Constitution and Constitutional Issues

Updated 2/2/10

Confrontation Construction Double Jeopardy Due Process Equal Protection
Ex Post Facto First Amendment Public Trial Self-Incrimination Separation of Powers


(See also Evidence -- Witnesses; Habeas -- Confrontation; and Evidence -- Hearsay)

  • Bias
    • Interplay with 5th Amendment
    • Pending Charges
  • Forfeiture
  • Hearsay
    • "Testimonial" Statement
    • General test for Admissibility
    • Certified Records
      • Bank
      • Medical
    • Coconspirator's Statement
    • Expert -- Crime Lab Analyst
    • Former Testimony -- Preliminary Hearing
    • Impeachment
    • Opportunity for Cross-Examination
    • Statement Against Interest
    • Recent Perception / Excited Utterance
    • Statement Not Admitted for Its Truth (go: here)
  • Screened Witness
  • Unavailable Declarant
  • Videotaped Statement of Child

    Confrontation -- Generally

    Confrontation – Statements Made by Prosecutor and Judge in Transcript Read to Jury
    State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
    For Jorgensen: Martha K. Askins, SPD, Madison Appellate
    Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?
    ¶34      "'The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'" State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; [10] Wis. Const. art. I, § 7. [11] By reading the November 10 hearing transcript at Jorgensen's criminal trial, which essentially provided the jury with the judge's and the prosecutor's conclusions about Jorgensen's guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.

    ¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen's alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

    ¶36      The circuit court's commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court's observations. …

    ¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially "testified" against the defendant without being subject to confrontation. …

    Confrontation – Prosecutor’s Closing Argument
    State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
    For Jorgensen: Martha K. Askins, SPD, Madison Appellate
    ¶39      Jorgensen's right to confrontation was also violated during the prosecutor's closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She "testified" that Jorgensen was a "chronic alcoholic" who did not acknowledge his problem, that on November 10 she smelled a strong odor of intoxicants from him, and that she knew Jorgensen was drunk that day in court.
    Confrontation -- Generally: Limitation on Right to Cross-Examine
    State v. Harry L. Seymer, 2005 WI App 93
    For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate
    Issue/Holding: Where the (pro se) sexual assault defendant’s attempt to cross-examine the complainant and principal witness was abruptly terminated by the trial court, purportedly because of the defendant’s “mocking tone” and “derisive behavior”; but where the record did not in any respect support these “subjective impressions,” “the underpinnings of the trial court’s decision to terminate cross-examination [are] unavailing, and Seymer’s opportunity for effective cross-examination [was] violated,” ¶¶8-12.
    An unusual, probably fact-specific (i.e., likely non-recurrent) case in which, as the court of appeals says, “it appears that the trial court, for whatever reason, found Seymer exasperating and gave him little leeway during the trial, as we could find almost no other support in the record for the trial court’s termination of Seymer’s cross‑examination,” ¶12. Indeed, the fact-pattern is apparently unusual enough that the court musters no precedential authority in support of its conclusion. That doesn’t mean that this case is itself cutting-edge; it means, rather, that you’ll have to extrapolate a bit to draw any broader meaning. As the court glancingly indicates (¶8), the right to confrontation has to be first “accommodated” before it may properly be limited. However narrowly defined in any given case, confrontation seemingly wasn’t accommodated in any respect before Seymer’s cross was abruptly terminated. In most instances, the inquiry that’s cut off is very specific (such as prior conduct, or witness-bias). What makes this case unusual, then, is the utter failure to accommodate cross-examination. That said, there is at least one implied lesson that shouldn’t be overshadowed by the final result, namely: you can forfeit your right to cross-examine through your behavior. (Also see § 906.11, re: controlling examination of witnesses.) If Seymer had been “mocking” or “derisive” or otherwise contemptuous then the trial judge’s action would have been defensible – or so the court of appeals implies by making a point of scouring the record and ultimately finding no support for the trial judge’s “subjective impressions.” And indeed, the court of appeals’ refusal to take at face value those very impressions represents another unusual aspect of the decision. That is, the court could simply have deferred to the trial court on this matter and said that Seymer had failed to show that the trial judge’s “findings” were clearly erroneous; critically, the court did not do so, but instead engaged in the equivalent of independent review. Hard to say what larger lesson might be derived from that particular exercise of review. Part of the problem is that court’s analysis is so cursory (likely because the record is pretty extreme, and the outcome therefore obvious). Are a “trial judge’s “subjective impressions” something other than findings of historical fact? That’s simply not clear. But at a minimum, this case importantly means that a judge’s ruling isn’t immunized from review simply because it relies on something (such a “mocking tone) which couldn’t possibly be refuted by the cold record. Note that the judge did not make a contemporaneous record of Seymer’s supposed disruptive behavior; instead, the judge very tersely ended cross, and only later, on postconviction ruling, provided after-the-fact embellishment (¶10). Perhaps this made the court of appeals skeptical. But returning to the matter of forfeiture, there is one thing that the court simply fails to go into but that could well be decisive. Forfeiture is in the nature of a sanction and surely there must be some warning before penalty is exacted. See, e.g., Illinois v. Allen, 397 U.S. 337 (1970), at least by way of analogy (“Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 464 , 1023 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom”). In this case, there was insufficient warning to Seymer that his cross crossed a line – something mentioned by the court in passing (¶9), but without elaboration; omitted warning could well be the most significant feature of the case and ought not be overlooked merely because not stressed by the court.

    Confrontation -- Bias

    Bias -- Generally
    State v. Justin Yang, 2006 WI App 48
    For Olson: John J. Grau
    ¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). Although, as Van Arsdall observes, this does not mean there can be no limits on a defendant’s cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a “dead track.” We analyze Yang’s confrontation-denial contention against this background.
    Bias -- Limitation on Cross-Examination
    State v. Justin Yang, 2006 WI App 48
    For Olson: John J. Grau
    Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:
    • The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. … his inquiry into that area was not yet closed.  Accordingly, the trial court’s invocation of, in essence, ‘asked-and-denied’ to move the trial along was not yet justified, given the critical nature of motive to Yang’s defense.”) ¶13.
    • Although the inquiry would not have directly proved the defense theory, the desired inference was one “Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. … Indeed, … are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence[.]” ¶14.
    • Yang asserted, in opening statement, the fact sought to be established by the inquiry and it is therefore assumed that there was a good-faith basis for the questioning; nor would the jury have been bound by the witness’s denial. “Thus, Yang was entitled to have the jury decide from his lawyer’s questions and the nature of his former wife’s responses whether she was telling the truth[.]” ¶15.
    The error was prejudicial, ¶17: it was a close case, as exemplified by partial acquittal; motive to lie was, by the State’s own representation to the jury, crucial and the curtailed cross “would have been an appropriate tool for them to use in making that assessment.” All in all, a fact-specific case, though it does seem to be a ringing endorsement of the right to cross-examine, especially with regard to potential matters of bias or motive to lie.
    Bias: Interplay with Fifth Amendment
    State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
    For Barreau: Glenn C. Reynolds
    Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness's "real and appreciable apprehension" of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony. ¶¶51-52. (No error found here, because the inhibited inquiry would have been largely cumulative. ¶54.)
    Bias: Pending Charges
    State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
    For Barreau: Glenn C. Reynolds
    A witness's pending criminal charges are relevant to bias, even absent promises of leniency. ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury's presence that there were none. Any error on the inhibition of confrontation was therefore harmless. Additionally, there was no prohibition on asking the witness whether he had any pending charges; though counsel didn't pursue that inquiry, there was no error, because confrontation requires only the opportunity for effective cross-examination, not its actualization.
    Bias: Pending Charges -- Sentence Received by Prosecution Witness without Plea Bargained Benefit for Testimony
    State v. Bryan Hoover, 2003 WI App 116, PFR filed 6/26/03
    For Hoover: Glenn C. Cushing, SPD, Madison Appellate
    Issue/Holding: The defense wasn’t entitled to cross-examine a prosecution witness about the sentence he received on an otherwise unrelated charge, where the witness wasn’t offered a benefit in exchange for his testimony. Allowing the defense to cross-examine on the witness’s perception of what benefit he might receive sufficiently accommodated the right of confrontation. ¶¶14-23.
    (Not much in the way of analysis by the court, though there is this potentially troublesome extension of State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996):
    ¶20. The rationale of McCall is controlling here. In the absence of any sentencing-for-testimony agreement, it would be irrelevant to question Anderson-El about his sentence. Defense counsel was able to and, in fact, did question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, eliciting information about the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State. Moreover, testimony concerning the actual sentence imposed might confuse the jury into believing the court was a party to some unproven sentencing-for-testimony agreement. As in McCall, the record does not support such a speculative theory.
    The problem, then, is that the decision might be read to say that no matter what you can’t go into the actual sentence received absent agreement for the testimony. But what difference does it make whether a concession was offered for testimony? The judge is no more a part of that sort of plea bargain, so the rationale of jury confusion that the court was a party to the agreement applies equally. (McCall, by the way, dealt with dismissal of charges, unaccompanied by a plea bargain, which is at least seemingly different from a case that goes to disposition.) Why, then, shouldn’t the defense be allowed to get into the sentence actually received? No good answer is given. The court does mention that the defense put the witness’s bias before the jury in a number of ways (such as priors), ¶17, but on the issue of his “personal motivation for coming forward” his claim of “good intentions” apparently is conclusive. It’s fair to read this as a fact-specific case: the just-mentioned opportunity to explore bias was sufficient; more importantly, the court itself saw the evidence of guilt as “overwhelming,” ¶28. But that doesn’t explain ¶20.)

    Confrontation -- Forfeiture

    All cases decided before Giles v. California, USSC No. 07-6053, 6/25/08 are subject to reconsideration if not outright doubt. There, the Court held in effect that the forfeiture doctrine "applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying," although the Court also allowed that "(e)arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify." It is hard in light of Giles to see how the enunciation of the doctrine in
    Confrontation – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement – Waiver of Argument
    State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR denied 2/21/08; on remand from supreme court, and affirming, 2006 WI App 163
    For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
    Issue/Holding: Although forfeiture (of confrontation) by wrongdoing must be raised and decided on the trial level, the State did not waive the right to argue forfeiture on appeal in this instance where that doctrine had not yet been endorsed by either the Supreme Court or any court in Wisconsin, ¶11. (Moreover, the issue of “misconduct” by the defendant was raised in the sense that the State had alleged intimidation of a witness—though the court doesn’t suggest that that fact alone sufficed to preserve the argument.)
    Confrontation – Forfeiture-by-Wrongdoing -- Intimidation of Witness into not Testifying
    State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR denied 2/21/08; on remand from supreme court, and affirming, 2006 WI App 163
    For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
    ¶17   It is undisputed that LaMoore and her daughter did not appear at trial, either when trial was originally scheduled or when it actually commenced. This record contains abundant facts [11] from which the trial court could be, and apparently was, satisfied “by the greater weight of the credible evidence” [12] that Rodriguez either independently ( e.g., his recorded statement while incarcerated that he “found” LaMoore), or Luis at Rodriguez’s request ( e.g., Luis’s recorded statement that he would “pay her off”) were a cause of LaMoore’s failure to appear. The trial court’s order, entered before the final trial date, terminated Rodriguez’s telephone, mail and visitation privileges based upon a finding that the action was “necessary to prevent the further intimidation of witnesses.” This is, in essence, a finding by the trial court by a preponderance of the credible evidence that Rodriguez had taken steps while being held at the House of Correction to intimidate LaMoore, who he knew to be a witness against him, that intimidation has already occurred ( e.g., LaMoore did not appear at the trial date), and that the restrictions announced were necessary to attempt to prevent future intimidation. The finding of misconduct, coupled with LaMoore’s failure to appear at the original or adjourned trial date, and the court’s finding that the “State has made a due and diligent effort to get the victim here to court,” satisfy the substantive requirements announced in Jensen. Id., ¶¶53-57.

    ¶19      What the jury found beyond a reasonable doubt, the trial court, as we have explained, earlier found by a preponderance of the evidence. The jury found that Rodriguez intimidated LaMoore as a victim and intimidated LaMoore as a witness. Those jury findings confirm the sufficiency of the evidence to support the trial court’s earlier conclusion by a preponderance of the evidence that Rodriguez had intimidated LaMoore. We hold that where the jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his own misconduct, his right to confront that witness.

    This is on remand, following a prior published decision, 2006 WI App 163, for reconsideration in light of the forfeiture doctrine recognized by State v. Mark D. Jensen, 2007 WI 26. The earlier decision didn’t reach forfeiture, holding instead that the challenged statements were non-testimonial, 2006 WI App 163, ¶16-27. Is the prior result still precedential? That’s not clear. Generally, of course, the court of appeals doesn’t have authority to withdraw any language form its own, published decisions. But this decision was remanded for reconsideration by the supreme court, so the court of appeals must have had the authority to alter the prior opinion. But, did it exercise that (presumed) authority? Perhaps: the court now “assume(s), without deciding, that the statements were testimonial. Consequently, we first determine whether forfeiture by wrongdoing has been established,” ¶16. That language is inconsistent with the idea that the prior opinion retains binding effect. See also ¶20 (“we do not decide whether the statements … were testimonial”). You can bet, though, that the State will cite the prior opinion for the idea that the statements were non-testimonial. In any event, although the forfeiture test was changed by Giles v. California, the result on these facts seems unassailable (i.e., Rodriguez acted with the specific purpose to prevent the declarants from testifying).
    Confrontation –Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Adoption of Doctrine
    State v. Mark D. Jensen, 2007 WI 26, on bypass
    For Jensen: Craig W. Albee
    ¶52      In essence, we believe that in a post-Crawford world the broad view of forfeiture by wrongdoing espoused by Friedman and utilized by various jurisdictions since Crawford's release is essential. In other words, after "[n]oting the broad embrace of the doctrine" by courts nationwide and "recognizing the compelling public policy interests behind its enactment," Commonwealth v. Edwards, 830 N.E.2d 158, 165 (Mass. 2005), we elect to adopt the forfeiture by wrongdoing doctrine in Wisconsin.
    Confrontation – – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Test
    State v. Mark D. Jensen, 2007 WI 26, on bypass
    For Jensen: Craig W. Albee
    ¶57      In short, we adopt a broad forfeiture by wrongdoing doctrine, and conclude that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant.
    UPDATE: This formulation of the forfeiture doctrine is no longer tenable in light of Giles v. California, USSC No. 07-6053, 6/25/08, holding in effect that the doctrine "applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying."

    Confrontation -- Hearsay

    Landscape permanently altered by: Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, No. 05-5224, 6/19/06; Hammon v. Indiana, 05-5705, 6/19/06. Some first reactions to Davis and Hammon posted here. And further altered by Giles v. California, USSC No. 07-6053, 6/25/08 (defendant doesn't "forfeit" right to confront witness unless his or her conduct was "designed" to prevent witness from testifying).

    (For discussion re: 911 calls, go here.)

    Confrontation – Testimonial Statement, Opportunity for Cross-Examination – Witness Who Testified and Then Was Dismissed
    State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
    For Nelis: Robert A. Ferg
    ¶45      Although Steve Stone testified at trial, Nelis argues that Steve Stone did not have the opportunity to explain or deny his alleged oral statements because the State did not examine him concerning such statements, and the oral statements were not made known prior to Police Chief Stone's testimony. The State argues that there was no violation of Nelis' right to confrontation under Crawford because Steve Stone testified at trial and was cross-examined by the defense.

    ¶46      Nelis' right to confrontation was not violated because "the Confrontation Clause places no constraints at all" on the use of prior testimonial statements when the declarant appears for cross-examination, as did Steve Stone. Crawford, 541 U.S. at 59 n.9 (citation omitted). [5]  It makes no difference, under the circumstances here, whether the burden is on the State or on Nelis to show that Steve Stone was available for further cross-examination after the court told him he could "step down." Steve Stone testified at trial and was cross-examined concerning his statements to the police; therefore, Nelis' right to confrontation was not violated.

