I,8Prosecutions; 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). The double jeopardy provisions of the U.S. and Wisconsin Constitutions are identical in scope and purpose. U.S. Supreme Court decisions control both provisions. Discussing multiplicitous rape charges. Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (Ct. App. 1979). When the court of appeals reversed the defendant’s conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980). When a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980). A prosecutor’s repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981). The double jeopardy clause did not bar retrial when the judge declared a mistrial due to jury deadlock. State v. DuFrame, 107 Wis. 2d 300, 320 N.W.2d 210 (Ct. App. 1982). The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983). Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). Reimposition of a sentence after a defendant has been placed on probation, absent a violation of a probation condition, violates the double jeopardy clause. State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983). Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution, or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew, 115 Wis. 2d 243, 340 N.W.2d 470 (1983).