Wisconsin Constitution
Article I - Declaration Of Rights
Section 7 - Rights of accused.

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

CONFRONTATION AND COMPULSORY PROCESS

The right to have compulsory process to obtain witnesses in one's behalf does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good-faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except when it is clearly shown that there has been an abuse of discretion. Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176 (1971).

An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State, 53 Wis. 2d 751, 193 N.W.2d 868 (1972).

When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 Wis. 2d 759, 193 N.W.2d 699 (1972).

Because there was no showing that the witness was permanently ill, the defendant was denied the constitutional right to confrontation by the court allowing the use of the witness' deposition. Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600 (1974).

Whether a witness's refusal on 5th amendment grounds to answer otherwise permissible questions violates the defendant's right to confrontation must be determined from the whole record. West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 1976).

Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick, 74 Wis. 2d 425, 247 N.W.2d 80 (1976).

Introduction into evidence of a victim's hospital records unsupported by testimony of the treating physician did not violate the defendant's right of confrontation and cross-examination. State v. Olson, 75 Wis. 2d 575, 250 N.W.2d 12 (1977).

The trial court did not deny the defendant's right of confrontation by forbidding cross-examination of the sole prosecution witness as to the witness's history of mental illness, since no showing was made that the history was relevant to the witness's credibility. The right of confrontation is also limited by s. 904.03 if the probative value of the desired cross-examination is outweighed by the possibility of unfair or undue prejudice. Chapin v. State, 78 Wis. 2d 346, 254 N.W.2d 286 (1977).

The defendant's right of confrontation was not violated when preliminary examination testimony of a deceased witness was admitted at trial when the defendant had unlimited opportunity to cross-examine the witness and the testimony involved the same issues and parties as at trial. Nabbefeld v. State, 83 Wis. 2d 515, 266 N.W.2d 292 (1978).

A defendant's right to compulsory process did not require admission of an unstipulated polygraph exam. Lhost v. State, 85 Wis. 2d 620, 271 N.W.2d 121 (1978).

The trial court did not err in favoring a witness's right against self-incrimination over the compulsory process rights of the defendant. State v. Harris, 92 Wis. 2d 836, 285 N.W.2d 917 (Ct. App. 1979).

The state's failure to use the Uniform Extradition Act to compel the presence of a doctor whose hearsay testimony was introduced denied the accused's right to confront witnesses and violated the hearsay rule, but the error was harmless. State v. Zellmer, 100 Wis. 2d 136, 301 N.W.2d 209 (1981).

Medical records, as explained to the jury by a medical student, were sufficient to support a conviction and did not deny the right of confrontation. Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981).

The trial court properly denied a request to present a defense witness who refused to answer relevant questions during an offer of proof cross-examination. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981).

Admission of a statement by a deceased co-conspirator did not violate the right of confrontation. State v. Dorcey, 103 Wis. 2d 152, 307 N.W.2d 612 (1981).

When a witness died after testifying at a preliminary examination, admission of the transcript of the testimony did not deny the right of confrontation. Constitutional standards for admission of hearsay evidence are discussed. State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982).

Guidelines are set for admission of testimony of hypnotized witnesses. State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).

Cross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony. State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987).

A defendant waives the right of confrontation by failing to object to the trial court's finding of witness unavailability. State v. Gove, 148 Wis. 2d 936, 437 N.W.2d 218 (1989).

A prosecutor who obtained an incriminating statement from a defendant is obliged to honor a subpoena and to testify at a suppression hearing if there is a reasonable probability that testifying will lead to relevant evidence. State v. Wallis, 149 Wis. 2d 534, 439 N.W.2d 590 (Ct. App. 1989).

A defendant had no confrontation clause rights as to hearsay at a pretrial motion hearing. The trial court could rely on hearsay in making its decision. State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990).

Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as the subject of cross-examination of the expert due to the lack of a logical connection between the expert and prosecutor necessary to suggest bias. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).

The ability of a child witness to speak the truth or communicate intelligently are matters of credibility for the jury, not questions of competency to be determined by the judge. State v. Hanna, 163 Wis. 2d 193, 471 N.W.2d 238 (Ct. App. 1991).

When a witness's “past-recollection recorded statement" was admitted after the witness testified and was found “unavailable" as a result of having no current memory of the murder in question, there was an opportunity for cross-examination and the right to confrontation was not violated. State v. Jenkins, 168 Wis. 2d 175, 483 N.W.2d 262 (1992).

A defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 715 (Ct. App. 1992).

To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993).

See also State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995.)

An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a “particularized need" for the expert. State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995), 94-0899.

The right to confrontation was not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession was redacted to eliminate any reference to the defendant's existence. State v. Mayhall, 195 Wis. 2d 53, 535 N.W.2d 473 (Ct. App. 1995), 94-0727.

An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), 95-0881.

The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996), 94-1213.

Evidence of 911 calls, including tapes and transcripts of the calls, is not inadmissible hearsay. Admission does not violate the right to confront witnesses. State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), 98-1905.

Confrontation promotes the reliability of evidence by rigorously testing it in an adversarial proceeding before the jury. A defendant must have the opportunity to meaningfully cross-examine witnesses, and the right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable rules of evidence. State v. Dunlap, 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398, 99-2189.

For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. Under the first part of the inquiry, a defendant must demonstrate that the proffered testimony satisfies each of the following four requirements: 1) the testimony of the expert witness meets the s. 907.02 standards governing the admission of expert testimony; 2) the expert testimony is clearly relevant to a material issue in the case; 3) the expert testimony is necessary to the defendant's case; and 4) the probative value of the expert testimony outweighs its prejudicial effect. Under the second part of the inquiry, the court must determine whether the defendant's right to present the proffered evidence is nonetheless outweighed by the state's compelling interest to exclude the evidence. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277, 00-2830.

Cross-examination of a highly qualified witness, who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders his or her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.

When the privilege against self-incrimination prevents a defendant from directly questioning a witness about his or her testimony, it may be necessary to prohibit that witness from testifying or to strike portions of the testimony if the witness has already testified. A defendant's right of confrontation is denied in each instance that potentially relevant evidence is excluded. The question is whether the defendant could effectively cross-examine the witness. State v. Barreau, 2002 WI App 198, 257 Wis. 2d 203, 651 N.W.2d 12, 01-1828.

When a witness's memory, credibility, or bias was not at issue at trial, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness's testimony. Admission of the unavailable witness's preliminary hearing testimony did not violate the defendant's constitutional right to confrontation. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.

A violation of the confrontation clause does not result in automatic reversal, but rather is subject to harmless error analysis. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1746.

Prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony. State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 593, 03-0417.

Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the state make a good-faith effort to produce that declarant at trial. If there is a remote possibility that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. State v. King, 2005 WI App 224, 287 Wis. 2d 756, 706 N.W.2d 181, 04-2694.

When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Crawford, 541 U.S. 36, laid out 3 formulations of the core class of testimonial statements. 1) ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; 2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and 3) statements made under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583.

Casual remarks on the telephone to an acquaintance plainly were not testimonial. That an informant overheard the remarks does not transform the informant into a government officer or change the casual remark into a formal statement. Statements made in furtherance of a conspiracy by their nature are not testimonial. State v. Savanh, 2005 WI App 245, 287 Wis. 2d 876, 707 N.W.2d 549, 04-2583.

In applying the 3-part test under Crawford, 541 U.S. 36, and Savanh, 2005 WI App 245, statements volunteered to officers at the scene of a traumatic event absent any interrogation or other police prompting generated by the desire of the prosecution or police to seek evidence against a particular suspect were found not to be testimonial. State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, 04-2827.

A witness's claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the confrontation clause if the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. In contrast to cases when the witness either invokes the 5th amendment and remains silent or refuses to be sworn in or testify, when a witness takes the stand, agrees to testify truthfully, and answers the questions posed by defense counsel, defense counsel is able to test the witness's recollection, motive, and interest and hold his or her testimony up so that the jury can decide whether it is worthy of belief. State v. Rockette, 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, 04-2732.

When officers did not go to the victim's house looking for evidence with which to prosecute the defendant, and, after they arrived their focus was not on building a case against the victim but, rather, trying to ensure the safety of the defendant and her daughter, and other members of the community the the out-of-court declarations of the victim and her daughter were not testimonial. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265.

The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. When evidence is irrelevant or not offered for a proper purpose, the exclusion of that evidence does not violate a defendant's constitutional right to present a defense. There is no abridgement on the accused's right to present a defense so long as the rules of evidence used to exclude the evidence offered are not arbitrary or disproportionate to the purposes for which they are designed. State v. Muckerheide, 2007 WI 5, 298 Wis. 2d 553, 725 N.W.2d 930, 05-0081.

Despite the state constitution's more direct guarantee to defendants of the right to meet their accusers face to face, the Wisconsin Supreme Court has generally interpreted the state and federal rights of confrontation to be coextensive. The U.S. Supreme Court's decision in Crawford, 541 U.S., does not represent a shift in confrontation-clause jurisprudence that overturns state and federal precedents permitting a witness to testify from behind a barrier upon a particularized showing of necessity. State v. Vogelsberg, 2006 WI App 228, 297 Wis. 2d 519, 724 N.W.2d 649, 05-1293.

The confrontation clause places no constraints on the use of prior testimonial statements when the declarant appears for cross-examination. It made no difference in this case where oral statements of a witness were not disclosed until a subsequent police witness testified whether the burden was on the state or the defendant to show that the witness was available for further cross-examination after the court told the witness he could step down. The witness testified and was cross-examined concerning his statements to the police; therefore, defendant's right to confrontation was not violated. State v. Nelis, 2007 WI 58, 300 Wis. 2d 415, 733 N.W.2d 619, 05-1920.

In determining whether a statement is testimonial under Crawford, 541 U.S. 36, a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. The government does not need to be involved in the creation of a testimonial statement. A statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his or her statement might be used in the investigation or prosecution of a crime. It does not matter if a crime has already been committed or not. Statements made to loved ones or acquaintances are not the memorialized type of statements that Crawford addressed. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, 04-2481.

A defendant cannot show that his or her rights under the confrontation clause were violated before first showing that the allegedly impermissible statements were testimonial. Under the U.S. Supreme Court's analysis in Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, statements between certain types of individuals are highly unlikely to be testimonial. The statements at issue in this case were the result of a conversation between two inmates — the type of statement that the U.S. Supreme Court and other courts have categorized as unequivocally nontestimonial. State v. Nieves, 2017 WI 69, 376 Wis. 2d 300, 897 N.W.2d 363, 14-1623.

See also Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).

The forfeiture by wrongdoing doctrine is adopted in Wisconsin. Essentially, the forfeiture by wrongdoing doctrine states that an accused can have no complaint based on the right to confrontation about the use against him or her of a declarant's statement if it was the accused's wrongful conduct that prevented any cross-examination of the declarant. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, 04-2481.

In applying the the forfeiture by wrongdoing doctrine the circuit court must determine whether, by a preponderance of the evidence, the defendant caused the witness's unavailability, thereby forfeiting his or her right to confrontation. While requiring the court to decide the evidence the very question for which the defendant is on trial may seem troublesome, equitable considerations demand such a result. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, 04-2481.

Under the doctrine of forfeiture by wrongdoing announced in Jensen, the statement of an absent witness is admissible against a defendant who the trial court determines by a preponderance of the evidence caused the witness's absence. When a jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his or her own misconduct, the right to confront that witness. State v. Rodriguez, 2007 WI App 252, 306 Wis. 2d 129, 743 N.W.2d 460, 05-1265.