     [5] We agree with the concurrence that Nelis' right to confrontation under Crawford is not implicated. Concurrence, ¶¶53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here.
    Confrontation – “Testimonial” Statement – Generally: “Broad” Definition Applies – Solicitation by Police not Absolutely Necessary
    State v. Mark D. Jensen, 2007 WI 26, on bypass
    For Jensen: Craig W. Albee
    ¶24      We note that there is support for the proposition that the hallmark of testimonial statements is whether they are made at the request or suggestion of the police. See State v. Barnes, 854 A.2d 208, 211 ( Me. 2004). In our view, however, the Sixth Circuit's decision in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), aptly describes why such an inquiry is insufficient under Crawford:
    Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. . . . If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.
    Id. at 675. Thus, we believe a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. That is, we do not agree with the State's position that the government needs to be involved in the creation of the statement. [8] We believe such a narrow definition of testimonial could create situations where a declarant could nefariously incriminate a defendant.
    [8]  We note that recently in State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, the court of appeals held that a declarant's spontaneous statement to responding police officers implicating the defendants in a crime was deemed nontestimonial. The court reasoned, in part as follows:
    The statement made by [the declarant] in the instant case does not fall into any of the identified categories of "testimonial" statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. [The declarant] offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the [declarant's] statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular subject.
    Id., ¶11. We do not read Crawford in such a restrictive light. Under the definition of testimonial adopted today we must overrule Hemphill.
    It simply isn’t possible to say precisely what implications flow from overruling Hemphill, though at minimum it would seemingly be that the mere unsolicited nature of a statement doesn’t throw it outside of confrontation analysis. The Hemphill methodology has certainly been invalidated, but the court doesn’t distinctly say that the result was therefore wrong. Hemphill, it should be noted, was an excited utterance case, 2005 WI App 248, ¶13; Jensen is not. Does this mean that Jensen has now declared all excited utterances to the police necessarily testimonial? Hard to see how, in light of Davis v. Washington. Also see State v. Ohlson, Wash SCt No. 78238-5, 10/18/07 (per se rule that excited utterance necessarily testimonial "is no longer tenable"). Rather, it probably just means that a court can’t avoid threshold determination of whether the statement is testimonial merely because it is spontaneous. Note, as well, State v. Roberto Vargas Rodriguez, 2006 WI App 163, an excited utterance case which relied heavily on Hemphill and whose result therefore might have been thrown in doubt -- except that on remand for reconsideration in light of Jensen the court "assume(d), without deciding, that the statements were testimonial," but affirmed the result on the distinct ground of forfeiture, 2007 WI App 252, PFR denied 2/21/08.
    Confrontation – “Testimonial” Statement – Letter Addressed to / Voicemails Recorded by Police
    State v. Mark D. Jensen, 2007 WI 26, on bypass
    For Jensen: Craig W. Albee
    ¶27      In light of the standard set out above, we conclude that under the circumstances, a reasonable person in Julie's position would anticipate a letter addressed to the police and accusing another of murder would be available for use at a later trial. The content and the circumstances surrounding the letter make it very clear that Julie intended the letter to be used to further investigate or aid in prosecution in the event of her death. Rather than being addressed to a casual acquaintance or friend, the letter was purposely directed toward law enforcement agents. The letter also describes Jensen's alleged activities and conduct in a way that clearly implicates Jensen if "anything happens" to her.

    ¶28      Furthermore, the State insists that the letter is nontestimonial because it was created before any crime had been committed so there was no expectation that the letter would potentially be available for use at a later trial. However, under the standard we adopt here it does not matter if a crime has already been committed or not. …

    ¶30      For many of the same reasons, we also determine that the voicemails to Kosman are testimonial. [10] The crux of Julie's message was that Jensen had been acting strangely and leaving himself notes Julie had photographed and that she wanted to speak with Kosman in person because she was afraid Jensen was recording her phone conversations. Again, the circuit court determined that these statements served no other purpose than to bear testimony and were entirely for accusatory and prosecutorial purposes. Furthermore, Julie's voicemail was not made for emergency purposes or to escape from a perceived danger. She instead sought to relay information in order to further the investigation of Jensen's activities. This distinction convinces us that the voicemails are testimonial. See Pitts v. State, 627 S.E.2d 17, 19 (Ga. 2006) ("Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call 'bears testimony' against the accused and implicates the concerns of the Confrontation Clause.").

    Confrontation – “Non-Testimonial” Statement – Statements to Acquaintances
    State v. Mark D. Jensen, 2007 WI 26, on bypass
    For Jensen: Craig W. Albee
    ¶31      Finally, we consider the statements Julie made to Wojt and DeFazio. Jensen argues that if the circumstances reveal that the declarant believed her statements to nongovernmental actors would be passed on to law enforcement officials, those statements are testimonial. While we reiterate that governmental involvement is not a necessary condition for testimonial statements, we conclude that under the circumstances of this case, Julie's statements to Wojt and DeFazio were nontestimonial. Essentially, we are not convinced that statements to a neighbor and a child's teacher, unlike the letter and voicemails——which were directly intended for the police——were made under circumstances which would lead a reasonable person in the declarant's position to conclude these statements would be available for later use at a trial.

    ¶32      Our decision in Manuel, 281 Wis.  2d 554, guides us to this conclusion. In Manuel, we determined that statements made to loved ones or acquaintances are not the memorialized type of statements that Crawford addressed. Id., ¶53. Moreover, we determined that the witness's girlfriend was not a governmental agent, and there was no reason to believe the declarant expected his girlfriend to report to the police what he told her. Id. Here, Julie confided in Wojt and DeFazio about the declining situation in the Jensen household and are wholly consistent with the statements of a person in fear for her life. As one court put it, "when a declarant speaks with her neighbor across the backyard fence, she has much less of an expectation that the government will make prosecutorial use of those statements." State v. Mizenko, 127 P.3d 458, (Mont. 2006); see also Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005) (holding that victim's statement to an acquaintance made after an assault were nontestimonial).

    Facts and analysis in relation to facts are both left maddeningly vague. This much we know from the majority opinion: Wojt was a neighbor, DeFazio a teacher, ¶1; Julie gave Wojt an envelope for the police in case anything happened to her; according to Wojt she was fearful Jensen was trying to kill her, and told Wojt he’d been looking into “computer pages about poisoning,” ¶5. These, presumably, are the statements at issue and held nontestimonial—but to the extent they accompanied Julie’s transfer to Wojt of the letter to the police, it’s not clear why the statements would be severable from the testimonial letter; nor does the court explain severability. For a detailed analysis, review Justice Butler’s partial dissent, ¶¶75, et seq., which has the virtue of applying law to facts. As to the DeFazio statement, the facts are recited in ¶9 n. 3 and lend themselves to a self-evident analysis.
    Hearsay: “Testimonial” Statement – Excited Utterances – Ongoing Emergency
    State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (court assumes without deciding that statements were testimonial but holds that Rodriguez forfeited right to confrontation by intimidating witness from testifying), PFR denied 2/21/08
    For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
    Issue: Whether statements to the police, indisputably excited utterances, by both the alleged victim of an act of domestic violence and her daughter shortly after a 911 call; and by the same two the following day also to the police were “testimonial” and thereby violative of confrontation given that neither testified at trial nor had previously been cross-examined.
    ¶16      Davis was a consolidated decision in two cases, Davis v. Washington and Hammon v. Indiana Davis, 126 S. Ct. at 2270, 2272. …

    ¶18      … Resolving much of the ambiguity left by Crawford, Davis set out the following bright-line, but, perhaps, not conclusive rule:

    Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present case to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
    Davis, 126 S. Ct. at 2273–2274. …

    ¶19      … We now turn to our case, and analyze it under both Wisconsin case law and the United States Supreme Court’s latest word in Davis.

    ¶20      … Manuel set out the formulations as follows: …

    (3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
    Id., 2005 WI 75, ¶37 ….

    ¶23      … Victims’ excited utterances to law-enforcement officers responding to either an on-going or recently completed crime, serve, as with the 911-call, a dual role—the dichotomy between finding out what is happening as opposed to recording what had happened, which, as we have seen, was recognized in Davis.…

    ¶26      A similar analysis applies when police talk to an attack-victim when the stress and cognitive disruption caused by the attack is still dominant, because the key consideration in connection with both the third Crawford/ Manuel formulation and Davis’s rubric, focuses on an objective analysis of the out-of-court declarant’s expectation as to how what he or she tells law enforcement will be used. …

    ¶27      There is nothing in the Record here that indicates that what Rodriguez does not dispute were “excited utterances” by Ms. LaMoore and Casey when the officers first spoke with them were motivated by anything other than their desire to get help and secure safety. Moreover, given their contemporaneously endured trauma it cannot be said that objectively they said what they said to the officers with a conscious expectation that their words would somehow have the potential for use in court against Rodriguez. It also cannot be said that, objectively, the officers intended to record past activities rather than assess the then-current situation.

    (Viability of court's analysis subject to doubt in light of subsequently decided State v. Jensen, see above.)

    Lengthy excerpt above necessitated by novelty of the issue—Wisconsin’s first precedential bout with Davis/Hammon—and also the implications—without saying so the court in effect carves out a domestic violence/excited utterance exception to confrontation. (On the bright side: if this case holds up there won’t be much need to grapple with the forfeiture doctrine, the next great uncharted confrontation territory.) Much can and will be said about this case, but not here except that it falls just between Hammon (accusation against husband made by wife in their home while officer was “securing and assessing the scene” testimonial; husband under control of one officer while officer took wife’s statement) and Davis (statement made during 911 call; accused still at large)—that’s because LaMoore made both her statements in or immediately outside her home, like Ms. Hammon; but, each time Rodriguez was not within police control, like Davis. Still, this case seems an awful lot closer to Hammon than Davis. For now, it’s enough to recite this reaction to Davis/Hammon by Richard Friedman:

    There is more good news as well. The Court is explicit that it found Hammon a “much easier” case than Davis. It makes clear that if the statement concerns a closed event—“what happened” rather than “what is happening”—then it should usually be considered testimonial. The pattern of the Court’s decisions after Davis on pending certiorari petitions suggests that the Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial. And further confirmation is provided by the Court’s apparent endorsement of the pre-Framing English case R. v. Brasier, which characterized as testimonial an accusation of attempted rape made by a young child to her mother immediately after coming home; neither the immediacy of the statement, the youth of the declarant, nor the private status of the audience removes the statement from the protections of the confrontation right, and that is as it should be.
    One other point, perhaps. The majority relies on the pre-Davis cases of State v. Jeffrey Lorenzo Searcy, 2006 WI App 8 and State v. Donavin Hemphill, 2005 WI App 248, both of which deemed volunteered statements by non-victims to the police to be nontestimonial. Indeed, without quite saying so, the majority all but adopts wholesale an excited-utterance exception to confrontation. The dissent would distinguish those cases on the basis that, in contrast to victims, “(c)itizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify,” ¶46. A fair point, certainly; but if Friedman is right, the fault-line runs along what the declarant describes, not his or her state of excitation.

    See also State v. Mechling, 633 S.E.2d 311 (W.Va. 2006) (confrontation violated where statements of DV complainant to deputies, made after Mechling had left scene, allowed into evidence; court reserves judgment as to whether her statement to a private party related "what is happening" as opposed to "what happened):

    ... (A) witness’s statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness’s statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness’s statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency....


    There was no emergency in progress when the deputies arrived, and the defendant had clearly departed the scene when the interrogation occurred. When the deputies questioned Ms. Thorn, they were seeking to determine “what happened” rather than “what is happening.”

    See also State v. Alvarez, AZ App No. CR-20013408, 9/29/06, supp. op. (responses of semi-conscious, and soon-dead, victim not testimonial, court citing Rodriguez with approval; disputing idea that "what happened" questions necessarily testimonial -- but in that instance victim found staggering on highway, and thus presented an "ongoing emergency"). Comapare discussion, here.

    State v. Graves, OR App No. A122061, 4/18/07 (similar facts to Rodriguez, police response to 911 call on DV emergency, but not entirely compatible result: first statement, made immediately on police arrival at home, nontestimonial because there was potential emergency; subsequent statements at scene testimonial because police had confirmed defendant no longer in house and thus was no imminent threat); State v. Ohlson, Wash SCt No. 78238-5, 10/18/07 ("the critical consideration is not whether the perpetrator is or is not at the scene, but rather whether the perpetrator poses a threat of harm, thereby contributing to an on-going emergency"); State v. Camarena, OR SCt No. A054330, 1/25/08 (911 call reporting that assailant had only left a minute ago non-testimonial, because "the scant 60 seconds ... is insufficient to suggest that the danger of a renewed assault had fully abated"; however, certain "responses were unnecessary to resolve an ongoing emergency" and were therefore testimonial).

    Hearsay: “Testimonial” Statement – "Spontaneous, Unsolicited Statements" to Police
    State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
    For Searcy: Joseph L. Sommers
    Issue/Holding: “(S)pontaneous, unsolicited statements offered to police officers immediately following the trauma of [declarant’s] cousin’s arrest at gunpoint” were not “testimonial” and therefore did not violate Crawford, ¶¶51-56:
    ¶53      Adams initiated the interaction with the officers; the police did not seek her out. She approached the police officers after they had arrested her cousin at gunpoint. Her statements to the police officers concerning her relationship to Searcy and Searcy’s residence were voluntarily made in the course of her attempting to prevent the police from taking her cousin into custody. She yelled at the officers, “[T]hat’s my cousin, you can’t do that,” and said that Searcy had been staying with her “from time to time.” Sorenson testified that when Adams approached them she was “excited.” There is no evidence in the record demonstrating that the statements were made in response to a tactically structured police interrogation, or in response to any questioning at all. Given the informal, unstructured nature of the interaction, Adams could not have reasonably anticipated that she was bearing witness and her utterances could impact future legal proceedings.
    Clearly, the court relied on the volunteered nature of the statement to throw it outside of Crawford -- do the subsequently decided Davis and Hammon shed any light on this problem? Not explicitly, for the simple reason that in both cases there was indeed "interrogation," so that the Court didn't have occasion to discuss "volunteered" statements. That aside, language in the holding suggesting that there must be "a tactically structured police interrogation" is at least arguably much too broad: see, e.g., this analysis by Richard Friedman ("the Court makes clear that if it continues to speak in terms of formality, the standard will be a very loose one. ... [T]he Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial"). See footnote 1 of Hammon:
    Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.
    At the same time, Searcy's emphasis on the idea that Adams was "excited" can't be meaningful, given Hammon's ruling that a statement admitted as an excited utterance did violate confrontation.

    It may be that Searcy is an outlier or perhaps just a case at the outer margins of what the Confrontation Clause countenances.

    Hearsay: “Testimonial” Statement – Police Interview of Victim at Hospital
    State v. Daniel D. King, 2005WI App 224
    For King: Scott D. Obernberger
    Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ¶18.
    Result seems unassailable in light of Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited "testimonial" statement):
    Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.1
    The Court makes clear in footnote 1 that it is not necessarily requiring that there be "interrogation"; indeed, the footnote all but says it's at least possible to have a testimonial statement without interrogation.

    See also discussion in Wall v. State, TX Cr App No. PD-1631-04, 1/18/06 (rejecting "any per se or categorical approach" and finding on particular facts that police hospital interview of victim was testimonial).

    But see People v. Cage, Cal SCt No. S127344, 4/9/07 (statement to deputy sheriff at hopsital emergency room testimonial, but statement to treating doctor who asked "what happened" nontestimonial).

    Hearsay: “Testimonial” Statement – Line-Up Identification
    State v. Daniel D. King, 2005 WI App 224
    For King: Scott D. Obernberger
    Issue/Holding: Victim’s pre-trial identification of defendant at line-up was “testimonial” and therefore violated confrontation clause, ¶21.
    Hearsay – Statement of Recent Perception, § 908.045(2)
    State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
    For Manuel: Steven D. Phillips, SPD, Madison Appellate
    Issue/Holding1 [general principles]: Assuming that an out of court statement first satisfies a hearsay rule (¶23), it does not implicate the “core” concern of the confrontation clause unless the statement is considered “testimonial” under Crawford v. Washington, 541 U.S. 36, 50-51 (2004), which although declining comprehensive definition, provides three formulations: ex parte in-court testimony; formalized extrajudicial statements; and statements reasonably thought to be available for use later, at a trial. ¶¶37-39.
    Issue/Holding2 [application to facts]:
    ¶53      We find these cases persuasive. Applying them, we conclude that Stamps' statements to were not testimonial. Stamps made the statements to Rhodes, his girlfriend, during what appears to be a spontaneous, private conversation that occurred shortly after the shooting.  See United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (statements "made to loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks."); Horton, 370 F.3d at 84; Rivera, 844 A.2d at 202; Shepherd, 689 N.W.2d at 729; Woods, 152 S.W.3d at 114. There is no dispute that Rhodes is not a government agent, nor is there any contention that Stamps somehow expected Rhodes to report to the police what he told her. See Cervantes, 12 Cal. Rptr. 3d 774, 783. By all indications, the conversation was confidential and not made with an eye towards litigation. See also State v. Vaught, 682 N.W.2d 284, 291 (Neb. 2004) (concluding that four-year-old victim's statement to an emergency room physician that her uncle sexually assaulted her was not testimonial as there was no indication of a purpose to develop testimony for trial, nor any indication of government involvement in the initiation or course of the examination). Absent any evidence that Stamps was attempting to use Rhodes to mislead the police on his own behalf, we conclude that Stamps' statements cannot be considered testimonial under Crawford's third formulation.
    This result will have to be read with the since-decided Davis and Hammon in mind, neither of which dealt with similar facts, but which laid down broad principles. The following comments, posted before the release of those cases, remain for whatever value they might retain:

    The underlying facts make this a tough case to argue the potential refinement of “testimonial.” The statements were seemingly spontaneous, made in private to an intimate associate with no apparent eye toward government cooperation. If there is a connecting thread among the cases string-cited by the court – they should be reviewed closely if for no other reason than that the court expressly deems them “persuasive,” without qualification – it is the making of the statement to a close acquaintance in a private setting. Pretty obviously, then, a similar fact pattern will make a tough sell as a Crawford objection, though the court doesresist generalizations and certainly keeps open the possibility of further refinement of “testimonial.”

