Wisconsin Constitution
Article I - Declaration Of Rights
Section 8 - Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus.

1. No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
2. All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.
3. The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.
4. The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [1869 J.R. 7, 1870 J.R. 3, 1870 c. 118, vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981]

DOUBLE JEOPARDY

When, after a plea bargain, the state filed an amended complaint to which the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19.

The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 Wis. 2d 769, 193 N.W.2d 704.

A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum, 54 Wis. 2d 213, 194 N.W.2d 660.

When the defendant is tried for one offense and convicted of a lesser included offense the defendant is not placed in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749.

A defendant is not subjected to double jeopardy when brought to trial a 2nd time after a mistrial is declared. State v. Elkinton, 56 Wis. 2d 497, 202 N.W.2d 28.

A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State, 60 Wis. 2d 325, 210 N.W.2d 695.

A defendant convicted of false imprisonment and rape committed in Waukesha county was not subjected to double jeopardy by a 2nd conviction for false imprisonment of the same victim in Milwaukee county, because the facts supported 2 separate prosecutions. Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541.

When a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there was a “manifest necessity" to terminate the proceedings because the indictment or information was fatally defective and the trial court lacked jurisdiction to try the case. State v. Russo, 70 Wis. 2d 169, 233 N.W.2d 485.

A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206.

When the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated did not place the defendant in double jeopardy. Day v. State, 76 Wis. 2d 588, 251 N.W.2d 811.

Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727.

When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell, 85 Wis. 2d 331, 270 N.W.2d 428 (Ct. App. 1978).

The double jeopardy provisions of the U.S. and Wisconsin constitutions are identical in scope and purpose. U.S. Supreme Court decisions control both provisions. Multiplicitous rape charges are discussed. Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (1979).

When the court of appeals reversed the defendant's conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980).

When a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

A prosecutor's repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981).

Two sentences for one crime violate the double jeopardy clause. State v. Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).

The trial court properly declared a mistrial due to a juror's injury. State v. Mendoza, 101 Wis. 2d 654, 305 N.W.2d 166 (Ct. App. 1981).

The double jeopardy clause did not bar retrial when the judge declared a mistrial due to jury deadlock. State v. DuFrame, 107 Wis. 2d 300, 320 N.W.2d 210 (Ct. App. 1982).

The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983).

Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983).

Reimposition of a sentence after the defendant has been placed on probation, absent violation of probation condition, violates the double jeopardy clause. State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983).

Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution, or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew, 115 Wis. 2d 243, 340 N.W.2d 470 (1983).

When probation was conditioned on the defendant's voluntary commitment to a mental hospital but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of 3 years' imprisonment. Double jeopardy was not violated. State v. Sepulveda, 120 Wis. 2d 231, 353 N.W.2d 790 (1984).

The double jeopardy clause was not violated when the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985).

When police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon his return home confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).

The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel, 124 Wis. 2d 101, 369 N.W.2d 145 (1985).

See also State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).

A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985).

Where the trial court declined to acquit the defendant but dismissed the criminal information after the jury deadlocked, double jeopardy barred the state's appeal of the dismissal. State v. Turely, 128 Wis. 2d 39, 381 N.W.2d 309 (1986).

The defendant waived a double jeopardy claim when failing to move for a dismissal of the charges at a retrial following a mistrial to which the defendant objected. State v. Mink, 146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988).

A criminal prosecution for escape is not barred by the double jeopardy clause when commenced following an administrative disciplinary proceeding. State v. Quiroz, 149 Wis. 2d 691, 439 N.W.2d 621 (Ct. App. 1989).

A court may not, after accepting a guilty plea and ordering a presentence investigation, absent fraud or a party's intentionally withholding material information, vacate the plea and order reinstatement of the original information without violating the double jeopardy clause. State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992).

Whether multiple charges constitute double jeopardy is discussed. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992).

For a defendant to invoke double jeopardy protection after successfully moving for a mistrial, the prosecutor must have acted with intent to subvert the double jeopardy protection to gain another chance to convict or to harass the defendant with multiple prosecutions. State v. Quinn, 169 Wis. 2d 620, 486 N.W.2d 542 (Ct. App. 1992).

Charges are multiplicitous if they are identical both in law and fact or if the legislature intended the allowable unit of prosecution for the offense to be a single count. State v. Davis, 171 Wis. 2d 711, 492 N.W.2d 174 (Ct. App. 1992).

Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).

Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the jury and convening a 2nd jury is prohibited absent “manifest necessity." Granting a mistrial due to the unavailability of a prosecution witness is to be given the most stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels, 174 Wis. 2d 173, 495 N.W.2d 341 (1993).

First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).

The state supreme court will not interpret Wisconsin's double jeopardy clause to be broader than the U.S. Supreme Court's interpretation of the federal clause. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993).

A criminal conviction for violating terms of bail resulting from the conviction for another crime committed while released on bail does not constitute double jeopardy. State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993).

Collateral estoppel is incorporated into the protection against double jeopardy and provides that when an ultimate issue of fact has once been determined, that issue cannot be relitigated between the same parties. The test is whether a rational jury could have grounded its verdict upon a separate issue. State v. Jacobs, 186 Wis. 2d 219, 519 N.W.2d 746 (Ct. App. 1994).

To determine whether charges are improperly multiplicitous the following two-prong test is applied: 1) whether the charged offenses are identical in law and fact; and 2) the legislative intent as to the allowable unit of prosecution for the offense. State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 108 (Ct. App. 1994).

An acquittal does not prove innocence. Evidence of a crime for which a defendant was acquitted may be offered to show motive, plan, and other matters authorized under s. 904.04 if a jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995).

The extension of a previously entered juvenile dispositional order due to the juvenile's participation in an armed robbery while subject to the order was not a “disposition" of the armed robbery charge. Subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 [now s. 938.39] or the protection against double jeopardy. State v. Stephens, 201 Wis. 2d 82, 548 N.W.2d 108 (Ct. App. 1996), 95-2103.

Whether a statute is criminal or civil for purposes of double jeopardy analysis depends on whether the legislature intended the statute to provide a remedial civil sanction and whether there are aspects of the statute that are so punitive either in effect or nature as to render the overall purpose punishment. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996), 95-1159.

Student disciplinary action under University of Wisconsin system administrative rules does not constitute punishment triggering double jeopardy protection. City of Oshkosh v. Winkler, 206 Wis. 2d 538, 557 N.W.2d 464 (Ct. App. 1996), 96-0967.

Service in prison of time successfully served on parole and forfeited through revocation does not constitute punishment within the meaning of the double jeopardy clause. State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App. 1997), 96-1745.

A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. When one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses, which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

Whether a single course of conduct has been impermissibly divided into separate violations of the same statute requires consideration of whether each offense is identical in fact and law and whether the legislature intended to allow multiple convictions. For each victim there is generally a separate offense. Legislative intent is shown by whether the statute punishes an individual for each act or for the course of conduct those acts constitute. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

The protection against double jeopardy embraces the defendant's right of having his or her trial completed by a particular tribunal. When the state moves for a mistrial over the objections of the defense, the trial court may not grant the motion unless there is a manifest necessity for the act. State v. Collier, 220 Wis. 2d 825, 584 N.W.2d 689 (Ct. App. 1998), 97-2589.

The double jeopardy clause prevents retrial when there was no motion for a mistrial but prosecutorial misconduct, the motivation for and effect of which were not known to the defendant at trial, had been committed. State v. Lettice, 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998), 97-3708.

Multiple criminal punishments are appropriate for multiple acts, but not multiple thoughts. Multiple punishments for a single act of enticement when the defendant intended to commit multiple illegal acts was not allowable. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), 97-3140.

If the legislature unambiguously has enacted 2 distinct prohibitions, each requiring proof of an element the other does not, the Blockburger presumption of intent to allow multiple punishment applies. But when the statue is language is ambiguous, the rule of lenity applies, requiring resolving the ambiguity against allowing multiple punishment. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), 97-3140.

Double jeopardy was not violated when the trial court realized it made an error in speech in pronouncing sentence and took immediate steps to correct the sentence before the judgment was entered into the record. State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42, 99-1209.

Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from revising the sentence 3 months later to be a consecutive sentence. State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d 881, 99-2671.

A defendant was not subjected to double jeopardy when, after a presentence investigation following a no contest plea, the court took the defendant's plea for a second time and engaged the defendant in a colloquy to determine if the plea was knowing and intelligent. For double jeopardy to apply, an acquittal or dismissal followed by a second prosecution for the same offense is required. State v. Clark, 2000 WI App 245, 239 Wis. 2d 417, 620 N.W.2d 435, 00-0932.

Issue preclusion does not bar the prosecution of a defendant for perjury who was tried and acquitted on a single issue when newly discovered evidence suggests that the defendant falsely testified on the issue. The state must show that: 1) the evidence came to the state's evidence after trial; 2) the state was not negligent in failing to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence is not merely cumulative. State v. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, 98-3519.

A lesser included offense must be both lesser and included. An offense with a heavier penalty cannot be regarded as a lesser offense than one with a lighter penalty. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00-1158.

When a defendant claims the state did not present enough evidence at trial to support splitting a course of conduct into multiple violations of the same statute, a multiplicity objection is waived if it is not raised prior to the time the case is submitted to the jury. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084.

When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When an accused successfully challenges a plea to and a conviction on multiplicity grounds and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information, but a different remedy may be appropriate. State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, 00-2435.

A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second, more severe sentence is the only valid sentence imposed. State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01-2398.

If a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void. Double jeopardy does not bar a subsequently increased sentence. State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 855, 01-2969.

There is a spectrum of deference that appellate courts may apply to trial court findings of mistrials ranging from strictest scrutiny to the greatest deference, depending on the circumstances. However, even if the mistrial order is entitled to great deference, the reviewing court must find that the trial judge exercised sound discretion in concluding that the state satisfied its burden of showing a manifest necessity for the mistrial. State v. Seefeldt, 2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822, 01-1969.

Trial courts may correct obvious errors in sentencing when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition that the court originally intended. State v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d 533, 02-3014.

In a multi-count trial, if the defendant is convicted of one or more counts and acquitted of one or more counts, and the defendant successfully appeals the conviction or convictions, the acquittals pose no direct bar to retrying the defendant. Rather, acquittal may indirectly impact the state's ability to retry the defendant under collateral estoppel principles. State v. Henning, 2004 WI 89, 273 Wis. 2d 352, 681 N.W.2d 871, 02-1287.

The state's attempt to retry the defendant for armed robbery alleging the use of a different weapon after a trial court conclusion that an acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. Supp. 2d 1066 (2003).

A guilty plea waives a multiplicity claim anytime the claim cannot be resolved on the record, regardless whether a case presents on direct appeal or collateral attack. State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886, 03-3055.

Retrial is barred when a defendant moves for and obtains a mistrial due to prosecutorial overreaching when the prosecutor intentionally attempts to prejudice the defendant or create another chance to convict. A police officer's testimony that forms the basis of a mistrial will not be imputed to the prosecutor in the absence of evidence of collusion by the prosecutor's office intended to provoke the defendant to move for a mistrial and does not constitute prosecutorial overreaching barring a retrial. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05-1511.

The defendant's argument that his conviction on two bail-jumping counts was multiplicitous because the preliminary hearings at which he failed to appear were scheduled for the same time and he had signed only one bond for the two underlying cases failed because the counts were different in fact. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other, making the two charges different in nature and therefore different in fact. State v. Eaglefeathers, 2009 WI App 2, 316 Wis. 2d 152, 762 N.W.2d 690, 07-0845.

Multiple punishments may not be imposed for charges that are identical in law and fact unless the legislature intended to impose such punishments. An “elements-only" test, to determine whether charges are identical in law and fact, is the first prong of a multiplicity analysis. Offenses with elements identical in law and fact establish a presumption that the legislature did not intend to permit multiple punishments. Offenses with elements that differ in law or fact establish a presumption that the legislature did intend to permit multiple punishments. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

Regardless of the outcome of the “elements-only" test, the court proceeds to discern legislative intent. Operating under the presumption established under the first prong, the court then proceeds in a 4-factor analysis to determine whether the legislature intended to permit multiple punishments for the offenses in question, examining: 1) all relevant statutory language; 2) the legislative history and context of the statutes; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishments for the defendant's conduct. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part “intent-effects" test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the Double Jeopardy and Ex Post Facto Clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710, 12-0724.

A per se rule no longer exists prohibiting a court from increasing a defendant's sentence after the defendant has begun to serve the sentence. If a defendant has a legitimate expectation of finality in the sentence, then an increase in that sentence is prohibited by the double jeopardy clause. A significant factor in determining that the circuit court acted appropriately in resentencing the defendant is whether the justice system as a whole has not yet begun to act upon the circuit court's sentence. State v. Robinson, 2014 WI 35, 354 Wis. 2d 351, 847 N.W.2d 352, 11-2833.

The circuit court must exercise sound discretion in declaring a mistrial. Sound discretion requires that the circuit court ensure that the record reflects that there is an adequate basis for a finding of manifest necessity. State v. Troka, 2016 WI App 35, 369 Wis. 2d 193, 880 N.W.2d 161, 14-2470.

When a jury, instructed on both 2nd- and 3rd-degree sexual assault and after deliberation, sent a note stating that all jurors “agree on not guilty for the second degree,” but “are hung on the third degree” and the court concluded the jury was deadlocked and ordered a mistrial, the state was not prevented from retrying the 2nd-degree charge. Blueford, 566 U.S. 599, stands for the proposition that a jury's expression of agreement at a certain point in time is not an acquittal if the jury was free to reconsider its decision. The jury's note was not a resolution of some or all of the factual elements of 2nd-degree sexual assault. Because the jury was free to reconsider its currently expressed view on the 2nd-degree charge, the jury's note was not a verdict of acquittal. State v. Alvarado, 2017 WI App 53, 377 Wis. 2d 710, 903 N.W.2d 122, 16-0142.

