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.