Inasmuch as a criminal defendant does not have an unqualified right to require the appearance of any persons as witnesses for trial, and a defendant's right to compulsory process at trial must satisfy certain standards, the compulsory process rights of a defendant at the preliminary stage of criminal proceedings also must be subject to reasonable restrictions. The court declines to expand a criminal defendant's compulsory process rights to encompass a right to subpoena police reports and other non-privileged investigatory materials for examination and copying in anticipation of a preliminary hearing. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

By the judge's reading at a criminal trial the transcript of a hearing at which the defendant appeared to be intoxicated, resulting in additional charges, the jury was essentially provided with the judge's and the prosecutor's conclusions at the hearing about the defendant's guilt with the circuit court and the prosecutor essentially testifying against the defendant, denying the right to cross-examination. State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06-1847.

Affidavits verifying nontestimonial bank records in compliance with s. 891.24 are nontestimonial and their admission does not violate the confrontation clause. The affidavits fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. State v. Doss, 2008 WI 93, 312 Wis. 2d 570, 754 N.W.2d 150, 06-2254.

Applying the St. George, 2002 WI 50, test in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898.

The U.S. Supreme Court in Giles, 554 U.S. 353, held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. In doing so, the Court reaffirmed the doctrine's viability generally, but chose a narrower view of its scope than Jensen, 2007 WI 26. State v. Baldwin, 2010 WI App 162, 330 Wis. 2d 500, 794 N.W.2d 769, 09-1540.

Nontestimonial statements are not excluded by the confrontation clause and thereby may be analyzed for purposes of a hearsay objection. The broad version of the forfeiture by wrongdoing analysis, specifically approved in Giles, 554 U.S. 353, for nontestimonial statements, deems nontestimonial statements admissible if the witness's unavailability to testify at any future trial was a certain consequence of the murder. State v. Jensen, 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482, 09-0898.

The admission of a dying declaration statement violates neither the 6th amendment right to confront witnesses nor the corresponding right under the state constitution. The confrontation right does not apply when an exception to that right was recognized at common law at the time of the founding, which the dying declaration exception was. The fairest way to resolve the tension between the state's interest in presenting a dying declaration and concerns about its potential unreliability is to freely permit the aggressive impeachment of a dying declaration on any grounds that may be relevant in a particular case. State v. Beauchamp, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780, 09-0806.

A criminal defendant states a violation of the confrontation clause by showing that he or she was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. The right to cross-examination, and thereby confrontation, is not, however, absolute. Whether they are faced with the danger of undue prejudice or the specter of psychological trauma to victims, circuit courts can weigh the probative value of the evidence proffered with the dangers it brings. State v. Rhodes, 2011 WI 73, 336 Wis. 2d 64, 799 N.W.2d 850, 09-0025. But see Rhodes v. Dittmann, 903 F.3d 646 (2018).

The trial court did not violate the defendant's right to confrontation by allowing a crime lab technician to rely on a scientific report that profiled the DNA left on the victims by their attacker. State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362, 10-2363.

The confrontation clause does not apply to preliminary examinations. State v. O'Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, 12-1769.

When a non-testifying analyst documents original tests with sufficient detail for another expert to understand, interpret, and evaluate the results, that other expert's testimony does not violate the confrontation clause. Wisconsin confrontation clause jurisprudence begins with Williams, 2002 WI 58, which sets out a 2-part framework to analyze the testimony of an expert witness, relying on forensic tests conducted by a non-testifying analyst. The testifying expert witness must have: 1) reviewed the analyst's tests; and 2) formed an independent opinion to which he or she testified at trial. State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567, 09-3073.

All toxicology reports similar to the one in this case — solely identifying the concentration of substances present in biological samples sent by the medical examiner as a part of an autopsy protocol — are generally non-testimonial when requested by a medical examiner and not at the impetus of law enforcement. The primary purpose of these toxicology reports is not to create evidence against a defendant in a criminal prosecution; rather, the principal purpose is to provide information to the medical examiner searching for the cause of death. Because there was nothing “testimonial" about the toxicology report used during the defendant's trial, the confrontation rights of the defendant were not infringed. State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, 15-0158.

Clark, 576 U.S. ___, 135 S. Ct. 2173 (2015), pronounces the controlling principles in determining whether an out-of-court statement is “testimonial" and therefore subject to the confrontation clause. The dispositive question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the out-of-court statement is to create an out-of-court substitute for trial testimony. Some factors relevant in the primary purpose analysis include: 1) the formality/informality of the situation producing the out-of-court statement; 2) whether the statement is given to law enforcement or a non-law enforcement individual; 3) the age of the declarant; and 4) the context in which the statement is given. State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, 15-0158.

The confrontation clause does not apply during suppression hearings. The confrontation right protects defendants at trial, when guilt or innocence is at stake. The confrontation clause does not require confrontation of witnesses at suppression hearings. State v. Zamzow, 2017 WI 29, 374 Wis. 2d 220, 892 N.W.2d 637, 14-2603.

When required by the right effectively to present a defense, the state, having authority to do so, in the exercise of sound discretion must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.

Introduction of an accomplice's confession for rebuttal purposes, not hearsay, did not violate the defendant's confrontation rights. Tennessee v. Street, 471 U.S. 409, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985).

The confrontation clause does not require a showing of unavailability as a condition of admission of out-of-court statements of a non-testifying co-conspirator. United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986).

The confrontation clause does not require the defendant to have access to confidential child abuse reports. Due process requires the trial court to undertake an in camera inspection of the file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

Admission of a nontestifying codefendant's confession violates confrontation rights, even though the defendant's confession was also admitted. Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987).

The confrontation clause does not require that the defendant be permitted to be present at a competency hearing of a child witnesses as long as the defendant is provided the opportunity for full and effective cross-examination at trial. Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987).

The confrontation clause prohibits the placement of a screen between a child witness and the defendant. Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988).

If a state makes an adequate showing of necessity, it may use a special procedure, such as one-way closed-circuit television to transmit a child witness' testimony to court without face-to-face confrontation with the defendant. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

In a joint trial, the confession of one defendant naming the other defendant that was read with the word “deleted" replacing the second defendant's name violated the second defendant's right of confrontation. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998).

The rights to be present at trial and to confront witnesses are not violated by a prosecutor's comment in closing argument that the defendant had the opportunity to hear all witnesses and then tailor his testimony accordingly. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000).

The 6th amendment confrontation clause demands unavailability and a prior opportunity for cross-examination. Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed 2d 177 (2004).

When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. “Testimonial statements" includes at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed 2d 177 (2004).

Statements are nontestimonial under Crawford, 541 U.S. 36, when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. A conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

A defendant does not forfeit the right to confront a witness when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial. The “forfeiture by wrongdoing" doctrine applies only when the defendant engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. The requirement of intent means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable. Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).

Under Crawford, 541 U.S. 36, analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements and the analysts were “witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

When an “ongoing emergency," as discussed in Davis, 547 U.S. 813, extends beyond an initial victim to a potential threat to the responding police and the public at large, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011).

The confrontation clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification made for the purpose of proving a particular fact through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).

Under Supreme Court precedents, a statement cannot fall within the confrontation clause unless its primary purpose was testimonial. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the confrontation clause. That does not mean that the confrontation clause bars every statement that satisfies the “primary purpose" test. The confrontation clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. The primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the confrontation clause. Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015).

Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, a categorical rule excluding them from the 6th amendment's reach is not adopted. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015).

Statements by very young children will rarely, if ever, implicate the confrontation clause, and mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015).

The 6th amendment confrontation clause is not satisfied merely because the evidence offered by a defendant might be properly excluded under s. 904.03. The confrontation clause limits a trial court's ordinary discretion to limit cross-examination and demands careful scrutiny of the purported reason for limiting cross-examination. A trial court violates the confrontation clause when the court applies ordinary s. 904.03 balancing to limit cross-examination by a defendant on issues central to the defense without giving any special consideration to the defendant's constitutional right to confront witnesses against him. Rhodes v. Dittmann, 903 F.3d 646 (2018).

A finding of unavailability of a witness due to mental illness, made on the basis of a confused and stale record, deprived the defendant of the right to confront witnesses, but the error was harmless. Burns v. Clusen, 599 F. Supp. 1438 (1984).

The use of a child victim's statements to a psychologist under s. 908.03 (4) violated the accused sexual assaulter's confrontation rights. Nelson v. Ferrey, 688 F. Supp. 1304 (1988).

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 state justification, violated the defendant's right to present a defense and to testify in her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).

A Bad Case of Indigestion: Internalizing Changes in the Right to Confrontation After Crawford v. Washington Both Nationally and in Wisconsin. Kinnally. 89 MLR 625 (2005).

State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.

Hearsay and the Confrontation Clause. Biskupic. Wis. Law. May 2004.

COUNSEL

Note: See also the notes to Article I, Section 8 — Self-incrimination.

A defendant is entitled to the presence of counsel at a post-warrant lineup, but the attorney need not participate or object, and need not be the ultimate trial counsel. Wright v. State, 46 Wis. 2d 75, 175 N.W.2d 646 (1970).

A city attorney should not be appointed defense counsel in a state case in which city police are involved unless the defendant, being fully informed, requests the appointment. Karlin v. State, 47 Wis. 2d 452, 177 N.W.2d 318 (1970).

A conference in chambers between defendant's counsel and the prosecutor in regard to a plea agreement, but without the defendant's presence, was not violative of his constitutional rights and not a manifest injustice since the defendant had the benefit of counsel both during the entry of his plea and at the sentencing and the defendant on the record expressly acquiesced in the plea agreement. Kruse v. State, 47 Wis. 2d 460, 177 N.W.2d 322 (1970).

A disciplinary action against an attorney is a civil proceeding. An indigent attorney is not entitled to the appointment of an attorney. State v. Hildebrand, 48 Wis. 2d 73, 179 N.W.2d 892 (1970).

An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State, 50 Wis. 2d 682, 184 N.W.2d 826 (1971).

ABA standards relating to the duty of defense counsel while approved by the court, do not automatically prove incompetency or ineffectiveness if violated. State v. Harper, 57 Wis. 2d 543, 205 N.W.2d 1 (1973).

An arrestee has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850 (1973).

A defendant has no right to counsel or to be present when photographs are shown to a witness. The right to counsel exists only at or after the initiation of criminal proceedings. Holmes v. State, 59 Wis. 2d 488, 208 N.W.2d 815 (1973).

While it is not desirable, it is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 Wis. 2d 325, 210 N.W.2d 695 (1973).

A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973).

A conviction was not overturned because of the absence of counsel at an informal confrontation where the defendant was identified by the victim. Jones v. State, 63 Wis. 2d 97, 216 N.W.2d 224 (1974).

When a conflict arises in dual representation, a defendant must be granted a vacation of sentence and new hearing because a conflict at sentencing per se renders counsel representation ineffective and actual prejudice need not be shown. Hall v. State, 63 Wis. 2d 304, 217 N.W.2d 352 (1974).

Defense counsel's failure to cross-examine the state's principal witness at trial did not constitute ineffective representation when cross-examination had proved fruitless at the preliminary. Krebs v. State, 64 Wis. 2d 407, 219 N.W.2d 355 (1974).

The duty to appoint counsel is upon the judicial system as part of the superintending power of the judicial system. When the appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, the power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milwaukee County, 65 Wis. 2d 130, 221 N.W.2d 902 (1974).

The trial judge must unconditionally and unequivocably demonstrate in the record that the defendant intelligently, voluntarily, and understandingly waived the constitutional right to counsel, whether or not the defendant is indigent. Keller v. State, 75 Wis. 2d 502, 249 N.W.2d 773 (1977).

When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass, 75 Wis. 2d 542, 249 N.W.2d 789 (1977).