    ... And with that background in mind: Crawford by its own terms bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Thus, to put it briefly (and in the words of leading expert Richard D. Friedman), "Crawford makes clear that the principal—and perhaps only— focus of the Confrontation Clause is testimonial statements." Keep in mind that there are two levels of hearsay in this instance: Stamps’ statement to his girlfriend; and the latter’s statement to the police. The girlfriend testified at trial, and thus her statement to the police can’t be challenged. But Stamps pleaded the 5th, and because he was unavailable to be cross-examined, that requirement of Crawford was satisfied. The court of appeals refused to find Stamps’ hearsay statement “testimonial” simply because it wasn’t made to a government agent. 2004 WI App 111, ¶21. That conclusion, as the supreme court’s analysis clearly shows, is too reductionistic to be sustained. Rhodes’s status was undeniably relevant, but the apparently decisive idea was that it was “a spontaneous, private conversation” that was “confidential and not made with an eye towards litigation.”

    The issue of whether a given statement is “testimonial” is obviously going to recur, and for a further definition it is worth looking at Richard Friedman’s very influential Crawford amicus brief. Among his points:

    As discussed in Part IV, there is some ambiguity about the edges of the word's meaning. For now, though, it suffices to say that a statement that is made with the reasonable anticipation that it will be used in a criminal prosecution should be considered testimonial, while a statement that is made in the ordinary course of affairs, with no prospect of evidentiary use in the offing, is not testimonial.… One practical possibility is an objective test that would ask: Would a reasonable person in the declarant's position anticipate that the statement would likely be used for evidentiary purposes? … A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made directly to the authorities or not.
    (See also this slightly different and broader formulation by Friedman: "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." He stresses that governmental invovlement in procuring the statement is not "the essence of what makes a statement testimonial.") For a relatively broad definition, see U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004), citing with approval Friedman's law review article at 86 Geo.L.J. 1011, 1043, which offers "five rules of thumb" which flesh out the meaning of "testimonial" (and are well worth reviewing):
    A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. If, in the case of a crime committed over a short period of time, a statement is made before the crime is committed, it almost certainly is not testimonial. A statement made by one participant in a criminal enterprise to another, intended to further the enterprise, is not testimonial. And neither is a statement made in the course of going about one’s ordinary business, made before the criminal act has occurred or with no recognition that it relates to criminal activity.
    This broad view of "testimonial" has received increasing favor, see, U.S. v. Summers, 10th Cir No. 04-2121, 6/21/05, adopting as "carefully reasoned" Cromer's test, and concluding that Crawford "centers on the reasonable expectations of the declarant. It is the reasonable expectation that a statement may be later used at trial that distinguishes the flippant remark, proffered to a casual acquaintance, see id. at 51, from the true testimonial statement." Also, U.S. v. Hinton, 3rd Cir No. 03-3803, 9/14/05 (and cites therein):
    Accordingly, statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial are testimonial. In the absence of a showing that the declarant is unavailable and that the defendant had an opportunity for crossexamination, admission of such statements will violate the Confrontation Clause of the Sixth Amendment.
    (Though the formulation is in one sense "broad," it is narrow in another -- see, e.g., U.S. v. Gilbertson, 7th Cir No. 05-2923, 1/30/06, adopting the foregong authorities while at the same time making the point that only statements made following government-initiated examination in anticipation of criminal litigation fall within the rule.)

    Again: there is nothing necessarily inconsistent with either this formulation or with Friedman's definition / rules of thumb and the result in Manuel. The idea is simply that the meaning of "testimonial" will occupy much of the field of post-Crawford confrontation litigation. See, e.g., State v. Snowden, MD. Ct. App. No. 42, 2/7/05 (statement to social worker investigating sexual abuse "testimonial"). For an interesting factual variation, see People v. Wahlert , Cal App No. E035174, 6/25/05 ("pretext call" arranged and orchestrated by law enforcement deemed testimonial), opinion modified but reconsideration denied, 7/19/05.

    Professor Friedman's "Grappling with the Meaning of 'Testimonial'" is certainly worth at least a look for its survey of general considerations; and his invaluable Web site, The Confrontation Blog is a convenient way to stay current. More: (outline by Crawford’s attorney); and (lengthy case outline of Crawford cases).

    On an unrelated point, Cromer goes on to hold that a potential violation is not regulated by "evidence law," in particular the notion that a litigant can open the door to a violation:

    ... Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness...
    This isn't necessarily a jarring result, once you conceptualize the right at stake as a peculiarly rule-based one; or, alternatively, as one which insures a personal right, therefore subject to waiver only in very restricted circumstances. Contra, though: People v. Ko, 2005 NY Slip Op 00632, 2/3/05 (door-opening applied, at least where "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context.").
    Admissible Hearsay (Statement of Recent Perception) – Roberts Analysis Surviving Crawford
    State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
    For Manuel: Steven D. Phillips, SPD, Madison Appellate
    Issue/Holding1 [general principles]: The two-part analysis of Ohio v. Roberts, 448 U.S. 56 (1980) survives Crawford for use in determining Confrontation Clause admissibility of nontestimonial statements, ¶¶54-61 (unavailable declarant, and adequate indicia of reliability).
    Issue/Holding2 [applied to facts]: The hearsay in question – a statement of recent perception – is not firmly rooted, and therefore must have particularized guarantees of trustworthiness to be admissible, ¶67. That showing is satisfied, where the statement was made spontaneously, in private to the declarant’s girlfriend and thus in confidence, and without ulterior motive to fabricate, ¶¶69-70.
    To same effect, re excited utterance: State v. Roberto Vargas Rodriguez, 2006 WI App 163, ¶28, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (confrontation right forfeited), PFR filed 11/1/07.

    But: Davis seems to have sounded the end of Roberts analysis as a matter of federal constitutional law, despite this holding, at least according to James J. Duane in a commentary in the Fall '06 Criminal Justice; this one, and according to Lisa Kern Griffin in the Michigan Law Review ("The Court buried the lede, but Davis does pronounce Roberts dead."); and, for that matter, Richard Friedman (“The Court also manages to close one can of worms, going well out of its way to make clear (though some lower courts have not recognized this so far) that if a statement is not testimonial it is not covered by the Confrontation Clause.”) But, just how much advantage does (did?) a Roberts analysis give? None at all, bluntly says Friedman: "Numerous post-Crawford courts, having determined the statements at issue were not testimonial, have gone through the Roberts analysis and—not surprisingly—determined that the statements were admissible. ... No terrible harm is done, perhaps, but the process is wasteful, because courts will continue to run through it with predictable results."

    Note holding in State v. Cook, OR SCt No. S49851, 5/11/06, that Roberts survives as matter of state constitution confrontation analysis.

    Hearsay: General Test for Admissibility
    State v. Glenn H. Hale, 2005 WI 7, affirming, as modified, 2003 WI App 238
    For Hale: Steven D. Phillips, SPD, Madison Appellate
    ¶53. A threshold question for applying the Crawford framework is whether the State is proffering "testimonial" hearsay evidence. ...

    ¶54. Because Sullivan's hearsay evidence was "testimonial" in nature, we turn next to the requirements of the Confrontation Clause as interpreted by Crawford: (1) unavailability of the declarant and (2) a prior opportunity for cross-examination. Id. at 1374. ...

    Hearsay: General Test for Admissibility
    State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
    For Norman: Angela Kachelski
    Issue/Holding: Hearsay must satisfy a multi-step test to avoid violation of the confrontation clause:  whether the evidence fits a well-recognized hearsay exception; if so, then whether the witness was unavailable despite good-faith prosecutorial effort to produce the witness and whether the evidence bears indicia of reliability (which may be inferred if the evidence fits a well-rooted hearsay exception unless an unusual circumstance exists). ¶¶25-28.
    The foregoing test is no longer viable, having been supplanted by the Crawford focus on "testimonial" purpose, State v. Glenn H. Hale, 2005 WI 7, ¶¶53-54.
    Hearsay: Former Testimony, § 908.045(1) -- Codefendant's Separate Trial
    State v. Glenn H. Hale, 2005 WI 7, affirming, as modified, 2003 WI App 238
    For Hale: Steven D. Phillips, SPD, Madison Appellate
    Issue/Holding: Under Crawford v. Washington, 124 S. Ct. 1354 (2004), prior testimony at a codefendant’s separate trial is inadmissible at Hale’s trial, given that the previously testifying witness cannot be located. ¶¶53-58.
    It is indeed just that simple. Crawford says that testimonial hearsay violates confrontation absent prior opportunity to cross-examine. A witness’s prior testimony is, well, “testimonial,” ¶53. The real question is whether the codefendant’s opportunity to cross-examine had any bearing on Hale’s right of confrontation; the court – efficiently characterizing the issue as one of “confrontation by proxy” – says it didn’t, that the defendant must have had the prior opportunity to cross-examine the witness, ¶56. He didn’t, so Crawford was violated. Simple as that.

    Simple or not, there are implications. The court doesn’t say so explicitly, but the only fair reading is that State v. Robert Bintz, 2002 WI App 204, ¶¶18-20, 257 Wis. 2d 177, 650 N.W.2d 913 (prior testimony from codefendant’s separate trial admissible against defendant) is now overruled. Which means that a possible trend is stopped dead in its tracks. (Bintz was eventually upheld in federal court on habeas review, but under pre-Crawford analysis, Robert Bintz v. Bertrand, No. 04-2682, 4/7/05.

    Did someone really say, “simple”? Let’s qualify that characterization a bit. There are 4 (!) separate concurrences involving 6 (count ’em) justices. They all agree that Crawford was violated, so that helps. But for some reason the urge to issue dicta proves irresistible. Justice Prosser’s 3-vote concurrence (¶¶91-99) makes the point that a defendant may forfeit the right of confrontation by wrongdoing: kill a witness and you won’t be heard to complain about that witness’s “unavailability.” The point seems unassailable and yet … it doesn’t really have anything to do with the case at hand, does it? Indeed, as leading expert Richard Friedman puts it, “(f)orfeiture often raises difficult issues.” Why not have caselaw discussion wait, though, for a live case actually raising them?

    And Justice Butler writes separately to say that the challenged evidence violated hearsay as well as confrontation, ¶¶101-07. Indeed, the majority recognized that resolution of an appeal on nonconstitutional grounds is generally preferred, but in this instance it’s best to invert the priorities and get Crawford out of the way, ¶42. In fact, the very point of Crawford is to replace unpredictable, case-by-case “trustworthiness” analysis with an easily administered rule. Pace Justice Butler, inverted constitutional analysis is probably the preferable modality in Crawford cases. Note, for example, the Justice's stress on the particular facts, indicating that Jones and Hale had antagonistic defenses, and their their interests didn't coincide, ¶¶103-05. That might very well have been true, but it is precisely the sort of case-specific (and thus labor-intensive) inquiry Crawford seeks to avoid. Moreover, the fact that codefendants Jones and Hale's interests clashed doesn't mean that they necessarily diverged on the matter of attacking Sullivan. Maybe, maybe not: it's not a self-evident proposition; the matter simply isn't explored in sufficient detail to conclude one way or the other.

    This isn’t to say, by any means, that the hearsay rule now should be ignored; just the contrary. But if the evidence can be efficiently analyzed and deemed inadmissible under Crawford, then there’s no need for the heavy lifting of a fact-intensive hearsay analysis. Regardless, it ought to be kept in mind that the relationship between hearsay and confrontation is now irrevocably splintered. As our friend Richard Friedman usefully observes: “The rule against hearsay and the Confrontation Clause are separate sources of law—and Crawford stops the tendency to meld them. The question for Confrontation Clause purposes in each case is whether the given statement is testimonial. The fact that a statement fits within a hearsay exception does not alter its status with respect to that question. But one can say that most statements that fit within certain hearsay exceptions are not testimonial.” (All the more reason to take up confrontation first.)

    For whatever it's worth, pre-Crawford cases tended to find "that testimony given at a codefendant's trial was sufficiently reliable to satisfy Roberts if the witness had been cross-examined by the codefendant's counsel," Dorchy v. Jones, 6th Cir No. 04-1797, 2/23/05. No longer.

    What about where the prior testimony occurred at the defendant's own prior trial? The witness, of course, must still be found unavailable, and for a case where the state's effort to locate the witness for the retrial were deemed inadequate, though oddly without even mentioning Crawford, see People v. Avila, Cal App No. B174888, 7/24/05 ("Waiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial.").

    And finally, as long as this is the season for gratuitous commentary: the long-standing problem of preliminary hearing testimony will continue to vex the defense bar, even (especially?) under Crawford analysis. See e.g. summaries of Stuart and Norman, immediately below; and see, George Owens v. Frank, 394 F3d 490 (7th Cir. 2005) (such testimony admissible under Ohio v. Roberts, because Owens had adequate opportunity for cross-examination, "limited scope" of preliminary hearing notwithstanding; court not reaching retroactivity of Crawford). The "testimonial" nature of this evidence will not be in doubt. Nor, one imagines, will there ever be much if any dispute over whether the preliminary hearing witness is indeed "available" at trial. The question will be whether Crawford's requirement for "opportunity" to cross-examine is somehow more stringent than Roberts' was.

    Hearsay: Former Testimony, § 908.045(1) -- “Firmly Rooted” Exception – Particularized Guarantees of Trustworthiness
    State v. Glenn H. Hale, 2003 WI App 238. NOTE: The COA holding of admissibility was effectively overruled upon review, 2005 WI 7, which ruled the prior testimony inadmissible under Crawford v. Washington. The court of appeals' result is shown for purely historical interest, but should not be regarded as binding on new cases.
    For Hale: Steven D. Phillips, SPD, Madison Appellate
    Issue/Holding1: Prior testimony (here: of a witness at codefendant’s earlier trial) is reliable as a “firmly rooted” hearsay exception, even though Hale did not have the opportunity to cross-examine the witness at the prior proceeding. ¶¶18-25, State v. Bintz, 2002 WI App 204, 257 Wis. 2d 177, 650 N.W.2d 913 deemed controlling despite distinguishing fact that Bintz did have the opportunity to cross-examine the witness at the earlier proceeding.
    Court’s independent view of issue is that former-testimony exception is not firmly rooted. ¶¶25-28. Nonetheless, and despite point of distinction noted above and fact that Bintz based its conclusion on inapposite authority, ¶29, Bintz is binding under “Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (concluding that only the supreme court has the authority to overrule, modify or withdraw language from a published opinion of the court of appeals),” ¶23. See also ¶30.
    Issue/Holding2: Prior testimony of witness at codefendant’s earlier trial contained particularized guarantees of trustworthiness, where: witness would have lost use immunity had he testified falsely; codefendant’s interest in impeaching witness was similar to defendant’s; witness’s testimony concerned matter that “is straightforward and relates to an event that occurred before the murder,” so that “(l)ittle could be gained by further cross-examination.” ¶31.
    Note: The court also says that the former testimony was admissible under the residual hearsay exception, § 908.045(6). ¶32 n. 5. Moreover, in light of the “overwhelming evidence,” the court “could have affirmed” on harmless error. Id. Could have, but most certainly did not: it’s apparent that the court wants the issue of former testimony to be resolved by the supreme court.
    Hearsay: Admissibility of Former (Preliminary Hearing) Testimony, § 908.045(1)
    State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
    For Norman: Angela Kachelski
    Issue/Holding: Admissibility at trial of preliminary hearing testimony of an unavailable witness, § 908.045(1), is a well-recognized hearsay exception and the reliability of the evidence may therefore be inferred. ¶30. Very brief cross-examination at the preliminary is not in and of itself an “unusual circumstance” that undermines reliability. ¶33. Nor does preliminary hearing prohibition on cross-examination about credibility support a broad rule of per se former testimony inadmissibility at trial. ¶35. In this case, the unavailable witness’s credibility was not at issue. “Therefore, the defendant's inability to cross-examine Park with questions that go to memory, credibility, or bias does not present an unusual circumstance that would undermine the reliability of Park's testimony in the present case.” ¶39. However:
    ¶40. Wisconsin case law leaves open the possibility that the inability of a defendant to cross-examine a witness at a preliminary hearing on questions of memory, credibility, or bias could, under certain circumstances, constitute an unusual circumstance that would render admission of the preliminary hearing testimony a violation of the defendant's right to confrontation. The case at hand, however, does not present such circumstances.
    Hearsay: Former Testimony, Preliminary Hearing
    State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
    For Stuart: Christopher W. Rose
    Issue: Whether the preliminary hearing testimony of a witness (“John”) – unavailable at trial after refusing to testify at that stage – was admissible under the confrontation clause, given the limits on examination at the preliminary hearing stage.
    Holding: “Testimonial” hearsay is admissible only if the declarant is unavailable at trial, and if there was a prior opportunity to cross-examine the declarant, ¶26. Prior testimony at a preliminary hearing is indisputably “testimonial”; and, John’s refusal to testify at trial indisputably made him “unavailable,” ¶¶28-29. The dispositive issue is therefore whether cross-examination of John at the preliminary hearing satisfied confrontation. Because a preliminary hearing is a summary proceeding, so that inquiry is restricted to matters of plausibility and not credibility, Stuart was unable at the preliminary hearing to explore John’s potential motive to testify falsely, namely the fact that John was facing criminal charges at the time he incriminated Stuart. Thus, even though Stuart was able to bring out at trial certain matters impeaching John’s credibility (¶34), this particular restriction on cross-examination at the preliminary hearing violated confrontation:
    ¶37     At the very least, these facts demonstrate a potential motivation to testify falsely on the part of John. Had John testified at trial and Stuart been precluded from exploring the motivation to testify falsely, such a restriction would be considered a Confrontation Clause violation. See, e.g., Van Arsdall, 475 U.S. at 679; see also State v. Barreau, 2002 WI App 198, ¶55, 257 Wis. 2d 203, 651 N.W.2d 12.

