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. Due process demands that a conviction not be based on unreliable evidence obtained through coerced witness statements resulting from egregious police practices. There are several factors to consider in determining whether police misconduct is so egregious that it produces statements that are unreliable as a matter of law and must be suppressed. State v. Samuel, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423, 99-2587. Although there is no place in a criminal prosecution for gratuitous references to race, the state may properly refer to race when it is relevant to a defendant’s motive. A racial remark is improper if it is intentionally injected into volatile proceedings when the prosecutor has targeted the defendant’s ethnic origin for emphasis in an attempt to appeal to the jury’s prejudices. State v. Chu, 2002 WI App 98, 253 Wis. 2d 666, 643 N.W.2d 878, 01-1934. Cases addressing the pretrial destruction of evidence and a defendant’s due process rights apply to posttrial destruction as well. A defendant’s due process rights are violated by the destruction of evidence: 1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or 2) if the evidence is potentially exculpatory and is destroyed in bad faith. State v. Parker, 2002 WI App 159, 256 Wis. 2d 154, 647 N.W.2d 430, 01-2721. The trial court did not erroneously exercise its discretion in denying the defendant’s request that the defendant’s alibi witnesses be allowed to testify in street clothes rather than jail attire due to the difficulty associated with having the in-custody witnesses brought to the courtroom while keeping them separate, because allowing the clothing changes would create security risks, and because the witnesses had prior convictions that the jury would hear about anyway. State v. Reed, 2002 WI App 209, 256 Wis. 2d 1019, 650 N.W.2d 885, 01-2973. When an attorney represents a party in a matter in which the adverse party is that attorney’s former client, the attorney will be disqualified if the subject matter of the two representations are substantially related such that the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. This test applies in a criminal serial representation case when the defendant raises the issue prior to trial. The actual prejudice standard in Love, 227 Wis. 2d 60 (1999), applies when a defendant raises a conflict of interest objection after trial. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192. Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following reversal of a conviction on appeal, the prosecutor offered a less favorable plea agreement than had been offered prior to the initial trial. A presumption of vindictiveness is limited to cases in which a realistic likelihood of vindictiveness exists; a mere opportunity for vindictiveness is insufficient. To establish actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on the defendant’s legal rights. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192. Courts employ two tests to determine whether a defendant’s due process right to trial by an impartial judge is violated: 1) a subjective test based on the judge’s own determination of the judge’s impartiality; and 2) an objective test that asks whether objective facts show actual bias. In applying the objective test, there is a presumption that the judge is free of bias. To overcome that presumption, the defendant must show by a preponderance of the evidence that the judge is in fact biased and not that there is an appearance of bias or that the circumstance might lead one to speculate that the judge is biased. State v. O’Neill, 2003 WI App 73, 261 Wis. 2d 534, 663 N.W.2d 292, 02-0808. Following the reversal of one of multiple convictions on multiplicity grounds an increased sentence was presumptively vindictive, in violation of the right to due process. In order to assure the absence of a vindictive motive whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. State v. Church, 2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141, 01-3100. Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436. The defendant’s due process rights were violated when the investigating detective gave a sentencing recommendation, written on police department letterhead and forwarded by the court to the presentence investigation writer to assess and evaluate, that undermined the state’s plea bargained recommendation, in effect breaching the plea agreement. State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51, 03-0251. The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court’s discretion. A trial court must consider whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings and if so whether the defendant has a reasonable excuse for failing to present the testimony during the defendant’s case-in-chief. State v. Arredondo, 2004 WI App 7, 269 Wis. 2d 369, 674 N.W.2d 647, 02-2361. Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases under s. 974.06. State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361, 03-0217. In considering prosecutorial vindictiveness when charges are increased following a successful appeal, whether a defendant is facing stiffer charges arising out of a single incident is important. The concern is that the defendant will be discouraged from exercising the defendant’s right to appeal because of fear the state will retaliate by substituting a more serious charge for the original one on retrial. That concern does not come into play when the new charges stem from a separate incident. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603. A deaf defendant who was shackled during trial and sentencing had the burden to show that the defendant in fact was unable to communicate, not that the defendant theoretically might have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d 483, 04-2869. Dubose, 2005 WI 126, does not directly control cases involving identification evidence derived from accidental confrontations resulting in spontaneous identifications. However, in light of developments since its time, Marshall, 92 Wis. 2d 101 (1979), a case in which the court determined that identification evidence need not be scrutinized for a due process violation unless the identification occurs as part of a police procedure directed toward obtaining identification evidence, does not necessarily resolve all such cases. The circuit court still has a limited gate-keeping function to exclude such evidence under s. 904.03. State v. Hibl, 2006 WI 52, 290 Wis. 2d 595, 714 N.W.2d 194, 04-2936. But see State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894. When analyzing a judicial bias claim, there is a rebuttable presumption that the judge is fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant’s due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05-1528. Absent a pervasive and perverse animus, a judge may assess a case and potential arguments based on what the judge knows from the case in the course of the judge’s judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265. The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. To be admissible, the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect. State v. Nawrocki, 2008 WI App 23, 308 Wis. 2d 227, 746 N.W.2d 509, 06-2502. When the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence, the statements are impermissible. Improper comments do not necessarily give rise to a due process violation. For a due process violation, the court must ask whether the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06-1847. Due process requires that vindictiveness against a defendant for having successfully attacked the defendant’s first conviction must play no part in the sentence received after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive. That presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence, when it implements the original dispositional scheme, is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508. There is not an exclusive possession requirement as an element of the due process test when apparently exculpatory evidence is not preserved by the state. In this case, while the physical evidence, cell phones, was solely within the state’s possession, the concomitant electronic voicemail evidence was stored elsewhere and could have been accessed by both the state and the defense until it was destroyed by the phone service provider in the normal course of business. Given the facts of this case, however, it was reasonable for the defendant to expect that the state would preserve the voicemail recordings. State v. Huggett, 2010 WI App 69, 324 Wis. 2d 786, 783 N.W.2d 675, 09-1684. A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810. In order to establish that the state violated a defendant’s due process rights by destroying apparently exculpatory evidence, the defendant must demonstrate that: 1) the evidence destroyed possessed an exculpatory value that was apparent to those who had custody of the evidence before the evidence was destroyed; and 2) the evidence is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. The mere possibility that evidence of a bullet having been lodged in a destroyed van after a detective thoroughly examined the van and specifically looked for just such a bullet or bullet strike did not support the argument that the van’s purported exculpatory value was apparent. State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, 09-2658. The public interest would be unduly harmed if the state were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders. On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant when the defendant seeks to evade prosecution via equitable estoppel. State v. Drown, 2011 WI App 53, 332 Wis. 2d 765, 797 N.W.2d 919, 10-1303.
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000019/000006/000048
section
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