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.
due process
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). A revocation of probation denied due process when there was a lack of notice of the total extent and nature of the alleged violations of probation. State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 326 N.W.2d 768 (1982). Continued questioning after the accused mentioned the word “attorney” was prejudicial error. Discussing harmless error. State v. Billings, 110 Wis. 2d 661, 329 N.W.2d 192 (1983). Due process requires the state to preserve evidence that: 1) possesses exculpatory value apparent to the custodian; and 2) is of a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. State v. Oinas, 125 Wis. 2d 487, 373 N.W.2d 463 (Ct. App. 1985). When two statutes have identical criminal elements but different penalties, the state does not deny equal protection or due process by charging defendants with the more serious crime. State v. Cissell, 127 Wis. 2d 205, 378 N.W.2d 691 (1985). If the state shows that delay in charging an offense committed by an adult defendant while still a juvenile is not with a manipulative intent, due process does not require dismissal. State v. Montgomery, 148 Wis. 2d 593, 436 N.W.2d 303 (1989). Lineup and in-court identifications of a defendant may be suppressed as the fruit of an illegal arrest under appropriate circumstances. State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). A comment during closing argument on the defendant’s courtroom demeanor when evidence of the demeanor was adduced during trial did not violate the 5th amendment. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991). Evidence favorable to the defendant must be disclosed if there is a “reasonable probability” that disclosure would result in a different trial outcome. State v. Garrity, 161 Wis. 2d 842, 469 N.W.2d 219 (Ct. App. 1991). When prior convictions are used to enhance a minimum penalty, collateral attack of the prior convictions must be allowed. State v. Baker, 165 Wis. 2d 42, 477 N.W.2d 292 (Ct. App. 1991). The defense of outrageous governmental conduct arises when the government violates a specific constitutional right and is itself so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the criminal justice system. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992). When the argument of the defense invited and provoked an otherwise improper remark by the prosecutor, the question was whether, taken in context, the “invited remark” unfairly prejudiced the defendant. State v. Wolff, 171 Wis. 2d 161, 491 N.W.2d 498 (Ct. App. 1992). Due process is not violated when a burden of production is placed on a defendant to come forward with some evidence of a negative defense. State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992). Discussing the due process rights of a probationer at a hearing to modify probation. State v. Hays, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992). The interval between an arrest and an initial appearance is never unreasonable when the arrested suspect is already in the lawful physical custody of the state. State v. Harris, 174 Wis. 2d 367, 497 N.W.2d 742 (Ct. App. 1993). The admissibility of an out-of-court identification rests on whether the procedure was impermissibly suggestive and whether under all the circumstances the identification was reliable despite any suggestiveness. That another procedure might have been better does not render the identification inadmissible. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993). A defendant has a fundamental right to testify in the defendant’s own behalf. Waiver of the right must be supported by a record of a knowing and voluntary waiver. State v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993). The good or bad faith of police in destroying apparently exculpatory evidence is irrelevant, but, in the absence of bad faith, destruction of evidence that only provides an avenue of investigation does not violate due process protections. State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994). An executory plea bargain is without constitutional significance and a defendant has no right to require the performance of an executory agreement, but upon entry of a plea due process requires the defendant’s expectations to be fulfilled. State v. Wills, 187 Wis. 2d 529, 523 N.W.2d 569 (Ct. App. 1994). Bad faith can only be shown if the officers are aware of the potentially exculpatory value of evidence they fail to preserve and the officers act with animus or make a conscious effort to suppress the evidence. State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994). A prosecutor’s closing argument is impermissible when it goes beyond reasoning drawn from the evidence and suggests that the verdict should be arrived at by considering other factors. Substantially misstating the law and appearing to speak for the trial court was improper and required court intervention in the absence of an objection. State v. Neuser, 191 Wis. 2d 131, 528 N.W.2d 49 (Ct. App. 1995). 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. Prosecutorial misconduct violates the due process right to a fair trial if it poisons the entire atmosphere of the trial. State v. Lettice, 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996), 96-0140. A defendant is denied due process when identification is derived from police procedures so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. A suppression hearing is not always required when a defendant moves to suppress identification, but it must be considered on a case-by-case basis. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), 96-0168. A defendant has a due process right to have the full benefit of a relied upon plea bargain. The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny that right. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), 97-0682. The state’s use, as a witness, of an informant who purchased and used illegal drugs while making controlled drug buys for the state, in violation of the informant’s agreement with the state, was not a violation of fundamental fairness that shocks the universal justice system and did not constitute outrageous governmental conduct. State v. Givens, 217 Wis. 2d 180, 580 N.W.2d 340 (Ct. App. 1998), 97-1248. Due process does not require that judges’ personal notes be made available to litigants. It is only the final reasoning process that judges are required to place on the record that is representative of the performance of judicial duties. State v. Panknin, 217 Wis. 2d 200, 579 N.W.2d 52 (Ct. App. 1998), 97-1498. The state’s failure to disclose that it took samples but failed to have them analyzed affected the defendant’s right to a fair trial because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App. 1999), 97-1480. When defense counsel has appeared for and represented the state in the same case in which counsel later represents the defendant, and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney’s former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant’s interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97-2336. See also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428, 99-1164. A new rule of criminal procedure applies to all cases pending on direct review or that are not yet final that raised the issue that was subject to the change. There is no retroactive application to cases in which the issue was not raised. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909. When an indigent defendant requests that the state furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to the defendant. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219. Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, 97-1360. The entry of a plea from jail by closed-circuit television, while a violation of a statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, 99-1940. A pretrial detainee, including the subject of an arrest, is entitled to receive medical attention. The scope of this due process protection is not specifically defined but is at least as great as the 8th amendment protection available to convicted prisoners. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211. While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211. A defendant is denied due process when identification evidence stems from a pretrial procedure that is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Whether an identification is impermissible is decided on a case-by-case basis. State v. Benton, 2001 WI App 81, 243 Wis. 2d 54, 625 N.W.2d 923, 00-1096. The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard, and whether the state’s conduct was a substantial and material breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535. A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535.
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000019/000006/000022
section
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