     ¶38     As a result, like the State, we agree with Stuart that the use of his brother's preliminary hearing testimony at trial violated his right to confrontation. The circuit court properly did not allow Stuart to cross-examine John at the preliminary hearing about the effect the pending charges had on his decision to cooperate. Accordingly, John's preliminary hearing testimony should not have been admitted at trial.

    A very fractionated court (5 separate opinions), requiring a bit of vote-tabulating. But on this point of confrontation clause analysis, the vote seems to be 6-1, if not 7-0. (Don’t be misled by Justice Prosser’s reference to (“(t)he lead opinion,” ¶61) – an apt description on, and no doubt intended to be limited to, the matter of harmless error.) The three dissenters explicitly “agree that the admission of his brother John Stuart’s preliminary hearing testimony violated the petitioner's right to confrontation,” ¶88 (they dissent on the issue of harmless error). Chief Justice Abrahamson concurs separately on the matter of harmless error, not confrontation, ¶59. Same for Justice Butler, whose concurrence “agree(s) with the court's interpretation and analysis of the Confrontation Clause under the facts of this case,” ¶83. That’s six votes altogether, making the “lead opinion” indisputably the majority. Justice Prosser’s concurrence (¶¶60-82) isn’t quite clear on whether he himself subscribes to this majority rationale. He does say that the “court properly concludes that the defendant’s confrontation rights were violated because he did not have adequate opportunity for cross-examination,” ¶75. But he goes on to express a view that John’s unavailability was procured only through “collusion” with the defense, and that this worked a forfeiture of the right to confrontation, ¶¶77-80. “This case is exceptional and permits a departure from the strict rules of Crawford, yet the circuit court's denial of the defendant's motion to impeach the witness was an error too serious to ignore under Harvey,” ¶81. Justice Prosser’s concurrence might be construed to mean that the State had a winning forfeiture argument but waived it. Regardless of how construed, there is a minimum of 6 votes in favor of what is therefore a majority rationale. Does the holding, though, represent a bright-line rule barring prior, preliminary hearing at trial (assuming, of course, the witness’s unavailability)? Doubtful; see, ¶31:
    ¶31     Cross-examination at a preliminary examination is not to be used "for the purpose of exploring the general trustworthiness of the witness." Huser, 84 Wis. 2d at 614. Indeed, "[t]hat kind of attack is off limits in a preliminary hearing setting." State v. Sturgeon, 231 Wis. 2d 487, 499, 605 N.W.2d 589 (Ct. App. 1999). When this restriction is enforced, as it was in the present case, and the State attempts to use the preliminary hearing testimony at a later trial, a Confrontation Clause problem arises.
    When this restriction is enforced, as it was in the present case: that, likely, is the operative principle. Which means, in turn, that the careful practitioner will want to make prelim questioning as aggressive as possible, to ensure that restrictions are indeed enforced.
    Hearsay: Former Testimony, Preliminary Hearing, § 908.045(1)
    State v. Paul J. Stuart, 2003 WI 73, on certification; subsequent history: overruled by State v. Paul J. Stuart, 2005 WI 47
    For Stuart: Christopher W. Rose
    Issue/Holding: An unavailable witness’s former (preliminary hearing) testimony was admissible at trial without violating the defendant’s right to confrontation. Preliminary hearing testimony is a firmly rooted hearsay exception, for which reliability may be inferred unless unusual circumstances exist. ¶¶36-37. The limited scope of preliminary hearing and concomitant limitation on cross-examination does not itself make the evidence inadmissible. ¶39. Only one objection was sustained, and although the witness’s credibility was an important facet of the case, Stuart “was able to meaningfully cross-examine” the witness, establishing facts that bore on credibility. ¶41. 
    Hearsay: Former Testimony, Preliminary Hearing, at Trial
    State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
    For Tomlinson: John J. Gray
    Issue/Holding: The witness's preliminary hearing contained sufficient indicia of reliability for confrontation clause purposes to be admissible at the defendant's trial: counsel's ability to cross-examine the witness was meaningful, as exemplified by the fact that he was able to elicit information helpful to the defense. ¶51.
    Note: the court's intimation, citing State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982), "that the unavailability determination must be made in all Confrontation Clause cases" "may have been overbroad," is now out-dated: Crawford v. Washington unambiguously imposes an unavailability analysis. (That is, under Crawford, once a statement from a non-testifying witness is deemed "testimonial," then it is inadmissible unless the witness is unavailable and there was prior opportunity for cross-examination.) In this instance, though, the former testimony rule expressly requires witness-unavailability. ¶46 n. 7.
    Confrontation – Certified Bank (“Business”) Records – Nontestimonial
    State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
    For Doss: Robert R. Henak
    Issue: Whether the authenticating affidavit of a bank record was “testimonial” within the meaning of Confrontation Clause requirements.
    ¶45      The parties do not dispute that the circuit court correctly described Crawford and Manuel as identifying business records as nontestimonial, and correctly concluded that the specific bank records in this case are nontestimonial business records and not a threat to Doss's Confrontation Clause rights. The issue in this case is whether the affidavits authenticating the bank records are similarly benign nontestimonial evidence.

    ¶46      We conclude that affidavits verifying nontestimonial bank records in compliance with Wis. Stat. § 891.24 are also nontestimonial. Such affidavits are generally of a different nature than inculpatory testimony against an accused criminal defendant.

    ¶47      The critical defining element of the affidavits accompanying the bank records in this case is that they fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. The affidavits in this case are not the type of affidavits described in Crawford, i.e., the functional equivalent of ex parte in-court testimony that declarants "would reasonably expect to be used prosecutorially." Crawford, 541 U.S. at 51. In certifying the authenticity of bank records in the manner set forth by Wis. Stat. § 891.24, the affidavits themselves neither provide inculpatory evidence incriminating Doss nor threaten her Confrontation Clause rights, in contrast with the type of evidence described in Crawford. As long as Wis. Stat. § 891.24 is complied with, the affidavits are not testimonial and their admission did not violate Doss's Confrontation Clause rights. [7]

    This is, to put a label on it, an “authenticating business records” case (¶50). Without getting into any possible distinction drawn between private and public (say, crime lab report) records, take note of the pending Cert grant in Melendez-Diaz v. Massachusetts, No. 07-591 (“Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington (2004).”) The general problem of Crawford’s intersection with certified records is a matter of raging national dispute and for a smattering (but no more than that) of cases go here on this page and scroll down; more: here, from the seminal Richard Friedman. Melendez-Diaz will, presumably, put much of this dispute to rest.
    Certified Medical Records
    State v. Mahlik D. Ellington, 2005 WI App 243
    For Ellington: Andrea Taylor Cornwall
    Issue/Holding1: The confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records:
    ¶13      First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records. Ellington does not explain why any witness could not also read pertinent excerpts to the jury. Generally, the lawyer is the best reader in the courtroom, but there is no rule or doctrine that prevents the lawyer from asking a witness to read to the jury material that is in evidence.
    Issue/Holding2: Admission into evidence of medical records containing subjective, diagnostic opinions—as opposed to “clinical and nondiagnostic” “objective findings”—violates confrontation, see State v. Rundle, 166 Wis. 2d 715, 728, 480 N.W.2d 518, 524 (Ct. App. 1992). But in this instance, “the detective read to the jury only the objective findings of the medical personnel as well as what Marilyn B. told them about her injuries, namely, among other things, that they were the result of Ellington beating her.” Because Ellington hasn’t shown that any clinical findings were flawed and further because he did not dispute that he hit her, the Rundle principle wasn’t violated, ¶16.
    Coconspirator’s Statement During and in Furtherance of Conspiracy – “Non-Testimonial” Statement – Reliable under Ohio v. Roberts
    State v. Boon Savanh, 2005 WI App 245
    For Savanh: Timothy A. Provis
    Issue/Holding1: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”:
    ¶25      We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial. Although Neuaone in fact was a police informant, it borders on the fantastic to imagine that Vongrasamy’s remarks, which included offering refreshments to Neuaone, were coerced or otherwise influenced by that fact. In all probability, Vongrasamy believed Neuaone was there on his own initiative seeking to purchase drugs for himself or an associate. We conclude Neuaone’s government affiliation, which was unknown to Vongrasamy, had no impact on producing Vongrasamy’s statements.
    This appears to be an easy call. It would be one thing, of course, to decide whether statements by an informant were “testimonial,” see e.g., U.S. v. Cromer, 389 F.3d 662, 674 (6th Cir. 2004) (statement knowingly made to authorities describing criminal activity “almost always testimonial”; therefore, informant’s statement to police implicating defendant held “testimonial”); U.S. v. Powers, 6th Cir No. 06-1684, 9/12/07; U.S. v. Hearn, 6th Cir No. 06-5854, 9/11/07. But here, the informant testified; the challenged statements were unknowingly made to the informant. Though the court of appeals doesn’t cite any supporting authority for its conclusion, they exist in relative abundance, and the result seems beyond reproach. See United States v. Hendricks , 395 F.3d 173, 181 (3rd Cir. 2005) (collecting authorities to effect that statement made during course of conspiracy non-testimonial). Of course, the flip side is: if the issue is as clear-cut as it appears to be, why bothering publishing it? Could just be a symptom of Crawford fever. The court goes on to distinguish Lilly v. Virginia, 527 U.S. 116 (1999) (accomplice’s custodial statement to police inadmissible against defendant); again, the discussion seems pretty obvious, ¶¶26-28. If you happen to be looking for a Lilly-type case, see Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005), though keep in mind that it applied pre-Crawford analysis.
    Issue/Holding2: Coconspirator’s statement held admissible under Ohio v. Roberts reliability test:
    ¶32      We conclude that the second part, whether the statement bears adequate indicia of reliability, also is satisfied. In the first place, these statements fall within a firmly rooted hearsay “exception” [4] as a matter of law, such that their reliability may be inferred without a showing of particular indicia of reliability. State v. Webster, 156 Wis.  2d 510, 522, 458 N.W.2d 373 (Ct. App. 1990). In addition, any inherent unreliability that might accompany coconspirator statements made during the course and in furtherance of the conspiracy is per se rebutted by the circumstances giving rise to the long history of admitting such statements. Lilly, 527 U.S. at 137; Bourjaily, 483 U.S. at 182-84. 
    Hearsay: Crime Lab Analyst Who Didn't Perform Test Herself
    State v. Luther Williams, III, 2002 WI 58, on certification
    For Williams: Martha K. Askins, SPD, Madison Appellate
    Issue: Whether confrontation was violated when an expert other than the crime lab analyst who actually performed the tests was allowed to testify to the testing results.
    Holding: Where the testifying expert is "highly qualified and had a close connection with the testing," -- was in fact, "a unit leader in the drug identification section of the crime lab who performed the peer review on the tests the analyst conducted" -- the right to confrontation is satisfied, so long as the testifying expert doesn't "act as a mere conduit for the opinion of another." ¶¶11, 19.

    ¶20. Taken together, these cases teach that the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. Given Koresch's qualifications and experience, her close connections to the tests and procedures implicating Williams, and her expert opinion that the tested substance contained cocaine, we determine that the admission of her testimony did not violate Williams' right to confrontation.

    Although Williams is a pre-Crawford case, its holding was essentially ratified by State v. Barton, discussed immediately below. Further discussion will therefore be found under that summary.
    Confronttation - Expert Opinion Based on Hearsay
    State v. Craig A. Swope, 2008 WI App 175
    For Swope: Dianne M. Erickson
    Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.
    ¶35      In State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), the supreme court explained: “In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37, 469 N.W.2d 595 (1991), we stated that ‘even if [the expert] arguably relied on hearsay in forming [the expert’s] opinion, [the expert’s] opinion is still admissible.’” We note, however, that
    [Wisconsin Stat. §] 907.03 is not a hearsay exception. Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule. (Citation omitted.)
    State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

    ¶36      Safarik was asked to analyze all of the evidence from the Recob home to determine if their simultaneous death was naturally or criminally caused—the medical examiner had ruled out accident or suicide. Naturally, he would seek out information on simultaneous death by natural causes to test his hypothesis that the deaths were the result of a crime. The statistics relied upon by Christakis of Harvard and Anderson of the CDC were not admitted into evidence; rather, they served to illustrate the basis for the opinion they shared that it was statistically impossible for a couple to suffer simultaneous death from natural causes—an opinion Safarik took into consideration when reaching his conclusion that death was by a criminal act. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (The trial court may, in its discretion, allow an expert to testify to otherwise inadmissible facts for the limited purpose of serving as a basis of the expert’s opinion.). The trial court did not err in permitting Safarik to rely upon the opinions of Christakis and Anderson.  

    Nor, the court adds, does the underlying hearsay violate confrontation, ¶37, citing State v. Barton, 2006 WI App 18 (overarching principle summarized as: “confrontation rights were not impinged because the hearsay opinions of others were not admitted for the truth of the matter asserted but as the basis of the expert’s testimony”). It is possible, though far from certain, that this on-going issue of prosecutorial exploitation of side-door hearsay will be resolved in the pending Melendez-Diaz v. Massachusetts; background here.
    Expert Testimony: Crime Lab Analyst, Opinion Based in Part on Another's Testing
    State v. David Barton, 2006 WI App 18
    For Barton: Leonard D. Kachinsky
    Issue: Whether the expert opinion of a crime lab analyst, presenting his own conclusions about tests performed by a non-testifying analyst, violated confrontation.
    ¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion.  Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests.  He formed his opinion based on his own expertise and his own analysis of the scientific testing.  He then presented his conclusions to the jury, and he was available to Barton for cross-examination.  Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.

    ¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrules Williams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.”  We disagree.  ...

    ¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

    The reference is to  State v. Luther Williams, 2002 WI 58, reconsideration denied 2002 WI 118, which is similar factually (and summarized immediately above); the upshot, then, is to ratify Williams in light of Crawford. As Barton suggests ¶¶21-23, there is a developing split on the extent to which Crawford inhibits a testifying expert's reliance on a non-testifying expert. The problem, of course, is recurrent and unlikely to go away anytime soon.  There are, for that matter, two distinct problems, broadly speaking: reliance by a testifying expert on the report of another expert (which is raised by Barton-Williams) and admissibility of a non-testifying expert's report without any testimony at all (not raised by these cases but potentially recurrent, certainly in foreign caselaw).

    As to the latter problem, Richard Friedman observes (as usual, presciently anticipating the battleground):

    For example, suppose a laboratory report is a critical piece of evidence. In most circumstances, the lab report should be considered testimonial, because the report is prepared in anticipation of its introduction at trial. Therefore, the lab technician who made the report should testify at trial if she is available to do so. If she becomes unavailable through no fault of the accused (by accidental death, for example), and the accused has not had an opportunity to crossexamine her, then the report should not be considered admissible. ...
    Friedman's concerns are arguably blunted by the facts of this case -- unit leader; peer review; expert witness’s own opinion derived from independent analysis.  If nothing else, those facts ought to be kept closely in mind and distinguished when and if possible. For discussion of general principles in this area, Pamela Metzger, "Cheating  the Constitution," 59 Vanderbilt LR 475 (2006) is worth a look. (Abstract: "Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case"). To be sure, that is a kettle of different fish, likely to be served up on a platter of "authentication" or some other foundational hearsay problem (whether it is suffficient for confrontation purposes that a routine business record has been properly authenticated under the evidence code); it is discussed here. The present problem is whether some live-witness elucidation satisfies confrontation, which raises a larger question of the extent to which the confrontation clause countenances a testifying expert's reliance on the testimonial data/opinions of another, non-testifying expert. (See discussion here ("("though a statement made to the expert might appear to be testimonial in nature, because made in anticipation of prosecutorial use, the prosecution will argue that the statement is not being offered for the truth of what it asserts but only as a basis for the expert's opinion"), especially cites in comment #3.)