One charged with a crime carrying a penalty of incarceration has the full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N.W.2d 791 (1977).

The mere fact that one attorney represents 2 defendants charged in the same crime is not sufficient evidence of inadequate representation. The defendant has the burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State, 78 Wis. 2d 189, 254 N.W.2d 220 (1977).

A defendant has no right to be actively represented in the courtroom both by self and by counsel. Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978).

The test to determine if the denial of a continuance acted to deny a defendant either due process or effective assistance of counsel is discussed. State v. Wollman, 86 Wis. 2d 459, 273 N.W.2d 225 (1979).

The right to counsel does not extend to non-lawyer representatives. State v. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978).

Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979).

A defendant's request on the morning of trial to represent himself was properly denied as untimely. Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639 (1979).

A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

The trial court did not err in refusing the defendant's request on the 2nd day of trial to withdraw a waiver of the right to counsel. Self-representation is discussed. Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980).

The right to counsel did not preclude incarceration for a second operating while intoxicated conviction when the defendant was not represented by counsel in proceedings leading to the first conviction, since the first offense was a civil forfeiture case. State v. Novak, 107 Wis. 2d 31, 318 N.W.2d 364 (1982).

Counsel was ineffective for failing to raise the heat-of-passion defense in a murder case when a wife who had been maltreated during a 23-year marriage intentionally killed her husband while he lay sleeping. State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983).

A defendant's uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik, 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983).

Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).

When a trial court fails to make adequate inquiry into a defendant's last-minute request to replace his or her attorney, the right to counsel is adequately protected by a retrospective hearing at which the defendant may present his or her own testimony. State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988).

The 5th and 6th amendment rights to counsel and Edward, 451 U.S. 477 (1981) are discussed. State v. McNeil, 155 Wis. 2d 24, 454 N.W.2d 742 (1990). See also the note to McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991). See also Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001).

Defense counsel's absence at the return of the jury verdict without the defendant's consent and the failure to poll the jury were grounds for automatic reversal. State v. Behnke, 155 Wis. 2d 796, 456 N.W.2d 610 (1990).

When a defendant accepts counsel, the decision to assert or waive a constitutional right is delegated to the attorney. The failure of the defendant to object to the attorney's waiver, is waiver. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 (Ct. App. 1990).

There is a two-prong test for ineffective counsel: 1) trial counsel was ineffective; and 2) the defense was prejudiced so that absent error the result would have been different. State v. Wilkens, 159 Wis. 2d 618, 465 N.W.2d 206 (Ct. App. 1990).

A court may disqualify the defendant's chosen counsel over the defendant's objection and waiver of the right to conflict-free representation when actual or a serious potential for a conflict of interest exists. State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991).

A determination of indigency by the public defender under s. 977.07 is not the end of the court 's inquiry into the need to appoint counsel. State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991).

To bring a claim of ineffective appellate counsel, defendant must petition the court that heard the appeal for a writ of habeas corpus. State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

The question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel's errors would have had a reasonable doubt respecting guilt. State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992).

A defense attorney's ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista, 171 Wis. 2d 690, 492 N.W.2d 354 (Ct. App. 1992).

Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed pro se, courts are advised to mandate full representation by counsel. State v. Haste, 175 Wis. 2d 1, 500 N.W.2d 678 (Ct. App. 1993).

The proper test of attorney performance is reasonableness under prevailing professional norms. Counsel is not required to have a total and complete knowledge of all criminal law, no matter how obscure. State v. Hubert, 181 Wis. 2d 333, 510 N.W.2d 799 (Ct. App. 1993).

Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994).

An appellate defendant represented by counsel has no right to have a pro se brief considered by the court when counsel has submitted a brief. State v. Debra A. E. 188 Wis. 2d 111, 523 N.W.2d 727 (Ct. App. 1994).

The decision to poll the jury may be delegated to counsel. Waiver by counsel without showing that the waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson, 188 Wis. 2d 537, 525 N.W.2d 165 (Ct. App. 1994).

If the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. When an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas, 190 Wis. 2d 339, 526 N.W.2d 818 (Ct. App. 1994).

The prejudice prong of the test for ineffective counsel was met when counsel failed to insure that a defense witness would appear without shackles. State v. Tatum, 191 Wis. 2d 548, 530 N.W.2d 407 (Ct. App. 1995).

A suspect's reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).

The right to counsel and right to remain silent are the defendant's. An attorney, not requested by the defendant, could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).

A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and a waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone, 195 Wis. 2d 476, 536 N.W.2d 172 (Ct. App. 1995), 94-3369.

Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley, 195 Wis. 2d 580, 536 N.W.2d 202 (Ct. App. 1995), 94-3310.

A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Kessig, 199 Wis. 2d 397, 544 N.W.2d 605 (Ct. App. 1995), 95-1938.

In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found when the defendant constantly refused to cooperate with counsel while refusing to waive the right and when the court found the defendant's intent was to “delay, obfuscate and compound the process of justice." State v. Cummings, 199 Wis. 2d 721, 516 N.W.2d 406 (1996), 93-2445.

The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996), 94-0208.

Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. When counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95-1096.

Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), 95-0583.

To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney's performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street, 202 Wis. 2d 533, 551 N.W.2d 830 (Ct. App. 1996), 95-2242.

Counsel is not ineffective when the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of the defense. State v. Eckert, 203 Wis. 2d 497, 553 N.W.2d 539 (Ct. App. 1996), 95-1877.

When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy, 206 Wis. 2d 629, 557 N.W.2d 494 (Ct. App. 1996), 96-0658.

Counsel was deficient when it failed to object at sentencing to a prosecutor's sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith, 207 Wis. 2d 259, 558 N.W.2d 379 (1997), 94-3364.

Whenever a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. The colloquy is to ensure that the defendant: 1) made a deliberate choice to proceed without counsel, 2) was aware of the difficulties and disadvantages of self-representation, 3) was aware of the seriousness of the charge or charges, and 4) was aware of the general range of the possible penalties. When there is no colloquy and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938.

There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English, and any disability that may affect the ability to communicate a defense. When there is no pretrial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938.

It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997), 96-1905.

When a defendant proves ineffective assistance of counsel occurred at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 Wis. 2d 849, 569 N.W.2d 758 (Ct. App. 1997), 96-2597.

An in-court identification subsequent to a lineup in violation of an accused's right to counsel is admissible only if the state carries the burden of showing that the in-court identification was based on observations of the suspect other than the lineup. State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), 95-2052.

A postconviction hearing pursuant to Machner, 92 Wis. 2d 797, to preserve the testimony of trial counsel is required in every ineffective assistance of counsel case. State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998), 96-2884.

Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel's duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), 97-3070.

Whether a defendant's motion for substitution of counsel, with an accompanying request for a continuation, should be granted depends on the balancing of several interests. State v. Wanta, 224 Wis. 2d 679, 592 N.W.2d 645 (Ct. App. 1999), 98-0318.

A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534.

A defendant who alleges counsel was ineffective by failing to take certain steps must show with specificity what the action, if taken, would have revealed and how the action would have affected the outcome. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.

When defense counsel has appeared for and represented the state in the same case in which he or she 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 98, 99-1164.

There is a distinction between the consequences on appeal of a trial court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context. The fact that a preserved error could lead to automatic reversal does not mean the same result will be reached when the error was waived. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273.

The defendant's assertion of the 6th amendment right to counsel was evident during interrogation when he asked whether the police officer thought he should have an attorney and if he could call a person known to the officer to be a criminal defense lawyer. State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999), 99-0300.

Inherent in a defendant's choice to proceed pro se is the risk, which the defendant knowingly assumes, that a defense not known to him or her will not be presented during trial. State v. Clutter, 230 Wis. 2d 472, 602 N.W.2d 324 (Ct. App. 1999), 99-0705.

A defendant has a substantive due process right to enforce a plea agreement after the plea has been entered. Defense counsel's failure to inform defendant of that right or to pursue enforcement of the agreement constituted ineffective assistance of counsel. State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 926 (Ct. App. 1999), 98-2109.

The lack of legal expertise is an impermissible basis on which to deny a request to represent oneself. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219.

On administrative appeal a probationer may be assisted by counsel, but there is no right to appointed counsel or effective assistance of counsel. State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, 99-0182.

See also Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150, 99-0182.

A defendant's unusual conduct or beliefs do not necessarily establish incompetence for purposes of self-representation. Although a defendant may exhibit beliefs that are out of the ordinary and make references that may antagonize jurors, that does not reflect a mental defect that prevents self-representation. State v. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893, 99-1198.

Except when charges have been filed in a closely-related case derived from the same factual predicate, the 6th amendment right to counsel is offense specific and attaches to a particular offense only after adversary proceedings are commenced. The 6th amendment does not not prohibit the interrogation of a defendant in regard to a murder in the absence of counsel retained in a bail jumping case. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.

In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913, 00-2138.

An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.

There was ineffective assistance of counsel when the notice of appeal for the denial of a ch. 980 petition for supervised release was filed one day late in circuit court. Under the U.S. Supreme Court's decisions in Douglas, 372 U.S. 353, and Anders, 386 U.S. 738, the court of appeals could not conduct an independent review for error when the individual lacked requested representation. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.

Absent a showing of prejudice to their defense, misdemeanants were not denied effective counsel when their attorneys failed to object to the 6-person jury statute that was found unconstitutional in Hansford, 219 Wis. 2d 226. State v. Franklin, 2001 WI 104, 245 Wis. 2d 582, 629 N.W.2d 289, 99-0743.

A reviewing court is not required to view defense counsel's subjective testimony as dispositive of an ineffective assistance claim. The testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel's overall performance. State v. Kimbrough, 2001 WI App 138, 246 Wis. 2d 648, 630 N.W.2d 752, 00-2133.

For a knowing and voluntary waiver of counsel on direct appeal, the defendant must be aware of: 1) the rights to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report; 2) the dangers and disadvantages of proceeding pro se; and 3) the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed. The necessary colloquy may be accomplished by written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. State v. Thornton, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45, 01-0726.

Opening a letter marked “Legal Papers" outside of an inmate's presence may have violated an administrative rule, but it was not a violation of the 6th amendment right to counsel. For the right to counsel to have an arguable application, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with an attorney. State v. Steffes, 2003 WI App 55, 260 Wis. 2d 841, 659 N.W.2d 445, 02-1300.

When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.

When a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. Whether the aggregated errors by counsel will be enough to meet the Strickland, 466 U.S. 668, prejudice requirement depends upon the totality of the circumstances at trial, not the totality of the representation provided to the defendant. State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305, 01-1589.

Under Dean a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313.

No law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm, 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02-1828.

An attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While the defendant's admission need not be phrased in magic words, it must be unambiguous and directly made to the attorney. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.

When a defendant informs counsel of the intention to testify falsely, the attorney's first duty shall be to attempt to dissuade the client from the unlawful course of conduct. The attorney should then consider moving to withdraw from the case. If the motion to withdraw is denied and the defendant insists on committing perjury, counsel should proceed with the narrative form of questioning, advising the defendant beforehand of what that entails and informing opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.

An alleged violation of the requirements of Klessig, 211 Wis. 2d 194, can form the basis of a collateral attack as long as the defendant makes a prima facie showing that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel, which shifts the burden to prove that the defendant validly waived his or her right to counsel to the state. The state may elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise the 5th amendment privilege against testifying. State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, 03-1728.

