Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984). An accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). The right to assistance of counsel wasn’t violated when an attorney refused to cooperate with the defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, the individual may not insist upon implementation of Anders, 386 U.S. 738 (1967), procedures. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). Though the trial court must recognize the presumption that a defendant is entitled to the defendant’s counsel of choice, the presumption is overcome by actual conflict and a serious potential for actual conflict. Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). The right to counsel was not violated by the court’s instruction to the defendant that he not confer with his attorney during a 15 minute recess between the defendant’s direct and cross-examination. Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989). The 6th amendment right to counsel is offense specific. An accused’s invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda, 384 U.S. 436 (1966), arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). To void a conviction due to a 6th amendment violation when a trial court has failed to inquire into a potential conflict of interest that the court knew or should have known of, the defendant must establish that the conflict adversely affected counsel’s performance. Failure of the trial court to inquire into the conflict did not reduce the defendant’s burden of proof. Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). The 6th amendment right to counsel of choice commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel the accused believes to be best. When that right is violated because the deprivation of counsel is erroneous, no additional showing of prejudice is required to make the violation complete, and the violation is not subject to harmless-error analysis. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). The U.S. Constitution does not forbid a state to insist that the defendant proceed to trial with counsel when the state court found the defendant mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). The right to counsel applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against the defendant and restrictions are imposed on the defendant’s liberty. Attachment of the right does not require that a public prosecutor as distinct from a police officer be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008). A defendant’s incriminating statement to a jailhouse informant, concededly elicited in violation of the 6th amendment right to counsel, was admissible at trial to impeach the defendant’s conflicting statement. Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009). Jackson, 475 U.S. 625 (1986), which provided that if police initiate interrogation after the defendant’s assertion of the right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid, is overruled. Courts are not required to presume that such a waiver is invalid under those circumstances. Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). Counsel has an obligation to advise a defendant that a guilty plea will result in the defendant’s deportation from this country. Advice regarding deportation is not categorically removed from the ambit of the 6th amendment right to counsel. When the deportation consequence is truly clear, the duty to give correct advice is equally clear. Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). As a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. When defense counsel allowed an offer to expire without advising the defendant or allowing the defendant to consider it, defense counsel did not render the effective assistance the constitution requires. Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). When ineffective advice led to rejection of a plea offer and caused the defendant to stand trial, rather than to waive the right to trial, the defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that were imposed. Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). When a defendant claims that the defendant’s counsel’s deficient performance deprived the defendant of a trial by causing the defendant to accept a plea, the defendant can show prejudice by demonstrating a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. The court rejected a per se rule that a defendant with no viable defense cannot show prejudice from the denial of the right to trial. The decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. But for his attorney’s incompetence, the defendant would have known that accepting the plea agreement in this case would certainly have led to deportation while going to trial would “almost” certainly have done so. If deportation were the determinative issue for an individual in plea discussions, and if the consequences of taking a chance at trial were not markedly harsher than pleading, that “almost” could make all the difference. Lee v. United States, 582 U.S. 357, 137 S. Ct. 1958, 198 L. Ed. 2d 476 (2017). A violation of the right to a public trial is a structural error. In the case of a structural error when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s actual effect on the outcome. When a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland, 466 U.S. 668 (1984), prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in the defendant’s case or to show that the particular public-trial violation was so serious as to render the trial fundamentally unfair. Weaver v. Massachusetts, 582 U.S. 286, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017). Counsel may not admit a client’s guilt of a charged crime over the client’s intransigent objection to that admission. To do so violates a defendant’s right to autonomy and constitutes a structural error that requires automatic reversal. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018). Under Flores-Ortega, 528 U.S. 470 (2000), when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed with no further showing from the defendant of the merits of the defendant’s underlying claims. That presumption of prejudice applies regardless of whether the defendant has signed an appeal waiver. Garza v. Idaho, 586 U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019). When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant’s opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003). In Imani, 826 F.3d 939 (2016), and Tatum, 847 F.3d 459 (2017), the 7th Circuit Court of Appeals held that the Wisconsin courts violated the clearly established rule of Faretta, 422 U.S. 806 (1975), that a court may not force a lawyer upon a defendant based on a perceived lack of education, experience, or legal knowhow. While a defendant seeking to waive the defendant’s 6th amendment right to counsel must do so knowingly and intelligently and so must be mentally competent to make that decision, the defendant’s technical legal knowledge is irrelevant to a court’s assessment of the defendant’s competency. The focus of the inquiry is on a defendant’s mental competency. Washington v. Boughton, 884 F.3d 692 (2018). Before concluding that a defendant has a right to counsel at a critical stage, a court must also find that the criminal prosecution has commenced. The 6th amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against the accused. In this case, the defendant was arrested without a warrant and detained, and the defendant remained in jail when the police went to the county courthouse two days later to make their case. The defendant’s 6th amendment right to counsel attached when the court commissioner found probable cause, set bail, and executed a form that accused the defendant of a crime. It was of no 6th amendment consequence that the defendant never appeared in court during the probable-cause proceeding. Garcia v. Hepp, 65 F.4th 945 (2023). Right to Counsel: Repayment of Cost of Court-Appointed Counsel as a Condition of Probation. Strattner. 56 MLR 551 (1973).