    The cases relied on by Barton are State v. Delaney, 613 S.E.2d 699, 700 (N.C. Ct. App. 2005) (in effect, no impact); and People v. Thomas II, 30 Cal. Rptr. 3d 582, 587 (Cal. Ct. App. 2005) ("Crawford does not undermine the established rule"). While critical of any general rule in this area ("The basis-for-expert-opinion veneer seems to me to be too thin in this context."), Friedman also suggests that perhaps the statements at issue in Thomas were "idle chatter" and not testimonial; if so, then Thomas is weakened.

    On similar facts (expert testified to someone else's lab notes), U.S. v. Moon, 7th Cir No, 05-4506, 1/3/08 ("the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial"; witness "entitled to analyze the data that" non-testifying person collected, though latter's "own conclusions based on the data should have been kept out of evidence"). For authority that one expert cannot merely summarize findings of another, see People v. Lonsby, 707 N.W.2d 610 (MI App 2005) (testifying witness's summarizing non-testifying serologist's test results violated  Crawford). And for other authority exemplifying the idea that expert testimony often (always? necessarily?) raises potential confrontation problems, see People v. Goldstein, 2005 NY Int 156 (confrontation violation where prosecution psychiatrist testified to statements made by non-testifying declarants). But see State v. Ruggles, Or App No. A127538, 8/29/07 (lab report indicating BAC admissible); People v. Salinas, Cal App No. F049017, 1/12/07 (lab report indicating substance methamphetamine admissible through testimony of lab supervisor rather than analyst who ran test, because: report merely "routine documentary evidence," i.e., only showed "recorded test results" therefore not testimonial, and supervisor provided full opportunity for cross-examination on foundation showing for document; had the report contained "opinion testimony" that defendant, for example, had been under the influence, then admissibility result would be different); U.S. v. Washington, 4th Cir No. 05-4883, 8/22/07 ("machine generated data" nontestimonial, because thaey "are the 'statements' of the machines themselves"; therefore, expert allowed to use that data to derive opinion about substances in blood sample), albeit over strong dissent.

    Can the prosecution sidestep Crawford simply by announcing that the testimonial-declarant is available to be subpoenaed by the defense? Yes, at least according to State v. Campbell, 2006 ND 168 ("Because neither Pinks nor Campbell attempted to subpoena the forensic scientist as provided by statute, they have waived their ability to complain of a constitutional violation"). That result is criticized by Richard Friedman, here. Authority for the idea that the burden can't be shifted in this manner: State v. Birchfield, OR SCt No. S53363, 4/19/07 (as matter of state constitution; federal constitution not reached); Bratton v. State, TX App No. 05-03-01773-CR, 2/28/05; State v. Cox, 876 So.2d 932, 938-39 (La. App. 3d Cir. 2004).

    Barton notes, literally as an aside, ¶22 n. 4, that the underlying report itself was never admitted into evidence. Despite its seeming significance, this fact probably doesn't limit the holding, because whether or not the report had substantive evidentiary effect wouldn't impact the crucial details listed in ¶16. The fault line for the court seems to be this: “The critical point ... is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others,” ¶10, quoting Williams, ¶19. Indeed, the very point of the opinion (though it is not quite explicit) is that Lyle's testing wasn't "testimonial"; in other words, Crawford doesn't apply. Thus, the court doesn't even address the other component of Crawford, unavailability of the "witness," precisely because there was no non-testifying "witness." Unavailability analysis would have been interesting: the reason Lyle didn't testify was because he'd retired and he refused to testify unless the State coughed up $1000 (¶4 n. 1). 

    For related problem, of whether "business records" or "public records" such as police dispatch tapes, fingerprint and autopsy reports and the like are "testimonial," see State v. Shipley, Iowa SCt No. 111/06-0051, 7/18/08 (certified abstract of driving record didn't violate confonrtation); State v. Kronich, Wash SCt No. 78428-1, 7/12/07 (departmental certification of driving record not testimonial); People v. Pacer, NY Ct. App No. 45, 3/28/06(affidavit from DMV official describing agency revocation and mailing procedures, offered to prove that defendant knew driving license revoked, inadmissible under Crawford); Belvin v. State, FL App 4th Dist No. 4D04-4235, 3/8/06 (affidavit from non-testifying officer who administered breath test in OWI prosecution, to show that test was performed according to approved methods, etc., violated Crawford; "the statutory listing of breath test affidavits under the public records and reports exception to the hearsay rule does not control whether they are testimonial under Crawford"); People v. Mitchell, Cal App No. B176271, 8/11/05; Michels v. Commonwealth, Va App No. 2008-04-4, 1/17/06 (documents on file with state secretary of state not testimonial; cases collected re: business records and Crawford). Compare, U.S. v. Gilbertson, 7th Cir No. 05-2923, 1/30/06 (certified auto titles not testimonial, because not produced pursuant to government investigaiton taken in anticipation of criminal litigation); U.S. v. Torres-Villalobos, 8th Cir No. 06-1876, 5/9/07 (same, re: warrant of deportation). See also cases in Crawford Outline.

    But see U.S. v. Ellis, 2nd Cir No. 02-1665-pr, 10/25/06 ("a statement properly admitted under FED. R. EVID. 803(6) cannot be testimonial because a business record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence. ... Because the autopsy reports are business records as defined in FED. R. EVID. 803(6), they are nontestimonial."); U.S. v. Ellis, 7th Cir No. 05-3942, 8/22/06 (medical report of drug in urine and blood, taken during OWI investigation, not testimonial under Davis-Hammon).

    It ought to be recalled that the first step of confrontation analysis is hearsay admissibility and where the report is admitted into evidence then it must satisfy hearsay rules. This case simply doesn't address the hearsay rule. For a rough but accessible statement of principles, see  Walworth County v. Therese B., 2003 WI App 223, ¶¶8-9.

    Scholarly critique of "the various stratagems employed by courts" to avoid Crawford when it comes to admissibility of experts' reports, downloadable, here (Jennifer Mnookin, "Expert Evidence and the Confrontation Clause After Crawford v. Washington "). Cert petition, pending as of 1/08 raises this question:

    Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).
    Luis E. Melendez-Diaz v. Massachusetts, No. 07-591. Richard Friedman's supporting amicus brief available here.
    Hearsay – Impeachment as Exception to Crawford
    State v. Jermaine Smith, 2005 WI App 152, PFR filed
    For Smith: Glen B. Kulkoski
    Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.
    ¶10      The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….

    ¶11      A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. Smith was warned by the trial court, and he could have chosen not to put into evidence Nunn’s out-of-court statements. Smith ignored the trial court’s warnings, and will not be permitted by this court, in hindsight, a second kick at the cat.

    This case was originally recommended for non-publication, and it's not clear, really, why publication ensued. The court provides virtually no analysis, and goes on to say that any error would be harmless, ¶¶12-13, so that the discussion on admissibility both scants the issue and is gratuitous anyway. Mapping the intersection between Crawford and impeachment is undoubtedly necessary, but this simply isn’t much of a start. By grounding admissibility under § 908.06 (which allows an attack on a hearsay declarant’s “credibility”), the court treats the rebuttal evidence as mere impeachment, which was apparently the State’s intended effect. Nothing wrong with that, but there’s a fine question about whether non-substantive (mere impeachment) evidence is “testimonial” and thus implicates confrontation analysis – whose resolution will have to wait for some other case: the holding appears based on notions of waiver, in that Smith was explicitly warned but forged ahead anyway. For that matter, it’s probably dangerous to view the case as limited to the fact that the litigant was put on notice. Even in the absence of warning, though, Smith probably would have been held to a door-opening theory of admissibility. Not much in this opinion, then, to advance our understanding of Crawford.

    Somewhat tangentially, but still related: One of the most problematic post- Crawford areas has to do with expert opinion, which may be based on hearsay, though the jury must be told not to give that hearsay substantive evidentiary effect: does sneaking in hearsay under this guise violate Crawford? This very recurrent problem is at heart similar to the problem in Smith, at least when stripped of waiver / door-opening: again, the relationship between non-substantive evidence and Crawford; or, to put it otherwise, whether non-substantive hearsay may be deemed “testimonial.” See State v. Williams, above. Also see U.S. v. Logan, 2nd Cir No. 03-1290, 8/15/05 (pre-Crawford requirement that a hearsay statement must be offered for the truth of the matter in order to trigger confrontation clause analysis remains viable).

    Confrontation -– Opportunity for Cross-Examination: Witness’s Claimed Loss of Memory
    State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
    For Rockette: Timothy A. Provis
    Issue: Whether the witness’s repeated claim of memory loss denied Rockette confrontation within the meaning of Crawford v. Washington, 541 U.S. 36 (2004).
    ¶24      Fensterer and Owens teach us that the key inquiry for Confrontation Clause purposes is whether the declarant is present at trial for cross-examination, takes the oath to testify truthfully and answers questions asked of him or her by defense counsel. These cases also plainly inform us that the Confrontation Clause does not guarantee that the declarant’s answers to those questions will not be tainted by claimed memory loss, real or feigned.  

    ¶25      Rockette claims that the Crawford court altered this analysis where prior testimonial statements are concerned. However, we can find nothing in the Crawford opinion suggesting that the Court intended to overrule or otherwise call into question Fensterer or Owens.

    ¶26      … Accordingly, we hold that a witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause under Crawford, so long as the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. See Fensterer, 474 U.S. at 20, 22; Owens, 484 U.S. at 559-60.

    Hearsay: Penal-Interest Statement, § 908.045(4) -- Statement to Prison Cell-Mate
    State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, No. 04-2682, 4/7/05
    For Bintz: Elizabeth A. Cavendish-Sosinski
    Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.
    Hearsay: Penal-Interest Statement, § 908.045(4) -- Non-Custodial Statement to Police
    State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, No. 04-2682, 4/7/05
    For Bintz: Elizabeth A. Cavendish-Sosinski
    Issue/Holding: The codefendant's (defendant's brother) against-penal-interest statement to the police didn't violate the confrontation clause, where the declarant "was not in custody and there is no indication he was threatened with prosecution or asked leading questions." Nor was his statement "especially inculpatory in respect to shifting blame toward" the defendant. ¶13.
    This result is highly suspect. The court distinguishes Lilly v. Virginia, 527 U.S. 116 (1999), and relies on State v. Murillo, 2001 WI App 11. ¶14. But habeas relief was granted in the latter case. Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005. It might still be said that Lilly remains distinguishable, in that the declarant wasn't under arrest and wasn't trying to shift blame from himself to his brother -- except that such an analysis is no longer viable, Crawford v. Washington: the confrontation clause is violated if an extrajudicial testimonial statement is admitted against the defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The declarant was unavailable (because he pleaded the Fifth), but Murillo had no prior opportunity to cross-examine. The only question is whether the statement was "testimonial"; and, because it was given to the police (albeit not while in custody) it almost certainly would be regarded as testimonial.
    Hearsay: Social Interest Exception, Particularized Guarantees of Trustworthiness
    State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted, Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005
    For Murillo: Craig Albee 
    Issue: Whether admissibility of a statement under the social-interest hearsay rule violated confrontation.
    Holding: Because the social-interest exception (§ 908.045(4)) is not firmly rooted, the state must show particularized guarantees of trustworthiness. That showing is met, the court relying largely on its hearsay discussion and in the process distinguishing Lilly v. Virginia, 527 U.S. 116 (1999) (in-custody statement against penal interest violated confrontation; suspect has natural motive to exculpate self and shift blame -- court of appeals conveniently forgetting that declarant was in custody and that trial court actually premised admissibility at least in part on penal interest exception, ¶7). ¶¶20-25. 
    UPDATE: The result was overturned on habeas review. The state court holding, as the habeas court noted, citing Crawford v. Washington,
    is contrary to clearly established federal law as it presently exists. This is because the United States Supreme Court has recently held that the Sixth Amendment Confrontation Clause bars the use against a defendant of statements made by a non-testifying witness in the course of an interview with the police....
    To that should be added the quealifications that the witness is unavailable at trial and also that the defendant didn't have a prior opportunity for cross-examination. Those conditions apply here, but Crawford was decided after Murillo's appeal was over, and so he can't take advantage of it. But he is nonetheless entitled to relief under applicable caselaw, namely Lilly.
    Hearsay: Recent Perception, § 908.045(2)
    State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
    For Weed: T. Christopher Kelly
    Issue/Holding: A statement of recent perception, § 908.045(2) is not a firmly rooted hearsay exception and therefore must be supported, for confrontation purposes, by particularized guarantees of trustworthiness. ¶¶23-24.
    ¶26. In this case, Michael's statement appeared to have particularized guarantees of trustworthiness to satisfy the confrontation clause. Michael's statement was a spontaneous comment to his good friend and his friend's son in response to Weed's attempt to drive while intoxicated. Michael allegedly made the statement twice--once to Chris inside the cottage and again to both Fuerbringer and Chris when they were outside starting the fish fry. There also was not an apparent motive for Michael to fabricate the statement.

    ¶27. However, Weed notes that Michael had been drinking and contends that his statement was not trustworthy because he made it in response to her humiliating comments (e.g. Weed's comment that she would divorce him and make him the "poorest asshole in Portage"). We acknowledge that Michael's mental state might have been affected by having a few beers, although Fuerbringer testified that Michael later switched to soda. We also recognize that the conversation at the cottage was tense, with both Michael and Weed making negative comments about each other. Nevertheless, upon reviewing the totality of the circumstances surrounding Michael's statement, it still appears that his statement had particularized guarantees of trustworthiness. Although Michael had a few beers, there was no indication that Michael was drunk and making inaccurate or untruthful statements. Furthermore, even though Michael and Weed spoke negatively about each other, this does not mean that Michael's statement was untrue. Even if Michael intended to disparage Weed by stating "[t]hat's why I took the bullets out of the .357," this does not necessarily undermine the veracity of his statement. In addition, it seems that if Michael's primary intention was to disparage Weed, he could have done so more directly than describing an act that he had recently performed (i.e. taking bullets out of the gun)

    Hearsay -- Recent Perception / Excited Utterance (-- & Statement Not Admitted For Its Truth)
    State v. Donavin Hemphill, 2005 WI App 248
    N.B. The holding quoted below was overruled, in State v. Mark D. Jensen, 2007 WI 26, ¶24n. 8. In other words, "a spontaneous statement to a police officer" is not, as a matter of law, non-testimonial.
    For Hemphill: Jeffrey Jensen
    Issue/Holding: An out-of-court statement by a witness to police (responding to a report of “trouble” involving a “subject with a gun”) which pointed out the defendant (“Those are the ones. That’s them.”) did not violate confrontation:
    ¶11      The statement made by Fields in the instant case does not fall into any of the identified categories of “testimonial” statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. Fields offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the Fields statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular suspect. See People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim. Ct. 2004); State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004); People v. Corella, 18 Cal. Rptr. 3d 770 (Cal. Ct. App.  2004).
    We probably haven't heard the last of this sort of problem. Two problems, really: the first a procedural one (whether the statement can be viewed as non-hearsay and thus outside confrontation); the second, substantive (whether the statement satisfied confrontation). As to the first, the trial court ruled that the statement wasn’t offered to prove the truth of the matter but was offered to explain why the officers followed the subjects from the scene, hence didn’t fall within Crawford, ¶6. A seriously problematic view, given that the jury wasn’t burdened with a limiting instruction (how was the jury to know that it couldn’t use the statement as proof that they were, in point of fact, “the ones” the police were after?). And compare State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005) (detective's "gratuitous" suggestion that defendant's photo was put in an array because of information the detective received held to violate confrontation; "In contexts other than a photographic identification, the phrase 'based on information received' may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person.") And U.S. v. Maher, 1st Cir No. 05-1598, 7/6/06 ("The dividing line often will not be clear between what is true background to explain police conduct (and thus an exception to the hearsay rule and thus an exception to Crawford) and what is an attempt to evade Crawford and the normal restrictions on hearsay. But we are on firm ground in warning prosecutors of the risks they face in backdoor attempts to get statements by non-testifying confidential informants before a jury."); U.S. v. Silva, 380 F.3d 1018 (7th Cir. 2004):
    So to what issue other than truth might the testimony have been relevant? The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”. Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant’s rights under the sixth amendment and the hearsay rule. ... Under the prosecution’s theory, every time a person says to the police “X committed the crime,” the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers. See Crawford v. Washington, 124 S. Ct. 1354 (2004).
    See also U.S. v. Price, 3rd Cir No. 05-2968, 6/30/06 (unfavorable result on particular facts, but fairly detailed discussion): "courts must not allow the government, in the guise of 'background explanation' testimony by police officers, to put before the jury eyewitness accounts of bad acts by the defendant that the jury would not otherwise have heard. When evidence admitted as 'background' includes such facts, we will exclude or redact it to the extent that its actual evidentiary function is not the (legitimate) one for which it was admitted."