The proper test to ascertain the scope of the jeopardy bar when the charging language is ambiguous is to consider how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. To make this determination, it is proper to consider the entire record, including proceedings that take place after jeopardy attaches and the evidence introduced at trial. State v. Schultz, 2019 WI App 3, 385 Wis. 2d 494, 922 N.W.2d 866, 17-1977.

For the purposes of determining whether a crime is a lesser included offense because it is different in fact from the other crime based on a subset of a defendant's many acts, the state must give the circuit court a basis for differentiating the defendant's acts with respect to the two crimes at issue. State v. Kloss, 2019 WI 13, 386 Wis. 2d 314, 925 N.W.2d 563, 18-0651.

When the judge dismissed a charge after the jury returned a guilty verdict, the prosecution's appeal did not constitute double jeopardy. United States v. Wilson, 420 U.S. 332.

When a juvenile court found the defendant guilty but unfit for treatment as a juvenile, the defendant would be put in double jeopardy if tried in a criminal court. Breed v. Jones, 421 U.S. 519.

A guilty plea does not waive the defense of double jeopardy. Menna v. New York, 423 U.S. 61.

When defense counsel's improper opening statement prompted the trial judge to grant a mistrial over defense objections, and when the record provided sufficient justification for the mistrial ruling, the judge's failure to make explicit findings of “manifest necessity" did not support the defendant's claim of double jeopardy. Arizona v. Washington, 434 U.S. 497 (1978).

The protection against double jeopardy did not bar federal prosecution of an American Indian previously convicted in a tribal court of a lesser included offense arising out of the same incident. United States v. Wheeler, 435 U.S. 313 (1978).

The double jeopardy clause bars a second trial after reversal of a conviction for insufficiency of evidence, as distinguished from reversal for trial error. Burks v. United States, 437 U.S. 1 (1978).

There is no exception permitting a retrial once the defendant has been acquitted, no matter how erroneously. Sanabria v. United States, 437 U.S. 54 (1978).

The test for determining whether 2 offenses are the same for purposes of barring successive prosecutions is discussed. Illinois v. Vitale, 447 U.S. 410 (1980).

A statute authorizing the government to appeal a sentence did not violate the double jeopardy clause. United States v. Di Franceseo, 449 U.S. 117 (1980).

When the judge granted the defendant's motion for a new trial on the ground that the evidence was insufficient to support the jury's guilty verdict, the double jeopardy clause barred a second trial. Hudson v. Louisiana, 450 U.S. 40 (1981).

A criminal defendant who successfully moves for a mistrial may invoke the double jeopardy clause to bar a retrial only if the mistrial was based on prosecutorial or judicial conduct intended to provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982).

Reversal based on the weight of the evidence, unlike reversal based on insufficient evidence, does not preclude retrial. Tibbs v. Florida, 457 U.S. 31 (1982).

The defendant's conviction and sentence by Missouri for both armed criminal action and first-degree robbery in single trial did not constitute double jeopardy. Missouri v. Hunter, 459 U.S. 359 (1983).

The double jeopardy clause did not bar prosecution on more serious charges after the defendant pled guilty to lesser included offenses. Ohio v. Johnson, 467 U.S. 493 (1984).

When the jury acquitted on one count but was unable to agree on 2 others, the double jeopardy clause did not bar retrial on the remaining 2 counts. Richardson v. U.S. 468 U.S. 317 (1984).

Under the dual sovereignty doctrine, successive prosecutions by 2 states for the same conduct does not constitute double jeopardy. Heath v. Alabama, 474 U.S. 82 (1985).

An appellate court remedied a double jeopardy violation by reducing a jeopardy-barred conviction to that of lesser included offense that was not jeopardy barred. Morris v. Mathews, 475 U.S. 237 (1986).

When the defendant breached a plea agreement and a 2nd degree murder conviction was vacated as a result, a subsequent prosecution for 1st degree murder did not constitute double jeopardy. Ricketts v. Adamson, 483 U.S. 1 (1987).

The double jeopardy clause does not prohibit retrial after the reversal of a conviction based upon improperly admitted evidence that, once suppressed, would result in evidence insufficient to support the conviction. Lockhart v. Nelson, 488 U.S. 33, 102 L. Ed. 2d 265 (1988).

The double jeopardy clause bars a subsequent prosecution if, to establish an essential element of the offense charged, the prosecution will prove conduct constituting the offense for which the defendant was previously prosecuted. Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990).

Generally, the double jeopardy clause prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict whether in a bench or jury trial. If, after a facially unqualified midtrial dismissal of one count, the trial proceeded to the defendant's introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. Smith v. Massachusetts, 543 U.S. 462, 160 L. Ed. 2d 914, 125 S. Ct. 1129 (2004).

The Grady v. Corbin “same conduct" test is overruled. United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556 (1993).

The double jeopardy clause precludes the government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Consideration of hung counts has no place in the issue-preclusion analysis. To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide. A jury's verdict of acquittal represents the community's collective judgment regarding all the evidence and arguments presented to it. Thus, if there was a critical issue of ultimate fact in all charges, a jury verdict that necessarily decided that issue in the defendant's favor protects him or her from prosecution for any charge for which that fact is an essential element. Yeager v. U.S. 557 U.S. 110, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009).

When the jury in this case did not convict or acquit the defendant of any offense and was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause did not stand in the way of a second trial on the same offenses even though before the jury concluded deliberations it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. Blueford v. Arkansas, 566 U.S. 599, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012).

Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected the petitioner to multiple penalties for one offense in excess of the maximum statutory penalty and in violation of the guarantee against double jeopardy. Taylor v. Gray, 375 F. Supp. 790.

Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Inst. 631 F. Supp. 1403 (1986).

The Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously erroneous foundation. An acquittal encompasses any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense. There is no meaningful constitutional distinction between a trial court's “misconstruction" of a statute and its erroneous addition of a statutory element. A midtrial acquittal in either of these circumstances is an acquittal for double jeopardy purposes. Evans v. Michigan, 568 U.S. 313, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013).

A jury trial begins, and jeopardy attaches, when the jury is sworn. This has consistently been treated as a bright-line rule. Martinez v. Illinois, 572 U.S. 313, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014).

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that a verdict of acquittal could not be reviewed without putting a defendant twice in jeopardy, and thereby violating the Constitution. In this case, the state declined to present evidence against the defendant whose counsel moved for directed findings of not guilty and the court granted the motion for a directed finding. That is a textbook acquittal: a finding that the state's evidence cannot support a conviction. What constitutes an acquittal is not to be controlled by the form of the judge's action; it turns on whether the ruling of the judge, whatever its label, actually represents a resolution of some or all of the factual elements of the offense charged. Martinez v. Illinois, 572 U.S. 313, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014).

In criminal prosecutions the issue-preclusion principle means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Issue preclusion applies when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, when both counts turn on the very same issue of ultimate fact. When inconsistent guilty verdicts are vacated on appeal because of error in the judge's instructions unrelated to the verdicts' inconsistency, the vacatur of a conviction for unrelated legal error does not reconcile the jury's inconsistent returns. Issue preclusion does not apply when verdict inconsistency renders unanswerable what the jury necessarily decided. The acquittal remains inviolate, but, because it is unknown what the jury would have concluded had there been no instructional error, a new trial on the counts of conviction is in order. Bravo-Fernandez v. United States, 580 U.S. ___, 137 S. Ct. 352, 196 L. Ed. 2d 242 (2016).

If a defendant consents to two trials when one would have avoided a double jeopardy problem, that consent precludes any constitutional violation associated with holding a second trial. In those circumstances, the defendant wins a potential benefit and experiences none of the prosecutorial oppression the double jeopardy clause exists to prevent. Currier v. Virginia, 585 U.S. ___, 138 S. Ct. 2144, 201 L. Ed. 2d 650 (2018).

Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.

State v. Grayson: Clouding the Already Murky Waters of Unit Prosecution Analysis in Wisconsin. Leslie. 1993 WLR 811.

DUE PROCESS

It is not necessary to hold a 2nd Goodchild type hearing before admitting testimony of a 2nd witness to the same confession. State v. Watson, 46 Wis. 2d 492, 175 N.W.2d 244.

The sentencing duties of a trial court following a 2nd conviction after retrial or upon resentencing bars the trial court from imposing an increased sentence unless events occur or come to the sentencing court's attention subsequent to the first imposition of sentence that warrant an increased penalty and the court affirmatively states the ground for increasing the sentence on the record. Denny v. State, 47 Wis. 2d 541, 178 N.W.2d 38.

An arrest is not void because of a 3-month interval between the time of the offense and the arrest. Gonzales v. State, 47 Wis. 2d 548, 177 N.W.2d 843.

A lineup, wherein 2 suspects were required to wear special clothing and a number of victims were allowed to identify them out loud, influencing others, was unfair and later influenced in-court identification. Jones v. State, 47 Wis. 2d 642, 178 N.W.2d 42.

An out of court identification by a witness shown only a photograph of the defendant and no other persons was not a denial of due process, but does reflect on the weight given the evidence. Defense counsel need not be present at the identification. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777.

The rule that a defendant during a trial should not be handcuffed does not extend to periods outside the courtroom, and the fact that some jurors saw the defendant shackled was not prejudicial. State v. Cassel, 48 Wis. 2d 619, 180 N.W.2d 607.

It is not a violation of due process for the judge who conducts a hearing regarding the admissibility of a confession to continue as the trial judge in the case. State v. Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899.

A statute denying probation to 2nd offenders and that does not require proof of criminal intent is constitutional. State v. Morales, 51 Wis. 2d 650, 187 N.W.2d 841.

When a defendant is no longer entitled to a substitution of judge, prejudice in fact by the judge must be shown. State v. Garner, 54 Wis. 2d 100, 194 N.W.2d 649.

A child committed to the state who is released under supervision, who then violates the terms of the release is entitled to the same protections as an adult as to a hearing on probation revocation. State ex rel. Bernal v. Hershman, 54 Wis. 2d 626, 196 N.W.2d 721.

A defendant who, believing he was seriously wounded, began to tell what happened and was given Miranda warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742.

The duty of the state to disclose exculpatory evidence is not excused by the district attorney's belief that the evidence is incredible, but failure to disclose is not prejudicial when the evidence would not have affected the conviction. Nelson v. State, 59 Wis. 2d 474, 208 N.W.2d 410.

Due process requires that a juvenile be afforded a copy of a hearing examiner's report recommending revocation of aftercare supervision and the opportunity to object thereto in writing prior to the decision of the H & S S department secretary. State ex rel. R. R. v. Schmidt, 63 Wis. 2d 82, 216 N.W.2d 18.

Circumstances to be considered in determining whether the delay between the alleged commission of a crime and an arrest denies a defendant due process of law include: 1) the period of the applicable statute of limitations; 2) prejudice to the conduct of the defense; 3) intentional prosecution delay to gain some tactical advantage; and 4) the loss of evidence or witnesses, and the dimming of memories. The mere possibility of prejudice from these factors is not alone sufficient to demonstrate that a fair trial is impossible — actual prejudice must be shown. State v. Rogers, 70 Wis. 2d 160, 233 N.W.2d 480.

A photo identification using one color and 4 black and white photos when 2 of the 5, including the color photo, were of the defendant was not impermissibly suggestive. Mentek v. State, 71 Wis. 2d 799, 238 N.W.2d 752.

The fact that the accused, who demanded a jury trial, received a substantially greater sentence than an accomplice who pleaded guilty does not constitute punishment for exercising the right to a jury trial or a denial of either due process or equal protection. Drinkwater v. State, 73 Wis. 2d 674, 245 N.W.2d 664.

Improper remarks by a prosecutor are not necessarily prejudicial when objections are promptly made and sustained and curative instructions and admonitions are given by the court. Hoppe v. State, 74 Wis. 2d 107, 246 N.W.2d 122 (1976).

Persons committed under ch. 975 are entitled to periodic review hearings that afford the same minimal requirements of due process as parole determinations. Habeas corpus is an appropriate remedy. State ex rel. Terry v. Schubert, 74 Wis. 2d 487, 247 N.W.2d 109.

A sentencing judge does not deny due process by considering pending criminal charges in imposing a sentence. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711.

Due process requires that a prosecutor voluntarily disclose highly exculpatory evidence that would raise a reasonable doubt when none existed before. Ruiz v. State, 75 Wis. 2d 230, 249 N.W.2d 277.

The trial court did not err in refusing to grant a mistrial when police reports concerning an unrelated pending charge against the defendant and the defendant's mental history were accidentally sent to the jury room. Johnson v. State, 75 Wis. 2d 344, 249 N.W.2d 593.

The defendant received a fair, though not perfect, trial when a prosecution witness attempted to ingratiate himself with the jury prior to trial and another prosecution witness violated a sequestration order. Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524.

The defendant's refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to a crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56.

A parole revocation hearing is not part of a criminal prosecution and thus the full panoply of rights, including Miranda warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 252 N.W.2d 660.

Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291.

The due process rationale of Doyle v. Ohio, 426 U.S. 610, is limited to prosecutorial use of a defendants' custodial interrogation silence to impeach exculpatory statements made during trial. Rudolph v. State, 78 Wis. 2d 435, 254 N.W.2d 471.

Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target" of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910.

The due process requirements an administrative body must provide when it imposes regulatory or remedial sanctions upon conduct that is also subject to criminal punishment are discussed. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218.

The right to a fair trial does not entitle the defendant to inspect the entire file of the prosecutor. State ex rel. Lynch v. County Ct. 82 Wis. 2d 454, 262 N.W.2d 773.

Under the “totality of circumstances" test, lineup and in-court identifications were properly admitted, although an earlier photographic identification was unnecessarily suggestive. Simos v. State, 83 Wis. 2d 251, 265 N.W.2d 278 (1978).

A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 Wis. 2d 621, 266 N.W.2d 288 (1978).

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

The accused has the right to answer some questions after a Miranda warning and then to reassert the privilege and break off all questioning. Odell v. State, 90 Wis. 2d 149, 279 N.W.2d 706 (1979).

Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).

A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as the result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979).

Before the “totality of circumstances" analysis is applied to confrontation identification, it must first be determined whether police deliberately contrived the confrontation between the witness and defendant. State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979).

Due process requires that evidence reasonably support a finding of guilt beyond a reasonable doubt. State v. Stawicki, 93 Wis. 2d 63, 286 N.W.2d 612 (Ct. App. 1979).

An 8-month delay between the date of the alleged offense and the filing of a complaint did not violate the defendant's due process rights. State v. Davis, 95 Wis. 2d 55, 288 N.W.2d 870 (Ct. App. 1980).

Exculpatory hearsay lacked assurances of trustworthiness and was properly excluded. State v. Brown, 96 Wis. 2d 238, 291 N.W.2d 528 (1980).

The use of an unsworn prior inconsistent statement of a witness as substantive evidence did not deprive the defendant of due process. Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980).

An inmate in administrative confinement has a state-created interest protected by due process in his eventual return to the general prison population. State ex rel. Irby v. Israel, 100 Wis. 2d 411, 302 N.W.2d 517 (Ct. App. 1981).

Factors that the court should consider when the defendant requests to be tried after the trial of a codefendant in order to secure testimony of the codefendant are discussed. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).

A revocation of probation denied due process when there was a lack of notice of the total extent and nature of the alleged violations of probation. State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 326 N.W.2d 768 (1982).

Continued questioning after the accused mentioned the word “attorney" was prejudicial error. Harmless error is discussed. State v. Billings, 110 Wis. 2d 661, 329 N.W.2d 192 (1983).

Due process requires the state to preserve evidence that: 1) possesses exculpatory value apparent to the custodian; and 2) is of a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. State v. Oinas, 125 Wis. 2d 487, 373 N.W.2d 463 (Ct. App. 1985).

When 2 statutes have identical criminal elements but different penalties, the state does not deny equal protection or due process by charging defendants with the more serious crime. State v. Cissel, 127 Wis. 2d 205, 378 N.W.2d 691 (1985).

If the state shows that delay in charging an offense committed by an adult defendant while still a juvenile was not with a manipulative intent, due process does not require dismissal. State v. Montgomery, 148 Wis. 2d 593, 436 N.W.2d 303 (1989).

Lineup and in-court identifications of a defendant may be suppressed as the fruit of an illegal arrest under appropriate circumstances. State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990).

A comment during closing argument on the defendant's courtroom demeanor when evidence of the demeanor was adduced during trial did not violate the 5th amendment. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991).

Evidence favorable to the defendant must be disclosed if there is a “reasonable probability" that disclosure would have resulted in a different trial outcome. State v. Garrity, 161 Wis. 2d 842, 469 N.W.2d 219 (Ct. App. 1991).

When prior convictions are used to enhance a minimum penalty, collateral attack of the prior convictions must be allowed. State v. Baker, 165 Wis. 2d 42, 477 N.W.2d 292 (Ct. App. 1991).

The defense of outrageous governmental conduct arises when the government violates a specific constitutional right and was itself so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the criminal justice system. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992).

When the argument of the defense invited and provoked an otherwise improper remark by the prosecutor, the question is whether, taken in context, the “invited remark" unfairly prejudiced the defendant. State v. Wolff, 171 Wis. 2d 161, 491 N.W.2d 498 (Ct. App. 1992).

Due process is not violated when a burden of production is placed on the defendant to come forward with some evidence of a negative defense. State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992).

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).

Due process rights of a probationer at a hearing to modify probation are discussed. State v. Hayes, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992).

The interval between an arrest and an initial appearance is never unreasonable when the arrested suspect is already in the lawful physical custody of the state. State v. Harris, 174 Wis. 2d 367, 497 N.W.2d 742 (Ct. App. 1993).

The admissibility of an out-of-court identification rests on whether the procedure was impermissibly suggestive and whether under all the circumstances the identification was reliable despite any suggestiveness. That another procedure might have been better does not render the identification inadmissible. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 199 (Ct. App. 1993).

A defendant has a fundamental right to testify in his or her own behalf. Waiver of the right must be supported by a record of a knowing and voluntary waiver. State v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993).

The good or bad faith of police in destroying apparently exculpatory evidence is irrelevant, but in the absence of bad faith, destruction of evidence that only provides an avenue of investigation does not violate due process protections. State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994).

Bad faith can only be shown if the officers were aware of the potentially exculpatory value of evidence they fail to preserve and the officers acted with animus or made a conscious effort to suppress the evidence. State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994).

An executory plea bargain is without constitutional significance and a defendant has no right to require the performance of an executory agreement, but upon entry of a plea due process requires the defendant's expectations to be fulfilled. State v. Wills, 187 Wis. 2d 528, 523 N.W.2d 569 (Ct. App. 1994).

A prosecutor's closing argument is impermissible when it goes beyond reasoning drawn from the evidence and suggests that the verdict should be arrived at by considering other factors. Substantially misstating the law and appearing to speak for the trial court was improper and required court intervention in the absence of an objection. State v. Neuser, 191 Wis. 2d 131, 528 N.W.2d 49 (Ct. App. 1995).

Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.

Prosecutorial misconduct violates the due process right to a fair trial if it poisons the entire atmosphere of the trial. State v. Lettice, 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996), 96-0140.

A criminal conviction cannot be affirmed on the basis of a theory not presented to the jury. State v. Wulff, 207 Wis. 2d 144, 557 N.W.2d 813 (1997), 94-3364.

A defendant is denied due process when identification is derived from police procedures so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. A suppression hearing is not always required when a defendant moves to suppress identification, but must be considered on a case-by-case basis. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), 96-0168.

There is no constitutional right to a sworn complaint in a criminal case. State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), 96-2159.

A defendant has a due process right to have the full benefit of a relied upon plea bargain. The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny that right. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), 97-0682.

The state's use, as a witness, of an informant who purchased and used illegal drugs while making controlled drug buys for the state, in violation of her agreement with the state, was not a violation of fundamental fairness that shocks the universal justice system and did not constitute outrageous governmental conduct. State v. Givens, 217 Wis. 2d 180, 580 N.W.2d 340 (Ct. App. 1998), 97-1248.

Due process does not require that judges' personal notes be made available to litigants. It is only the final reasoning process that judges are required to place on the record that is representative of the performance of judicial duties. State v. Panknin, 217 Wis. 2d 200, 579 N.W.2d 52 (Ct. App. 1998), 97-1498.

The state's failure to disclose that it took samples but failed to have them analyzed affected the defendant's right to a fair trial because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App.1999), 97-1480.

When defense counsel has appeared for and represented the state in the same case in which 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.

A new rule of criminal procedure applies to all cases pending on direct review or that are not yet final that raised the issue that was subject to the change. There is no retroactive application to cases in which the issue was not raised. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909.

Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, 97-1360.

When an indigent defendant requests that the state furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to him or her. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219.

The entry of a plea from jail by closed circuit tv, while a violation of a statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, 99-1940.

A pretrial detainee, including the subject of an arrest, is entitled to receive medical attention. The scope of this due process protection is not specifically defined, but is at least as great as the 8th amendment protection available to convicted prisoners. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211.

While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211.

A defendant is denied due process when identification evidence stems from a pretrial procedure that is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Whether an identification is impermissible is decided on a case-by-case basis. State v. Benton, 2001 WI App 81, 243 Wis. 2d 54, 625 N.W.2d 923, 00-1096.

The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard and whether the state's conduct was a substantial and material breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535.

A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535.

Due process demands that a conviction not be based on unreliable evidence obtained through coerced witness statements resulting from egregious police practices. There are several factors to consider in determining whether police misconduct is so egregious that it produces statements that are unreliable as a matter of law and must be suppressed. State v. Samuel, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423, 99-2587.

Although there is no place in a criminal prosecution for gratuitous references to race, the state may properly refer to race when it is relevant to the defendant's motive. A racial remark is improper if it is intentionally injected into volatile proceedings when the prosecutor has targeted the defendant's ethnic origin for emphasis in an attempt to appeal to the jury's prejudices. State v. Chu, 2002 WI App 98, 253 Wis. 2d 666, 643 N.W.2d 878, 01-1934.

Cases addressing the pretrial destruction of evidence and a defendant's due process rights apply to posttrial destruction as well. A defendant's due process rights are violated by the destruction of evidence: 1) if the evidence destroyed was apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or 2) if the evidence was potentially exculpatory and was destroyed in bad faith. State v. Parker, 2002 WI App 159, 256 Wis. 2d 154, 647 N.W.2d 430, 01-2721.

A trial court did not erroneously exercise its discretion in denying the defendant's request that his alibi witnesses be allowed to testify in street clothes rather than jail attire due to the difficulty associated with having the in-custody witnesses brought to the courtroom while keeping them separate, because allowing the clothing changes would create security risks, and because the witnesses had prior convictions that the jury would hear about anyway. State v. Reed, 2002 WI App 209, 256 Wis. 2d 1019, 650 N.W.2d 855, 01-2973.

When an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are substantially related such that the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. This test applies in a criminal serial representation case when the defendant raises the issue prior to trial. The actual prejudice standard in Love applies when a defendant raises a conflict of interest objection after trial. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192.

Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following reversal of a conviction on appeal, the prosecutor offered a less favorable plea agreement than had been offered prior to the initial trial. A presumption of vindictiveness is limited to cases in which a realistic likelihood of vindictiveness exists; a mere opportunity for vindictiveness is insufficient. To establish actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his or her legal rights. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192.

Courts employ two tests to determine whether a defendant's due process right to trial by an impartial judge is violated: 1) a subjective test based on the judge's own determination of his or her impartiality;and 2) an objective test that asks whether objective facts show actual bias. In applying the objective test, there is a presumption that the judge is free of bias. To overcome this presumption the defendant must show by a preponderance of the evidence that the judge is in fact biased an not that there is an appearance of bias or that the circumstance might lead one to speculate that the judge is biased. State v. O'Neill, 2003 WI App 73, 261 Wis. 2d 534, 663 N.W.2d 292, 02-0808.

Following the reversal of one of multiple convictions on multiplicity grounds an increased sentence was presumptively vindictive, in violation of the right to due process. In order to assure the absence of a vindictive motive whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. State v. Church, 2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141, 01-3100.

Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436.

The defendant's due process rights were violated when the investigating detective gave a sentencing recommendation, written on police department letterhead and forwarded by the court to the presentence investigation writer to assess and evaluate, that undermined the state's plea bargained recommendation, in effect breaching the plea agreement. State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51, 03-0251.

The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion. A trial court must consider whether the likely value of the defendant's testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief. State v. Arredondo, 2004 WI App 7, 269 Wis. 2d 369, 674 N.W.2d 647, 02-2361.

Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases under s. 974.06. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361, 03-0217.

In considering prosecutorial vindictiveness when charges are increased following a successful appeal, whether the defendant is facing stiffer charges arising out of a single incident is important. The concern is that the defendant will be discouraged from exercising his or her right to appeal because of fear the state will retaliate by substituting a more serious charge for the original one on retrial. That concern does not come into play when the new charges stem from a separate incident. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603.

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.

Dubose, 2005 WI 126, does not directly control cases involving identification evidence derived from accidental confrontations resulting in spontaneous identifications. However, in light of developments since it's time, Marshall, 92 Wis. 2d 101, a case in which the court determined that identification evidence need not be scrutinized for a due process violation unless the identification occurs as part of a police procedure directed toward obtaining identification evidence, does not necessarily resolve all such cases. The circuit court still has a limited gate-keeping function to exclude such evidence under s. 904.03. State v. Hibl, 2006 WI 52, 290 Wis. 2d 595, 714 N.W.2d 194, 04-2936. But see State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894.

When analyzing a judicial bias claim, there is a rebuttable presumption that the judge was fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant's due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the state and the accused, denies the latter due process of law. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05-1528.

Absent a pervasive and perverse animus, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265.

Dubose, 2005 WI 126, did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process. State v. Drew, 2007 WI App 213, 305 Wis. 2d 641, 740 N.W.2d 404, 06-2522.

The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. To be admissible, the in-court identification must rest on an independent recollection of the witness's initial encounter with the suspect. State v. Nawrocki, 2008 WI App 23, 308 Wis. 2d 227, 746 N.W.2d 509, 06-2502.

When the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence, the statements are impermissible. Improper comments do not necessarily give rise to a due process violation. For a due process violation, the court must ask whether the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06-1847.

Due process requires that vindictiveness against a defendant for having successfully attacked his or her first conviction must play no part in the sentence received after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive. This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence, when it implements the original dispositional scheme, is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508.

There is not an exclusive possession requirement as an element of the due process test when apparently exculpatory evidence is not preserved by the state. In this case, while the physical evidence, cell phones, was solely within the state's possession, the concomitant electronic voicemail evidence was stored elsewhere and could have been accessed by both the state and the defense until it was destroyed by the phone service provider in the normal course of business. Given the facts of this case, however, it was reasonable for the defendant to expect that the state would preserve the voicemail recordings. State v. Huggett, 2010 WI App 69, 324 Wis. 2d 786, 783 N.W.2d 675, 09-1684.

A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810.

In order to establish that the state violated his or her due process rights by destroying apparently exculpatory evidence, the defendant must demonstrate that: 1) the evidence destroyed possessed an exculpatory value that was apparent to those who had custody of the evidence before the evidence was destroyed; and 2) the evidence is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. The mere possibility that evidence of a bullet having been lodged in a destroyed van after a detective thoroughly examined the van and specifically looked for just such a bullet or bullet strike did not support the argument that the van's purported exculpatory value was apparent. State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, 09-2658.

The public interest would be unduly harmed if the state were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders. On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant where he or she seeks to evade prosecution via equitable estoppel. State v. James M. Drown, 2011 WI App 53, 332 Wis. 2d 765, 797 N.W.2d 919, 10-1303.