When a defendant seeks to proceed pro se, the circuit court undertakes a 2-part inquiry, ensuring that the defendant: 1) has knowingly, intelligently, and voluntarily waived the right to counsel; and 2) is competent to proceed pro se. The record must demonstrate an identifiable problem or disability that may prevent a defendant from making a meaningful defense. The circuit court need not always make an express finding as to which specific problem or disability prevented a defendant from being able to meaningfully represent himself or herself. State v. Marquardt, 2005 WI 157, 286 Wis. 2d 204, 705 N.W.2d 878, 04-1609.

A deaf defendant who was shackled during trial and sentencing had the burden to show that he in fact was unable to communicate, not that he theoretically might have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d 483, 04-2869.

A defendant's constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a “partial no-merit" report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that “an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ford v. Holm, 2006 WI App 176, 296 Wis. 2d 119, 722 N.W. 2d 609, 02-1828.

While courts sometimes can override a defendant's choice of counsel when deemed necessary, nothing requires them to do so. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant's right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05-0181.

Generally, a defendant who validly waives the right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict, although there may be instances in which counsel's performance is deficient and unreasonably so even in light of the waived conflict of interest. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05-0181.

It is recommended, if not required, that circuit courts take certain steps to determine whether a defendant has forfeited the right to counsel: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; 2) engage in a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; 3) make a clear ruling when the court deems the right to counsel to have been forfeited; and 4) make factual findings to support the court's ruling. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772.

But see State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959.

It would be unreasonable to require a circuit court to engage in a colloquy to ensure that the defendant deliberately relinquished the right to counsel in circumstances where the defendant will verbally insist he or she did not. In cases in which the defendant's words are inconsistent with the defendant's conduct, such a colloquy would be farcical. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772.

Although an indigent defendant does not have the right to pick his or her trial lawyer, the indigent defendant is entitled to a lawyer with whom he or she can communicate. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. The court must make sufficient inquiry to ensure that a defendant is not cemented to a lawyer with whom full and fair communication is impossible; mere conclusions, unless adequately explained, will not fly. State v. Jones, 2007 WI App 248, 306 Wis. 2d 340, 742 N.W.2d 341, 07-0226.

There is no 6th amendment effective assistance of counsel right to subpoena police reports and other non-privileged materials prior to a preliminary examination. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

A lawyer's failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. When there is reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. State v. Walker, 2007 WI App 142, 302 Wis. 2d 735, 735 N.W.2d 582, 06-0562.

Reversed on other grounds. State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, 06-0562.

Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

A defendant does not have the right to be represented by: 1) an attorney he or she cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

The circuit court's decision to remove counsel of choice is discretionary. The court does not have unfettered freedom to deprive a defendant of retained counsel. Whether removal for conflict was proper rests on whether the court balanced the defendant's right to be represented by retained counsel against the court's interest in the appearance of fairness and diffusing what it characterized as a potential conflict. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

When making a determination whether to allow the defendant's counsel of choice to participate, the circuit court must balance the defendant's right to select counsel against the public's interest in the prompt and efficient administration of justice. Several factors assist the court in balancing the relevant interests, for example: the length of delay requested; whether competent counsel is presently available and prepared to try the case; whether prior continuances have been requested and received by the defendant; the inconvenience to the parties, witnesses and the court; and whether the delay seems to be for legitimate reasons or whether its purpose is dilatory. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d 206, 07-1982.

A defendant must clearly and unequivocally make a declaration in order to invoke the right to self-representation. State v. Darby, 2009 WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, 08-0935. See also State v. Egerson, 2018 WI App 49, 383 Wis. 2d 716, 916 N.W.2d 833, 17-0797.

A trial court has no duty to advise a defendant of the right to self-representation if the defendant has not clearly and unequivocally invoked the right to self-representation. State v. Darby, 2009 WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, 08-0935.

The fact that the government might know an informant hopes to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained. If there is hope, and nothing else, then the informant cannot be construed to be a government agent eliciting a statement in violation of the 6th amendment right to counsel. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429.

The police do not have a duty to bar charged defendants' visits with potential informants; indeed such a requirement would be unfair to prisoners. Also, when a person offers to assist the police, the police need not try to stop the person from providing assistance. As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the 5th or 6th amendments. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429.

Klessig, 211 Wis. 2d 194, is the controlling authority for determining whether a defendant validly waived the right to counsel. However, when the circuit court failed to engage a defendant in the 4 lines of inquiry as prescribed in Klessig but determined that two of the four lines of inquiry were not satisfied, the circuit court did not commit automatic error requiring a new trial because the defendant could not have validly waived his right to counsel. State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, 08-1521. But see Imani v. Pollard, 826 F.3d 939 (2016).

Nothing bars a defendant from requesting substitution of counsel, nothing bars the public defender from choosing to make substitute counsel available, and nothing bars a court from granting such a request, but a court is not required by the 6th amendment to the U.S. Constitution or by Article I, Section 7 of the Wisconsin Constitution to do so solely because a defendant requests it. State v. Jones, 2010 WI 72, 326 Wis. 2d 380, 797 N.W.2d 378, 08-2342.

A defendant's request to withdraw from self-representation and proceed with the assistance of counsel rests in the trial court's discretion. A request to reinstate the right to counsel is akin to a request for substitution of counsel. A trial court may err by denying a request to revoke pro se status when the denial is merely to punish the defendant or is based on a rigid insistence on expedition in the face of a justifiable request for delay. A trial court does not erroneously exercise its discretion by preventing a defendant from reasserting the right to counsel merely to hinder the progress of the case against him. State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, 10-0435.

The right to select counsel of one's choice has been regarded as the root meaning of the constitutional guarantee. Deprivation of the right is complete when the defendant is erroneously prevented from being represented by the lawyer he or she wants, regardless of the quality of the representation received. To disqualify an attorney as a witness in a case, the state must show that the attorney is a necessary witness. It was an error to disqualify an attorney based solely on the fact that the attorney acted as a translator for his client. State v. Gonzalez-Villarreal, 2012 WI App 110, 344 Wis. 2d 472, 824 N.W.2d 161, 11-1259.

In order to establish a 6th amendment violation on the basis of a conflict of interest, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel had an actual conflict of interest based on the facts of the case. An actual conflict of interest exists when the defendant's attorney was actively representing a conflicting interest so that the attorney's performance was adversely affected. Counsel is considered per se ineffective once an actual conflict of interest adversely affecting counsel's performance has been shown. A defendant need not prove that some kind of specific adverse effect or harm resulted from the conflict. State v. Villarreal, 2013 WI App 33, 346 Wis. 2d 690, 828 N.W.2d 866, 11-0998.

A claim for ineffective assistance of postconviction counsel must be filed with the circuit court, either as a s. 974.06 motion or as a petition for a writ of habeas corpus. A defendant arguing ineffective assistance of appellate counsel, conversely, may not seek relief under s. 974.06 and must instead petition the court of appeals for a writ of habeas corpus. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425.

A defendant who argues that he or she received ineffective assistance of appellate counsel in a habeas petition because certain arguments were not raised must show why the claims he or she believes should have been raised on appeal were “clearly stronger" than the claims that were raised. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425.

Under Padilla, 559 U.S. 356, counsel's failure to advise a defendant concerning clear deportation consequences of a plea bargain is prejudicial if the defendant shows that “a decision to reject the plea bargain would have been rational under the circumstances." The defendant is not required to show that “there would be a different outcome" or that he or she had “real and viable challenges to the underlying veracity of the conviction." State v. Mendez, 2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895, 13-1862. But see the note to State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, 13-1437.

The court where an alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney's failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue post conviction relief, the proper forum lies in the court of appeals. Kyles v. Pollard, 2014 WI 38, 354 Wis. 2d 626, 847 N.W.2d 805, 12-0378.

Failure to call a potential witness may constitute deficient performance. A failure to call a key witness, however, does not always necessarily constitute deficient performance. The failure to call a witness may have been a reasonable trial strategy. State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, 848 N.W.2d 786, 12-0046.

Montejo, 556 U.S. 778, effectively established that a waiver of Miranda rights is sufficient to waive the 6th amendment right to counsel and that such a waiver is not presumed invalid merely because the defendant is already represented by counsel. Article I, Section 7 of the Wisconsin constitution does not provide greater protections than the 6th amendment of the United States Constitution in the context of a waiver of the right to have counsel present during questioning. State v. Delebreau 2015 WI 55, 362 Wis. 2d 542, 864 N.W.2d 852, 13-1108.

Any language in Mendez, 2014 WI App 57, that suggests that Padilla, 559 U.S. 356, requires an attorney to advise an alien client that a conviction for a deportable offense will necessarily result in deportation is withdrawn. An attorney is required to “give correct advice" about the possible immigration consequences of a conviction. The attorney in this case satisfied that requirement by correctly advising the client that his guilty plea carried a “strong chance" of deportation. Executive action, including the United States Department of Homeland Security's exercise of prosecutorial discretion, can block the deportation of deportable aliens. State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, 13-1437.

Trial counsel did not perform deficiently by failing to inform the defendant that his no-contest plea to substantial battery was certain to result in his deportation and permanent exclusion from the United States. Because federal immigration law is not “succinct, clear, and explicit" in providing that the defendant's substantial battery constituted a crime involving moral turpitude, the defendant's attorney needed to do no more than advise him that pending criminal charges may carry a risk of adverse immigration consequences. State v. Fernando Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717, 13-2435.

The Supreme Court in Edwards, 554 U.S. 164, declined to adopt a federal constitutional competency standard and specifically recognized an individual trial court's authority to make competency determinations. Nothing in Edwards establishes severe mental illness as the only circumstance in which a trial judge may deny the right of self-representation. The Wisconsin standards established by Klessig, 211 Wis. 2d 194, are not contrary to Edwards. Whether a defendant is competent to proceed pro se is uniquely a question for the trial court to determine. State v. Jackson, 2015 WI App 45, 363 Wis. 2d 484, 867 N.W.2d 814, 13-2859.

Counsel's trial strategy decisions, even those appearing unwise in hindsight, will not constitute ineffective assistance of counsel so long as they are reasonably founded on the facts and law under the circumstances existing at the time the decision was made. It was not unreasonable for defendant's counsel to allow an investigator to testify that the victim was telling the truth when counsel's goal was to demonstrate that the investigator's investigation was limited due to the investgator's bias. State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, 14-2653.

Under Felton, 110 Wis. 2d 485, trial counsel's decisions must be based upon facts and law upon which an ordinarily prudent lawyer would have then relied. This standard implies deliberateness, caution, and circumspection and counsel's decision must evince reasonableness under the circumstances. When counsel articulated no tactical reason implying deliberateness, caution, and circumspection for failing to call a witness and the record was devoid of any factual basis for a strategy that supported that failure, defense counsel's performance was deficient. State v. Honig, 2016 WI App 10, 366 Wis. 2d 681, 874 N.W.2d 589, 14-2968.

The 6th amendment's guarantee of effective assistance of counsel does not require defense counsel to inform a defendant about the possibility of civil commitment under ch. 980 when the defendant enters a plea to a sexually violent offense. State v. LeMere, 2016 WI 41, 368 Wis. 2d 624, 879 N.W.2d 580, 13-2433.

Counsel does not perform deficiently in failing to object and argue a point of law that is unclear. State v. Morales-Pedrosa, 2016 WI App 38, 369 Wis. 2d 75, 879 N.W.2d 772, 15-1072.

Failure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer's services “outside the wide range of professionally competent assistance” sufficient to satisfy the 6th amendment. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452.

Physical separation between a defendant and his or her attorney during a plea hearing, absent more, will not be analyzed as a complete denial of the right to counsel under Cronic, 466 U.S. 648. Such a claim may instead be analyzed under the framework set forth in Strickland, 466 U.S. 668. State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611.

