); Samia v. United States, 599 U.S. ___, 143 S. Ct. 2004, 216 L. Ed. 2d 597 (2023). 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 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), 95-0881.
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