Wisconsin Constitution
Article I - Declaration Of Rights
Section 21 - Rights of suitors.
- Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law.
- In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor's choice. [1975 J.R. 13, 1977 J.R. 7, vote April 1977]
As a matter of Wisconsin constitutional law, the right to an appeal is absolute. In order that the right be meaningful, a defendant must be furnished a full transcript—or a functionally equivalent substitute that, in a criminal case, beyond a reasonable doubt, portrays in a way that is meaningful to the particular appeal exactly what happened in the course of trial. The usual remedy when the transcript deficiency is such that there cannot be a meaningful appeal is reversal with directions that there be a new trial. However, error in transcript preparation or production, like error in trial procedure, is subject to the harmless-error rule. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987).
Every person has an absolute right to appear pro se. Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis. 2d 381, N.W.2d (Ct. App. 1993).
A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term “any suitor." Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 561 N.W.2d 718 (1997), 95-1946.
Sub. (2) gives the right in a civil trial to chose whether to defend oneself personally or to have an attorney, but does not address whether the party may, or may not, be ordered to be physically present at trial when represented. City of Sun Prairie v. Davis, 217 Wis. 2d 268, 575 N.W.2d 268 (Ct. App. 1998), 97-1651.
If a telephone warrant application has not been recorded and there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed application may serve as an equivalent of the record of the original application and can protect the defendant's right to a meaningful appeal. State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 129, 00-1086.
Because a transcript is crucial to the right to an appeal, courts provide additional protection for appellants when they do not have a complete transcript. Under Perry, 136 Wis. 2d 92 (1987), and DeLeon, 127 Wis. 2d 74 (Ct. App. 1985), when a trial transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. The Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. The court does not presume prejudice when the trial transcript is unavailable. State v. Pope, 2019 WI 106, 389 Wis. 2d 390, 936 N.W.2d 606, 17-1720.