The standard to use in forfeiture of trial counsel cases established under Cummings, 199 Wis. 2d 721, is upheld. There are two situations when a defendant loses the right to counsel: 1) a defendant may knowingly, intelligently, and voluntarily waive the right to counsel; and 2) a defendant may forfeit the right to counsel. The triggering event for forfeiture is when the court becomes convinced that the orderly and efficient progression of the case is being frustrated. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959.

Scenarios triggering forfeiture of the right to trial counsel include: 1) a defendant's manipulative and disruptive behavior; 2) withdrawal of multiple attorneys based on a defendant's consistent refusal to cooperate with any of them and constant complaints about the attorneys' performance; 3) a defendant whose attitude is defiant and whose choices repeatedly result in delay, interfering with the process of justice; and 4) physical or verbal abuse directed at counsel or the court. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959.

The contention that a defendant cannot forfeit the right to counsel unless the defendant's actions were done with an intent or purpose to delay is rejected. Contrary language in State v. Coleman, 2002 WI App 100, and any other case requiring proof of intentional, purposeful delay is overruled. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959.

Shata, 2015 WI 74, and Ortiz-Mondragon, 2015 WI 73, stand for the proposition that, where the law is not “succinct, clear, and explicit,” counsel is not deficient by accurately warning a client of the “risk of adverse immigration consequences.” Defendant's counsel had no constitutional duty to give specific, direct advice on how pleading guilty would affect the defendant's possibilities for readmission beyond the accurate, generalized warnings that were given. State v. Villegas, 2018 WI App 9, 380 Wis. 2d 246, 908 N.W.2d 198, 15-2162.

Circuit courts reviewing claims of ineffective assistance of counsel following multiple-count trials may conclude that deficient performance prejudiced only one of the multiple convictions. Strickland, 466 U.S. 668, clearly contemplates such a result and does not require reversal on all counts when the prejudice proven affected only a single count. State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, 16-0897.

The Strickland, 466 U.S. 668, prejudice test is distinct from a sufficiency of the evidence test. A defendant need not prove the outcome would more likely than not be different in order to establish prejudice in ineffective assistance cases. The defendant must prove there is a reasonable probability the jury would have acquitted him or her absent the error. State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, 16-0897.

Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary. The court reviews the reasonableness of trial counsel's decisions not with the benefit of hindsight, but in the context of the circumstances as they existed at the time counsel made the decisions. The court must consider the law and the facts as they existed when trial counsel's conduct occurred. State v. Pico, 2018 WI 66, 382 Wis. 2d 273, 914 N.W.2d 95, 15-1799.

To prove prejudice in a case alleging ineffective assistance of counsel, a defendant must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In the context of a plea withdrawal, a defendant must establish, through objective factual assertions, a reasonable probability that the defendant would not have pled and would have gone to trial but for counsel's ineffective performance. State v. Jeninga, 2019 WI App 14, 386 Wis. 2d 336, 925 N.W.2d 574, 18-0826.

A court's conclusion that counsel violated the rules of professional conduct because he failed to meet the demands of SCR 20:1.4 (a) (2) cannot mean, ipso facto, that he performed deficiently within the meaning of Strickland, 466 U.S. 668 (1984). State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192, 16-0375.

When an alleged deficiency in counsel concerns the plea process, Hill, 474 U.S. 52 (1985), says the prejudice component specifically requires that the defendant must show that there is a reasonable probability that, but for the counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. A probability sufficient to undermine confidence exists when there is a “substantial,” not just “conceivable,” likelihood of a different result. When defendant's counsel stated that, if the court were to allow the defendant to withdraw his plea, he still might decide to enter a plea, there is not a substantial likelihood of a different result, and, therefore, there is no prejudice shown. State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192, 16-0375.

A preliminary hearing to determine probable cause for detention pending further proceedings is not a “critical stage" in a prosecution requiring appointed counsel. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).

The state may not force a lawyer upon a defendant who intelligently insists upon conducting his or her own defense. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 43 L. Ed. 2d 562 (1975).

The right to counsel includes the right to make a closing summary of evidence to the trier of fact. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).

The right to counsel includes the right to consult with an attorney during a trial recess. Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976).

Prisoners facing disciplinary charges that also constitute crimes have no right to counsel at the disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).

When the defendant's right to counsel was violated by a corporeal identification conducted in court without counsel, the prosecution could not introduce identification evidence even though the identification had an independent source. Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977).

The right to counsel was not violated when a permissible jury instruction, intended for the defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978).

Whenever the trial court improperly requires joint representation over a timely objection, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

An indigent defendant is not entitled to appointed counsel when charged with an offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).

In order to demonstrate a violation of the right to counsel, the defendant must establish that an actual conflict of interest adversely affected the counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

The government violated the defendant's right to counsel by placing a paid informant in the same cell who deliberately elicited incriminating statements. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).

When the right to counsel was infringed but no prejudice to the defendant was shown, the court erred in dismissing indictment. United States v. Morrison, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981).

Since a criminal defendant has no constitutional right to counsel to pursue a discretionary state appeal, the defendant could not be deprived of effective counsel by counsel's failure to timely file an application for certiorari. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982).

The right to counsel does not guarantee a “meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).

Counsel appealing a conviction need not present every nonfrivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984).

An accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).

Due process guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).

The right to assistance of counsel wasn't violated when an attorney refused to cooperate with the defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 U.S. 157 (1986).

Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, the individual may not insist upon implementation of Anders, 386 U.S. 738, procedures. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).

Though the trial court must recognize the presumption that a defendant is entitled to his or her counsel of choice, the presumption is overcome by actual conflict and a serious potential for actual conflict. Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

The right to counsel was not violated by the court's instruction to the defendant that he not confer with his attorney during a 15 minute recess between the defendant's direct and cross-examination. Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989).

The sixth amendment right to counsel is offense specific. An accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991).

An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. U.S., 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).

To void a conviction due to a 6th amendment violation when a trial court has failed to inquire into a potential conflict of interest that the court knew or should have known of, the defendant must establish that the conflict adversely affected counsel's performance. Failure of the trial court to inquire into the conflict did not reduce the defendant's burden of proof. Mickens v. Taylor, 535 U.S. 162, 152 L. Ed. 2d 291 (2002).

The 6th amendment right to counsel of choice commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he or she believes to be best. When that right is violated because the deprivation of counsel is erroneous, no additional showing of prejudice is required to make the violation complete, and the violation is not subject to harmless-error analysis. United States v. Gonzalez-Lopez, 548 U.S. 140, 122 S. Ct. 1237, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006).

The U.S. Constitution does not forbid a state to insist that the defendant proceed to trial with counsel when the state court found the defendant mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).

The right to counsel applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him or her and restrictions are imposed on his or her liberty. Attachment of the right does not require that a public prosecutor as distinct from a police officer be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County, 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008).

Michigan v. Jackson, 475 U.S. 625, which provided that if police initiate interrogation after the defendant's assertion of the right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid, is overruled. Courts are not required to presume that such a waiver is invalid under those circumstances. Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009).

A defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of the 6th amendment right to counsel, was admissible at trial to impeach the defendant's conflicting statement. Kansas v. Ventris 556 U.S. 586, 129 S. Ct. 1841, 172 L. Ed. 2d 454 (2009).

Counsel has an obligation to advise a defendant that a guilty plea will result in the defendant's deportation from this country. Advice regarding deportation is not categorically removed from the ambit of the 6th amendment right to counsel. When the deportation consequence is truly clear, the duty to give correct advice is equally clear. Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

As a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. When defense counsel allowed an offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the constitution requires. Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012).

When ineffective advice led to rejection ofa plea offer and caused the defendant to stand trial, rather than to waive the right to trial, a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were imposed. Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).

When a defendant claims that his or her counsel's deficient performance deprived him or her of a trial by causing him or her to accept a plea, the defendant can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial. The court rejected a per se rule that a defendant with no viable defense cannot show prejudice from the denial of the right to trial. The decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. But for his attorney's incompetence, the defendant would have known that accepting the plea agreement in this case would certainly have led to deportation while going to trial would “almost certainly” have done so. If deportation were the determinative issue for an individual in plea discussions, and if the consequences of taking a chance at trial were not markedly harsher than pleading, that “almost” could make all the difference. Jae Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958, 198 L. Ed. 2d 476 (2017).

A violation of the right to a public trial is a structural error. In the case of a structural error when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error's actual effect on the outcome. When a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland, 466 U.S. 668, prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or to show that the particular public-trial violation was so serious as to render the trial fundamentally unfair. Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 198 L. Ed. 2d 42 (2017).

Counsel may not admit a client's guilt of a charged crime over the client's intransigent objection to that admission. To do so violates a defendant's right to autonomy and constitutes a structural error that requires automatic reversal. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018).

When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003).

In Imani, 826 F.3d 939 (2016), and Tatum, 847 F.3d 459 (2017), the 7th Circuit Court of Appeals held that the Wisconsin courts violated the clearly established rule of Faretta, 422 U.S. 806 (1975), that a court may not force a lawyer upon a defendant based on a perceived lack of education, experience, or legal knowhow. While a defendant seeking to waive his 6th amendment right to counsel must do so knowingly and intelligently and so must be mentally competent to make that decision, the defendant's technical legal knowledge is irrelevant to a court's assessment of the defendant's competency. The focus of the inquiry is on a defendant's mental competency. Washington v. Boughton, 884 F.3d 692 (2018).

Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.

McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.

How do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant's Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997).

JURY TRIAL AND JUROR QUALIFICATIONS

NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.

Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521.

A resident of Menominee county may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, sec. 23, is not violated by using district-based jury lists. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459.

When 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87.

Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208.

The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper because the prosecutor expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893.

When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615.

The exclusion of young persons, students, and teachers from a jury list is discussed. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d 566.

Rules for proving discrimination in compiling a jury list and the burden of proof are discussed. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134.

Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751.

The absence of persons of the defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889.

A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801.

A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether defendant: 1) directly committed crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979).

Unanimity of criminal verdicts is discussed. Jackson v. State, 92 Wis. 2d 1, 284 N.W.2d 685 (Ct. App. 1979).

Excusing Native Americans from a jury without individual examination denied the Native American defendant a trial by an impartial jury. State v. Chosa, 108 Wis. 2d 392, 321 N.W.2d 280 (1982).

The verdict was unanimous in a battery case even though the jury was not required to specify whether the battery occurred when the defendant threw an object at the victim or during an ensuing fistfight. State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982).

The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983).

When the accused refused to participate in the trial, the court erred by failing to inform the accused of the right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 Wis. 2d 21, 345 N.W.2d 892 (Ct. App. 1984).

A waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989).

A defendant has the right to a jury determination on each element of a charged offense. The right can be waived only by the defendant personally on the record. State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989).

Once the defendant makes a prima facie showing that the prosecutor used peremptory challenges in a purposefully discriminatory manner, the burden shifts to the prosecution to provide a neutral explanation for challenging the jurors. Batson v. Kentucky, 476 U.S. 79 (1986) is discussed. State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990).

Law enforcement officers should not be automatically excused for cause from a jury pool on the grounds of implied bias. State v. Louis, 156 Wis. 2d 470, 457 N.W.2d 484 (1990). But for a review of this case to apply new terminology regarding juror bias, see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Waiver of a jury trial must be made by affirmative action of the defendant. Neither counsel nor the court may waive it on the defendant's behalf. If the defendant has not personally waived the right, the proper remedy is a new trial, not a postconviction hearing. State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991).

A juvenile's right to a jury trial is purely statutory. In Interest of R.H.L. 159 Wis. 2d 653, 464 N.W.2d 848 (Ct. App. 1990).

