The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute’s primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144 (1963): 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction’s operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740. In order to establish that the state suppressed exculpatory or impeaching evidence in violation of Brady, 373 U.S. 83 (1963), there is no requirement to show that the evidence was in the state’s exclusive possession and control, and it is not necessary to establish that the suppression of evidence imposes an intolerable burden on the defense. State v. Wayerski, 2019 WI 11, 385 Wis. 2d 344, 922 N.W.2d 468, 15-1083. A funding statute for drug court programs did not create a fundamental liberty interest and did not need to provide expulsion procedures to survive a procedural due process challenge. State v. Keister, 2019 WI 26, 385 Wis. 2d 739, 924 N.W.2d 203, 17-1618. A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possible term of civil commitment because: 1) a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, 16-2258. A circuit court may utilize a waiver of rights form for a defendant who is pleading guilty, but the use of that form does not otherwise eliminate the circuit court’s plea colloquy duties. While a circuit court must exercise great care when conducting a plea colloquy so as to best ensure that a defendant is knowingly, intelligently, and voluntarily entering a plea, a formalistic recitation of the constitutional rights being waived is not required. State v. Pegeese, 2019 WI 60, 387 Wis. 2d 119, 928 N.W.2d 590, 17-0741. Under Sell, 539 U.S. 166 (2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government’s interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Section 971.14 (4) (b) does not require the circuit court to determine whether the Sell factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is incapable of expressing an understanding of the proposed medication or treatment or who is substantially incapable of applying an understanding of the defendant’s mental illness in order to make an informed choice regarding medication or treatment. The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant’s significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that s. 971.14 (3) (dm) and (4) (b) requires circuit courts to order involuntary medication when the Sell standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, 18-1214. General allegations of physical abuse by a third party against the victim do not provide a sufficient direct connection between the third party and the perpetration of the crime charged to satisfy the legitimate tendency test established under Wilson, 2015 WI 48. State v. Griffin, 2019 WI App 49, 388 Wis. 2d 581, 933 N.W.2d 681, 18-0649. Dubose, 2005 WI 126, is overturned. Reliability is the linchpin in determining the admissibility of identification testimony. A criminal defendant bears the initial burden of demonstrating that a showup is impermissibly suggestive. If the defendant meets that burden, the state must prove that under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894. Defendants have a due process right to be sentenced based upon accurate information. A defendant who was sentenced based on inaccurate information may request resentencing. The defendant must show by clear and convincing evidence that: 1) some information at the original sentencing was inaccurate; and 2) the circuit court actually relied on the inaccurate information at sentencing. A circuit court actually relies on incorrect information when it gives explicit attention or specific consideration to it, so that the misinformation formed part of the basis for the sentence. If the defendant meets that burden, then the burden shifts to the state to prove beyond a reasonable doubt that the error was harmless. State v. Coffee, 2020 WI 1, 389 Wis. 2d 627, 937 N.W.2d 579, 17-2292. The defendant’s due process rights were not violated by the circuit court’s use of the previously unknown information regarding sentences imposed by the court upon similarly situated defendants. State v. Counihan, 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530, 17-2265. In Wisconsin, courts employ the guilty plea waiver rule, which states that a guilty, no contest, or Alford plea waives all nonjurisdictional defects, including constitutional claims. An exception to the rule states that a facial constitutional challenge is a matter of subject matter jurisdiction, which cannot be waived, whereas an as-applied challenge is a nonjurisdictional defect that can be waived. State v. Jackson, 2020 WI App 4, 390 Wis. 2d 402, 938 N.W.2d 639, 18-2074. In this case, when the judge served as both the presiding judge in the drug court program in which the defendant participated and as the sentencing judge in the defendant’s criminal case, the defendant met the defendant’s burden to demonstrate objective judicial bias based on the combined effect of 1) the judge’s comments indicating the judge had determined before the sentencing-after-revocation hearing that the defendant would be sentenced to prison if the defendant did not succeed in drug court; and 2) the judge’s dual role as the presiding judge in the drug court proceedings and as the judge who sentenced the defendant after the revocation of the defendant’s probation. State v. Marcotte, 2020 WI App 28, 392 Wis. 2d 183, 943 N.W.2d 911, 19-0695. The court will not exercise its superintending power to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford, 400 U.S. 25 (1970), plea when