A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. Courts review a prosecutor's charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor's decision to bring additional charges was rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368.

The circuit court's decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant's presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394.

The court's invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word" will create reversible error. The transcript reflects that the court's offhand religious references addressed proper secular sentencing factors. The judge's comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85, 349 Wis. 2d 428, 835 N.W.2d 249, 12-1339.

There are two approaches that courts use to see if an alleged enhancing conviction carries its burden of qualifying as an enhancing offense. Under the categorical approach, courts ordinarily look only to the fact of conviction and the statutory definition of the prior offense. When a statute defines an element in the alternative, however, the categorical approach is modified to determine which alternative formed the basis of conviction. Under the modified categorical approach, courts consult a limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions. The purpose of consulting such documents is to identify, from among several alternatives, the crime of conviction. State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848 N.W.2d 329, 13-1753.

Affirmed. 2015 WI 72, 363 Wis. 2d 857, 867 N.W.2d 400, 13-1753.

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.

In the context of evidence preservation and destruction, the Wisconsin constitution does not provide greater due process protections under Article 1, Section 8, Clause 1 than the U.S. Constitution does under either the 5th or 14th amendments. Defendants must show that the state failed to preserve evidence that was apparently exculpatory or acted in bad faith by failing to preserve evidence that was potentially exculpatory. Bad faith can be shown only if : 1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence. The routine destruction of a driver's blood or breath sample, without more, does not deprive a defendant of due process. State v. Weissinger, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-1737.

When a defendant seeks to present evidence that a 3rd party committed the crime for which the defendant is being tried, the defendant must show a legitimate tendency that the 3rd party committed the crime; in other words, that the 3rd party had motive, opportunity, and a direct connection to the crime. State v. Wilson, 2015 WI 48, 362 Wis. 2d 193, 864 N.W.2d 52, 11-1803.

A court of appeals' decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol content (PAC) as a 7th offense and impose sentence for a 7th offense violated the defendant's right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a 6th offense Because a 7th offense carries a greater range of punishment than does a 6th offense, the court of appeals' remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis, 2015 WI 53, 362 Wis. 2d 370, 864 N.W.2d 806, 12-2782.

When determining whether a defendant's right to an objectively impartial decisionmaker has been violated, the court considers the appearance of bias in addition to actual bias. When the appearance of bias reveals a great risk of actual bias, the presumption of impartiality is rebutted and a due process violation occurs. In this case, although the judge's statements about her sister were personal, they were used in an attempt to illustrate the seriousness of the crime and the need to deter drunk driving in our society and not as as an expression of bias against the defendant. State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772, 13-0197.

A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant's right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157.

When the state alleged that the defendant engaged in repeated sexual assaults of the same child during 2007 and 2008, and during that time period s. 948.025 (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred. Although the defendant should have been charged under the 2007-08 law, the defendant was mistakenly charged under the 2005-06 law. Nevertheless, the defendant was charged with a crime that existed at law. Class C criminal liability attached under the 2005-06 and 2007-08 laws to the same conduct as it pertained to the defendant. The wording difference was immaterial as the elements, as applied to the defendant, were the same. The technical charging error did not prejudice the defendant, nor did it affect the circuit court's subject matter jurisdiction. State v. Scott, 2017 WI App 40, 376 Wis. 2d 430, 899 N.W.2d 728, 16-1411.

If a prosecutor's statements are fairly characterized as impressing on the jury the importance of assessing a witness's credibility, there is no error. In this case, a verdict would necessarily follow the jury's determination of the victims' credibility; therefore, the state's argument that the jurors should not find the defendant not guilty unless they conclude the victims lied was equivalent to asking the jurors to carefully weigh the victims' credibility. There was no error and no denial of due process. State v. Bell, 2018 WI 28, 380 Wis. 2d 616, 909 N.W.2d 750, 15-2667.

The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute's primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144: 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction's operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.

In order to establish that the state suppressed exculpatory or impeaching evidence in violation of Brady, 373 U.S. 83 (1963), there is no requirement to show that the evidence was in the state's exclusive possession and control, and it is not necessary to establish that the suppression of evidence imposes an intolerable burden on the defense. State v. Wayerski, 2019 WI 11, 385 Wis. 2d 344, 922 N.W.2d 468, 15-1083.

A funding statute for drug court programs did not create a fundamental liberty interest and did not need to provide expulsion procedures to survive a procedural due process challenge. State v. Keister, 2019 WI 26, 385 Wis. 2d 739, 924 N.W.2d 203, 17-1618.

A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possible term of civil commitment because: 1) a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, 16-2258.

An undisclosed social media connection between the judge and a litigant that was formed during ongoing litigation created a great risk of actual bias resulting in the appearance of partiality and violated due process. Miller v. Carroll, 2019 WI App 10, 386 Wis. 2d 267, 925 N.W.2d 580, 17-2132.

A circuit court may utilize a waiver of rights form for a defendant who is pleading guilty, but the use of that form does not otherwise eliminate the circuit court's plea colloquy duties. While a circuit court must exercise great care when conducting a plea colloquy so as to best ensure that a defendant is knowingly, intelligently, and voluntarily entering a plea, a formalistic recitation of the constitutional rights being waived is not required. State v. Pegeese, 2019 WI 60, 387 Wis. 2d 119, 928 N.W.2d 590, 17-0741.

Under Sell, 539 U.S. 166 (2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government's interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Section 971.14 (4) (b) does not require the circuit court to determine whether the Sell factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is incapable of expressing an understanding of the proposed medication or treatment or who is substantially incapable of applying an understanding of his or her mental illness in order to make an informed choice regarding medication or treatment. The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant's significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that s. 971.14 (3) (dm) and (4) (b) requires circuit courts to order involuntary medication when the Sell standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, 18-1214.

General allegations of physical abuse by a third party against the victim do not provide a sufficient direct connection between the third party and the perpetration of the crime charged to satisfy the legitimate tendency test established under Wilson, 2015 WI 48. State v. Griffin, 2019 WI App 49, 388 Wis. 2d 581, 933 N.W.2d 681, 18-0649.

Dubose, 2005 WI 126, is overturned. Reliability is the linchpin in determining the admissibility of identification testimony. A criminal defendant bears the initial burden of demonstrating that a showup is impermissibly suggestive. If the defendant meets this burden, the state must prove that under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894.

Defendants have a due process right to be sentenced based upon accurate information. A defendant who was sentenced based on inaccurate information may request resentencing. The defendant must show by clear and convincing evidence that: 1) some information at the original sentencing was inaccurate; and 2) the circuit court actually relied on the inaccurate information at sentencing. If the defendant meets this burden then the burden shifts to the state to prove beyond a reasonable doubt that the error was harmless. State v. Coffee, 2020 WI 1, 389 Wis. 2d 627, 937 N.W.2d 579, 17-2292.

In Wisconsin, courts employ the guilty plea waiver rule, which states that a guilty, no contest, or Alford plea waives all nonjurisdictional defects, including constitutional claims. An exception to the rule states that a facial constitutional challenge is a matter of subject matter jurisdiction, which cannot be waived, whereas an as-applied challenge is a nonjurisdictional defect that can be waived. State v. Jackson, 2020 WI App 4, 390 Wis. 2d 402, 938 N.W.2d 639, 18-2074.

Denial of a change of venue due to local prejudice solely because the offense is a misdemeanor is unconstitutional. Groppi v. Wisconsin, 400 U.S. 505.

The retention of 10 percent of a partial bail deposit, with no penalty for release on recognizance or when full bail is given, does not violate equal protection requirements. Schilb v. Kuebel, 403 U.S. 357.

A defendant convicted of selling heroin supplied by undercover police was not entrapped. Hampton v. United States, 425 U.S. 484.

Prisons must provide inmates with a law library or legal advisers. Bounds v. Smith, 430 U.S. 817.

Due process was not denied when a prosecutor carried out a threat to reindict the defendant on a more serious charge if the defendant did not plead guilty to the original charge. Bordenkircher v. Hayes, 434 U.S. 357 (1978).

The plaintiff was not deprived of liberty without due process of law when arrested and detained pursuant to a lawful warrant, even though the police mistook the identity of the plaintiff. Baker v. McCollan, 443 U.S. 137 (1979).

The sentencing judge properly considered the defendant's refusal to cooperate with police by naming co-conspirators. Roberts v. United States, 445 U.S. 552 (1980).

The federal constitution does not prohibit electronic media coverage of a trial over the defendant's objections. Chandler v. Florida, 449 U.S. 560 (1981).

Due process does not require police to preserve breath samples in order to introduce breath-analysis test results at trial. California v. Trombetta, 467 U.S. 479 (1984).

After retrial and conviction following the defendant's successful appeal, sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing. Wasman v. U.S. 468 U.S. 559 (1984). See also Texas v. McCullough, 475 U.S. 134 (1986).

When an indigent defendant's sanity at the time of committing a murder was seriously in question, due process required access to a psychiatrist and the assistance necessary to prepare an effective defense based on the mental condition. Ake v. Oklahoma, 470 U.S. 68 (1985).

A prosecutor's use of a defendant's postarrest, post-Miranda warnings silence as evidence of the defendant's sanity violated the due process clause. Wainwright v. Greenfield, 474 U.S. 284 (1986).

Coercive police activity is a necessary predicate to a finding that a confession was not “voluntary" within the meaning of the due process clause. Colorado v. Connelly, 479 U.S. 157 (1986).

A defendant who denies elements of an offense is entitled to an entrapment instruction as long as there is sufficient evidence from which a jury could find entrapment. Mathews v. United States, 485 U.S. 58 (1988).

Unless the defendant shows bad faith on the part of law enforcement, failure to preserve potentially useful evidence does not violate due process. Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 (1988).

New constitutional rules announced by the U.S. Supreme Court that place certain kinds of primary individual conduct beyond the power of the states to proscribe, as well as water-shed rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. These rules do not constrain the authority of state courts to give broader effect to new rules of criminal procedure. Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008).

Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Accordingly, when the state withholds from a defendant evidence that is material to the defendant's guilt or punishment, it violates the right to due process of law. Evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true, however. Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769; 173 L. Ed. 2d 701 (2009).

The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness. Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012).

A guilty plea does not bar a claim on appeal where, on the face of the record, the court had no power to enter the conviction or impose the sentence. Class v. United States, 583 U.S. ___, 138 S. Ct. 798, 200 L. Ed. 2d 37 (2018).

Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100.

Pretrial publicity; the Milwaukee 14. 1970 WLR 209.

Due process; revocation of a juvenile's parole. Sarosiek. 1973 WLR 954.

As I See It: Due Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.

HABEAS CORPUS AND BAIL

Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on a motion to suppress evidence when constitutional issues are involved. State ex rel. Warrender v. Kenosha County Court, 67 Wis. 2d 333, 227 N.W.2d 450.

The scope of inquiry in extradition habeas corpus cases is discussed. State v. Ritter, 74 Wis. 2d 227, 246 N.W.2d 552.

Relief under habeas corpus is not limited to the release of the person confined. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573.

Application of bail posted by third parties to the defendant's fines was not unconstitutional. State v. Iglesias, 185 Wis. 2d 118, 517 N.W.2d 175 (1994).

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 question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97-3841.

As an extraordinary writ, habeas corpus is available to a petitioner only under limited circumstances. A party must be restrained of his or her liberty, must show that the restraint was imposed by a body without jurisdiction or that the restraint was imposed contrary to constitutional protections, and there must be no other adequate remedy available in the law. Haas v. McReynolds, 2002 WI 43, 252 Wis. 2d 133, 643 N.W.2d 771, 00-2636.

Laches is available as a defense to a habeas petition. When a habeas petition is brought by a Wisconsin prisoner, the burden is on the state to show that: 1) the petitioner unreasonably delayed in bringing the claim; 2) the state lacked knowledge that the claim would be brought; and 3) the state has been prejudiced by the delay. Washington v. State, 2012 WI App 74, 343 Wis. 2d 434, 819 N.W.2d 305, 09-0746. See also State ex rel. Wren v. Richardson, 2019 WI 110, 389 Wis. 2d 516, 936 N.W.2d 587, 17-0880.

SELF-INCRIMINATION AND CONFESSION

Granting a witness immunity and ordering him to answer questions does not violate his constitutional rights. State v. Blake, 46 Wis. 2d 386, 175 N.W.2d 210.

Although a person may invoke the right against self incrimination in a civil case in order to protect himself in a subsequent criminal action, an inference against the person's interest may be drawn as a matter of law based upon an implied admission that a truthful answer would tend to prove that the witness had committed the criminal act or what might constitute a criminal act. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292.

A hearing to determine the voluntariness of a confession is not necessary when a defendant knowingly fails to object to the evidence for purposes of trial strategy. Police officers need not stop all questioning after a suspect requests an attorney, since the suspect can change his mind and volunteer a statement. Sharlow v. State, 47 Wis. 2d 259, 177 N.W.2d 88.

The admission of evidence of the spending of money after a burglary did not unconstitutionally require the defendant to testify against himself in order to rebut it. State v. Heidelbach, 49 Wis. 2d 350, 182 N.W.2d 497.

When the defendant volunteered an incriminatory statement outside the presence of retained counsel, the statement was admissible. State v. Chabonian, 50 Wis. 2d 574, 185 N.W.2d 289.

There is no requirement that a hearing as to the voluntariness of a confession be separated into 2 stages as to the circumstances leading up to it and then as to its content. The content of Miranda warnings is discussed. Bohachef v. State, 50 Wis. 2d 694, 185 N.W.2d 339.

The argument by the district attorney that certain evidence was uncontroverted does not amount to a comment on the defendant's failure to testify. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46.

Questions of investigational versus custodial interrogation in relation to a confession are discussed. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748.

A defendant who, believing he was seriously wounded, began to tell what happened and was given Miranda warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742.

The privilege against self-incrimination does not extend to the production of corporate records by their custodian, even though the records may tend to incriminate the custodian personally. State v. Balistrieri, 55 Wis. 2d 513, 201 N.W.2d 18.

