For the purposes of determining whether a crime is a lesser included offense because it is different in fact from another crime based on a subset of a defendant’s many acts, the state must give the circuit court a basis for differentiating the defendant’s acts with respect to the two crimes at issue. State v. Kloss, 2019 WI App 13, 386 Wis. 2d 314, 925 N.W.2d 563, 18-0651. When the state charges a defendant in a subsequent prosecution for conduct the defendant contends overlaps the first prosecution’s timeframe, courts may examine the entire record of the first proceeding to determine the actual scope of jeopardy in the first proceeding. The test to determine whether the earlier timeframe included the second is not what a reasonable person would think the earlier timeframe includes. Instead, the court ascertains the parameters of the offense for which the defendant was actually in jeopardy during the first proceeding by reviewing all of the evidence, testimony, and arguments of the parties. State v. Schultz, 2020 WI 24, 390 Wis. 2d 570, 939 N.W.2d 519, 17-1977. But see State v. Killian, 2023 WI 52, 408 Wis. 2d 92, 991 N.W.2d 387, 20-2012. Section 939.71 substantially enacts the Blockburger, 284 U.S. 299 (1932), test for determining whether two offenses are the same offense for double jeopardy purposes. The test for determining whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209. Multiplicity arises when a defendant is charged in more than one count for a single offense. The established methodology for reviewing a multiplicity claim is a two-step test. First, the court determines whether the charged offenses are identical in law and fact using the Blockburger, 284 U.S. 299 (1932), test. The Blockburger test inquires whether each provision requires proof of an additional fact which the other does not. As a general proposition, different elements of law distinguish one offense from another when different statutes are charged. Different facts distinguish one count from another when the counts are charged under the same statute. Section 346.17 (3) (b) to (d) provides additional elements to the offense stated in s. 346.04 (3) when death, great bodily harm, or property damage is involved, as it was in this case. Thus, under the Blockburger test, the defendant’s charges were not the same in law and fact because the charges involved proof of additional elements or facts that the others did not. State v. Wise, 2021 WI App 87, 400 Wis. 2d 174, 968 N.W.2d 705, 20-1756. A conclusion that the legislature did not intend multiple punishments results in either a double jeopardy or a due process violation. If the offenses are determined to be the same in law and fact, the defendant’s double jeopardy rights have been violated. However, if the offenses are determined to not be the same in law or fact, then there has been a due process violation, as opposed to a double jeopardy violation. State v. Wise, 2021 WI App 87, 400 Wis. 2d 174, 968 N.W.2d 705, 20-1756. When a trial ends in a mistrial, the inquiry regarding the defendant’s scope of jeopardy should focus on the charging documents, but the entire record may be examined if necessary to confirm the scope of jeopardy as established by those charging documents. Mere overlap in proof between two prosecutions does not establish a double jeopardy violation, nor does the prosecutor’s intent. In this case, the prosecutor’s stated intention to amend the information and add more charges at the close of evidence did not expand the scope of the defendant’s jeopardy. The prosecutor’s intent alone was insufficient to put the defendant at risk of a determination of guilt. Until the information was actually amended, there existed no such risk, and therefore no jeopardy. State v. Killian, 2023 WI 52, 408 Wis. 2d 92, 991 N.W.2d 387, 20-2012. A trial court exercises sound discretion in deciding manifest necessity justifies a mistrial provided the court: 1) gives both parties a full opportunity to explain their positions and considers alternatives such as a curative instruction or sanctioning counsel; 2) accords careful consideration to the defendant’s interest in having the trial concluded in a single proceeding; and 3) ensures that the record reflects that there is an adequate basis for a finding of manifest necessity. A court does not exercise sound discretion if the court fails to consider the facts of record under relevant law, bases its conclusion on an error of law, or does not reason its way to a rational conclusion. State v. Green, 2023 WI 57, 408 Wis. 2d 248, 992 N.W.2d 56, 21-0267. In this case, the record demonstrated that the trial court exercised sound discretion in declaring a mistrial based on manifest necessity. The court ordered a mistrial because the state had the right to know about and respond to testimony implicating a third-party perpetrator—so called Denny, 120 Wis. 2d 614 (1984), evidence—and the court was required to make a ruling on it before it came out of the witness’s mouth during the middle of the trial. The court’s later determination on Denny was irrelevant. Although the circuit court may have later determined the testimony was in fact admissible, the court nonetheless grounded its mistrial order in the law, as applied to the particular facts of the case. State v. Green, 2023 WI 57, 408 Wis. 2d 248, 992 N.W.2d 56, 21-0267. When the judge dismissed a charge after the jury returned a guilty verdict, the prosecution’s appeal did not constitute double jeopardy. United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). When a juvenile court found the defendant guilty but unfit for treatment as a juvenile, the defendant would be put in double jeopardy if tried in a criminal court. Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). When defense counsel’s improper opening statement prompted the trial judge to grant a mistrial over defense objections, and when the record provided sufficient justification for the mistrial ruling, the judge’s failure to make explicit findings of “manifest necessity” did not support the defendant’s claim of double jeopardy. Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The protection against double jeopardy did not bar federal prosecution of an American Indian previously convicted in a tribal court of a lesser included offense arising out of the same incident. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978). The double jeopardy clause bars a second trial after reversal of a conviction for insufficiency of evidence, as distinguished from reversal for trial error. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). When the judge granted the defendant’s motion for a new trial on the ground that the evidence was insufficient to support the jury’s guilty verdict, the double jeopardy clause barred a second trial. Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981). A criminal defendant who successfully moves for a mistrial may invoke the double jeopardy clause to bar a retrial only if the mistrial is based on prosecutorial or judicial conduct intended to provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). The defendant’s conviction and sentence by the state for both armed criminal action and first-degree robbery in a single trial did not constitute double jeopardy. Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). When the jury acquitted on one count but was unable to agree on two others, the double jeopardy clause did not bar retrial on the remaining two counts. Richardson v. United States, 468 U.S. 317, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984). An appellate court remedied a double jeopardy violation by reducing a jeopardy-barred conviction to that of lesser included offense that was not jeopardy barred. Morris v. Mathews, 475 U.S. 237, 106 S. Ct. 1032, 89 L. Ed. 2d 187 (1986). When the defendant breached a plea agreement and a second degree murder conviction was vacated as a result, a subsequent prosecution for first degree murder did not constitute double jeopardy. Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L. Ed. 2d 1 (1987). The double jeopardy clause does not prohibit retrial after the reversal of a conviction based upon improperly admitted evidence that, once suppressed, would result in evidence insufficient to support the conviction. Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). The double jeopardy clause bars a subsequent prosecution if, to establish an essential element of the offense charged, the prosecution will prove conduct constituting the offense for which the defendant was previously prosecuted. Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). Generally, the double jeopardy clause prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict whether in a bench or jury trial. If, after a facially unqualified midtrial dismissal of one count, the trial proceeds to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. Smith v. Massachusetts, 543 U.S. 462, 125 S. Ct. 1129, 160 L. Ed. 2d 914 (2005). The double jeopardy clause precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. Consideration of hung counts has no place in the issue-preclusion analysis. To identify what a jury necessarily determined at trial, courts should scrutinize a jury’s decisions, not its failures to decide. A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Thus, if there was a critical issue of ultimate fact in all charges, a jury verdict that necessarily decided that issue in the defendant’s favor protects the defendant from prosecution for any charge for which that fact is an essential element. Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009). When the jury in this case did not convict or acquit the defendant of any offense and was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the double jeopardy clause did not stand in the way of a second trial on the same offenses even though before the jury concluded deliberations it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. Blueford v. Arkansas, 566 U.S. 599, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012). The double jeopardy clause bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously erroneous foundation. An acquittal encompasses any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. There is no meaningful constitutional distinction between a trial court’s “misconstruction” of a statute and its erroneous addition of a statutory element. A midtrial acquittal in either of those circumstances is an acquittal for double jeopardy purposes. Evans v. Michigan, 568 U.S. 313, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013). Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that a verdict of acquittal could not be reviewed without putting a defendant twice in jeopardy, and thereby violating the constitution. In this case, the state declined to present evidence against the defendant whose counsel moved for directed findings of not guilty and the court granted the motion for a directed finding. That is a textbook acquittal: a finding that the state’s evidence cannot support a conviction. What constitutes an acquittal is not to be controlled by the form of the judge’s action; it turns on whether the ruling of the judge, whatever its label, actually represents a resolution of some or all of the factual elements of the offense charged. Martinez v. Illinois, 572 U.S. 833, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014). In criminal prosecutions, the issue-preclusion principle means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Issue preclusion applies when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, when both counts turn on the very same issue of ultimate fact. When inconsistent guilty verdicts are vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency, the vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. Issue preclusion does not apply when verdict inconsistency renders unanswerable what the jury necessarily decided. The acquittal