When a trial court fails to satisfy the Weed, 2003 WI 85, mandate to conduct an on-the-record colloquy to determine if the defendant knowingly waived the right to testify, an evidentiary hearing to determine whether the waiver was knowingly, voluntarily, and intelligently made is the proper procedural response. The state carries the burden to show that the defendant’s waiver was knowing and voluntary and must do so by clear and convincing evidence. State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718, 09-0516.

Weed, 2003 WI 85, does not address the situation here, in which a defendant prevented the trial court from conducting the on-the-record colloquy it required. By refusing to come to court so the trial court could personally explain what Weed requires must be explained, the defendant made it, as a practical matter consistent with safety, impossible for the trial court to explain the defendant’s right to testify and determine whether the decision to not testify was knowing, intelligent, and voluntary. State v. Vaughn, 2012 WI App 129, 344 Wis. 2d 764, 823 N.W.2d 543, 12-0094.

Harmless error review applies to the circuit court’s alleged denial of a defendant’s right to testify because its effect on the outcome of the trial is capable of assessment. State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317, 12-2140.

A criminal defendant’s right to testify may, in appropriate cases, be subject to forfeiture when conduct incompatible with the assertion of the right is at issue. A forfeiture determination may not be arbitrary or disproportionate to the purposes it is designed to serve. Stated differently, a complete denial of the right to testify must be reasonable under the circumstances of the case. State v. Anthony, 2015 WI 20, 361 Wis. 2d 116, 860 N.W.2d 10, 13-0467.

Two distinct interests formed the basis of the circuit court’s complete denial of the defendant’s right to testify in this case: 1) the circuit court’s ability to control the presentation of evidence so as to ensure the fairness and reliability of the criminal trial process; and 2) the preservation of dignity, order, and decorum in the courtroom. State v. Anthony, 2015 WI 20, 361 Wis. 2d 116, 860 N.W.2d 10, 13-0467.

When, as here, a defendant repeatedly promises to disobey a circuit court’s evidentiary ruling, the effect of which would seriously threaten the fairness and reliability of the criminal trial process, a circuit court has a legitimate interest in placing reasonable limitations on a defendant’s right to testify. And, when a defendant displays disruptive conduct, as was the case here, a circuit court has a legitimate interest in placing reasonable limitations on the right to testify. State v. Anthony, 2015 WI 20, 361 Wis. 2d 116, 860 N.W.2d 10, 13-0467.

In order to satisfy the requirements of the U.S. and Wisconsin Constitutions, the charges in the complaint and information must be sufficiently stated to allow the defendant to plead and prepare a defense. In child sexual assault cases, courts may apply the seven factors outlined in Fawcett, 145 Wis. 2d 244 (1988), and may consider any other relevant factors necessary to determine whether the complaint and information states an offense to which the defendant can plead and prepare a defense. No single factor is dispositive, and not every Fawcett factor will necessarily be present in all cases. State v. Kempainen, 2015 WI 32, 361 Wis. 2d 450, 862 N.W.2d 587, 13-1531.

The fundamental right to testify on one’s own behalf at a criminal trial does not exist at the responsibility phase of bifurcated not guilty by reason of mental disease or defect proceedings because the responsibility phase is not a part of a criminal trial. State v. Lagrone, 2016 WI 26, 368 Wis. 2d 1, 878 N.W.2d 636, 13-1424.

A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.

The absolute prohibition of paralegal-conducted jail interviews is an unjustifiable restriction of inmates’ due process rights of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.

The trial court’s wholesale exclusion of the defendant’s proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial without valid justification violated the defendant’s right to present a defense and to testify on the defendant’s own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).

I,8 Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [As amended Nov. 1870, April 1981, and April 2023]

I,8(1) (1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.

I,8(2) (2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious harm as defined by the legislature by law, or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court, or if the person is accused of a violent crime as defined by the legislature by law, only upon a finding that there is a reasonable basis to believe that the conditions are necessary based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused. The legislature may authorize, by law, courts to revoke a person’s release for a violation of a condition of release.

I,8(3) (3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.

I,8(4) (4) The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [1869 J.R. 7, 1870 J.R. 3, 1870 c. 118, vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981; 2021 J.R. 6, 2023 J.R. 2, vote April 2023]

double jeopardy

When, after a plea bargain, the state filed an amended complaint to which the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19 (1971).

The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 Wis. 2d 769, 193 N.W.2d 704 (1972).

A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum, 54 Wis. 2d 213, 194 N.W.2d 660 (1972).

When a defendant is tried for one offense and convicted of a lesser included offense, the defendant is not placed in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972).

A defendant is not subjected to double jeopardy when brought to trial a second time after a mistrial is declared. State v. Elkinton, 56 Wis. 2d 497, 202 N.W.2d 28 (1972).

A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State, 60 Wis. 2d 325, 210 N.W.2d 695 (1973).

A defendant convicted of false imprisonment and rape committed in Waukesha County was not subjected to double jeopardy by a second conviction for false imprisonment of the same victim in Milwaukee County because the facts supported two separate prosecutions. Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541 (1974).

When a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there is a “manifest necessity” to terminate the proceedings because the indictment or information is fatally defective and the trial court lacks jurisdiction to try the case. State v. Russo, 70 Wis. 2d 169, 233 N.W.2d 485 (1975).

A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206 (1976).

When the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated did not place the defendant in double jeopardy. Day v. State, 76 Wis. 2d 588, 251 N.W.2d 811 (1977).

Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee’s conduct related to an alleged crime for which the parolee is charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978).

When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell, 85 Wis. 2d 331, 270 N.W.2d 428 (Ct. App. 1978).