A defendant who waived counsel and who agreed to sign a confession admitting 18 burglaries in return for an agreement that he would be prosecuted for only one, could not claim that the confession was improperly induced. The state has the burden of showing voluntariness beyond a reasonable doubt. Pontow v. State, 58 Wis. 2d 135, 205 N.W.2d 775.

The administration of a blood or breathalyzer test does not violate the defendant's privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850.

Factors to be considered in determining whether a confession is voluntary are discussed. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855.

A voluntary confession is not rendered inadmissible because the arrest was made outside the statutory jurisdictional limits of the arresting officer. State v. Ewald, 63 Wis. 2d 165, 216 N.W.2d 213.

While Miranda does require that upon exercise of the defendant's 5th amendment privilege the interrogation must cease, Miranda does not explicitly state that the defendant may not, after again being advised of his rights, be interrogated in the future. State v. Estrada, 63 Wis. 2d 476, 217 N.W.2d 359.

Statements given to police without Miranda warnings, while the defendant was injured and in bed that he was the driver and had been drinking, while voluntary, were inadmissible since at that time accusatorial attention had focused on him. Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286.

The voluntariness of a confession must be determined by examining all the surrounding facts under a totality of circumstances test. Brown v. State, 64 Wis. 2d 581, 219 N.W.2d 373.

Requirements of a claim of immunity are discussed. State v. Hall, 65 Wis. 2d 18, 221 N.W.2d 806.

The validity of a juvenile confession is determined by an analysis of the totality of the circumstances surrounding the confession. The presence of a parent, guardian, or attorney is not an absolute requirement for the juvenile to validly waive the right to remain silent but only one of the factors to be considered in determining voluntariness. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850.

A written confession is admissible in evidence, although it is not signed by the defendant, so long as the defendant has read the statement and adopted it as his or her own. Kutchera v. State, 69 Wis. 2d 534, 230 N.W.2d 750.

When the defendant claimed to understand his Miranda rights but agreed to talk to police without counsel because of a stated inability to afford a lawyer, further questioning by police was improper and the resulting confession was inadmissible. Micale v. State, 76 Wis. 2d 370, 251 N.W.2d 458.

The state may compel a probationer's testimony in a revocation proceeding if the probationer is first advised that the testimony will be inadmissible in criminal proceedings arising out of the alleged probation violation, except for purposes of impeachment or rebuttal. State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664.

A volunteered confession made while in custody and prior to Miranda warnings was held to be admissible despite an earlier inadmissible statement in response to custodial interrogation. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221.

No restrictions of the 4th and 5th amendments preclude enforcement of an order for handwriting exemplars directed by a presiding judge in a John Doe proceeding. State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210.

Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target" of the investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910.

The defendant's confession was admissible although it was obtained through custodial interrogation following the defendant's request for a lawyer. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978).

When a “conversational" visit was not a custodial interrogation, the defendant's voluntary statement was admissible despite a lack of Miranda warnings. State v. Hockings, 86 Wis. 2d 709, 273 N.W.2d 339 (1979).

A confession after a 28-hour post-arrest detention was admissible. Wagner v. State, 89 Wis. 2d 70, 277 N.W.2d 849 (1979).

Immunity for compelled testimony contrary to the 5th amendment privilege extends to juvenile court proceedings. State v. J.H.S., 90 Wis. 2d 613, 280 N.W.2d 356 (Ct. App. 1979).

The defendant's voluntary statements were admissible for impeachment even though they were obtained in violation of Miranda. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).

When the accused cut off the initial interrogation but was interrogated by another officer 9 minutes later following fresh Miranda warnings, the confession was admissible. State v. Shaffer, 96 Wis. 2d 531, 292 N.W.2d 370 (Ct. App. 1980).

By testifying as to his actions on the day a murder was committed, the defendant waived his self-incrimination privilege on cross-examination as to prior actions related to the murder that were the subject of the pending prosecution. Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980).

Miranda warnings were unnecessary when an officer entered the defendant's home in the belief that the defendant might have killed his wife 4 days earlier, and asked, “Where is your wife?" State v. Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980).

A prosecutor's comment on the failure of an alibi witness to come forward with an alibi story did not infringe on the defendant's right of silence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982).

The defendant's silence both before and after Miranda warnings may not be referred to at trial by the prosecution. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982).

Videotapes of sobriety tests were properly admitted to show physical manifestations of the defendant driver's intoxication. State v. Haefer, 110 Wis. 2d 381, 328 N.W.2d 894 (Ct. App. 1982).

A John Doe subpoena requiring the production of income tax returns violated the self-incrimination right. B.M. v. State, 113 Wis. 2d 183, 335 N.W.2d 420 (Ct. App. 1983).

A statement given to police, without Miranda warnings, while the accused was in an emergency room that the accused was the driver in a fatal crash was admissible. State v. Clappes, 117 Wis. 2d 277, 344 N.W.2d 141 (1984).

After a guilty plea the privilege against self-incrimination continues at least until sentencing. State v. McConnohie, 121 Wis. 2d 57, 358 N.W.2d 256 (1984).

When the defendant does not testify but presents his own argument to the jury, the prosecutor may caution the jury that the defendant's statements are not evidence. State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (Ct. App. 1984).

When a relative of the accused contacted police and asked if anything could be done to help the accused, a subsequent confession elicited from the accused by the relative was inadmissible. Factors to be considered in determining when a civilian becomes an agent of the police are discussed. State v. Lee, 122 Wis. 2d 266, 362 N.W.2d 149 (1985).

Police had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect's family was present. State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987).

Incriminating statements by an intoxicated defendant undergoing medical treatment for painful injuries was voluntary since there was no affirmative police misconduct compelling the defendant to answer police questioning. State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987).

The “rescue doctrine" exception to the Miranda rule is discussed. State v. Kunkel, 137 Wis. 2d 172, 404 N.W.2d 69 (Ct. App. 1987).

A probationer's answers to a probation agent's questions are “compelled" and may not be used for any purpose in a criminal trial. State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987).

The prosecution may comment on an accused's pre-Miranda silence when the accused elects to testify on his own behalf. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).

The “functional equivalent" of direct custodial interrogation is discussed. State v. Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988).

The admission of an involuntary or coerced confession is subject to the harmless error test. State v. Childs, 146 Wis. 2d 116, 430 N.W.2d 353 (Ct. App. 1988).

The use of Goodchild testimony to impeach the defendant's trial testimony does not violate the privilege against self-incrimination. State v. Schultz, 152 Wis. 2d 408, 448 N.W.2d 424 (1989).

An unconstitutionally obtained confession may be admitted and serve as the sole basis for a bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 N.W.2d 299 (1990).

When a psychiatrist did not comply with Miranda, the constitution does not require exclusion of the results of the interview with the defendant from the competency phase of the trial. State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).

Miranda does not require warning a suspect that he has the right to stop answering questions. State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992).

The primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint. Under Brown, 422 U.S. at 603, the presence of Miranda warnings alone does not cause a statement to be sufficiently attenuated so as to purge it of the taint of the illegal action. Other factors to be considered in determining attenuation are the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991).

Miranda safeguards are not required when a suspect is simply in custody, but are required when the suspect in custody is subjected to interrogation. State v. Coulthard, 171 Wis. 2d 573, 492 N.W.2d 329 (Ct. App. 1992).

A criminal defendant may be compelled to submit a voice sample consisting of specific words for purposes of identification. The words do not require a revelation of the contents of the mind to impart an admission of or evidence of guilt. Commenting on a refusal to give a sample does not violate the right against self-incrimination. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).

A waiver of Miranda rights must be made knowingly and intelligently, as well as voluntarily. A knowing and intelligent waiver must be shown by a preponderance of the evidence as determined from an objective assessment of the circumstances. State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 258 (Ct. App. 1993).

If police do not use coercive tactics, that a defendant is undergoing medical treatment or experiencing pain is not determinative on the issue of voluntariness. State v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).

When a defendant pleads guilty then appeals the denial of a suppression motion under s. 971.31 (10), the harmless error rule may not be applied when a motion to suppress was erroneously denied. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).

Miranda protections come into play when a reasonable person in the defendant's position would consider himself to be in custody. State v. Pounds, 176 Wis. 2d 315, N.W.2d (Ct. App. 1993).

Failure to give Miranda warnings during a telephone conversation initiated to encourage the defendant's surrender following an armed robbery police suspected was committed by the defendant did not require suppression of admissions made to the police. State v. Stearns, 178 Wis. 2d 845, 506 N.W.2d 165 (Ct. App. 1993).

Routine booking questions, such as the defendant's name and address, that are not intended to elicit incriminating responses are exempted from the coverage of Miranda. Miranda safeguards are applicable to questions asked during an arrest or concerning name and residence when the questions relate to an element of the crime. State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994).

The defendant's intoxication for purposes of motor vehicle statutes did not per se demonstrate an inability to knowingly waive Miranda rights. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).

Coercive police activity is a predicate to establishing involuntariness but does not itself establish involuntariness. Officer dissatisfaction with a defendant's answers and statements by the officer that cooperation would benefit the defendant is not coercion without a promise of leniency. State v. Deets, 187 Wis. 2d 629, 523 N.W.2d 180 (Ct. App. 1994).

A refusal to perform a field sobriety test is not testimony and not protected by the constitution. The refusal to submit to the test was properly admitted as evidence to determine probable cause for arrest for intoxicated operation of a motor vehicle. State v. Babbit, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994).

Edwards v. Arizona requires interrogation to cease once a suspect requests an attorney. It does not prohibit questions designed to accommodate the request. When in response to being asked his attorney's name a suspect gave a name and then stated that the person was not an attorney, the interrogating officer was not prevented from continuing interrogation. State v. Lagar, 190 Wis. 2d 423, 526 N.W.2d 836 (Ct. App. 1994).

A forced confession as a condition of probation does not violate the right against self-incrimination. The constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of those statements in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).

A suspect's reference to an attorney who had represented 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 rights to counsel and 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).

Once given, it is not necessary to repeat the Miranda warnings during an investigation of the same person for the same crime. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995).

While polygraph tests are inadmissible, post-polygraph interviews, found distinct both as to time and content from the examination that preceded them and the statements made therein, are admissible. State v. Johnson, 193 Wis. 2d 382, 535 Wis. 2d 441 (Ct. App. 1995).

See also State v. Greer, 2003 WI App 112, 265 Wis. 2d 463, 666 N.W.2d 518, 01-2591 and State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, 06-1954.

The privilege against self-incrimination extends beyond sentencing as long as a defendant has a real fear of further incrimination, as when an appeal is pending, before an appeal of right or plea withdrawal has expired, or when the defendant intends or is in the process of moving for sentence modification and shows a reasonable chance of success. State v. Marks, 194 Wis. 2d 79, 533 N.W.2d 730 (1995).

A defendant may selectively waive Miranda rights. Refusal to answer specific questions does not assert an overall right to to silence, if there is an unequivocal expression of selective invocation. State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Ct. App. 1995), 94-3004.

The analytical framework to apply in attenuation cases was set forth in Brown. 422 U.S. 603. Under Brown, the threshold requirement is the voluntariness of the challenged statements. The remaining factors bearing on admissibility are the temporal proximity of the illegal conduct and the confession, the presence of any intervening circumstances, and the purpose and flagrancy of the official misconduct. The burden of showing admissibility rests on the prosecution. State v. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. App. 1995), 95-0324.

The right to counsel under Miranda must be personally invoked by the suspect. Simply retaining counsel is not an unequivocal statement that the suspect wishes to deal with the police only in the presence of counsel. State v. Coerper, 199 Wis. 2d 216, 544 N.W.2d 423 (1996), 94-2791.

Once a suspect invokes the right to counsel, judicial inquiry into voluntariness is beside the point. Physical evidence derived from statements made in violation of the asserted right must be suppressed. However, evidence admitted in violation of this rule is subject to a harmless error analysis. State v. Harris, 199 Wis. 2d 227, 544 N.W.2d 545 (1996), 93-0730.

Prosecution comments on a defendant's claimed lack of memory and subsequent silence during a police interview conducted shortly after the incident when the defendant testified at length at trial on the same subject did not violate the right against self-incrimination when the comments were intended to impeach the defendant's testimony and not to ask the jury to infer guilt from the defendant's silence. State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), 95-1732.

A suspect's declaration that he did not wish to speak to a specific police officer is not an invocation of the right to remain silent. Police adoption of “good cop/bad cop" roles did not render an interrogation coercive and its results inadmissible. State v. Owen, 202 Wis. 2d 620, 551 N.W.2d 50 (Ct. App. 1996), 95-2631.

A suspect's silence, standing alone, is insufficient to unambiguously invoke the right to remain silent. State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996), 95-1671.

A suspect's statement to his mother during an arrest that she should call a lawyer was not an unequivocal statement that the suspect wished to deal with the police only in the presence of counsel. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123 (Ct. App. 1996), 95-2570.

The sufficiency of Miranda warnings given by the police in a foreign language and a subsequent waiver of those rights may be challenged. If timely notice of the challenge is given the state has the burden to produce evidence to show that the foreign language words reasonably conveyed the rights and that waiver was knowingly and intelligently made. State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996), 94-1200.

The privilege against self-incrimination may be replaced by a grant of immunity, which has the same scope and effect as the privilege itself. The immunity must protect against derivative use of compelled information that could lead to evidence that could be used in a criminal prosecution as well as information that could be used directly. State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), 94-2848.

A defendant's refusal to submit to a field sobriety test is not protected by the right against self-incrimination and is admissible as evidence. State v. Mallick, 210 Wis. 2d 427, 565 N.W.2d 245 (Ct. App. 1997), 96-3048.

Evidence of why a defendant did not testify has no bearing on guilt or innocence, is not relevant, and is inadmissible. State v. Heuer, 212 Wis. 2d 58, 567 N.W.2d 638 (Ct. App. 1997), 96-3594.

