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. A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. Courts review a prosecutor’s charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor’s decision to bring additional charges is rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368. The circuit court’s decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant’s presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394. The court’s invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word” will create reversible error. The transcript reflects that the court’s offhand religious references addressed proper secular sentencing factors. The judge’s comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85, 349 Wis. 2d 428, 835 N.W.2d 249, 12-1339. There are two approaches that courts use to see if an alleged enhancing conviction carries its burden of qualifying as an enhancing offense. Under the categorical approach, courts ordinarily look only to the fact of conviction and the statutory definition of the prior offense. When a statute defines an element in the alternative, however, the categorical approach is modified to determine which alternative formed the basis of conviction. Under the modified categorical approach, courts consult a limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions. The purpose of consulting such documents is to identify, from among several alternatives, the crime of conviction. State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848 N.W.2d 329, 13-1753. In order to satisfy the requirements of the U.S. and Wisconsin Constitutions, the charges in a 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. In the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protections under Clause 1 of this section than the U.S. Constitution does under either the 5th or 14th amendments. Defendants must show that the state failed to preserve evidence that was apparently exculpatory or acted in bad faith by failing to preserve evidence that was potentially exculpatory. Bad faith can be shown only if: 1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence. The routine destruction of a driver’s blood or breath sample, without more, does not deprive a defendant of due process. State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-0218. When a defendant seeks to present evidence that a third party committed the crime for which the defendant is being tried, the defendant must show a legitimate tendency that the third party committed the crime, in other words, that the third party had motive, opportunity, and a direct connection to the crime. State v. Wilson, 2015 WI 48, 362 Wis. 2d 193, 864 N.W.2d 52, 11-1803. A court of appeals’ decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol content (PAC) as a seventh offense and impose sentence for a seventh offense violated the defendant’s right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a sixth offense. Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis, 2015 WI 53, 362 Wis. 2d 370, 864 N.W.2d 806, 12-2782. When determining whether a defendant’s right to an objectively impartial decisionmaker has been violated, the court considers the appearance of bias in addition to actual bias. When the appearance of bias reveals a great risk of actual bias, the presumption of impartiality is rebutted and a due process violation occurs. In this case, although the judge’s statements about the judge’s sister were personal, they were used in an attempt to illustrate the seriousness of the crime and the need to deter drunk driving in our society and not as as an expression of bias against the defendant. State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772, 13-0197. A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant’s right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157. When the state alleged that the defendant engaged in repeated sexual assaults of the same child during 2007 and 2008, and during that time period s. 948.025 (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred. Although the defendant should have been charged under the 2007-08 law, the defendant was mistakenly charged under the 2005-06 law. Nevertheless, the defendant was charged with a crime that existed at law. Class C criminal liability attached under the 2005-06 and 2007-08 laws to the same conduct as it pertained to the defendant. The wording difference was immaterial as the elements, as applied to the defendant, were the same. The technical charging error did not prejudice the defendant, nor did it affect the circuit court’s subject matter jurisdiction. State v. Scott, 2017 WI App 40, 376 Wis. 2d 430, 899 N.W.2d 728, 16-1411. If a prosecutor’s statements are fairly characterized as impressing on the jury the importance of assessing a witness’s credibility, there is no error. In this case, a verdict would necessarily follow the jury’s determination of the victims’ credibility; therefore, the state’s argument that the jurors should not find the defendant not guilty unless they concluded the victims lied was equivalent to asking the jurors to carefully weigh the victims’ credibility. There was no error and no denial of due process. State v. Bell, 2018 WI 28, 380 Wis. 2d 616, 909 N.W.2d 750, 15-2667. 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.