Under rare circumstances, a jury instruction creating a conclusive presumption regarding an element of a crime may be harmless error. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).

Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking a member of the jury panel. State v. Davidson, 166 Wis. 2d 35, 479 N.W.2d 181 (Ct. App. 1991).

Unanimity requirements where multiple occurrences of multiple acts are charged are discussed. State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992).

Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 Wis. 2d 660, 482 N.W.2d 99 (1992). But for a review of this case to apply new terminology regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992).

When the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).

A defendant has the right to have jurors individually polled on their verdict. Reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).

When the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. To sustain a conviction when alternative methods of proof resting upon different evidentiary facts are presented to the jury, the evidence must be sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof. State v. Chambers, 173 Wis. 2d 237, 496 N.W.2d 191 (Ct. App. 1992).

The “clearly erroneous" standard applies to all steps under the Batson, 476 U.S. 79, analysis made by a trial court in determining whether a peremptory challenge was discriminatory. State v. Lopez, 173 Wis. 2d 724, 496 N.W.2d 617 (Ct. App. 1992).

The verdict of a 13 member jury panel agreed to by the defense and prosecution was not invalid. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 199 (Ct. App. 1993).

A trial court's comments to a deliberating jury without the presence of the defendant and his or her counsel violated the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 Wis. 2d 68, 519 N.W.2d 621 (Ct. App. 1994).

A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony that bears on guilt or innocence prejudice must be assumed. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994).

When polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircherz, 189 Wis. 2d 392, 525 N.W.2d 788 (Ct. App. 1994).

Whether a defendant is required to be shackled at trial should be determined based on the particular risk of violence or escape. Where the shackles cannot be viewed by the jury no prejudicial harm may occur. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995).

A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant's presence may be harmless error. State v. David J.K. 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994).

When it was conceded that a juror was sleeping, summarily foreclosing inquiry into the juror's inattentiveness was an erroneous exercise of discretion. The court must examine the length of the inattentiveness, the importance of the testimony missed and whether the inattention prejudiced the defendant to the point that there was not a fair trial. State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), 95-0152.

The prosecutor's motive of protecting the defendant cannot justify a peremptory challenge based solely on a juror's race. Excluding a prospective juror because of race can never be “neutral" regardless of the prosecutor's good faith. State v. Guerra-Reyna, 201 Wis. 2d 751, 549 N.W.2d 779 (Ct. App. 1996), 93-3464.

When there are grounds to believe the jury in a criminal case needs protection, a trial court may take reasonable steps to protect the identity of potential jurors. Preventing references on the record to juror's names, employment, and addresses while providing the defense with copies of the juror questionnaires during voir dire was within the court's discretion. State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1995), 95-0891.

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.

A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a statement that nonprohibited factors were considered. There must be a showing of a nexus between legitimate factors and the juror who was struck. State v. Jagodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 95-1946.

A potential juror who stated he doubted the innocence of someone who would not testify and then said he could probably set that feeling aside should have been removed for cause under s. 805.08 (1). Failure to remove the juror forced the defendant to strike the potential juror, which violated the defendant's right to due process. State v. Ferron, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997), 96-3425. But for a review of this case to apply new terminology regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

A party is prohibited from striking a potential juror based on a prohibited characteristic, even if other non-prohibited characteristics were also considered. State v. King, 215 Wis. 2d 295, 572 N.W.2d 530 (Ct. App. 1997), 97-1509.

An objection that peremptory challenges were racially motivated in violation of Basten must be made prior to the time the jury is sworn. State v. Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998), 97-1002.

The use of and procedure for juror questioning of witnesses is discussed. State v. Darcy N.K. 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998), 97-0458.

Art. I, s. 7 guarantees the right to a jury of 12 in all criminal cases whether felony or misdemeanor. State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), 97-0885.

A defendant waives an objection to juror bias if no motion is made to the trial court for removal for cause. The ultimate decision whether to make the motion is for counsel and not the defendant to make. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111.

Failure to bring the incompleteness of an individual polling of the jury to the attention of the trial court constitutes waiver of any claim based on the deficiency. State v. Brunette, 220 Wis. 2d 431, 583 N.W.2d 174 (Ct. App. 1998), 97-2111.

Failure to respond truthfully to voir dire questions is sufficient grounds to discharge a juror during trial. Specific proof of bias is not required. State v. Williams, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998), 97-1276.

A juror who unequivocally announced his belief that a witness would not lie, but also said he could remain impartial showed manifest bias that could not be obviated. Following denial of a motion for mistrial, the defendant's agreement to proceed with 11 jurors did not waive the right to further address the mistrial issue. State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), 97-2702.

Affirmed, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Juror bias may be actual, implied, or inferred. Inferred bias is a factual finding requiring evaluation of the facts and circumstances including those surrounding the juror's incomplete or incorrect responses to questions during voir dire. Truthful responses do not prevent finding inferred bias. State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999), 96-2194. But for a review of this case to apply new terminology regarding juror bias see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

The terms “statutory bias," subjective bias," and “objective bias" are adopted as the proper terms for referring to types of jury bias, replacing the terms “implied bias," “subjective bias," and “objective bias." State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Statutory bias refers to those situations described in s. 805.08 (1); a person falling within one of the descriptions there may not serve regardless of the ability to be impartial. Although s. 805.08 (1) refers to jurors who have expressed or formed an opinion, that situation more properly qualifies as subjective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Subjective bias is revealed through the words and demeanor of the prospective juror as revealed on voir dire; it refers to the juror's state of mind. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Objective bias focuses on whether a reasonable person in the individual prospective juror's position could be impartial; the circuit court is particularly well positioned to determine objective bias. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

State v. Wyss, 124 Wis. 2d 470, Louis, Gescch, State v. Messelt, 185 Wis. 2d 254, Ferron, Delgado, and State v. Broomfield, 223 Wis. 2d 465, are cases through which jury bias jurisprudence has evolved; where each would fall given the new bias terminology adopted in this case is considered. State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702.

Veteran jurors cannot be removed solely on the basis of having served as jurors in a similar case, but must be shown to have exhibited bias in the case they are called to hear. It was error for the trial court not to strike 5 potential jurors who had served on a prior case in which the same defense was used when the jurors expressed that they would not give serious consideration to the defense. State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999), 97-2449.

A defendant is not entitled to a new trial when both the prosecution and defense are given an equal number of peremptory strikes, even if the number is less than provided for by statute. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273.

There is no automatic disqualification of potential jurors who have been convicted of crimes. The erroneous dismissal of a prospective juror for cause does not constitute an additional peremptory challenge for the moving party; it is an error subject to harmless error analysis. State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (Ct. App. 1998), 97-0952.

Hansford applies retroactively only to those cases in which the issue of a six-person jury was raised before trial. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909.

Stipulating to an element of a crime did not deny the constitutional right to a jury trial when the jury was instructed on the element and the court did not resolve the issue on its own. State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999), 98-1531.

See also Walworth County DH&HS v. Andrea L.O. 2008 WI 46, 309 Wis. 2d 161, 749 N.W.2d 168, 07-0008.

Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror's subjective bias is generally ascertained by that person's responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), 98-1091.

The defendant was not automatically entitled to a new trial when, in waiving the right to a jury trial, the trial court did not advise that a jury verdict must be unanimous. The appropriate remedy is through a postconviction motion that, as a threshold requirement, must contain an allegation that the defendant did not know or understand the rights at issue. State v. Grant, 230 Wis. 2d 90, 601 N.W.2d 8 (Ct. App. 1999), 98-2206.

A prospective juror who is the brother-in-law of a state witness is a relative by marriage to the 3rd degree under Gesch who be struck for cause as the relationship constitutes statutory bias. Failure to do so is grounds for reversal and a new trial. State v. Czarnecki, 231 Wis. 2d 1, 604 N.W.2d 891 (Ct. App. 1999), 98-2406.

The right to a jury trial guaranteed by art. I, ss. 5 and 7, includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.

Peremptory challenges may not be exercised, and therefore not changed, after the parties have accepted the jury, even if the jury has not yet been sworn. State v. Nantelle, 2000 WI App 110, 235 Wis. 2d 91, 612 N.W.2d 356, 99-2159.

A party who during voir dire neither requests further questioning nor objects to the seating of a juror may not later allege error in the trial court's failure to act sua sponte in regard to a juror who may not be impartial. State v. Williams, 2000 WI App. 123, 237 Wis. 2d 591, 614 N.W.2d 11, 99-0812.

Inconvenience and inability to work during regular working hours cannot result in bias sufficient to strike a juror for cause. State v. Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717, 99-2249.

A challenge under Batson that a peremptory strike was solely because of race does not require a post-verdict evidentiary hearing and must be decided based on what the prosecutor believed at the time the strike was made. A defendant must show that the prosecutor intentionally misrepresented the facts that were relied on or that the prosecutor had been told those facts but knew they were erroneous. State v. Gregory, 2001 WI App 107, 244 Wis. 2d 65, 630 N.W.2d 711, 00-0961.

The trial court's failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with one of the peremptory strikes guaranteed under s. 972.03, did not require a new trial when the defendant received a fair trial. The harmless error test is applicable. Overturns State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), 94-3036. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, 99-2704.

When a jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although the jury had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176.

Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge's obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3). The task need not be performed by a judge in court or with the prospective juror present in person, and may take place in advance of a particular trial. A defendant's presence cannot be required when the judge or clerk is acting in an administrative capacity under s. 756.03. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821.

Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant's conviction. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084.

Absent waiver, a trial court's communication with a deliberating jury in the absence of the defendant and defense counsel violates the right to be present at trial and to have counsel at every stage that the defendant may need aid with legal problems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084.

To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: 1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; 2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people who must agree on all elements of the crime charged; 3) was aware of the nature of a court trial, such that the judge will decide his or her guilt; and 4) had enough time to discuss the decision with counsel. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.

If the trial court fails to conduct a colloquy with the defendant regarding the waiver of the right to a jury trial, a reviewing court may not find, based on the record, that there was a valid waiver. As a remedy, the circuit court must hold an evidentiary hearing on whether the waiver was knowing, intelligent, and voluntary. If the state is unable to show by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived the right, the defendant is entitled to a new trial. State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301, 00-1563.

A prospective juror who openly admits bias and is never questioned about his or her partiality is subjectively biased as a matter of law. State v. Carter, 2002 WI App 55, 250 Wis. 2d 851, 641 N.W.2d 517, 01-2303.

A jury instruction directing the jury to accept a judicially-noticed fact as true when applied to an element of a criminal offense eliminates the jury's opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element and is constitutional error, although it is subject to harmless error analysis. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541.

Whether a defendant waived the right to have the jury determine all the elements of the crime or only some of them and whether the defendant gave up a jury trial in lieu of a determination by the circuit court or stipulated to the elements, the waiver analysis is the same. Any waiver must be made personally on the record by the defendant. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, 01-1668.

If a court withholds any juror information in open court, it must both: 1) find that the jury needs protection; and 2) take reasonable precautions to avoid prejudicing the defendant. When jurors' names are withheld, the court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. State v. Tucker, 2003 WI 12, 259 Wis. 2d 484, 657 N.W.2d 374, 00-3354.

An ability to understand the English language is necessary in order to satisfy the statutory requirements of ss. 756.02 and 756.04. If a juror cannot meet the statutory requirements the entire trial process may be nothing more than an "exercise in futility." A defendant was prejudiced when a juror was was allowed to serve as a juror who was not qualified under the statutes and did not have a sufficient understanding of English so that he could meaningfully participate in the trial process. State v. Carlson, 2003 WI 40, 261 Wis. 2d 97, 661 N.W.2d 51, 01-1136.