A CHIPS proceeding is not a criminal proceeding within the meaning of the 5th amendment. Miranda warnings are not required to be given to the CHIPS petition subject, even though the individual is in custody and subject to interrogation, in order for the subject's statements to be admissible. State v. Thomas J.W. 213 Wis. 2d 264, 570 N.W.2d 586 (Ct. App. 1997), 97-0506.

That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998), 96-2588.

Use of prearrest silence is barred if it is induced by governmental action. The right to silence was not implicated by a governmental employee defendant's refusal to meet with his supervisors to discuss employment issues. The prosecution was free to comment on that refusal. State v. Adams, 221 Wis. 2d 1, 584 N.W.2d 695 (Ct. App. 1998), 97-1926.

That a police officer intentionally withheld information that she had a warrant for the defendant's arrest and intended to arrest him at some point was irrelevant to whether the defendant was in custody when he made incriminating statements without having received Miranda warnings. State v. Mosher, 221 Wis. 2d 203, 584 N.W.2d 553 (Ct. App. 1998), 97-3535.

There are 4 requirements that together trigger the privilege against self-incrimination. The information sought must be: 1) incriminating; 2) personal to the defendant; 3) obtained by compulsion; and 4) testimonial or communicative in nature. Discovery of information not meeting these criteria is not barred. State v. Revels, 221 Wis. 2d 315, 585 N.W.2d 602 (Ct. App. 1998), 97-3148.

The application of the “fruit of the poisonous tree" doctrine to violations of Miranda that are not also violations of the 5th or 14th amendment is improper. A failure to administer Miranda warnings that was unaccompanied by any actual coercion is insufficient to result in an imputation of taint to subsequent statements. State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999), 97-0925.

The state must prove by a preponderance of the evidence that a confession was voluntarily made. Whether a confession is true or false cannot play a part in determining whether it was voluntary. A relevancy objection to questioning regarding the truthfulness of a confession was sufficient to preserve the issue for appeal. State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999), 96-3406.

If a statement secured by the police is voluntary, although in violation of Miranda, it may be used to impeach the defendant's conflicting testimony, although it is inadmissible in the prosecution's case-in-chief. Whether the statement is voluntary depends on whether it was compelled by coercive means or improper police practices, as indicated by the totality of the circumstances. State v. Franklin, 228 Wis. 2d 408, 596 N.W.2d 855 (Ct. App. 1999), 98-2420.

When a criminal defendant objects to testimony of his or her out-of-court statement as incomplete or attempts to cross-examine the witness on additional parts of the statement, the court must make a discretionary determination regarding whether the additional portions are required for completeness. Additional portions of the defendant's statement are not inadmissible solely because the defendant chooses not to testify. State v. Anderson, 230 Wis. 2d 121, 600 N.W.2d 913 (Ct. App. 1999), 98-3639.

Miranda warnings need not be given in the suspect's language of choice, but the warnings must be given in a language in which the suspect is proficient enough to to understand the concepts that are involved in the warnings. State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48, 99-1374.

Whether a suspect knowingly and intelligently waived Miranda rights is a separate inquiry from whether the statement was voluntary. State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48, 99-1374.

Whether an interrogation that resumed after an invocation of the right to remain silent violated the right against self-incrimination is analyzed based on whether: 1) the original interrogation was promptly terminated; 2) it was resumed after a significant amount of time; 3) Miranda warnings were given at the beginning of the subsequent interrogation; 4) a different officer resumed the questioning; and 5) the subsequent interrogation was limited to a different crime. These factors are not exclusively controlling, however, and should not be woodenly applied. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.

There is an exception to the application of Miranda for routine booking questions. The questions must be asked: 1) by an agency ordinarily involved in booking suspects; 2) during a true booking; and 3) shortly after the suspect is taken into custody. The test of whether questioning constitutes interrogation and is not covered by the exception if in light of all the circumstances the police should have known that the question was reasonably likely to elicit an incriminating response. State v. Bryant, 2001 WI App 554, 241 Wis. 2d 554, 624 N.W.2d 865, 00-0686.

When the defendant's plea put his mental competency at issue and his attorney consented to 2 competency examinations and had actual notice of them, the use of those reports during sentencing did not violate the right against self-incrimination. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586.

If the defendant opens the door to government questioning by the defendant's own remarks about post-arrest behavior or by defense counsel's questioning, the state may use the defendant's silence for the limited purpose of impeaching the defendant's testimony. When defense counsel asked leading questions of the officer who conducted a post-Miranda interview of the defendant that implied the defendant had actively denied the crime charged, the state was permitted to clarify that defendant had not answered all questions asked of him. State v. Nielsen, 2001 WI App 192, 247 Wis. 2d 466, 634 N.W.2d 325, 00-3224.

A defendant who offers expert testimony to show the lack of a psychological profile of a sex offender puts his or her mental status at issue and waives the right against self-incrimination. A defendant who intends to present such evidence may be ordered to submit to a psychiatric evaluation by a state-selected expert. If after an exam by the state's expert the defendant foregoes the presentation of the testimony, the state is barred from introducing any evidence derived from the state-sponsored exam on the issue of guilt. State v. Davis, 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922, 00-2916.

A defendant can only be found not guilty by reason of mental disease or defect after admitting to the criminal conduct or being found guilty. While the decision made in the responsibility phase is not criminal in nature, the mental responsibility phase remains a part of the criminal case in general and the defendant is entitled to invoke the 5th amendment at the mental responsibility phase without penalty. State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916, 01-0851.

A suspect who is detained during the execution of a search warrant has not suffered a restraint on freedom of movement of the degree associated with a formal arrest and is not in custody for purposes of Miranda. Handcuffing after questioning cannot operate retroactively to create custody for purposes of Miranda as a reasonable person's perception at the time of questioning cannot be affected by later police activity. State v. Goetz, 2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d 386, 01-0954.

See also State v. Kilgore, 2016 WI App 47, 370 Wis. 2d 198, 882 N.W.2d 493, 15-0997.

If a suspect makes an ambiguous or equivocal reference to counsel, the police need neither cease questioning nor clarify the suspect's desire for counsel, although the latter will often be good police practice. State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142, 00-1680.

The standard for whether a person is in custody so as to require Miranda warnings is whether a reasonable innocent person in the situation would believe he or she was in custody. Stated differently, the standard is the objective one of the reasonable person, not the subjective one of the suspect in the particular case, who may assume he or she is being arrested because he or she knows there are grounds for an arrest. State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, 01-2148.

The right against self-incrimination survives conviction and remains active while a direct appeal is pending. A probationer may be compelled to answer self-incriminating questions from a probation or parole agent, or suffer revocation for refusing to do so, only if there is a grant of immunity rendering the testimony inadmissible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI App 127, 257 Wis. 2d 40, 654 N.W.2d 438, 00-1635.

The clear rule governing the 6th amendment right to counsel is that once adversarial judicial proceedings have commenced, the accused has a right to legal representation when subject to state interrogation. At the onset of post-charge police interrogations, the accused must be made aware that the adversarial process has begun and that he or she can request the assistance of counsel at the interrogations. State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48, 01-2907.

Miranda warnings need only be administered to individuals who are subjected to custodial interrogation. An officer's words and conduct in responding to the defendant's questions regarding the evidence against the defendant was not interrogation. State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503, 02-0147.

Police conduct does not need to be egregious or outrageous in order to be coercive. Subtle pressures are considered to be coercive if they exceed the defendant's ability to resist. Pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances. State v. Hoppe, 2003 WI 43, 261 Wis. 2d 294, 661 N.W.2d 407, 00-1886.

A Miranda-Goodchild hearing to determine voluntariness of confessions is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02-0153.

Police misrepresentation is not so inherently coercive that it renders a statement inadmissible; rather, it is simply one factor to consider out of the totality of the circumstances. State v. Triggs, 2003 WI App 91, 264 Wis. 2d 861, 663 N.W.2d 396, 02-0447.

Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436.

That the defendant was handcuffed to a ring on a wall for all breaks between interrogations was not coercive in and of itself. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 02-2599.

Relay questioning implies that different interrogators relieve each other in an effort to put unremitting pressure on a suspect. When over a 12-hour period there were breaks during and between 3 interrogation sessions with 3 interrogation teams and at least one of the changes in interrogation teams was due to a shift change, there was no impermissible relay questioning or excessively long isolation or interrogation. State v. Agnello, 2004 WI App 2, 269 Wis. 2d 260, 674 N.W.2d 594, 02-2599.

A convicted defendant was not entitled to Miranda warnings prior to a court-ordered presentence investigation when the defendant's admission to the crime given in the investigation after denying the crime at trial was later used in a perjury prosecution against the defendant when the interview was routine and was not conducted while the defendant's jeopardy was still in doubt. State v. Jimmie R.R. 2004 WI App 168, 276 Wis. 2d 447, 688 N.W.2d 1, 02-1771.

Neither the text nor the spirit of the 5th amendment confers a privilege to lie. Proper invocation of the privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely. No matter how illusory the right to silence may seem to the defendant, that does not exert a form of pressure that exonerates an otherwise unlawful lie. State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315, 03-1781.

A prosecuting attorney ordinarily may not comment on an accused's decision not to testify. There are circumstances, however, when an accused opens the door to a measured response by the prosecuting attorney. It may be proper for a prosecutor to comment on an accused's failure to testify after the accused's account of events are given during opening statements but the accused later refuses to testify. State v. Moeck, 2005 WI 57, 280 Wis. 2d 277, 695 N.W.2d 783, 03-0002.

If a defendant takes the stand in order to overcome the impact of confessions illegally obtained and hence improperly introduced, his or her testimony is tainted by the same illegality that rendered the confessions themselves inadmissible. The state has the burden to prove beyond a reasonable doubt that its use of the unlawfully obtained statements did not induce the defendant's testimony. Because the ultimate conclusion as to whether the defendant was impelled to testify is a question of constitutional fact, the circuit court may not hold an evidentiary hearing when making the determination. The hearing is a paper review during which a circuit court makes findings of historical fact based on the record. State v. Anson, 2004 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776, 03-1444.

All custodial interrogation of juveniles must be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423.

Failure to call a juvenile suspect's parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel will be considered strong evidence that coercive tactics were used to elicit the incriminating statements, but the call is not mandatory. State v. Jerrell C.J. 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, 02-3423.

Despite Patane, 542 U.S. 630, evidence obtained as a direct result of an intentional violation of Miranda is inadmissible under Article I, s. 8, of the Wisconsin Constitution. State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, 00-2590.

When a request to remain silent is ambiguous, police need not endeavor to clarify the suspect's request. A suspect's statement, “I don't know if I should speak to you," was insufficient to unambiguously invoke the right to remain silent. State v. Hassel, 2005 WI App 80, 280 Wis. 2d 637, 696 N.W.2d 270, 04-1824.

That a lawyer who, while present during questioning, instructed the interrogating officer not to read the Miranda warnings and told his client that if the warnings were not given, whatever he said could not be used in court did not relieve the officer from the duty to read the warnings. State v. Rockette, 2005 WI App 205, 287 Wis. 2d 257, 704 N.W.2d 382, 04-2731.

A two-pronged subjective/objective test is applicable for determining whether, as a matter of law, a police officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression. In order for statements to be considered sufficiently compelled such that immunity attaches, a police officer must subjectively believe he or she will be fired for asserting the privilege against self-incrimination, and that belief must be objectively reasonable. State v. Brockdorf, 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 657, 04-1519.

See also State v. McPike, 2009 WI App 166, 322 Wis. 2d 561, 776 N.W.2d 617, 08-3037.

When a defendant seeks to exclude prior statements based upon his or her 5th amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90, 03-2068.

When defense counsel prompted jurors to speculate that the defendant's alleged cohorts did not testify because they would not corroborate the accusations of an undercover officer, the prosecutor fairly suggested that the pair had the right not to testify in accordance with their 5th amendment right against self-incrimination. It is not improper for a prosecutor to note that the defendant has the same subpoena powers as the government, particularly when done in response to a defendant's argument about the prosecutor's failure to call a specific witness. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05-1511.

Under the totality of the circumstances of this case, that it was not necessary for a prosecutor interviewing the defendant to formally re-advise the defendant of his Miranda rights when it was undisputed that the defendant had been advised of his rights the day before, and he clearly indicated to the prosecutor in her office that he remembered those rights and understood those rights, and therefore the statement the defendant made to the prosecutor was admissible. State v. Backstrom, 2006 WI App 114, 293 Wis. 2d 809, 718 N.W.2d 246, 05-1270.

Pre-custody invocation of the right to counsel was not an invocation of the right to counsel under Miranda and therefore the defendant's ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation did not need to be suppressed. State v. Kramer, 2006 WI App 133, 294 Wis. 2d 780, 720 N.W.2d 459, 05-0105.

Pre-Miranda silence may be used: 1) to impeach a defendant when he or she testifies; or 2) substantively to suggest guilt. Once the defendant testifies, his or her pre-Miranda silence may be used by the prosecutor. State v. Mayo, 2007 WI 78, 301 Wis. 2d 642, 734 N.W.2d 115, 04-1592.

The corroboration rule is a common law rule that requires that a conviction of a crime may not be grounded on the admission or confessions of the accused alone. There must be corroboration of a significant fact in order to produce a confidence in the truth of the confession. The significant fact need not independently establish a specific element of a crime. It is also unnecessary that the significant fact be particular enough to independently link the defendant to the crime. State v. Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, 05-0767.

Once the defendant initiated the topic of why he chose to remain silent and his explanation put him in a better position than had he not mentioned the reason, it was not then fundamentally unfair for the state on cross-examination to attack the credibility of that explanation. The suggestion of fabrication in cross-examination was not fundamentally unfair and not the equivalent of asking the jury to infer guilt from the defendant's silence. State v. Cockrell, 2007 WI App 217, 306 Wis. 2d 52, 741 N.W.2d 267, 05-2672.