How Do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant’s Right to Counsel Under Miranda v. Arizona. Finger. 79 MLR 1041 (1996).
The Interrogations of Brendan Dassey. Gallini. 102 MLR 777 (2019).
How Courts in Criminal Cases Respond to Childhood Trauma. Denno. 103 MLR 301 (2019).
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. Johnson. 1992 WLR 1643.
jury trial and juror qualifications
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521 (1970). A resident of Menominee County may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, section 23, is not violated by using district-based jury lists. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459 (1971). When two alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87 (1971). Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208 (1971). The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper because the prosecutor expressed his opinion as to the defendant’s guilt, when it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor’s conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893 (1971). When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615 (1972). Discussing the exclusion of young persons, students, and teachers from a jury list. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d 566 (1973). Discussing rules for proving discrimination in compiling a jury list and the burden of proof. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973). Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state’s witnesses are the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751 (1973). The absence of persons of the defendant’s race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889 (1974). A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801 (1976). A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether a defendant: 1) directly committed the crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979). Excusing Native Americans from a jury without individual examination denied the Native American defendant a trial by an impartial jury. State v. Chosa, 108 Wis. 2d 392, 321 N.W.2d 280 (1982). The verdict was unanimous in a battery case even though the jury was not required to specify whether the battery occurred when the defendant threw an object at the victim or during an ensuing fistfight. State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982). The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983). When the accused refused to participate in the trial, the court erred by failing to inform the accused of the right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 Wis. 2d 21, 345 N.W.2d 892 (Ct. App. 1984). A waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989). A defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989). Once a defendant makes a prima facie showing that the prosecutor used peremptory challenges in a purposefully discriminatory manner, the burden shifts to the prosecution to provide a neutral explanation for challenging the jurors. Discussing Batson, 476 U.S. 79 (1986). State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). Waiver of a jury trial must be made by the affirmative action of the defendant. Neither counsel nor the court may waive it on the defendant’s behalf. If the defendant has not personally waived the right, the proper remedy is a new trial, not a postconviction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991). Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991). Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking a member of the jury panel. State v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991). Discussing unanimity requirements when multiple occurrences of multiple acts are charged. State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992). A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992). When the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992). A defendant has the right to have jurors individually polled on their verdict. Reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992). When the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992). The “clearly erroneous” standard applies to all steps under the Batson, 476 U.S. 79 (1986), analysis made by a trial court in determining whether a peremptory challenge is discriminatory. State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App. 1992). The verdict of a 13 member jury panel agreed to by the defense and prosecution was not invalid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993). A trial court’s comments to a deliberating jury without the presence of the defendant and the defendant’s counsel violated the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 Wis. 2d 68, 519 N.W.2d 621 (Ct. App. 1994). A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony that bears on guilt or innocence, prejudice must be assumed. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994). When polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircher, 189 Wis. 2d 392, 525 N.W.2d 788 (Ct. App. 1994). Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. When the shackles cannot be viewed by the jury, no prejudicial harm may occur. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995). A defendant’s presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant’s presence may be harmless error. State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994). When it was conceded that a juror was sleeping, summarily foreclosing inquiry into the juror’s inattentiveness was an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed, and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), 95-0152. A prosecutor’s motive of protecting a defendant cannot justify a peremptory challenge based solely on a juror’s race. Excluding a prospective juror because of race can never be “neutral” regardless of the prosecutor’s good faith. State v. Guerra-Reyna, 201 Wis. 2d 751, 549 N.W.2d 779 (Ct. App. 1996), 93-3464. When there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror’s names, employment, and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court’s discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), 95-0891. Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187. A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 96-2927. A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror, which violated the defendant’s right to due process. State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96-3425. But see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics are also considered. State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97-1509. A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111. Failure to respond truthfully to voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97-1276. A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant’s agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97-2702. Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror’s incomplete or incorrect responses to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999), 96-2194. But see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702. The terms “statutory bias,” subjective bias,” and “objective bias” are adopted as the proper terms for referring to types of jury bias, replacing the terms “implied bias,” “subjective bias,” and “objective bias.” State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000015/000198
section
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