While a limited class of errors is deemed structural, requiring automatic reversal regardless of any effect on the outcome, most errors, including constitutional ones, are reviewed for harmlessness. Harmless error analysis applies to an erroneous jury instruction that operated as a mandatory conclusive presumption on an element of a penalty enhancer. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.

An accused's right to a unanimous verdict is not violated every time a judge instructs a jury on a statute that presents multiple modes of commission and does not select one among the many modes of commission. An argument that an instruction leads to a constitutionally infirm verdict must address the legislature's intent in enacting the statute and, if multiple modes of commission are found, whether the choice provided is constitutionally unacceptable. State v. Norman, 2003 WI 72, 262 Wis. 2d 506, 664 N.W.2d 97, 01-3303.

A prosecutor's knowledge that a challenged juror possessed the same name as known criminals in the area, the location of a venire person's residence when a residential location has some relationship to the facts of the case, failure to disclose during voir dire any police contacts at his or her residence when research revealed such contacts, and employment, or unemployment status, all may be race-neutral explanations for a peremptory strike. Individual follow-up questions on voir dire are not required in order to strike a potential juror. State v. Lamon, 2003 WI 78, 262 Wis. 2d 747, 664 N.W.2d 607, 00-3403.

Whether a prosecutor's conduct during closing argument affects the fairness of a trial is determined by viewing the statements in the context of the total trial. A line of demarcation is drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and suggests the jury arrive at a verdict by considering factors other than the evidence. Argument on matters not in evidence is improper. State v. Smith, 2003 WI App 234, 268 Wis. 2d 138, 671 N.W.2d 854, 02-3404.

There is no constitutional right to waive a jury and be tried by a judge. A prosecutor's decision to withhold consent to a defendant's requested waiver of his or her right to a jury trial, as required by statute, is not reviewable. A trial court need not justify its refusal to approve the waiver. State v. Burks, 2004 WI App 14, 268 Wis. 2d 747, 674 N.W.2d 640, 03-0472.

Reinstruction that presents for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances. State v. Thurmond, 2004 WI App 49, 270 Wis. 2d 477, 677 N.W.2d 655, 03-0191.

When counsel fails to object under Batson to peremptory strikes on the grounds they were improperly based on race or gender, the defendant claiming harm must establish that had trial counsel made the Batson objection there is a reasonable probability that it would have been sustained and the trial court would have taken the appropriate curative action. Discriminatory intent is a question of historical fact. The essential inquiry is whether the prosecutor had viable neutral explanations for the peremptory challenges. State v. Taylor, 2004 WI App 81, 272 Wis. 2d 642, 679 N.W.2d 893, 03-1509.

The verdict of a jury must be arrived at freely and fairly. The validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court. The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Defendants may waive the right by failing to ask for a poll in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770.

A court has two options if a juror dissents during jury polling or assents merely an accommodation against the juror's conscience: return the jury for continued deliberations or determine that further deliberations would be fruitless and grant a mistrial. If a juror gives an ambiguous or ambivalent assent the court may question the juror further. When initially asked by the court, “Is this your verdict?" and the juror first replied, “Can I ask a question?" and then with an unambiguous “no," the court could only have granted a mistrial or returned the jury for further deliberations. State v. Raye, 2005 WI 68, 281 Wis. 2d 339, 697 N.W.2d 407, 04-0770.

An administrative assistant employed by a county district attorney's office was not objectively biased because she worked for the same entity as the prosecuting attorney. The court declines to create a per se rule that excludes potential jurors for the sole reason that they are employed by a district attorney's Office. State v. Smith, 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482, 04-2035.

A judge's interruptions of a juror's answers to questions regarding her agreement with the verdict and the judge's insistence that the form showed a unanimous verdict strongly suggested that the juror may have felt pressure and intimidation, and that she may have misunderstood the verdict reached in the jury room. Although the juror expressed agreement with subsequent statements, because the juror was cut off when attempting to answer whether she found the defendant guilty or not guilty, and never actually gave an answer, the juror could not be said to have found the defendant guilty on count one. Consequently, the verdict was not unanimous. State v. Dukes, 2007 WI App 175, 303 Wis. 2d 208, 736 N.W.2d 215, 06-2127.

The trial court has an affirmative, sua sponte duty to inquire into the necessity for a defendant to wear a visible electronic security device during trial once the court becomes aware of the situation. A trial court maintains the discretion to decide whether a defendant should be restrained during a trial as long as the reasons justifying the restraints have been set forth in the record. It is an erroneous exercise of discretion to rely primarily upon law enforcement department procedures instead of considering the risk a particular defendant poses for violence or escape. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435.

Whenever a defendant wears a restraint in the presence of jurors trying the case, the court should instruct that the restraint is not to be considered in assessing the proof and determining guilt. Counsel's failure to object to the device constituted ineffective assistance of counsel. State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889, 06-2435.

While the prosecutor may strike hard blows during closing argument, the prosecutor's duty is to refrain from using improper methods. Prosecutors may not ask jurors to draw inferences that they know or should know are not true. State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, 07-0778.

A demonstration of the specific bias of a juror is not needed to remove a juror from deliberations when there are 12 other jurors whose impartiality the trial court does not have a concern about. The trial court properly exercised its discretion when it designated a juror as an alternate based on its concern regarding potential impartiality. The trial court has a duty to ensure that the impaneled jury is an impartial one; one that is free of bias or prejudice. State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, 07-2160.

A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780.

As a matter of law, a reasonable presiding judge could not reach any other conclusion than to excuse his mother from sitting on the jury. State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, 07-0400.

A circuit court need not consider the necessity of a restraint that is not visible to the jury and has no sua sponte duty to inquire into the necessity of hidden restraints. Limiting a court's sua sponte duty to visible restraints is consistent with the rationale for the general rule against restraining defendants at trial. The no-restraint rule is designed to prevent the jury from forming an opinion about the defendant's guilt based solely on the fact that the defendant is restrained. There is little risk of prejudice if the jury cannot see the restraint. State v. Miller, 2011 WI App 34, 331 Wis. 2d 732, 797 N.W.2d 528, 09-3175.

Jurors are presumed impartial, and the defendant has the burden of rebutting this presumption and proving bias. That a juror has been a victim of sexual assault does not make him or her per se biased against the defendant in a sexual assault case. State v. Funk, 2011 WI 62, 335 Wis. 2d 369, 799 N.W.2d 421, 08-2765.

When the court properly instructed the jury, the failure to provide the jury with a not guilty form for one of the five charged offenses did not constitute structural error, but rather was trial error subject to a harmless error analysis. State v. Andre D. Hansbrough, 2011 WI App 79, 334 Wis. 2d 237, 799 N.W.2d 887, 10-0369.

The fundamental inquiry is the same regarding a sleeping juror and a hearing-impaired juror: are the defendant's constitutional rights to an impartial jury and due process violated when the juror does not hear particular testimony? When it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent he or she did not receive a fair trial — that is, a trial comporting with the constitutional guarantees of an impartial jury and due process. State v. Kettner, 2011 WI App 142, 337 Wis. 2d 461, 805 N.W.2d 132, 11-0085

The defendant was not entitled to a new trial even though she used a peremptory challenge to remove the judge's daughter-in-law from the jury. Because the defendant did not claim the jury was unfair or partial, a new trial was not required under the circumstances of the case. The defendant did not show that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. State v. Sellhausen 2012 WI 5, 338 Wis. 2d 286, 809N.W.2d 14, 10-0445.

Any party or counsel who notices that a juror has fallen asleep at trial must bring the issue to the trial court's attention during trial as soon as practicable after the person notices the sleeping juror so that the problem can immediately be resolved. Because the defendant waited until after trial to bring the issue to the trial court's attention, it was impossible for the trial court to determine the extent of the problem, if any; thus, the defendant forfeited his right to appeal the trial court's refusal to conduct a post-trial hearing on that issue. State v. Saunders, 2011 WI App 156, 338 Wis. 2d 160, 807 N.W.2d 679, 10-2393.

A stipulation is a matter of convenience and litigation strategy entered into to avoid the time, expense, and potential prejudice of introducing unnecessary and possibly prejudicial evidence. It is a far different thing for a defendant to stipulate to a fact than it is to waive the constitutional right to a jury determination of that fact. However, harmless error analysis applies when a court erroneously takes judicial notice of a fact that should have been submitted to the jury. State v. Smith, 2012 WI 91, 342 Wis. 2d 710, 817 N.W.2d 410, 10-1192.

That a father and son had the same first and last names, and the same middle initial, phone number, and address, the jury summons did not include any specific identifying information, and the son appeared and served on the jury when the summons was intended for the father, did not make the son an improper juror. State v. Turner, 2013 WI App 23, 346 Wis. 2d 229, 827 N.W.2d 654, 12-0297.

A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003.

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.

Absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time it is made. Walworth County Department of Health and Human Services v. Roberta J. W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860, 12-2387.

Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged; it is not required with respect to the alternative means or ways in which the crime can be committed. It is ultimately the elements of the crime charged that must be accepted by a unanimous jury and not the peripheral details. State v. Badzinski, 2014 WI 6, 352 Wis. 2d 329, 843 N.W.2d 29, 11-2905.

The 6th amendment right to a public trial extends to voir dire. A judge's decision to close or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. State v. Pinno, 2014 WI 74, 2014 WI 74, 850 N.W.2d 207, 11-2424.

The right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it. Defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. State v. Pinno, 2014 WI 74, 2014 WI 74, 850 N.W.2d 207, 11-2424.

A jury has no right to exercise its nullification power, and no party has a right to have a jury decide a case contrary to law or fact, much less a right to an instruction telling jurors they may do so or to an argument urging them to nullify applicable laws. Voir dire questions that assume proof of, or demand consideration of, only what the law requires are proper because they ask that the jurors do no more than promise to fulfill their duty to follow the law, and do not limit the jurors' consideration of any pertinent factors or invite them to prejudge any particular fact. State v. Zdzieblowski, 2014 WI App 130, 359 Wis. 2d 102, 857 N.W.2d 622, 14-0619.

Errant jury instructions are subject to harmless error analysis. This includes errors that omit an element, as well as errors that create requirements beyond the statute. Jury instructions can be considered erroneous if they instruct the jury on a theory of the crime that was not presented to the jury or if they fail to instruct the jury on the theory of the crime that was presented to the jury during trial. To affirm a conviction based on an erroneous instruction, a court must be convinced beyond a reasonable doubt that the jury still would have convicted the defendant of the charge had the correct jury instruction been provided. State v. Williams, 2015 WI 75, 364 Wis. 2d 126, 867 N.W.2d 736, 14-1099.

Jurors are not required to unanimously agree as to which act or acts the defendant committed in order to find the defendant guilty when the prosecutor has issued only one charge but introduced evidence of multiple acts that separately constitute the criminal offense charged. If there is only one crime, jury unanimity on the particular alternative means of committing the crime is required only if the acts are conceptually distinct. Unanimity is not required if the acts are conceptually similar. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

An appellate court should not give deference to a postconviction court's finding of subjective bias because the postconviction court did not preside over the trial, and thus could not have observed the demeanor and disposition of a juror as the trial court did. Findings of fact regarding a trial, made at a hearing by a postconviction court that did not preside over trial, are reviewed de novo. State v. Tobatto, 2016 WI App 28, 368 Wis. 2d 300, 878 N.W.2d 701, 15-0254.