remains inviolate, but, because it is unknown what the jury would have concluded had there been no instructional error, a new trial on the counts of conviction is in order. Bravo-Fernandez v. United States, 580 U.S. 5, 137 S. Ct. 352, 196 L. Ed. 2d 242 (2016). If a defendant consents to two trials when one would have avoided a double jeopardy problem, that consent precludes any constitutional violation associated with holding a second trial. In those circumstances, the defendant wins a potential benefit and experiences none of the prosecutorial oppression the double jeopardy clause exists to prevent. Currier v. Virginia, 585 U.S. ___, 138 S. Ct. 2144, 201 L. Ed. 2d 650 (2018). Under the dual-sovereignty doctrine, a state may prosecute a defendant under state law even if the federal government has prosecuted the defendant for the same conduct under a federal statute. Gamble v. United States, 587 U.S. ___, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019). The double jeopardy clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions “for the same offence.” Under the dual sovereignty doctrine, an offense defined by one sovereign is different from an offense defined by another. Thus, in this case, even if the federal government prosecuted the defendant’s tribal offense, the double jeopardy clause did not bar the federal government from prosecuting the defendant under federal law too. Denezpi v. United States, 596 U.S. ___, 142 S. Ct. 1838, 213 L. Ed. 2d 141 (2022). The double jeopardy clause of the U.S. Constitution permits the retrial of a defendant following a trial in an improper venue and before a jury drawn from the wrong district. Smith v. United States, 599 U.S. ___, 143 S. Ct. 1594, 216 L. Ed. 2d 238 (2023). Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected the petitioner to multiple penalties for one offense in excess of the maximum statutory penalty and in violation of the guarantee against double jeopardy. Taylor v. Gray, 375 F. Supp. 790 (1974). Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. Leonard v. Warden, 631 F. Supp. 1403 (1986). The state’s attempt to retry the defendant for armed robbery alleging the use of a different weapon after a trial court conclusion that an acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. Supp. 2d 1066 (2003). Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? Albee. 1990 WLR 553.
State v. Grayson: Clouding the Already Murky Waters of Unit of Prosecution Analysis in Wisconsin. Leslie. 1993 WLR 811.
The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis. Johnson. 2018 WLR 619.
It is not necessary to hold a second Goodchild, 27 Wis. 2d 244 (1965), type hearing before admitting testimony of a second witness to the same confession. State v. Watson, 46 Wis. 2d 492, 175 N.W.2d 244 (1970). The sentencing duties of a trial court following a second conviction after retrial or upon resentencing bars the trial court from imposing an increased sentence unless events occur or come to the sentencing court’s attention subsequent to the first imposition of sentence that warrant an increased penalty and the court affirmatively states the ground for increasing the sentence on the record. Denny v. State, 47 Wis. 2d 541, 178 N.W.2d 38 (1970). An arrest is not void because of a three-month interval between the time of the offense and the arrest. Gonzales v. State, 47 Wis. 2d 548, 177 N.W.2d 843 (1970). A lineup, wherein two suspects were required to wear special clothing and a number of victims were allowed to identify them out loud, influencing others, was unfair and later influenced in-court identification. Jones v. State, 47 Wis. 2d 642, 178 N.W.2d 42 (1970). An out of court identification by a witness shown only a photograph of the defendant and no other persons was not a denial of due process but does reflect on the weight given the evidence. Defense counsel need not be present at the identification. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970). The rule that a defendant during a trial should not be handcuffed does not extend to periods outside the courtroom, and the fact that some jurors saw the defendant shackled was not prejudicial. State v. Cassel, 48 Wis. 2d 619, 180 N.W.2d 607 (1970). It is not a violation of due process for the judge who conducts a hearing regarding the admissibility of a confession to continue as the trial judge in the case. State v. Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899 (1971). A statute denying probation to second offenders and that does not require proof of criminal intent is constitutional. State v. Morales, 51 Wis. 2d 650, 187 N.W.2d 841 (1971). When a defendant is no longer entitled to a substitution of judge, prejudice in fact by the judge must be shown. State v. Garner, 54 Wis. 2d 100, 194 N.W.2d 649 (1972). A child committed to the state who is released under supervision, who then violates the terms of the release is entitled to the same protections as an adult as to a hearing on probation revocation. State ex rel. Bernal v. Hershman, 54 Wis. 2d 626, 196 N.W.2d 721 (1972). A defendant who, believing he was seriously wounded, began to tell what happened and was given Miranda, 384 U.S. 436 (1966), warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742 (1972). The duty of the state to disclose exculpatory evidence is not excused by the district attorney’s belief that the evidence is incredible, but failure to disclose is not prejudicial when the evidence would not have affected the conviction. Nelson v. State, 59 Wis. 2d 474, 208 N.W.2d 410 (1973). Due process requires that a juvenile be afforded a copy of a hearing examiner’s report recommending revocation of aftercare supervision and the opportunity to object thereto in writing prior to the decision of the Department of Health and Social Services secretary. State ex rel. R.R. v. Schmidt, 63 Wis. 2d 82, 216 N.W.2d 18 (1974). Circumstances to be considered in determining whether the delay between the alleged commission