Under Ross, a suspect's claimed unequivocal invocation of the right to remain silent must be patent. The Ross rule allows no room for an assertion that permits even the possibility of reasonable competing inferences. There is no invocation of the right to remain silent if any reasonable competing inference can be drawn. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06-2871.

See also State v. Cummings, 2014 WI 88, 357 Wis. 2d 1, 850 N.W.2d 915, 11-1653.

The fact that an interrogating officer was at times confrontational and raised his voice was not improper police procedure and did not, by itself, establish police coercion, nor did the length of the defendant's custody nor her two-hour interrogation qualify as coercive or improper police conduct. As such, it was improper to consider the defendant's personal characteristics because consideration of personal characteristics is triggered only if there exists coercive police conduct against which to balance them. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, 06-2871.

Factors to consider in determining if a suspect's freedom to act is restricted to a degree associated with formal arrest so that Miranda warnings are required, include the suspect's freedom to leave, the purpose, place, and length of the interrogation, and the degree of restraint. Degree of restraint includes, the manner in which the suspect is restrained, the number of officers involved and whether: 1) the suspect is handcuffed; 2) a weapon is drawn; 3) a frisk is performed; 4) the suspect is moved to another location; and 5) questioning took place in a police vehicle. State v. Torkelson, 2007 WI App 272, 306 Wis. 2d 673, 743 N.W.2d 511, 07-0636.

Under either a standard requiring only that a suspect be in custody when the request for counsel is made or a standard requiring that interrogation be imminent or impending when the request for counsel is made, the defendant effectively invoked his Miranda right to counsel when he requested counsel while in custody and before law enforcement officers interrogated him. (The court divided on the question whether to adopt a temporal standard to determine whether a suspect in custody has effectively invoked his or her 5th amendment Miranda right to counsel.) State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087.

Under Edwards v. Arizona, after the defendant effectively invokes his or her Miranda right to counsel, police interrogation, unless initiated by the defendant, must cease. Interrogation refers not only to express questioning, but also to the functional equivalent of express questioning, which means any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response. Interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087.

In order to establish that a suspect has validly waived the Miranda right to counsel after effectively invoking it, the state has the burden to show: 1) as a preliminary matter, that the suspect initiated further communication, exchanges, or conversations with the police; and 2) the suspect waived the right to counsel voluntarily, knowingly, and intelligently. Whether a suspect “initiates" communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect's beginning an exchange with law enforcement, although the lapse of time is a factor to consider. State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48, 05-3087.

When the defendant asserts that he or she previously invoked his or her right to counsel as a basis for invalidating a later waiver, both the burden of going forward with a prima facie case and the burden of persuasion are on the state to show a prior waiver of the 5th amendment/Miranda right to counsel when the defendant has timely raised the issue. State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711, 07-2472.

As a criminal defendant's constitutional right to testify on his or her behalf is a fundamental right, it follows that the constitutionally articulated corollary to the right to testify, the right not to testify, is fundamental as well. Because the right not to testify is fundamental, a defendant's waiver of this right must be knowing and voluntary. The circuit court was not obligated to conduct a colloquy during the trial to ensure the defendant waived that right. Nevertheless, the court was required, once the issue was raised in the postconviction motion, to determine whether the defendant knowingly and voluntarily waived the right not to testify. State v. Jaramillo, 2009 WI App 39, 316 Wis. 2d 538, 765 N.W.2d 855, 08-1785.

Without custody, there is no Miranda violation. Although police were present and asked some questions during what the state conceded was an interrogation from which the defendant high school student was not free to leave, when the defendant was not placed in a police vehicle during questioning and the investigation was being conducted primarily by a school official, the defendant, “if in custody at all, was in custody of the school and was not being detained by the police at that time." State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08-1310.

A request to speak with family members triggers no constitutional rights in the manner that a request to speak with counsel does. The police had no obligation to inform a defendant that her husband was waiting outside. The defendant's challenge of her Miranda waiver and challenge to the voluntariness of her statements subsequent to that waiver because of detectives' evasiveness in response to questions regarding the status and location of her husband, who was actually waiting outside the interrogation room, did not go to the validity of her waiver of rights. It was the defendant's responsibility, not her husband's, to determine whether she wanted to exercise her 5th amendment rights. State v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236, 07-0079.

Where the dictates of Miranda are otherwise followed, the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom he or she has a constitutional right to speak. Preventing others from contacting the suspect has no impact on the suspect's ability to waive his or her rights or on his or her choice to speak voluntarily with the police. State v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236, 07-0079.

When a defendant seeks to introduce evidence of prior specific instances of violence within the defendant's knowledge at the time of the incident in support of a self-defense claim, an order that the defendant disclose prior to trial any specific acts that the defendant knew about at the time of the incident and that the defendant intends to offer as evidence so that admissibility determinations can be made prior to trial does not violate the protection against compelled self-incrimination. State v. McClaren, 2009 WI 69, 318 Wis. 2d 739, 767 N.W.2d 550, 07-2382.

An opposing party may object if a person who originally claimed the privilege against self-incrimination in a civil action seeks to withdraw the privilege and testify. Courts should further the goal of permitting as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege. Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side. The general rule is that if the claimant makes a timely request to the court, the court should explore all possible measures to select that means that strikes a fair balance and accommodates both parties. S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08-1647.

When a person who asserted the privilege against self-incrimination in a civil proceeding seeks to withdraw the privilege and testify, one of the most important factors in the balancing process is the timing of the withdrawal. Timing can mean everything when determining whether the privilege was invoked primarily to abuse, manipulate, or gain an unfair strategic advantage over opposing parties. The trial court is in a far better position than an appellate court to determine whether prejudice has evolved as a consequence of the belated withdrawal of the invocation. It is eminently fair and reasonable that the trial court have the responsibility to perform the balancing test and make the ultimate decision of whether withdrawal is allowed in the exercise of its discretion. S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19, 08-1647.

All custodial interrogation of juveniles must be electronically recorded when feasible under Jerrell C.J. 2005 WI 105. “Feasible" in this context is not a synonym for “effortless." Although the police officer may not have been capable of recording the initial conversation while in a squad car, nothing prevented the officer from waiting a short time until recording equipment was available. State v. Dionicia M. 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236, 09-3109.

Jerrell C.J. 2005 WI 105, does not allow the admission of partially recorded interrogations of juveniles. A major purpose of the Jerrell C.J. rule is to avoid involuntary, coerced confessions by documenting the circumstances in which a juvenile has been persuaded to give a statement. This purpose is not served by allowing an officer to turn on the recorder only after a juvenile has been convinced to confess. State v. Dionicia M. 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236, 09-3109.

If a probationer refuses to incriminate himself or herself as required by a condition of supervision, he or she cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, his or her probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

When both the circuit court and the defendant's probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

A criminal defendant's constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and intelligently. Circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is so waiving this right although such a colloquy is recommended as the better practice. Once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived the right. State v. Denson, 2011 WI 70 335 Wis. 2d 681, 799 N.W.2d 831, 09-0694.

The state cannot compel a probationer to provide incriminating testimonial evidence, which may be used against him in the noncriminal revocation proceeding, and then use that information again, directly or indirectly, to prosecute the probationer criminally. Compelled statements may not be used in a criminal proceeding, even if the revocation proceeding occurs after the criminal proceeding. State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769, 09-2907.

There is a “general on-the-scene" exception to the requirement that police questioning be preceded by Miranda warnings. The “on-the-scene" exception applies only when the person being questioned is not in custody or when law enforcement urgently needs information to attend to a potential emergency. State v. Martin, 2012 WI 96, 343 Wis. 2d 278, 816 N.W.2d 270, 10-0505.

There is no authority for the proposition that an incriminating statement offered by a suspect who has not been Mirandized during the course of a custodial interrogation is admissible simply because that particular statement, viewed in complete isolation, appears “voluntary." It is of no moment to a Miranda analysis that an admission, viewed in a vacuum, appears to have been made voluntarily. State v. Martin, 2012 WI 96, 343 Wis. 2d 278, 816 N.W.2d 270, 10-0505.

The defendant withdrew his request for an attorney by voluntarily initiating a request to resume questioning after validly invoking his right to counsel, cancelling his invocation of that right by initiating the dialogue in which he asked to continue the interrogation. That before the interrogator returned, the suspect's attorney on a prior charge arrived at the police station and asked to see the suspect did not change the court's analysis. State v. Stevens, 2012 WI 97, 343 Wis. 2d 157, 822 N.W.2d 79, 09-2057.

The constitutional prohibition against compelled self-incrimination applies only to testimonial or communicative evidence, not to physical tests. The privilege does not bar compulsion to submit to physical testing such as fingerprinting, photographing or measuring, writing or speaking for identification, assuming a stance, or making a particular gesture. State v. Schmidt, 2012 WI App 137, 345 Wis. 2d 326, 825 N.W.2d 521, 12-0064.

A defendant's statements are voluntary if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the state exceeded the defendant's ability to resist. The determination is made in light of all of the facts surrounding the interview and decided under the totality of the circumstances, balancing the defendant's relevant personal characteristics, including the defendant's age, education and intelligence, physical and emotional condition, and prior experience with law enforcement, with the pressures imposed by the police. State v. Lemoine, 2013 WI 5, 345 Wis. 2d 171, 827 N.W.2d 589, 10-2597.

Misrepresentations by police do not necessarily make a confession involuntary; rather, they are a relevant factor in the totality of the circumstances. In this case, misstatements made by the police were not themselves a constitutional violation when the defendant was not in custody. Because the comments were technically a misrepresentation, they weighed toward a finding of involuntariness, but in the context of the whole interview, they did not suffice to make the defendant's statements involuntary. State v. Lemoine, 2013 WI 5, 345 Wis. 2d 171, 827 N.W.2d 589, 10-2597.

The court declined to adopt the argument that Miranda applies when custody is “imminent." While Hambly held that Miranda was properly invoked before a suspect was interrogated when the suspect had been formally arrested and asked for an attorney, “imminent interrogation" and “imminent custody" are not equally coercive. State v. Herr, 2013 WI App 37, 346 Wis. 2d 603, 828 N.W.2d 896, 12-0935.

A defendant's decision to allow the use of compelled testimony is the same thing as a decision to take the stand. While a personal colloquy must be made if the defense announces that the defendant will not take the stand in his or her own defense, no such personal colloquy is mandated when a defendant wants to take the stand. Failing to conduct a personal colloquy concerning the defendant's desire to waive immunity was not, in itself, an error. State v. Libecki, 2013 WI App 49, 347 Wis. 2d 511, 830 N.W.2d 271, 12-0663.

Miranda does not require suppression of voluntary statements made by a person in custody unless those statements are elicited by the functional equivalent of interrogation. State v. Douglas, 2013 WI App 52, 347 Wis. 2d 407, 830 N.W.2d 126, 12-1275.

When an officer watching a monitor of a defendant alone in an interview room witnessed the defendant removing his shoelaces and worried, correctly, that the defendant was going to strangle himself, the statements the defendant made to the rescuing officer in that situation were not custodial interrogation because they fell within the “private safety" exception to Miranda. This exception provides that if questioning occurs during an emergency involving the possibility of saving human life, and rescue is the primary motive of the questioner, then no violation of Miranda has occurred. State v. Uhlenberg, 2013 WI App 59, 348 Wis. 2d 44, 831 N.W.2d 799, 12-0827.

Under Edwards, 451 U.S. 477 (1981), after a suspect validly invokes the right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect “initiates further communication, exchanges, or conversations with the police." However, under Shatzer, 559 U.S. 98, the Edwards presumption ends when the suspect has been outside police custody for 14 days. The holding of Shatzer is applicable in Wisconsin cases. State v. Edler, 2013 WI 73, 350 Wis. 2d 1, 833 N.W.2d 564, 11-2916.

The test for whether a subject is in custody for purposes of triggering Miranda warnings is an objective one that asks whether a reasonable person in the subject's position would have considered himself or herself to be in custody as set forth in Torkelson. A government employee who is not a law enforcement officer may still violate Miranda by engaging in questioning designed to elicit incriminating information for law enforcement purposes. The first issue in this appeal was whether the defendant was subjected to custodial interrogation when she was questioned by correctional officers. State v. Ezell, 2014 WI App 101, 357 Wis. 2d 675, 855 N.W.2d 453, 13-2178.

In the absence of actual coercion, the U.S. Constitution does not require suppression of physical evidence obtained as a consequence of unwarned interrogation. The Wisconsin Constitution does require suppression of physical evidence obtained “as a direct result of an intentional violation of Miranda," but in the absence of coercion or intentional violation of the suspect's rights, there is no basis for suppressing physical evidence. State v. Ezell, 2014 WI App 101, 357 Wis. 2d 675, 855 N.W.2d 453, 13-2178.

When a defendant was compelled to display his platinum teeth to the jury, that display was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant's mind. Teeth do not do so. The teeth were material to identification, which was a matter at issue. State v. Ramon G. Gonzalez, 2014 WI 124, 359 Wis. 2d 1, 856 N.W.2d 580, 12-1818.

The 5th amendment privilege against self-incrimination continues after a plea and through sentencing. Accordingly, a circuit court employs an improper factor in sentencing if it actually relies on compelled statements made to a probation agent. The defendant has the burden to prove by clear and convincing evidence that the circuit court actually relied on an improper factor in imposing sentence. State v. Alexander, 2015 WI 6, 360 Wis. 2d 292, 858 N.W.2d 662, 13-0843.

Although the defendant who was only 15 years old when questioned, he had more experience with police and law enforcement than most people his age and demonstrated that he was able not only to develop a story about his non-involvement in the shooting but also to adapt the details of that story to information possessed by the police. That ability to concoct and modify a story on the fly suggested a level of sophistication and adaptability perhaps not accounted for by a standard IQ test. Thus, his below-average intellect did not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, disposed of the inquiry into constitutional voluntariness. Rather, it had to be be taken into consideration and weighed against the conduct of the police. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827, 13-0127.