there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court. State v. Nash, 2020 WI 85, 394 Wis. 2d 238, 951 N.W.2d 404, 18-0731. In this case, the state agreed as part of a plea deal to cap its recommendation at a 20-year sentence, including initial incarceration and extended supervision. The state’s remarks at sentencing that both parties agreed that 25 years in total was appropriate—whether indicating its agreement with either a 25-year total sentence or a 20-year bifurcated sentence followed by a five-year term of probation—constituted a breach of the plea agreement because, under principles of contract law, the parties construed the term “sentence” broadly to include any term of probation. State v. Weigel, 2022 WI App 48, 404 Wis. 2d 488, 979 N.W.2d 646, 21-1792. The U.S. Supreme Court in Griffin, 502 U.S. 46 (1991), drew a distinction between jury instructions that instruct a jury on a legally, as opposed to a factually, inadequate theory. The Griffin court held that, while a jury instruction is erroneous if it includes methods of proof that are not supported by sufficient evidence, such an error does not violate due process when the jury is also instructed on a theory that is supported by sufficient evidence. In this case, although the circuit court erroneously instructed the jury on two methods of proof that were not supported by sufficient evidence, that error did not violate the defendant’s right to due process because the jury was also instructed on a method of proof that was supported by sufficient evidence. State v. Harvey, 2022 WI App 60, 405 Wis. 2d 332, 983 N.W.2d 700, 21-1689. Generally, when impeachment evidence is merely cumulative and thereby has no reasonable probability of affecting the result of trial, it does not violate the Brady, 373 U.S. 83 (1963), requirement. Impeachment evidence is cumulative and therefore not material when the witness was already or could have been impeached at trial by the same kind of evidence. In this case, there was no reasonable probability of a different result if the state had disclosed the child protective services report because the defendant had access to a police report containing the same relevant information. State v. Hineman, 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652, 20-0226. Courts have generally held that a prosecutor’s material breach of a plea agreement may be cured if the prosecutor unequivocally retracts the error. In this case, when the prosecutor initially recommended a specific term of imprisonment despite the state’s agreement not to do so, but then retracted and corrected the mistake upon being made aware of the error, the prosecutor cured the breach of the plea agreement. State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021. An accused may present a theory of defense that another party committed the crime for which the accused stands trial, known as a third-party perpetrator defense. Such a defense, however, must be grounded in admissible evidence. Accordingly, an accused’s right to present a defense does not encompass the right to present irrelevant evidence. State v. Mull, 2023 WI 26, 406 Wis. 2d 491, 987 N.W.2d 707, 20-1362. The circuit court did not erroneously exercise its discretion when it denied the defendant’s motion for a mistrial after a witness, who was testifying about the witness’s suspicion of the defendant, stated that the witness “looked on CCAP,” a website that makes certain court case information available to the public. The defendant believed the testimony implicated the defendant’s prior sexual assault conviction, which the circuit court had already ruled inadmissible, but the court determined, in light of the facts and circumstances of the case, that the statement was not so prejudicial as to warrant a mistrial, which the court deemed the most serious of remedies. State v. Debrow, 2023 WI 54, 408 Wis. 2d 178, 992 N.W.2d 114, 21-1732. The retention of ten percent of a partial bail deposit, with no penalty for release on recognizance or when full bail is given, does not violate equal protection requirements. Schilb v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502 (1971). Due process was not denied when a prosecutor carried out a threat to reindict the defendant on a more serious charge if the defendant did not plead guilty to the original charge. Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). The plaintiff was not deprived of liberty without due process of law when arrested and detained pursuant to a lawful warrant, even though the police mistook the identity of the plaintiff. Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). When an indigent defendant’s sanity at the time of committing a murder was seriously in question, due process required access to a psychiatrist and the assistance necessary to prepare an effective defense based on the mental condition. Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Coercive police activity is a necessary predicate to a finding that a confession is not “voluntary” within the meaning of the due process clause. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). A defendant who denies elements of an offense is entitled to an entrapment instruction as long as there is sufficient evidence from which a jury could find entrapment. Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). Unless the defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate due process. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). New constitutional rules announced by the U.S. Supreme Court that place certain kinds of primary individual conduct beyond the power of the states to proscribe, as well as water-shed rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review but may not provide the basis for a federal collateral attack on a state-court conviction. These rules do not constrain the authority of state courts to give broader effect to new rules of criminal procedure. Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Accordingly, when the state withholds from a defendant evidence that is material to the defendant’s guilt or punishment, it violates the right to due process of law. Evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true, however. Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009). The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness. Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012). A guilty plea does not bar a claim on appeal when, on the face of the record, the court had no power to enter the conviction or impose the sentence. Class v. United States, 583 U.S. ___, 138 S. Ct. 798, 200 L. Ed. 2d 37 (2018). Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100 (1970). There is no right under the U.S. Constitution to be conditionally released before the expiration of a valid sentence, and the states are under no duty to offer parole to their prisoners. A state can create a liberty interest in parole by placing substantive limits on its own discretion when deciding whether to grant or deny parole, but Wisconsin hasn’t done that. Graham, 560 U.S. 48 (2010), did not create an exception for juvenile offenders. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Constitutional Law—Pretrial Publicity—The Milwaukee 14. 1970 WLR 209.
Constitutional Law—Due process—Revocation of a Juvenile’s Parole. Sarosiek. 1973 WLR 954.
As I See It: Due Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.
habeas corpus and bail
Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on a motion to suppress evidence when constitutional issues are involved. State ex rel. Warrender v. Kenosha County Court, 67 Wis. 2d 333, 227 N.W.2d 450 (1975). Relief under habeas corpus is not limited to the release of the person confined. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977). Application of bail posted by third parties to the defendant’s fines was not unconstitutional. State v. Iglesias, 185 Wis. 2d 117, 517 N.W.2d 175 (1994). A defendant’s prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534. A question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner’s liberty in violation of the constitution or the court’s jurisdiction. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97-3841. As an extraordinary writ, habeas corpus is available to a petitioner only under limited circumstances. A party must be restrained of the party’s liberty, the party must show that the restraint is imposed by a body without jurisdiction or that the restraint is imposed contrary to constitutional protections, and there must be no other adequate remedy available in the law. State ex rel. Haas v. McReynolds, 2002 WI 43, 252 Wis. 2d 133, 643 N.W.2d 771, 00-2636. Laches is available as a defense to a habeas petition. When a habeas petition is brought by a Wisconsin prisoner, the burden is on the state to show that: 1) the petitioner unreasonably delayed in bringing the claim; 2) the state lacked knowledge that the claim would be brought; and 3) the state has been prejudiced by the delay. State ex rel. Washington v. State, 2012 WI App 74, 343 Wis. 2d 434, 819 N.W.2d 305, 09-0746. See also State ex rel. Wren v. Richardson, 2019 WI 110, 389 Wis. 2d 516, 936 N.W.2d 587, 17-0880. self-incrimination and confession
Granting a witness immunity and ordering the witness to answer questions does not violate the witness’s constitutional rights. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210 (1970). Although a person may invoke the right against self incrimination in a civil case in order to protect himself or herself in a subsequent criminal action, an inference against the person’s interest may be drawn as a matter of law based upon an implied admission that a truthful answer would tend to prove that the witness had committed the criminal act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970). A hearing to determine the voluntariness of a confession is not necessary when a defendant knowingly fails to object to the evidence for purposes of trial strategy. Police officers need not stop all questioning after a suspect requests an attorney, since the suspect can change the suspect’s mind and volunteer a statement. Sharlow v. State, 47 Wis. 2d 259, 177 N.W.2d 88 (1970). The admission of evidence of the spending of money after a burglary did not unconstitutionally require the defendant to testify against himself in order to rebut it. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497 (1971). When the defendant volunteered an incriminatory statement outside the presence of retained counsel, the statement was admissible. State v. Chabonian, 50 Wis. 2d 574, 185 N.W.2d 289 (1971). There is no requirement that a hearing as to the voluntariness of a confession be separated into two stages as to the circumstances leading up to it and then as to its content. Discussing the content of Miranda, 384 U.S. 436 (1966), warnings. Bohachef v. State, 50 Wis. 2d 694, 185 N.W.2d 339 (1971). Discussing questions of investigational versus custodial interrogation in relation to a confession. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748 (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 privilege against self-incrimination does not extend to the production of corporate records by their custodian, even though the records may tend to incriminate the custodian personally. State v. Balistrieri, 55 Wis. 2d 513, 201 N.W.2d 18 (1972). A defendant who waived counsel and who agreed to sign a confession admitting 18 burglaries in return for an agreement that the defendant would be prosecuted for only one could not claim that the confession was improperly induced. The state had the burden of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. 2d 135, 205 N.W.2d 775 (1973). The administration of a blood or breathalyzer test does not violate a defendant’s privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850 (1973). Discussing factors to be considered in determining whether a confession is voluntary. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855 (1973). A voluntary confession is not rendered inadmissible because the arrest is made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213 (1974). While Miranda, 384 U.S. 436 (1966), does require that upon exercise of a defendant’s 5th amendment privilege the interrogation must cease, Miranda does not explicitly state that the defendant may not, after again being advised of the defendant’s rights, be interrogated in the future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359 (1974). Statements given to police without Miranda, 384 U.S. 436 (1966), warnings, while the defendant was injured and in bed, that the defendant was the driver and had been drinking, while voluntary, were inadmissible since at that time accusatorial attention had focused on the defendant. Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286 (1974). The voluntariness of a confession must be determined by examining all the surrounding facts under a totality of the circumstances test. Brown v. State, 64 Wis. 2d 581, 219 N.W.2d 373 (1974). The validity of a juvenile confession is determined by an analysis of the totality of the circumstances surrounding the confession. The presence of a parent, guardian, or attorney is not an absolute requirement for the juvenile to validly waive the right to remain silent but only one of the factors to be considered in determining voluntariness. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850 (1974). A written confession is admissible in evidence, although it is not signed by the defendant, so long as the defendant has read the statement and adopted it as the defendant’s own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750 (1975). When the defendant claimed to understand the defendant’s Miranda, 384 U.S. 436 (1966), rights but agreed to talk to police without counsel because of a stated inability to afford a lawyer, further questioning by police was improper and the resulting confession was inadmissible. Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458 (1977). The state may compel a probationer’s testimony in a revocation proceeding if the probationer is first advised that the testimony will be inadmissible in criminal proceedings arising out of the alleged probation violation, except for purposes of impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977). A volunteered confession made while in custody and prior to Miranda, 384 U.S. 436 (1966), warnings was admissible despite an earlier inadmissible statement in response to custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221 (1977). No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (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). The defendant’s confession was admissible although it was obtained through custodial interrogation following the defendant’s request for a lawyer. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978). When a “conversational” visit was not a custodial interrogation, the defendant’s voluntary statement was admissible despite a lack of Miranda, 384 U.S. 436 (1966), warnings. State v. Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979). Immunity for compelled testimony contrary to the 5th amendment privilege extends to juvenile court proceedings. State v. J.H.S., 90 Wis. 2d 613, 280 N.W.2d 356 (Ct. App. 1979). The defendant’s voluntary statements were admissible for impeachment even though they were obtained in violation of Miranda, 384 U.S. 436 (1966). State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980). When the accused cut off the initial interrogation but was interrogated by another officer nine minutes later following fresh Miranda, 384 U.S. 436 (1966), warnings, the confession was admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980). By testifying as to the defendant’s actions on the day a murder was committed, the defendant waived the self-incrimination privilege on cross-examination as to prior actions related to the murder that were the subject of the pending prosecution. Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980). Miranda, 384 U.S. 436 (1966), warnings were unnecessary when an officer entered the defendant’s home in the belief that the defendant might have killed his wife four days earlier and asked, “Where is your wife?” State v. Kramer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980). A prosecutor’s comment on the failure of an alibi witness to come forward with an alibi story did not infringe on the defendant’s right of silence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982). Videotapes of sobriety tests were properly admitted to show physical manifestations of the defendant driver’s intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).
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wisconsinconstitution
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