    But the court of appeals in Hemphill doesn’t adopt the trial court's analysis and thus this problem is left for another day; instead, the court treats the statement as a hearsay exception, which gets to the second problem. (This is made clear in the court's ensuing Roberts analysis, ¶13, that the statement was reliable as either a present sense impression or excited utterance.) Indeed, the three supporting cites are all excited-utterance cases of one type of another. The ensuing analysis will have to be read in light of Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited "testimonial" statement), and the companion case, Davis v. Washington (accusation made in 911 call immediately after incident "nontestimonial"). Hemphill seems to fall factually somewhere between these two cases (the police were on the scene, same as in Hammon, but the alleged perpetrator wasn't within police control, unlike Hammon but like Davis). Was there an ongoing emergency? But even if there wasn't (because the perp might have been lurking about), it might or might not matter that the statement wasn't made in response to police questioning. That seems like a mere detail -- after all, the presence of the police undoubtedly prompted the statement, and the declarant must have known the accusation would later be used in court. And, indeed, the Court trends strongly in that direction, in footnote 1:

    Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.
    It is also worth noting that the mere fact that the statement satisfies a hearsay rule doesn't throw it outside confrontation -- Hammon deemed the statement "testimonial" though it was admitted into evidence as an excited utterance.

    Confrontation -- Screened Witness

    Witness Testifying Behind Screen – Thomas Surviving Crawford
    State v. Fred V. Vogelsberg, 2006 WI App 228 (Cert. petition filed, Case No. 06-1253.)
    For Vogelsberg: Timothy A. Provis
    Issue1: Whether the holding of State v. Thomas, 150 Wis. 2d 374, 394, 442 N.W.2d 10 (1989) (witness may testify behind screen upon showing of necessity) survives Crawford v. Washington, 541 U.S. 36 (2004).
    ¶14      Had the Supreme Court intended to overrule Craig, it would have done so explicitly. The majority opinion in Crawford does not discuss Craig or even mention it in passing. The only precedent that Crawford overruled was Roberts, and then, only with respect to testimonial statements. See State v. Manuel, 2005 WI 75, ¶60, 281 Wis. 2d 554, 697 N.W.2d 811.

    ¶15      We conclude that Crawford and Craig address distinct confrontation questions. Crawford concerns the admissibility of out-of-court “testimonial evidence” where the witness was not available for cross-examination. The fundamental issue in Crawford was the reliability of testimony. The Court concluded that the Constitution does not permit judicial determinations of reliability concerning out-of-court testimony; except for traditional common law exceptions, only confrontation at trial is sufficient to satisfy the Sixth Amendment. The issue in Craig, and in this case, is not the reliability of testimony—in both Craig and here, the accused had the opportunity to cross-examine the witness. Rather, the issue is whether the demands of the Confrontation Clause are met when, for public policy reasons and following a case-specific determination of necessity, a barrier is placed between the witness and the accused. Craig addressed this question, and Crawford did not.

    See also State v. Blanchette, 134 P.3d 19 (Kan App 2006) (Crawford didn't overrule Craig; testimony via closed-circuit television therefore upheld).
    Issue/Holding2: The requirement of particularized findings before dispensing with face-to-face confrontation of a child-witness, Maryland v. Craig, 497 U.S. 836 (1990), is not limited to instances of trauma impairing the child’s ability to communicate, ¶19:
    … In fact, a categorical requirement that the child’s trauma must be such that he or she cannot speak would run counter to the detailed, three-part test to determine the necessity of a special procedure to shield the child witness from the accused. Furthermore, we have applied Craig in the past and have not read it to impose such a requirement. See, e.g. State v. Street, 202 Wis. 2d 533, 552-54, 551 N.W.2d 830 (Ct. App. 1996).
    The court also upholds the trial court’s particularized findings of trauma, premised largely on “a police report indicating that a social worker told police that Vogelsberg had threatened to harm the child if he ever told anyone about the abuse.”

    Confrontation -- Unavailability of Hearsay Declarant

    Hearsay: Necessity of Showing Declarant’s Unavailability
    State v. Daniel D. King, 2005WI App 224
    For King: Scott D. Obernberger
    Issue/Holding: The confrontation clause requires that the hearsay declarant be unavailable to testify at trial “and, critically, that the State make a ‘good-faith effort’ to produce the declarant at trial,” ¶6. The trial court erred in determining that the declarant was truly unavailable:
    ¶16 First, the State conceded that its process-server had Shelia J.’s wrong address for seven of the attempts at service. Second, a detective found Shelia J. and spoke with her after the victim-advocate learned that Shelia J., as phrased by the State in its representation to the trial court, “believes she didn’t have to come if she didn’t get a subpoena.” Yet, the detective did not then serve Shelia J., but, apparently, merely asked Shelia J. to call the district attorney’s office. Attempting to, in the State’s word, “persuade” a reluctant witness, either directly or through relatives, to come to court is not sufficient when a subpoena could have and should have been served. The district attorney may sign and issue a subpoena “to require the attendance of witnesses.” Wis. Stat. § 885.01(2). “Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.” Wis. Stat. § 885.03. Further, “[i]nexcusable failure to attend any court of record is a contempt of the court,” Wis. Stat. § 885.11(3), and “[e]very court … may issue an attachment to bring such witness before it for the contempt, and also to testify,” § 885.11(2).

    ¶17 To quote Gollon’s reflection in a related context, whether a hearsay declarant is constitutionally unavailable “is too important” to be satisfied by going-through-the-motions efforts; rather, the efforts must be adapted to the circumstances and must be unstinting. See id., 115 Wis. 2d at 601, 340 N.W.2d at 916. Indeed, even under the lower nonconstitutional standard of Wis. Stat. Rule 908.04(1)(e), the party seeking to introduce an out-of-court declarant’s hearsay assertions “must ‘specify the facts showing diligence’ and not rely on ‘a mere assertion of perfunctory showing of some diligence.’” State v. Williams, 2002 WI 58, ¶63, 253 Wis. 2d 99, 127, 644 N.W.2d 919, 933 (quoted source omitted). Not serving Shelia J. with a subpoena when that was possible and when that step was a foreseeable potential condition to her presence at trial was not reasonable, and does not reflect the constitutionally required good-faith effort to secure King’s right to confront his accuser. Accordingly, the State has not demonstrated that Shelia J. was constitutionally unavailable, and the trial court erred in permitting the jury to hear her preliminary examination testimony. See Crawford, 541 U.S. at 54.

    The court, intriguingly, drops a broad hint that the facts underlying this issue should have been determined by evidentiary hearing rather than, as actually occurred, mere assertions by the State, ¶15.

    Confrontation -- Videotaped Statement of Child

    Videotaped Statements of Children, § 908.08 – Constitutionality
    State v. Kevin D. James, 2005 WI App 188
    For James: Terry W. Rose
    Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.

    This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination, with defense opportunity for live cross-examination. The court of appeals holds that this statute on its face satisfies Crawford v. Washington, 541 U.S. 36 (2004):

    ¶10 The trial court further acknowledged that following the mandatory protocol would not per se violate James’ confrontation rights. In that respect, we agree with the court’s analysis. ...

    ¶11 This language describes exactly the situation before us. The State has promised to produce the children for cross-examination upon James’ request. As long as both children testify, the videotape-direct testimony-cross-examination sequence conforms both to Wis. Stat. § 908.08(5)(a) and Crawford. Cf. also State v. Tarantino, 157 Wis. 2d 199, 458 N.W.2d 582 (Ct. App. 1990) (a pre-Crawford case upholding § 908.08 against a Confrontation Clause challenge).[3]

    [3] ... [T]he right of confrontation simply means the right to confront in the sense that a defendant must at some point be allowed to face his or her accuser and force that person to answer for the accusation. It does not require that in order for the courts to admit an out-of-court accusation, the accuser must have confronted the accused at the time he or she made the accusation.
    Nor, the court goes on to say, does “the order of evidence prescribed in the statute” violate the separation of powers doctrine: by limiting the amount of time a child must spend on the witness stand, the statute eliminates a great deal of emotional strain, ¶18; and, it “does not determine the result of any case and therefore leaves the judiciary’s authority fully intact with respect to its most important function,” ¶20.

    This discussion relates to the procedure at an abstract level: there is nothing necessarily wrong with using a videotaped statement as, in effect, direct testimony. "The notion that James cannot expect a full and exacting cross-examination lacks any factual basis," ¶22. It simply remains to be seen whether and under what circumstances the court will be inclined to find that the defendant was denied "full and exacting cross-examination." In this regard see for example, State v. Price, WA SCt No. 77152-9, 11/16/06 (child's inability to remember did not render her "unavailable," therefore her pretrial statements and taped interview admissible without violating confrontation); U.S. v. Kappell, 6th Cir No. 04-1333, 8/9/05 (child-witness, even though unresponsive or inarticulate, considered “available” for cross-examination where testifying by remote, closed circuit technology). In all likelihood, something more than a squirrelly performance will have to be shown. See. e.g., State v. Pitt, OR App No. A120428, 11/15/06 (child witness declared incompetent to testify "unavailable" for confrontation purposes). Tangential but related point: it is settled that a witness who, for example, pleads the 5th is "unavailable" for cross-examination, State v. Paul J. Stuart, 2005 WI 47, ¶¶28-29. It is probably fair to say that any witness who genuinely "clams up" should be treated no differently than a witness who has formally invoked the 5th.

    Videotaped Statements of Children, and Confrontation § 908.08(5)
    State v. Lionel N. Anderson, 2005 WI App 238
    For Anderson: Harry R. Hertel; Steven H. Gibbs
    Issue/Holding: Issue/Holding: Pretrial videotaped statement, § 908.08(5), doesn’t violate confrontation when the person actually testifies, ¶24.

    "New Federalism"
    In a series of recent cases, the supreme court has joined what it terms "the 'new federalism' movement," State v. Knapp (II), 2005 WI 127, ¶84 and id., n. 20 (Crooks, J., conc. w/ majority support of 4 votes), which refers to a tendency to look first to the state constitution and assign greater rights than the Supreme Court to parallel provisions in the federal constitution. Those cases are listed here:

    State v. Knapp (II), 2005 WI 127 (differential self-incrimination clause construction: physical evidence derived from intentional Miranda violation subject to suppression rule); State v. Tyrone L. Dubose, 2005 WI 126 (differential due process clause construction: show-up IDs); and compare, State v. Jerrell C.J., 2005 WI 105 (superintending power invoked re: custodial juvenile confessions).

    What of fourth amendment suppression issues, something not explicitly at issue in this initial flurry of cases? Over the years, the Wisconsin supreme court has consistently rejected assigning greater protection to Wis. Const. Article I, Section 11 than the USSC assigns the 4th amendment. And yet, Knapp II takes pains to stress a little-recognized feature of State v. Eason, 2001 WI 98, 47, 245 Wis. 2d 206, 629 N.W.2d 625, namely that "this court departed from the Supreme Court's holding in United States v. Leon, 468 U.S. 897, 919-20 (1984)," by holding "'that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment.' Id." ¶73 n. 14. That would be enough to place Art. I, § 11 in the "New Federalism" sights. But there is certainly more to it than that. Knapp II undertakes an historical review of the suppression rule in Wisconsin, noting its origin with Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). ¶¶64, et seq. Although that discussion relates largely to self-incrimination, stressing that Hoyer is no longer viable to the extent that it embedded self-incrimination principles in the search-and-seizure clause, the court nonetheless issues what can only be seen as a ringing endorsement of the larger principle, Hoyer's commitment to enforcement of the exclusionary rule. It is wise to keep in mind that the exclusionary rule has two distinct rationales: deterrence of governmental misconduct and, separately, judicial integrity. The Supreme Court over the years has essentially limited the rule to the deterrence function, whose ruthless application has led to the rule's slow erosion. But "New Federalism" in general and Hoyer in particular put judicial integrity back into the suppression calculus. Some of this is inferential. Thus, Eason points out (¶41), "Hoyer relied solely upon federal law. See 180 Wis.2d at 412-18. Hoyer relied upon Amos, 255 U.S. at 316, and Gouled, 255 U.S. at 303, which, in turn, relied upon Weeks v. United States, 232 U.S. 383 (1914), the Supreme Court's seminal formulation of the exclusionary rule[.]" This exclusive reliance was subsequently invoked to hitch Wisconsin Constitution construction to the Supreme Court star. But New Federalism offers the opportunity to consider the actual rationale originally at play, judicial integrity. And with that in mind, here is the crucial passage in the seminal case, Weeks, 232 U.S. at 391-92:

    The effect of the 4th Amendment is to put the courts [232 U.S. 383, 392] of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
    (See also Robert Bloom, "Judicial Integrity: A Call for its Re-Eemergence in the Adjudication of Criminal Cases" ("The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.").) That encomium to judicial integrity was echoed in Hoyer's invocation, 180 Wis. at 417, of the Wisconsin Constitution's "pledge of the faith of the state government" that citizens will be free from unreasonable searches and seizures.

    Of course, New Federalism also makes other state's approaches relevant, now that construction of the state constitution has been decoupled from the federal constitution. The Oregon supreme court, for example,

    explicitly has rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale. Davis, 295 Or at 233-37. Instead, this court has held that the Oregon exclusionary rule is a constitutionally mandated rule that serves to vindicate a defendant's personal rights. In other words, the right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision. (14) See State v. Davis, 313 Or 246, 249, 834 P2d 1008 (1992) (so stating). In that vein, this court has explained that the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if "the government's officers had stayed within the law." Davis, 295 Or at 234. Thus, in deciding the applicability of the Oregon exclusionary rule, the critical inquiry is whether the state obtained the evidence sought to be suppressed as a result of a violation of the defendant's rights under Article I, section 9. See, e.g., State v. Smith, 327 Or 366, 379-80, 963 P2d 642 (1998) (holding evidence obtained following unlawful police conduct nevertheless admissible, because evidence not obtained by virtue of that unlawful conduct).
    14. Before the Supreme Court held in Mapp, 367 US 643, that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 US 383, 34 S Ct 341, 59 L Ed 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures. See State v. Laundy, 103 Or 443, 494, 204 P 958, 206 P 290 (1922) (stating that Oregon state courts should apply exclusionary rule for same reasons that Supreme Court articulated in Weeks); see also Davis, 295 Or at 233-34 (noting same history of Oregon exclusionary rule). Although cases subsequent to Laundy sometimes suggested that the Oregon exclusionary rule might apply to deter future constitutional violations, in a sequence of cases beginning with Davis, 295 Or 227, this court reaffirmed its view that, although deterrence may be a benefit of the Oregon exclusionary rule, the constitutional basis for that rule is to vindicate the defendant's personal rights. See, e.g., State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (personal rights); State v. Tanner, 304 Or 312, 315, 745 P2d 757 (1987) (same); compare with State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (stating exclusionary rule under Article I, section 9, should be applied only as broadly as necessary to accomplish its "prophylactic" purposes).
    State v. Hall, 339 Or 7, 115 P3d 908 (2005). (Hall followed, State v. Thompkin, OR SCt No. S51405, 9/14/06.)

    For tripartite categorization of state-constitution analysis, see People v. Caballes, IL SCt No. 91547, 5/18/06: "lockstep" (mechanically follow US SCt rulings); "interstitial" (federal decisions are starting point, but state result may diverge, if sufficient reason); "primacy" (independent state constitutional analysis, federal decisions used only for guidance).

    With explicit recognition of the New Federalism movement, then, Wisconsin litigation of 4th amendment suppression issues should no longer be limited to the deterrence function, and caselaw such as Oregon's may be marshaled in support of argument that might otherwise have been overlooked even by the diligent practitioner. If you plan to raise a state constitutional argument, it would be wise to do more than evince disagreement with the federal approach. See, e.g., State v. Kottman, 2005 SD 116, ¶13 (waiver of state constitutional argument: "Counsel advocating a separate constitutional interpretation “must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision.” ... No such analysis was presented here.").

    Interesting critique of this initial spate of New Federalism cases by 7th Circuit Judge (and former Wis. Supreme Court Justice) Sykes, here. Though her critique is largely philosophical, and thus of little immediate practical use to the practitioner her larger point -- that these opinions are grounded more in recent social science studies than historical research -- ought to be absorbed. If these cases do represent a trend, then the court is indeed sensitive to such input, and the practitioner will have to stay current with relevant studies. On the other hand, it wouldn't hurt to attain familiarity with the drafting history of our state constitutional provisions.