A probationer is not required to answer questions unless he or she was offered immunity as described in Evans, 77 Wis. 2d 225. The Evans court stated: “Had sufficient explanation been given to the defendant with regard to the type of immunity herein granted, then refusal to cooperate would be grounds for revocation." The immunity described in Evans is both use and derivative use immunity. With use immunity, particular information provided by an individual cannot be used against that individual in criminal proceedings, whereas with derivative use immunity, any evidence subsequently discovered by authorities through direct or indirect utilization of the provided information can not be used against the individual in criminal proceedings. Douglas v. Hayes, 2015 WI App 87, 365 Wis. 2d 497, 872 N.W.2d 152, 14-2977.

The issue in this appeal was not whether the probation agent explained details of derivative use immunity to the defendant, but whether she explained at all that the defendant was afforded use and derivative use immunity. The statement “ I have also been advised that none of this information can be used against me in criminal proceedings" would tell a probationer that none of the particular information he or she was providing the agent at that time could be used against the probationer in criminal court, but it would not clearly inform a probationer that other information derived from the information directly provided by the probationer also could not be used against him or her in criminal court. Douglas v. Hayes, 2015 WI App 87, 365 Wis. 2d 497, 872 N.W.2d 152, 14-2977.

Once a compelled, incriminating, testimonial statement has been obtained, the state bears the burden of demonstrating that the evidence the state wishes to use is derived from a legitimate source wholly independent of the compelled testimony. It is insufficient to meet the state's burden by merely denying that an immunized statement was used, even if that denial is made in good faith. Rather, the government must document or account for each step of the investigative chain by which the evidence was obtained from a legitimate source wholly independent of the compelled statement. State v. Quigley, 2016 WI App 53, 370 Wis. 2d 702, 883 N.W.2d 139, 15-0681.

Under Nix, 467 U.S. 431, the state need not prove an absence of bad faith for the inevitable discovery exception to the exclusionary rule to apply. State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422, 14-2238.

Requiring the state in all inevitable discovery doctrine cases to prove active pursuit of an alternative line of investigation at the time of a constitutional violation risks exclusion of evidence that the state might demonstrate that it inevitably would have discovered. Therefore, the factors in Schwegler, 170 Wis. 2d 487, Lopez, 207 Wis. 2d 413, and Avery, 2011 WI App 124, should be regarded as important indicia of inevitability rather than indispensable elements of proof. Instead, the relevant inquiry is whether the prosecution has met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed. State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422, 14-2238.

Custodial interrogation can take the form of either express questioning or its functional equivalent. Asking a defendant if he wanted to give a statement, although designed to obtain a response, did not seek the statement itself. The response to such a question is either “yes" or “no," and neither would have any testimonial significance whatsoever. The question did not constitute express questioning or its functional equivalent, so no Miranda warnings were necessary before the question was asked. State v. Harris, 2017 WI 31, 374 Wis. 2d 271, 892 N.W.2d 663, 14-1767.

Upon his or her lawful arrest for drunk driving, a defendant has no constitutional or statutory right to refuse to take a breathalyzer test and the state can comment at trial on the defendant's improper refusal to take the test. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452.

Statements made after Miranda warnings but before contact with requested counsel are admissible for impeachment purposes. Oregon v. Hass, 420 U.S. 714.

The defendant's confession to a serious crime did not transform a noncustodial interview into a custodial interrogation for purposes of Miranda, 384 U.S. 436 (1966). Not every confession obtained absent Miranda warnings is inadmissible. The critical inquiry is not whether the interview took place in a coercive or police dominated environment, but rather whether the defendant's freedom to depart was restricted in any way. In answering that question, the court looks at the totality of the circumstances while keeping in mind that the determination is based on the objective circumstances of the interrogation, not on the subjective views harbored by the interrogating officers or the person being questioned. Although, in this case, police officers clearly suspected the defendant and had enough evidence to arrest the defendant when he confessed, that by itself did not restrain the defendant's freedom of movement. State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, 15-2506.

A witness at a John Doe proceeding is not subject to custodial interrogation, and therefore Miranda warnings are not required. State. v. Hanson, 2019 WI 63, 387 Wis. 2d 233, 928 N.W.2d 607, 16-2058.

In the context of whether an incarcerated individual is determined to be in custody, article I, section 8, of the Wisconsin Constitution does not provide greater protection of the right against compelled self-incrimination than what is afforded to individuals under the 5th amendment. State v. Halverson, 2019 WI App 66, 389 Wis. 2d 554, 937 N.W.2d 74, 18-0858.

A witness who refuses to testify on self-incrimination grounds after the judge grants immunity may summarily be found in criminal contempt. United States v. Wilson, 421 U.S. 309.

The accused's silence during police interrogation lacked probative value for impeachment of an alibi at trial. United States v. Hale, 422 U.S. 171. See: Doyle v. Ohio, 426 U.S. 610.

The use of the defendant's income tax returns to prove a gambling charge did not deny self-incrimination protection. Garner v. United States, 424 U.S. 648.

A voluntary interview at a police station was not “custodial interrogation." Oregon v. Mathiason, 429 U.S. 492.

An instruction to the jury, over defense objection, not to draw an adverse inference from the defendant's failure to testify did not violate the right against self-incrimination. Lakeside v. Oregon, 435 U.S. 333 (1978).

While statements made by the defendant in circumstances violating Miranda protections are admissible for impeachment if their trustworthiness satisfies legal standards, any criminal trial use against the defendant of involuntary statements is a denial of due process. Mincey v. Arizona, 437 U.S. 385 (1978).

Testimony before a grand jury under a grant of immunity could not constitutionally be used for impeachment purposes in a later criminal trial. New Jersey v. Portash, 440 U.S. 450 (1979).

An explicit statement of waiver is not necessary to support a finding that the defendant waived Miranda rights. North Carolina v. Butler, 441 U.S. 369 (1979).

A voluntary confession obtained during a custodial interrogation following an illegal arrest was inadmissible. Dunaway v. New York, 442 U.S. 200 (1979).

A witness compelled by a grant of immunity to testify despite a claim of the privilege against self-incrimination was property prosecuted for perjured testimony. United States v. Apfelbaum, 445 U.S. 115 (1980).

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. Rhode Island v. Innis, 446 U.S. 291 (1980).

The right against self-incrimination is not violated when the defendant who testifies in his own defense is impeached by use of the defendant's prearrest silence. Jenkins v. Anderson, 447 U.S. 231 (1980).

Upon the defendant's request, the judge must instruct the jury not to infer guilt from the defendant's failure to testify. Carter v. Kentucky, 450 U.S. 288 (1981).

An accused who requests counsel may not be interrogated without counsel unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477 (1981).

When, for impeachment purposes, the prosecution cross-examined the defendant as to postarrest silence before the defendant received Miranda warnings, due process was not violated. Fletcher v. Weir, 455 U.S. 603 (1982).

When the prosecutor improperly commented to the jury that the defendants did not challenge certain accusations against them, the court erred in reversing the conviction on appeal without determining whether the error was harmless. U.S. v. Hasting, 461 U.S. 499 (1983).

A probationer under an obligation to appear before a probation officer and answer questions truthfully was not entitled to Miranda warnings. A confession was, therefore, admissible. Minnesota v. Murphy, 465 U.S. 420 (1984).

The court adopts an “inevitable discovery" exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431 (1984).

The court adopts a “public safety" exception to the Miranda rule. When the accused, known to have had gun, did not have a gun at time of arrest in a supermarket, the officer properly asked where the gun was before giving Miranda warnings. New York v. Quarles, 467 U.S. 649 (1984).

A person subjected to custodial interrogation is entitled to Miranda warnings regardless of the nature or severity of the offense. Berkemer v. McCarty, 468 U.S. 420 (1984).

A suspect who has once responded to unwarned yet uncoercive questioning may later waive his or her rights and confess after Miranda warnings are given. Oregon v. Elstad, 470 U.S. 298 (1985).

The prosecutor's use of the defendant's postarrest, post-Miranda-warnings silence as evidence of the defendant's sanity violated the due process clause. Wainwright v. Greenfield, 474 U.S. 284 (1986).

Police failure to inform the defendant that a third party had retained counsel did not invalidate the defendant's waiver of Miranda rights. Moran v. Burbine, 475 U.S. 412 (1986).

Exclusion of testimony about the circumstances of a confession deprived the defendant of due process and other fundamental constitutional rights. Crane v. Kentucky, 476 U.S. 683 (1986).

When no evidence is present suggesting that police officers sent the suspect's wife in to see him with the hope of obtaining incriminating information, no “interrogation" was undertaken even though a detective was present and tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987).

Police may not interrogate a suspect held in custody after the suspect has previously requested counsel, even when the interrogation relates to an offense different from that for which the suspect requested counsel. Arizona v. Roberson, 486 U.S. 675 (1988).

The custodian of corporate records may not resist a subpoena for records on self-incrimination grounds, regardless of the size of the corporate entity. Braswell v. United States, 487 U.S. 99 (1988).

The self-incrimination privilege does not support a refusal to comply with a juvenile court's order to produce a child. Baltimore Soc. Serv. v. Bouknight, 493 U.S. 474, 107 L. Ed. 2d 992 (1990).

An undercover officer is not required to give Miranda warnings to a suspect before surreptitious custodial interrogation. Illinois v. Perkins, 496 U.S. 292, 110 L. Ed. 2d 243 (1990).

When counsel is requested, interrogation must cease and may not be reinstated without counsel present even though the accused previously did have an opportunity to consult an attorney. Minnich v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489 (1990).

Admission of a coerced confession may be found to be “harmless error." Arizona v. Fulminate, 499 U.S. 279, 113 L. Ed. 2d 302 (1991).

The 6th amendment right to counsel is offense specific. An accused's invocation of the 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, 115 L. Ed. 2d 158 (1991).

A police officer's subjective and undisclosed view of whether a person being interrogated is a suspect is irrelevant to determining whether the person is in custody and entitled to Miranda warnings. Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994).

Officers need not cease questioning a suspect subject to custodial interrogation when the suspect makes an ambiguous reference to an attorney. Although often good practice, it is not necessary that the officer ask clarifying questions. Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362 (1994).

Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts. Miranda may not be overruled by act of Congress. Dickerson v. U.S. 530 U.S. 428, 147 L. Ed. 2d 405 (2000).

A witness who denies all culpability has a 5th amendment privilege against self-incrimination. Ohio v. Reiner, 532 U.S. 67, 149 L. Ed. 2d 205 (2001).

A prison rehabilitation program that required inmates convicted of sexual assault to admit having committed the crime or have prison privileges reduced did not violate the right against self-incrimination although immunity was not granted and prosecution of previously uncharged crimes that might be revealed by the required admissions was possible. McKune v. Lile, 536 U.S. 24, 153 L. Ed. 2d 47 (2002).

It is not until statements compelled by police interrogations are used use in a criminal case that a violation of the 5th amendment self-incrimination clause occurs. When a confession was coerced, but no criminal case was ever brought there could be no violation. Chavez v. Martinez, 538 U.S. 760, 155 L. Ed. 2d 984, 123 S. Ct. 1994 (2003).

When the defendant's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him, application of a criminal statute requiring disclosure of the person's name when the police officer reasonably suspected the person had committed a crime did not violate the protection against self-incrimination. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed 2d 292 (2004).

A custodial interrogation in which no Miranda warnings are given until the interrogation has produced a confession in which the interrogating officer follows the confession with Miranda warnings and then leads the suspect to cover the same ground a second time violates Miranda and the repeated statement is inadmissible. Missouri v. Seibert, 542 U.S. 177, 124 S. Ct. 2601, 159 L. Ed 2d 292 (2004).

A failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements. Miranda protects against violations of the self-Incrimination clause, which is not implicated by the introduction at trial of physical evidence resulting from voluntary statements. United States v. Patane, 542 U.S. 600, 124 S. Ct. 2620, 159 L. Ed 2d 667 (2004).

The 4 warnings Miranda requires are invariable, but the U.S. Supreme Court has not dictated the words in which the essential information must be conveyed. The inquiry is simply whether the warnings reasonably convey to a suspect his or her rights as required by Miranda. Florida v. Powell, 559 U.S. 50, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010).

Under Edwards, 451 U.S. 477, a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect's right to have counsel present, but not at the time of subsequent interrogation attempts if the suspect initially requested the presence of counsel. However, confessions obtained after a 2-week break in custody and a waiver of Miranda rights are most unlikely to be compelled, and hence are unreasonably excluded. Lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda and is not considered continued custody for determining whether custodial interrogation ended. Maryland v. Shatzer, 559 U.S. 50, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010).

An invocation of the right to remain silent must be unambiguous and unequivocal. The defendant did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. He did neither, so he did not invoke his right to remain silent. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010).

The age of a child subjected to police questioning is relevant to the custody analysis of Miranda. So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test, but a child's age will not be determinative, or even a significant, factor in every case. J. D. B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011).

A prisoner is not always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison. Imprisonment, questioning in private, and questioning about events in the outside world are not necessarily enough to create a custodial situation for Miranda purposes. “Custody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Howes v. Fields, 565 U.S. 499, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012).

No fifth amendment violation was found in this case. Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered the questions of a police officer who was investigating a murder then balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013).

Collateral estoppel barred the state from introducing evidence of a van theft as an overt act in a conspiracy charge when the accuseds had earlier been acquitted in the van theft trial. The accused's silence prior to receiving Miranda warnings was properly used to impeach the accused. The prosecution's reference to post- Miranda silence was harmless error. Feela v. Israel, 727 F.2d 151 (1984).

Assertion of the constitutional privilege against self-incrimination in federal civil litigation: Rights and remedies. Daskal, 64 MLR 243 (1980).

Privilege against self-incrimination-truthful statements may be used in a perjury prosecution. 64 MLR 744 (1981).

Adding (or Reaffirming) a Temporal Element to the Miranda Warning “You Have a Right to an Attorney. Bazelon. 90 MLR 1009 (2007).

The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.

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