Jury instructions must fully and fairly inform the jury of the legal rules applicable to the case. A jury instruction that was modified based upon a statute that went into effect after the defendant committed key acts underlying the offense failed to fully and fairly inform the jury of the law applicable to the defendant's alleged criminal acts. State v. Bryzek, 2016 WI App 48, 370 Wis. 2d 237, 882 N.W.2d 483, 15-1501.

A defendant may intentionally and voluntarily relinquish his or her statutory and constitutional rights to be present at trial. The defendant in this case did not dispute that he waived his constitutional right to be present at trial, but argued that he could not waive his statutory right. The defendant made an express, affirmative, intentional choice not to be present, waiving, rather than forfeiting, his constitutional and statutory rights. The defendant knew of his rights and waived them on multiple occasions throughout the course of the trial. The trial court properly handled the defendant's waiver of his right to be present by allowing the defendant's counsel to communicate with him and repeatedly inquiring whether the defendant would like to be present. State v. Washington, 2017 WI App 6, 373 Wis. 2d 214, 890 N.W.2d 592, 16-0238.

Affirmed. 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238.

A prospective juror must be able to set aside any opinion he or she might hold and decide the case on the evidence, but, as a general matter, a circuit court need not use or obtain any magic words in determining whether this requirement has been met. State v. Lepsch, 2017 WI 27, 374 Wis. 2d 98, 892 N.W.2d 682, 14-2813.

A defendant's right to be present at a critical stage of his or her proceedings, right to a public trial, and right to a jury properly sworn to be impartial were not violated because the clerk of circuit courts administered the oath to the prospective jurors outside of the defendant's presence. State v. Lepsch, 2017 WI 27, 374 Wis. 2d 98, 892 N.W.2d 682, 14-2813.

It was not improper to strike the only two African-American members of the jury panel because the prosecutor had a legitimate, race-neutral reason for striking the potential jurors and did not act with discriminatory intent. That the two jurors alleged that their prior experiences with law enforcement may have involved discriminatory intent does not detract from the prosecutor's legitimate, nondiscriminatory concern about potential bias against the state's case in a wholly unrelated proceeding. State v. Sanders, 2019 WI App 52, 388 Wis. 2d 502, 933 N.W.2d 670, 18-1310.

In nonsummary criminal contempt proceedings, the alleged contemnor has a right to a jury trial if the sentences imposed aggregate more than 6 months. Codispoti v. Pennsylvania, 418 U.S. 506.

The court erred by communicating with the jury and agreeing to accept a guilty verdict “with extreme mercy" without notifying defense counsel. Rogers v. United States, 422 U.S. 35.

The 6th amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community. A law exempting women an exemption from jury duty on request, resulting in their low representation on panels, violated the requirement. To establish a prima facie violation a defendant must show: 1) the group alleged to be excluded is a `distinctive' group in the community; 2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357 (1979).

See also Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010).

When community sentiment against the accused had softened by the time of trial 4 years after a heinous crime, the trial court did not commit “manifest error" in finding the jury as a whole was impartial. Patton v. Yount, 467 U.S. 1025 (1984).

A black defendant was denied equal protection through the state's use of peremptory challenges to exclude all blacks from the jury. Batson v. Kentucky, 476 U.S. 79 (1986).

See also Purkett v. Elem, 515 U.S. 1170, 132 Ed 2d 874 (1995); Foster v. Chatman, 578 U.S. ___, 136 S. Ct. 1737,195 L. Ed. 2d 1 (2016).

The “fair cross section" element to the right to trial by jury does not provide a constitutional basis for a challenge to the prosecution's peremptory striking of jurors on the basis of race. Holland v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905 (1990).

Equal protection precludes prosecutor's use of peremptory challenge to exclude potential jurors solely by reason of race. A criminal defendant may raise the equal protection claim that jurors were excluded because of their race whether or not there is racial identity between the defendant and the excluded jurors. Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991).

When potential jurors had seen news reports about the defendant's alleged crime, the judge's refusal to question those prospective jurors about the specific content of those reports did not violate right to an impartial jury. Mu'Min v. Virginia, 500 U.S. 415, 114 L. Ed. 2d 493 (1991).

A criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges of potential jurors. Georgia V. McCollum, 505 U.S. 42, 120 L. Ed. 33 (1992).

A constitutionally deficient instruction regarding proof beyond a reasonable doubt can never be harmless error. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182 (1993).

Gender-based peremptory strikes are barred by the equal protection clause. J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127, 128 L. Ed. 2d 89 (1994).

Batson established a 3-step process for the constitutional review of allegedly race-based peremptory strikes: 1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose: 2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes; and 3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005).

See also Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005).

It was not intended that the first Batson step be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with certainty, that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California, 545 U.S. 162, 162 L. Ed. 2d 129, 125 S. Ct. 2410 (2005).

The right to exercise peremptory challenges in state court is determined by state law. The U.S. Supreme Court has long recognized that peremptory challenges are not of federal constitutional dimension. States may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446; 173 L. Ed. 2d 483 (2009).

If the issue of jury bias surfaces during or before trial, it is the trial judge's responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge's inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004).

When a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the 6th Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017)

State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Cases. 1992 WLR 757.

Unanimous verdict not constitutionally required in state criminal cases. Johnson, 1973 WLR 926.

SPEEDY AND PUBLIC TRIAL

A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. 2d 563, 193 N.W.2d 682.

A delay of 5 weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive speedy trial. Taylor v. State, 55 Wis. 2d 168, 197 N.W.2d 805.

Failure to demand a speedy trial is weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299.

The speedy trial provisions of the constitution were designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305.

The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354.

A delay of 84 days between the defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696.

Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987).

The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990).

The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993).

Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant's assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98-0567.

The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, 638 N.W.2d 910, 01-0282.

The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603.

When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial was violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04-3014.

The defendant's right to a public trial was violated when the courthouse doors were locked at 4:30 P.M., pursuant to county policy, and the public was denied access to the courtroom while he presented his case and the state presented its rebuttal. State v. Vanness, 2007 WI App 195, 06-2535.

Although a presumption of openness exists, the right to a public trial is not absolute. The closure of a trial is trivial and does not implicate the 6th amendment if the closure does not implicate the values served by the 6th amendment: 1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury. A circuit court's exclusion of every family member except the defendant's mother, who did not understand English, plainly implicated the values served by the right to a public trial. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005.

Closure of a criminal trial is justified when 4 conditions are met: 1) the party who wishes to close the proceedings must show an overriding interest that is likely to be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect that interest; 3) alternatives to closure must be considered by the trial court; and 4) the court must make findings sufficient to support the closure. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure, but it was not necessary under the facts of this case. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005.

Although a 14-month delay was presumptively prejudicial, that did not end the court's analysis. The defendant in this case was not actually prejudiced by the delay because he was already serving more than two life sentences for a conviction in a homicide case. The delay did not cause his pretrial incarceration; his homicide sentence would have kept him in prison anyway. State v. Lock, 2013 WI App 80, 348 Wis. 2d 334, 833 N.W.2d 189, 12-1514.

Delay between arrest and indictment may deny a speedy trial without a showing of actual prejudice. Dillingham v. United States, 423 U.S. 64.

A defendant may not, before trial, appeal the denial of a motion to dismiss based on the right to a speedy trial. United States v. MacDonald, 435 U.S. 850 (1978).

No right to a speedy trial arises until charges are pending. United States v. Mac Donald, 456 U.S. 1 (1982).

Any closure of a suppression hearing must advance an overriding interest likely to be prejudiced. Closure must be no broader than necessary to protect that interest. The court must consider alternatives and make a finding adequate to support closure. Waller v. Georgia, 467 U.S. 39 (1984).

The time during which defendants were neither under indictment nor subjected to any official restraint does not weigh toward a defendant's speedy trial claims. United States v. Loud Hawk, 474 U.S. 302 (1986).

The speedy-trial right is “amorphous," “slippery," and “necessarily relative." There is a balancing test in which the conduct of both the prosecution and the defendant are weighed. Some of the factors that courts should weigh include length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. The attorney is the defendant's agent when acting, or failing to act, in furtherance of the litigation, and delay caused by the defendant's counsel is charged against the defendant. The same principle applies whether counsel is privately retained or publicly assigned. Assigned counsel's failure to move the case forward does not warrant attribution of delay to the state. However, delay resulting from a systemic breakdown in the public defender system could be charged to the state. Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283; 172 L. Ed. 2d 768 (2009).

Following guilty plea, defendant could not raise speedy trial issue. United States v. Gaertner, 583 F.2d 308 (1978).

The speedy trial guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, inappropriate circumstances, tailored relief under the Due Process Clauses of the 5th and 14th amendments. Betterman v. Montana, 578 U.S. ___, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (2016).

A violation of the right to a public trial is a structural error. In the case of a structural error when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error's actual effect on the outcome. When a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland, 466 U.S. 668, prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or to show that the particular public-trial violation was so serious as to render the trial fundamentally unfair. Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 198 L. Ed. 2d 42 (2017).

The press and public have a 1st amendment right to access to attend criminal trial which cannot be closed absent an overriding interest. 64 MLR 717 (1981).

MISCELLANEOUS

A defendant may waive his right to be present at a proceeding when the court ordered his case consolidated with another. It is not error at the start of a trial to revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State, 47 Wis. 2d 725, 177 N.W.2d 870.

A prisoner held in Dodge County, who escaped from a hospital in another county while being treated there, could be tried for the escape in Dodge County. Dolan v. State, 48 Wis. 2d 696, 180 N.W.2d 623.

The defendant is not prejudiced when the court amends the charge against him to charge a lesser included offense without informing him of the nature of the amended charge or allowing him to plead to it. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820.

It is not a violation of the defendant's rights if he is prosecuted by information and not by grand jury indictment. State v. Lehtola, 55 Wis. 2d 494, 198 N.W.2d 354.

A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State, 58 Wis. 2d 671, 207 N.W.2d 589.

Participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretion in not granting a venue change. Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12.

Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260.

When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984).

If the defendant acquiesces in counsel's decision that the defendant not testify, the defendant's right to testify is waived. State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980).

Constitutional error is harmless if the court can declare its belief that it was harmless beyond a reasonable doubt because there is no reasonable possibility the error contributed to the conviction. State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (1988).

Two factors determine the sufficiency of a criminal charge: 1) whether it states an offense to which the defendant can plead; and 2) whether disposition will bar future prosecution for the same offense. Additional factors are discussed. State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988).

A judge's bias against counsel must be severe to translate into unconstitutional partiality against a litigant. State v. Hollingsworth, 160 Wis. 2d 883, 467 N.W.2d 555 (Ct. App. 1991).

Rule for pleadings in criminal obscenity cases are the same as for all other criminal cases. If a pleading fails to set forth all elements of a crime but includes correct citations, all elements are sufficiently alleged. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991).

Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial has prejudiced a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992).

A criminal defendant's right to testify is fundamental. In order to determine whether a criminal defendant is waiving the right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury consisting of a basic inquiry to ensure that the defendant is aware of his or her right to testify, and the defendant has discussed this right with counsel. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1746.

Following an unchallenged colloquy wherein the defendant knowingly, voluntarily, and intelligently waived his right to testify, the defendant's failure to seek an offer of proof at the time of trial or in the postconviction motion operated as a waiver of the right to have decided the issue of whether the waiver to testify could be withdrawn. State v. Winters, 2009 WI App 48, 317 Wis. 2d 401, 766 N.W.2d 754, 08-0910.

When a trial court fails to satisfy the Weed 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 did not address the situation here, where a defendant prevents 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 his right to testify and determine whether his 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 where 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.

Where, 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, where 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 7 factors outlined in Fawcett, 145 Wis. 2d 244, 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 right 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 without valid justification violated the defendant's right to present a defense and to testify on her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).