of a crime and an arrest denies a defendant due process of law include: 1) the period of the applicable statute of limitations; 2) prejudice to the conduct of the defense; 3) intentional prosecution delay to gain some tactical advantage; and 4) the loss of evidence or witnesses, and the dimming of memories. The mere possibility of prejudice from those factors is not alone sufficient to demonstrate that a fair trial is impossible—actual prejudice must be shown. State v. Rogers, 70 Wis. 2d 160, 233 N.W.2d 480 (1975). A photo identification using one color and four black and white photos when two of the five, including the color photo, were of the defendant was not impermissibly suggestive. Mentek v. State, 71 Wis. 2d 799, 238 N.W.2d 752 (1976). The fact that the accused, who demanded a jury trial, received a substantially greater sentence than an accomplice who pleaded guilty did not constitute punishment for exercising the right to a jury trial or a denial of either due process or equal protection. Drinkwater v. State, 73 Wis. 2d 674, 245 N.W.2d 664 (1976). Improper remarks by a prosecutor are not necessarily prejudicial when objections are promptly made and sustained and curative instructions and admonitions are given by the court. Hoppe v. State, 74 Wis. 2d 107, 246 N.W.2d 122 (1976). Persons committed under ch. 975 are entitled to periodic review hearings that afford the same minimal requirements of due process as parole determinations. Habeas corpus is an appropriate remedy. State ex rel. Terry v. Schubert, 74 Wis. 2d 487, 247 N.W.2d 109 (1976). A sentencing judge does not deny due process by considering pending criminal charges in imposing a sentence. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711 (1976). Due process requires that a prosecutor voluntarily disclose highly exculpatory evidence that would raise a reasonable doubt when none existed before. Ruiz v. State, 75 Wis. 2d 230, 249 N.W.2d 277 (1977). The trial court did not err in refusing to grant a mistrial when police reports concerning an unrelated pending charge against the defendant and the defendant’s mental history were accidentally sent to the jury room. Johnson v. State, 75 Wis. 2d 344, 249 N.W.2d 593 (1977). The defendant received a fair, though not perfect, trial when a prosecution witness attempted to ingratiate himself with the jury prior to trial and another prosecution witness violated a sequestration order. Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1977). The defendant’s refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to a crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977). A parole revocation hearing is not part of a criminal prosecution and thus the full panoply of rights, including Miranda, 384 U.S. 436 (1966), warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 252 N.W.2d 660 (1977). Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977). The due process rationale of Doyle, 426 U.S. 610 (1976), is limited to prosecutorial use of a defendant’s custodial interrogation silence to impeach exculpatory statements made during trial. Rudolph v. State, 78 Wis. 2d 435, 254 N.W.2d 471 (1977). Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977). Discussing the due process requirements an administrative body must provide when it imposes regulatory or remedial sanctions upon conduct that is also subject to criminal punishment. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218 (1978). The right to a fair trial does not entitle a defendant to inspect the entire file of the prosecutor. Cleveland v. Circuit Court, 82 Wis. 2d 454, 262 N.W.2d 773 (1978). Under the “totality of circumstances” test, lineup and in-court identifications were properly admitted, although an earlier photographic identification was unnecessarily suggestive. Simos v. State, 83 Wis. 2d 251, 265 N.W.2d 278 (1978). A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 Wis. 2d 621, 266 N.W.2d 288 (1978). Discussing the test to determine if the denial of a continuance acts to deny a defendant of either due process or the effective right of counsel. State v. Wollman, 86 Wis. 2d 459, 273 N.W.2d 225 (1979). An accused has the right to answer some questions after a Miranda, 384 U.S. 436 (1966), warning and then to reassert the privilege and break off all questioning. Odell v. State, 90 Wis. 2d 149, 279 N.W.2d 706 (1979). Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979). A probationer’s due process right to prompt revocation proceedings was not triggered when the probationer was detained as the result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979). Before the “totality of circumstances” analysis is applied to confrontation identification, it must first be determined whether police deliberately contrived the confrontation between the witness and defendant. State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979). Due process requires that evidence reasonably support a finding of guilt beyond a reasonable doubt. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979). An eight-month delay between the date of the alleged offense and the filing of a complaint did not violate the defendant’s due process rights. State v. Davis, 95 Wis. 2d 55, 288 N.W.2d 870 (Ct. App. 1980). The use of an unsworn prior inconsistent statement of a witness as substantive evidence did not deprive the defendant of due process. Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980). An inmate in administrative confinement has a state-created interest protected by due process in the inmate’s eventual return to the general prison population. State ex rel. Irby v. Israel, 100 Wis. 2d 411, 302 N.W.2d 517 (Ct. App. 1981). Discussing factors that a court should consider when a defendant requests to be tried after the trial of a codefendant in order to secure testimony of the codefendant. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000019/000005/000104
section
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