    Construction - "New Federalism" - Sixth Amendment Right to Counsel, Interrogation
    State v. Brad E. Forbush, 2010 WI App 11
    For Forbush: Craig A. Mastantuono, Rebecca M. Coffee
    Issue/Holding: The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4), overruled by Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009).
    Forbush was arrested out of state, extradited, and interrogated on his return though an attorney had been retained. (At least, the court is “assuming he was represented because we conclude that even a represented defendant can waive the right to an attorney,” ¶5 n. 2.) The trial court suppressed under Dagnall. As the court of appeals notes, Dagnall holds that “the Sixth Amendment protects defendants from police interrogation if the defendant is formally charged and is represented by an attorney on that charge,” ¶9. In other words, “ Wisconsin concluded the right [to counsel] is automatically invoked as soon as a defendant is represented,” ¶10. But Montejo later came to a different conclusion, that the defendant must actually invoke the right to counsel; therefore:
    ¶13    We agree with the State that when the Supreme Court overruled Jackson, it also effectively overruled Dagnall. Not only did Dagnall’s holding rely on the Jackson rule, but Montejo eschewed Dagnall’s central tenet: that the right to an attorney is automatically invoked as soon as a defendant is represented.  See Montejo, 129 S. Ct. 2079, 2085. Montejo overruled this interpretation of the Sixth Amendment. 
    What about “New Federalism,” the authority to grant greater protection under the state constitution? No dice: State v. Paul L. Polak, 2002 WI App 120 held that “the scope, extent and interpretation of the right to assistance of counsel is identical under [both constitutions]”; and, “historically Wisconsin’s Constitution has not provided greater protection than the United States Constitution to a charged defendant’s right to an attorney,” ¶¶14-16.
    ¶17      Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney. However, in Montejo the Supreme Court held to the contrary: police may interrogate a defendant charged with a crime who waives the right to an attorney. We conclude this holding is the law not only under the United States Constitution, but under the Wisconsin Constitution as well.
    Minor procedural point: should the court of appeals have itself abrogated Dagnall, or left it to the supreme court? As far as the 6th amendment aspect is concerned, the court certainly has that power, State v. Edward Terrell Jennings, 2002 WI 44, ¶3 (“when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to Wis. Stat § 809.61. If it does not, or if this court declines to accept certification, the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court”). It might, though, have been better form to certify the issue, especially when the state constitutional aspect is considered.

    True, there is language in prior holdings to the effect that the right to counsel is the same under both constitutions. But it isn’t quite that simple, given that Carpenter v. Dane County, 9 Wis. 274 (1859) predated Gideon v. Wainwright, 372 U.S. 335 (1963) by more than a century. You’d think that a right-to-counsel issue of first impression ought be offered to the supreme court.

    But there is another, potentially large if fact-contingent sticking point to using this case as a vehicle to overrule Dagnall. The court blandly asserts that “Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney.” Maybe, at the trial level. But on appeal he added a subtle, distinct, and potentially decisive claim, namely: Montejo didn’t change the principle that in the 6th amendment context (unlike the 5th) an equivocal request for counsel can’t support waiver; and, “(s)ince Forbush made at least an equivocal request for counsel during the 25-minute discussion with the Detective prior to signing a waiver of Miranda rights, he invoked his right to counsel, requiring suppression of his subsequent statement.” Recall that Forbush prevailed in the trial court, therefore as a respondent on appeal he can raise most any rationale he wishes in support of the result, whether or not he raised it below. In the narrow sense of delimiting review, his suppression motion is irrelevant, and the court of appeals was flatly wrong to ignore his alternative rationale in support of suppression. As to the details of that argument, first the legal principle. Just last Term, after Montejo had been decided, the supreme court reaffirmed the distinction between equivocal assertions of counsel under the 5th and 6th amendments, State v. Jennifer L. Ward, 2009 WI 60, ¶43 n. 5 (“We note that, after a defendant has been formally charged, the Sixth Amendment right to counsel applies, and in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right.”). The footnote goes on to favorably cite State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 (Ct. App. 1999), which itself held that an equivocal assertion suffices under the 6th A. Forbush’s claim of an equivocal assertion appears to be compelling, despite the court of appeals’ inexplicable disinterest in the issue. If Forbush’s alternative argument is correct, something that appears quite plausible, then it would represent the narrow ground for affirmance, without need to reach viability of Dagnall. Two points, then. First, at least in the specific matter of equivocal assertions, a distinction remains between 5th and 6th A rights to counsel, even if the court of appeals has turned a blind eye. Second, whether or not it was required, the court of appeals’ refusal to certify the appeal is curious.

    Construction - "New Federalism" - Art. I, § 11 Generally Follows Fourth Amendment Jurisprudence
    State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
    For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
    ¶18      Historically, we generally have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. Arias, 311 Wis.  2d 358, ¶20. We have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Fourth Amendment provided even before the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), applied the Fourth Amendment's guarantees to the states under the Fourteenth Amendment. [6] Arias, 311 Wis.  2d 358, ¶20. On only one occasion, in our development of Article I, Section 11 jurisprudence have we required a showing different from that required by the Supreme Court's Fourth Amendment jurisprudence. We did so in regard to our development of a good faith exception under Article I, Section 11. State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (creating two additional requirements under Article I, Section 11 for law enforcement before according a good faith exception to their reliance on a defective no-knock search warrant). Eason has no application here. Pursuant to our usual practice, we shall interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent in regard to community caretaker analyses.
    Construction -- "New Federalism" -- Art. I, § 11 Generally Follows Fourth Amendment Jurisprudence
    State v. Ramon Lopez Arias, 2008 WI 84, on Certification
    For Arias: Lora B. Cerone, SPD, Madison
    ¶20      Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court's interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); State v. Williams, 47 Wis. 2d 242, 249, 177 N.W.2d 611 (1970). Our coordination of Article I, § 11 with the Supreme Court's Fourth Amendment jurisprudence began long before we were required to follow the Supreme Court's Fourth Amendment jurisprudence by its decision in Mapp v. Ohio, 367 U.S. 643 (1961). For example, in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), we excluded evidence that was obtained in violation of Hoyer's constitutional rights under Article I, § 11 of the Wisconsin Constitution, an interpretation consistent with the United States Supreme Court's use of the exclusionary rule under the Fourth Amendment. Hoyer, 180 Wis. at 412 (citing Amos v. United States, 255 U.S. 313 (1921)). State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, represents the only time we have departed from the Supreme Court's construction of the Fourth Amendment in our interpretation of Article I, Section 11. [5]

    ¶21      There are sound policy reasons for this consistency in our jurisprudence. By following the Supreme Court's Fourth Amendment jurisprudence in interpreting Article I, Section 11, we impart certainty about what the law requires for those who will apply our decisions with respect to searches and seizures, and we provide distinct parameters to those who must enforce the law while maintaining the constitutionally protected rights of the people. Therefore, were we to conclude that a dog sniff of the exterior of a vehicle in a public place constitutes a search under Article I, Section 11, we would be undertaking a significant departure from the Supreme Court's Fourth Amendment jurisprudence in interpreting the right to be free of unreasonable searches under the Wisconsin Constitution.

    Construction -- "New Federalism" -- Art. I, § 11: “Actually Yielded to Authority” Test for Seizure
    State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
    For Young: Martha K. Askins, SPD, Madison Appellate
    ¶19      … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.

    ¶27      Young, however, argues that we should reject Hodari D. and interpret Article I, Section 11 of the Wisconsin Constitution to afford greater protections to individual liberty interests than does the Fourth Amendment. …

    ¶30      Typically, this court interprets Article I, Section 11 of the Wisconsin Constitution in tandem with the Fourth Amendment jurisprudence of the United States Supreme Court. Griffith, 236 Wis.  2d 48, ¶24 n.10.  Of course, we do not always follow the Supreme Court's lead, [9] and the Court does not require us to do so when we supplement the United States Constitution's protections with protections under our own constitution.  See Michigan v. Long, 463 U.S. 1032, 1041 (1983) ("It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions."). [10] We embrace the Fourth Amendment jurisprudence of the United States Supreme Court when we perceive soundness in Supreme Court analysis and value in uniform rules. We follow that course in this case.

    Hodari D. imposes an actually-yielded test to determine when someone has been seized by the police. If the cop yells “stop” and you ignore him and walk or run away you haven’t been seized unless and until the cop catches you. A number of state courts have rejected that test under their constitutions as too restrictive; Wisconsin now refuses to take that step: so much for “New Federalism,” which seems to have run its course, at least with respect to Art. I, § 11. Note that the court relies exclusively on a cost-benefit (deterrence) approach to the suppression rule, ¶49, without so much as a nod to the idea that there are separate doctrinal bases under New Federalism, namely judicial integrity and/or vindication of a citizen’s personal rights; see discussion in this section. More puzzling, the court analyzes the policy for greater state constitution protection solely with regard to the policy basis for the fourth amendment, e.g., ¶49. There is, in other words, not even a rhetorical pass at separate state constitutional analysis. The court’s other articulated reason (¶51) for rejecting greater state constitutional protection is stare decisis, namely the purported adoption of Hodari D. in the recent State v. Kelsey C.R., 2001 WI 54. This invocation of the virtues of precedent is quite odd, for two reasons. One, it shouldn’t make any difference to state constitutional analysis that federal constitutional precedent would bar greater protection. That’s the whole point isn’t it, to go beyond the federal precedent? (Unless, of course, the analyses are coordinate, in which case why bother with a state constitutional argument anyway?) Two, fealty to precedent isn’t controversial, but there was no such holding in Kelsey C.R., and therefore the court did not have to actually submit to its (non-existent) authority. On this point, see the dissent, ¶¶126-32; it’s not as if the fractured nature of that opinion was a big secret). So, in the end, the court rejects a New Federalism argument purely on the basis of a) federal precedent and b) state “precedent” that doesn’t exist. Art. I, § 11 was a nice lark for the several months or so it lasted.
    Construction -- "New Federalism" -- Art. I, § 11
    State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
    For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
    Issue/Holding: ¶15 n. 3:
    Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not construed art. I, sec. 11 of the Wisconsin Constitution differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”).
    [But note: this footnote was subsequently amended, though in a highly irregular manner, see discussion below. The original text will remain posted above, along with commentary immediately below, so that the dispute can be intelligently followed.]

    The ink barely dry on the supreme court’s “New Federalism” revolution, the court of appeals’ Thermidorian Reaction rears its head. Somewhat polemical? Sure, but compare the court of appeals’ spin on Eason with the supreme court’s, in Knapp itself, 2005 WI 127, ¶73 n. 14 (emphasis supplied):

    This is not the first time we have explicitly departed from federal constitutional jurisprudence to extend greater rights to Wisconsin citizens. …

    In State v. Eason, 2001 WI 98, ¶63, 245 Wis. 2d 206, 629 N.W.2d 625, this court departed from the Supreme Court's holding in United States v. Leon, 468 U.S. 897, 919-20 (1984), where the Supreme Court formulated an exception to the exclusionary rule where a police officer relied in good faith upon a search warrant issued by an independent and neutral magistrate. This court concluded that for the good faith exception to apply, "the State must show that the process used attendant to obtaining the search warrant included a significant investigation and a review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or a knowledgeable government attorney." Eason, 245 Wis.  2d 206, ¶63. Although the Supreme Court did not require this in Leon, this court held "that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment."  Id.

    On the other hand, the result in Roberson may suggest that search and seizure issues will be treated differently because the underlying values they protect are simply different than those at stake in self-incrimination and due process issues. Put baldly, the latter implicate reliability of the fact-finding process, while the former actually distorts it. An old dispute to be sure, whether protection against overweening governmental intrusion trumps other values, but the “new federalism” cases surely renew it. Indeed, the very problem is precisely the one obscured by the court of appeals: New Federalism creates (or, rather, restores) a different paradigm for 4th amendment analysis, one in which “judicial integrity” is at least as important as cost-benefit (or deterrence of police misconduct). It may be that notions of integrity are insufficiently triggered on these particular facts, but it something else altogether to say, as the court of appeals plainly does, that such notions are simply irrelevant. It is very hard not to see this as an opening salvo in an ideological war. Will the supreme court issue a riposte, or will it be content to see the New Federalism line of march halted before it’s even left the trench?

    UPDATE: The court of appeals subsequently amended footnote 3 (presumably in response to Roberson's petition for review, which was highly critical of the court's misrepresentation of Eason. The amendment -- which will be recited momentarily -- is highly peculiar in several respects. First, although it will be included in the hard-bound official reporters, the amended language is not included in the publicly accessible court file, at least as of 10/25/05, though it is avaliable through the commerical on-line service LEXIS). Second, although the court certainly has authority to reconsider the decision on its own motion, within 30 days of the PFR, § 809.24(3) (action which the court indeed took earlier in this very case), it is far from clear that this can be done after publication has been ordered and even more doubtful that language can be changed short of full withdrawal. This is because the court of appeals simply "does not have the power to overrule, modify, or withdraw any language from" its own published decision, State v. Miyosha White, 2004 WI App 237, ¶7. Indeed, this very strictly observed limitation derives from the Art. VIII pinciple that the court of appeals is a unitary court, Cook v. Cook, 208 Wis. 2d 166, ¶¶41-55, 560 N.W.2d 246 (1997). It follows that that principle is violated when a panel issues a post-publication amendment. This leads to the final and somewhat related point: a post-publication amendment subverts the publication process; who is to say that the publication committee would have ordered publication of the changed text? Now, the new language (new text is highlighted, deleted text struckthrough):

    Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not generally construed the search and seizure protections of art. I, sec. 11 of the Wisconsin Constitution to be coextensive with those of differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 See State v. Fry, 131 Wis. 2d 158, 388 N.W.2d 565 (1986) (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”). (Citation omitted.)
    The emendation is an improvement only in the sense that it elides reference to Eason, and so removes an express misrepresentation of caselaw. But it is no less satisfactory in the sense that it fails to acknowledge that we have granted greater protection specifically in the 4th amendment context; and, thus, also fails to explain just when greater protection will be afforded.
    Construction – “New Federalism” – Double Jeopardy Clause
    State v. Barbara E. Harp, 2005 WI App 250
    For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
    Issue/Holding: ¶13 n. 4:
    The Fifth Amendment to the United States Constitution provides that no person “shall … be subject for the same offence to be twice put in jeopardy of life or limb ….” Article I, section 8 of the Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment ….” Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution. State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899 (No. 2000AP2590-CR) (construing protection against self-incrimination in article I, section 8 of the Wisconsin Constitution to be greater than the Fifth Amendment); State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582 (No. 2003AP1690-CR) (construing due process protection in article I, section 8 of the Wisconsin Constitution to be greater than the Fourteenth Amendment). Following State v. Seefeldt, 2003 WI 47, ¶15 n.4, 261 Wis. 2d 383, 661 N.W.2d 822, our analysis does not distinguish between the double jeopardy protections of the state and federal constitutions. Id. (“In construing Wisconsin ’s protection against double jeopardy protection, we are guided by the rulings of the U.S. Supreme Court.”) (citation omitted).
    Did Harp even raise a state constitutional claim? The court doesn’t say; but if not, then this footnote is gratuitous. On the other hand, the aside might simply represent ongoing confusion about differential (i.e., as between state and federal constitutions) analysis. Indeed, it’s hard not to sympathize with the lower court on such a point: the supreme court’s New Federalism cases do not, to be blunt, offer any methodological guideposts. On the bright side: bold litigators will have to chart unmapped territory for the court. Saddle up, Lewis and Clark!
    State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
    For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
    Issue/Holding: (Concurrence of Chief Justice, but one that marshals majority of votes, hence represents holding:)
    ¶66      The powers of the Wisconsin Supreme Court are defined in several ways and have diverse origins.  Some are explicitly set forth in Article VII, Section 3 of the Wisconsin Constitution: appellate and original jurisdiction and superintending and administrative authority.  Others are derived from the state constitutional separation of powers doctrine, as well as from the court's very existence, especially this court's being the highest court in the state, the court of last resort.  Indeed, "it is well established that this court has express, inherent, implied and incidental powers" [25] to manage the sound operation of the judicial system in our tripartite form of government. 

    ¶69      When all is said and done, Arneson v. Jezwinski, 206 Wis. 2d 217, 225-26, 556 N.W.2d 721 (1996), quoted with approval in State ex rel. Hass v. Wisconsin Court of Appeals, 2001 WI 128, 248 Wis. 2d 634, 640, 636 N.W.2d 707 (2001), summarizes the case law interpreting our superintending authority and sets forth the present and long-standing view that the court's superintending authority is a broad power to be exercised for controlling the course of litigation and is shaped by the continuing necessity that this court carry out its function as a supreme court. …

    ¶92      The judiciary article of the Wisconsin Constitution was amended in 1977. The supreme court's superintending authority was placed in a one-sentence subsection separated from the other subsections granting appellate and original jurisdiction and separated from any reference to writs. Article VII, Section 3(1) of the 1977 amendment reads simply as follows regarding the court's superintending powers: "The supreme court shall have superintending and administrative authority over all courts." 

    ¶93      Thus, in 1977, presumably aware of the historical case law interpreting the 1848 constitution and the court's exercise of superintending power to adopt and enforce the Code of Judicial Ethics, the legislature and the people of the state decoupled the court's superintending authority over all state courts from the writs specified in the 1848 constitution and thereby gave their imprimatur to the court's historical interpretation of the 1848 language attributing to the court broad constitutional superintending power to control litigation. Thus, the 1977 constitutional amendment implemented Justice Adam Smith's broad explication of the court's superintending power set forth in the Blossom case and in Chief Justice Wilkie's opinion in Kading.

    Construction: Victims’ Rights Amendment, Art. I, § 9m
    Patrick G. Schilling v. State Crime Victims Rights Board, 2005 WI 17, on certification
    Issue/Holding: The first sentence of Art. I, § 9m (“dignity” provision) is a statement of purpose, articulating the importance of crime victims’ rights, but is not self-executing. ¶¶13-26.
    General methodology of interpreting constitutional provision – plain meaning of words; constitutional debates; earliest legislative implementation – recited, ¶16. In the present instance, prosecutor Schilling played a 911 tape at a homicide sentencing without first warning the victim’s survivors, who were present and apparently traumatized by the tape and who later filed a complaint with the crime victims rights board. The board obligingly issued a private reprimand against Schilling, thus raising a nice question of interference with prosecutorial discretion which is ducked by the court’s conclusion that the provision isn’t self-enforcing, ¶9 n. 3. This does not, of course mean that art. I, § 9m is a dead letter; to the contrary, the court stresses that the first sentence of the provision enunciates high policy, while the succeeding sentences are self-enforcing because they do articulate specific rights (“the opening sentence of Article I, Section 9m of the Wisconsin Constitution was meant to be a statement of purpose, set apart from and then followed by the enumeration of the specific enforceable rights crime victims are afforded in the second sentence,” ¶22). You haven’t heard the last of victims’ rights, then, and if the court is wary of using the victim’s rights swing blade to hack into the thicket of prosecutorial discretion, it may be less diffident when it comes to a backhoe trenching on defendant’s rights. We will have to see whether Booker creates any sort of obstacle. In the meantime, you might do well to keep in mind the text of the amendment:
    This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.
    Construction: Effective Date of Amendment to Wisconsin Constitution
    State v. Adam S. Gonzales, 2002 WI 59, on certification
    For Gonzales: Suzanne L. Hagopian, SPD, Madison Appellate
    Issue: Whether an amendment to the Wisconsin constitution takes effect upon vote of the electors, or only when the chair of the Elections Board certifies the statewide canvass of votes.
    Holding: The legislature has authority under Article XII, Section 1 of the Wisconsin Constitution to adopt reasonable election laws such as Wis. Stat. § 7.70(3)(h) to provide that state constitutional amendments are effective after canvass and certification. ¶30. Therefore, unless a constitutional amendment provides otherwise, it takes effect upon certification of a statewide canvass of votes as provided in Wis. Stat. § 7.70(3)(h). ¶25.
    (Note: The underlying issue -- the constitutionality of the carrying concealed weapon law -- has been decided in two separate cases: State v. Phillip Cole, 2003 WI 112; and State v. Munir A. Hamdan, 2003 WI 113.
    Go to (COA) Brief
    Construction - Foreign Precedent
    State v. Charles Chvala, 2003 WI App 257, affirmed, 2005 WI 30
    For Chvala: Lawton & Cates
    ¶23. Chvala asserts that Wisconsin courts do not rely on decisions from other states to interpret the Wisconsin Constitution, and he asks that we not consider the above cases in reaching our decision. We recognize that none are binding, but there is no reason we may not consider how courts of other jurisdictions have decided the same or similar issues. We observe that the supreme court did just that in In re Grady, 118 Wis. 2d 767, 778-81.
    Construction -- Scrutiny of Fundamental Right -- "Bear Arms"
    State v. Phillip Cole, 2003 WI 112, on certification
    For Cole: Michael Gould, SPD, Milwaukee Appellate
    On-line Brief:

    ¶20. We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution's Declaration of Rights to be amended. See Monks, The End of Gun Control, 2001 Wis. L. Rev. at 249. Article I, Section 25 explicitly grants a right to bear arms….

    ¶21. Nevertheless, we do not agree with Cole's position that strict scrutiny or intermediate scrutiny is required in this case…. We find the precedents of other states, favoring a "reasonable" test, to be persuasive in the context of the right to bear arms.

    ¶22. Generally, when other courts have evaluated challenges to the validity of gun control statues under state constitutional provisions, the test has been whether the statute constitutes a "reasonable regulation" in light of the state's police powers…. We are persuaded that this standard is appropriate because the interests of public safety involved here are compelling. See id. at 259 n.69-70 (and cases cited therein)….

    ¶26. Although Article I, Section 25 creates a fundamental right, as the above analysis shows, such a right is still subject to reasonable restriction. As such, we find the correct test to be whether or not the restriction upon the carrying of concealed weapons is a reasonable exercise of the State's inherent police powers. Such a test should not be mistaken for a rational basis test. The explicit grant of a fundamental right to bear arms clearly requires something more, because the right must not be allowed to become illusory….

    ¶27. … Under circumstances such as those in this case, the reasonableness test focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote the public welfare….

    Compare, District of Columbia v. Heller, USSC No. 07-290, 6/28/08 (2nd amendment safeguards personal right to keep and bear arms). Though the Court doesn't reach question of what level of scrutiny applies to challenge to regulation of this right, Court does reject idea that this right's "core protection [may be] subjected to a freestanding 'interest-balancing' approach"; whether the 2nd amendment applies to states through the incorporation doctrine remains to be seen. Does Heller invalidate CCW statutes? Not according to People v. Yarbrough, Cal App No. A120721, 12/17/08.
    Construction -- General
    State v. Phillip Cole, 2003 WI 112, on certification
    For Cole: Michael Gould, SPD, Milwaukee Appellate
    On-line Brief:
    Issue/Holding: “¶31. In interpreting a constitutional provision, we first turn to the plain meaning of the amendment in context.” The court next examines the legislative history of the amendment, including drafting records of the legislative reference bureau and legislative council staff, ¶36 and id. n. 12. Further “analysis includes an examination of the practices in effect at the time the amendment was passed, including “the practices and interpretations of other states,” ¶39. “The final source this court is to consider in construing a constitutional amendment is the first related legislation passed after the amendment was ratified,” ¶42. “Finally, … indications of the will of the people,” as expressed in polling data is relevant to the meaning of the amendment, “are valuable,” ¶44. (Yes, that’s two final sources of intent, but don’t let that distract you: reliance on polling data to determine the effect of a constitutional amendment is the interesting part.)
    Construction: General
    State v. Brian B. Burke, 2002 WI App 291, PFR filed 11/29/02
    For Burke: Robert H. Friebert

    ¶4. First, as the trial court noted, we may not read our 1848 constitution using modern definitions and syntax. We are to examine:

    (1) The [nineteenth century] plain meaning of the words in the context used;

    (2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasonably presume were also known to the framers of the 1848 constitution, and;

    (3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution.

    State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984) (citations omitted).

    ¶5. This case requires us to interpret language in the Wisconsin Constitution. We do so de novo. Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996).


    Double Jeopardy -- Multiplicity
    -- Generally

    Mulitple Punishments -- Drug Tax Stamp Assessment, §§ 139.87-139.96, And Subsequent Prosecution For Possessing Same Drug
    Stephen Dye v. Frank, 03-1368, 1/27/04
    For Dye: Christopher M/. Bailey
    To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v. United States....

    Using the Kennedy factors, we conclude that the Wisconsin drug tax was so punitive in purpose and effect that it constituted a criminal punishment....

    ... (J)eopardy attaches to a punitive tax “when the defendant voluntarily pays the amount due in full . . . [or] when the government takes title to a defendant’s assets.” See Doyle v. Johnson, 235 F.3d 956, 959 (5th Cir. 2000).

    ... For these reasons, we reverse the district court’s denial of habeas corpus. In doing so, we emphasize that this case does not stand for the proposition that Wisconsin cannot both tax and imprison those who violate drug laws. It is well-established that cumulative punishments may be meted out as long as they result from a single proceeding. See, e.g., Kurth Ranch, 511 U.S. at 778; Torres, 28 F.3d at 1464. Moreover, it is a rare tax statute which is so punitive in either purpose or effect that it is subject to double jeopardy analysis at all. However, when we are presented with a criminal punishment masquerading as a civil tax, we are compelled by the mandates of the Constitution to ensure that the defendant is punished only once for his misconduct.

    Dye's drug tax was assessed on the prior tax stamp act; since amended to address a self-incrimination problem identified in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), it now prohibits use in a criminal proceeding against a dealer of tax stamps affixed to illegal drugs, which therefore removes that particular infirmity. State v. Glover B. Jones, 2002 WI App 196, ¶33-36. Moreover, under the new act, possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and double jeopardy therefore doesn't preclude a defendant from being convicted of both. Id., ¶39-41. The particular issue in Dye -- whether a drug tax assessment may be regarded as punitive -- was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem. Dye is therefore the definitive statement on stamp-act-as-punitive. But as the final paragraph quoted above suggests, its impact may be fairly limited.
    Multiplicity, Generally
    State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
    For Moore: Donna L. Hintze, SPD, Madison Appellate
    ¶15      Charges are multiplicitous if they charge a single criminal offense in more than one count. State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992). Claims of multiplicity are analyzed using a two-prong test that requires examination of: (1) “whether the charged offenses are identical in law and fact;” and (2) if they are not, “whether the legislature intended the multiple offenses to be brought as a single count.” State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

    ¶16      If, applying the first step of the analysis, a court determines that the charges are identical in law and fact, then the charges are multiplicitous and violate constitutional double jeopardy protections. State v. Trawitzki, 2001 WI 77, ¶¶20-21, 244 Wis. 2d 523, 628 N.W.2d 801. If the charges are not identical in law and fact, no constitutional violation exists, but the court must still determine if the legislature intended multiple punishments for the same offenses. Id., ¶¶20-22. …

    ¶17      [W]hether the legislature intended that multiple offenses that are different in fact be brought as a single count is conducted de novo.

    ¶18      “[W]e begin with the presumption that the legislature intended multiple punishments. This presumption may only be rebutted by a clear indication to the contrary.” Id. at 751 (citations omitted). “We use four factors to determine legislative intent in a multiplicity analysis: 1) statutory language; 2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishment.” Id.

    Multiplicity: Multiple Punishments, Single Prosecution, In General
    State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
    For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project

    ¶32. In sum, we conclude that the imposition of cumulative punishments from different statutes in a single prosecution for "the same offense" violates double jeopardy when the cumulative punishments are not intended by the legislature. See Whalen, 445 U.S. at 689; see also Rutledge v. United States, 517 U.S. 292, 297 (1996).

    ¶33. The "same offense" in this specific situation should be an offense identical in law and fact. The imposition of cumulative punishments not authorized by the legislature is a due process violation, not a double jeopardy violation, when the punishments do not spring from the same offense. "The same offense" is the sine qua non of double jeopardy. State v. Trawitzki, 2001 WI 77, ¶22, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Grayson, 172 Wis. 2d 156, 159 n.3, 493 N.W.2d 23 (1992).

    ¶35. Some of our commentary on multiplicity must be re-evaluated in light of the last quarter-century of United States Supreme Court decisions…. In short, legislative intent to authorize cumulative punishments overrides a total identity of law and fact a la Blockburger.

    ¶36. This understanding is significant because this court has said that if offenses "are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions." Anderson, 219 Wis. 2d at 747; see also Trawitzki, 244 Wis. 2d 523, ¶21; Derango, 236 Wis. 2d, ¶30. Although this statement is usually true, it is not always true, because the legislature may have intended to authorize cumulative punishments for the same offense. ¶37. In situations where the legislature intends to authorize cumulative punishments for the same offense, we may no longer say that the charges are "multiplicitous" or that they violate double jeopardy. Use of the term "multiplicitous" should be limited to situations in which the legislature has not authorized multiple charges and cumulative punishments.

    ¶38. In addition, in discussing multiplicity, a reference to "charges" must be employed carefully, because it is permissible to charge more than one count, even if the state may not punish a defendant on more than one count. Johnson, 467 U.S. at 500….

    ¶43. First, the court determines whether the charged offenses are identical in law and fact using the Blockburger test. Trawitzki, 244 Wis. 2d 523, ¶21; Derango 236 Wis. 2d 721, ¶29. If it is determined, using this test, that the offenses are identical in law and fact, the presumption is that the legislative body did not intend to punish the same offense under two different statutes. Whalen, 445 U.S. at 692. "Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. (emphasis added).

    ¶44. Conversely, if under the Blockburger test the charged offenses are different in law or fact, a presumption arises that the legislature did intend to permit cumulative punishments. See Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Sauceda, 168 Wis. 2d at 496; State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991). "This presumption can only be rebutted by clear legislative intent to the contrary." Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Kuntz, 160 Wis. 2d at 755 (citing Missouri v. Hunter, 469 U.S. at 367; Albernaz, 450 U.S. at 340).

    ¶45. Second, even if the charged offenses are not identical in law and fact, the court must still determine whether the legislature intended multiple offenses to be brought as a single count. See Anderson, 219 Wis. 2d at 746. At this juncture, however, it is the defendant's burden to show a clear legislative intent that cumulative punishments are not authorized.

    Double Jeopardy -- Multiplicity
    Judicial Estoppel

    Multiplicity: Judicial Estoppel Bar to Arguing
    State v. Michael Johnson, 2001 WI App 105
    For Johnson: David R. Karpe
    Issue: Whether defendant's partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.
    ¶10. Although judicial estoppel is not easily reduced to a pat formula, there are identifiable boundaries. Petty, 201 Wis. 2d at 348. First, the defendant's later position must be "clearly inconsistent" with the earlier position. Id. Second, the facts at issue should be the same in both cases. Id. Finally, the party to be estopped must have convinced the first court to adopt its position. Id. Thus, although we permit a party to argue inconsistent positions in the alternative, "once it has sold one to the court it cannot turn around and repudiate it in order to have a second victory." Id. at 350 n.6. Instances in which a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994).

    ¶18. In Johnson's case, it was the State's decision to proceed with two separate charges. However, Johnson could have moved to dismiss one of the charges as multiplicitous. Instead he chose to take advantage of the separate charges in an attempt to limit his total criminal exposure. He requested that the lesser-included offense of possession be submitted to the jury for the cocaine in his pocket.

    ¶19. Johnson was victorious to the extent that he convinced the jury that he possessed the cocaine in his pocket without intent to deliver it. Unfortunately for Johnson and his trial strategy, it appears that the jury did not also believe that he knew nothing about the cocaine in the bathroom. But because the jury was partially convinced of Johnson's position on the facts, he cannot now enjoy a 'second victory' by reversing that position on appeal in order to assert a double jeopardy violation.

    Analysis: During a search of Johnson's residence, the police found five rocks of cocaine on him, and 25 additional rocks in the bathroom. He was charged with two counts of possession with intent to deliver, representing the bathroom and on-person seizures. As the passages above indicate, his partially successful trial strategy (admit personal use on one, deny possession on other) estops him from arguing that the two offenses were multiplicitous (i.e., the "same" for double jeopardy purposes).

    As the court of appeals suggests, the problem begins and ends with failure to challenge the multiple charges on the trial level. This could have been strategic, but it's hard to see how anything would have been lost by a motion. There's not much Wisconsin case law, but the general rule is that separate charges must involve substances that are "either separated in time or are significantly different in nature." State v. Stevens, 123 Wis.2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985) (two counts permissible where substances found on different days). But here, the substances were found at the same time and, for practical purposes, the same place (within feet of each other). It's hard to imagine that a multiplicity claim would not have been at least arguable, if not compelling. See, e.g., Young v. State, 564 N.E.2d 968 (Ind. App. 1991):

    at the time Young was stopped, he had 1.3529 grams of cocaine on his person and 8.1005 grams of cocaine in a spray can found in his car. Although the cocaine found in the spray can was not discovered until several hours after Young was arrested, Young's original possession of both packages of cocaine was simultaneous. We therefore conclude that Young was charged and convicted, in effect, of two violations which arose from his single act of simultaneous possession of two packages of cocaine.
    Note, too, that a pretrial motion would have raised the specter of governmental estoppel. It doesn't matter that Johnson may have intended ultimately to admit possession of one cache and deny the other; the state was alleging that he actually possessed one and constructively possessed the other, and the question therefore would simply be whether the two caches were so removed in time and space from each other as to amount to two separate possessions. The answer clearly should have been, No.

    Estoppel, as just suggested, is a double-edged sword. E.g., Whaley v. Belleque, 9th Cir No. 06-35759, 3/24/08 ("under the doctrine of judicial estoppel, the state cannot now reverse its position in order to suit its current objectives"). The problem becomes especially acute when the state uses inconsistent theories to obtain conviction; an increasing number of cases indicates that the state's use of factually contradictory theories violates due process. E.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000). The matter almost came to a head in Mitchell v. Stumpf, 04-637, which raised a Question, "Does the Due Process Clause require that a defendant's guilty plea be vacated when the State subsequently prosecutes another person in connection with the crime and allegedly presents evidence at the second defendant's trial that is inconsistent with the first defendant's guilt?" In the event, however, the Court did not reach this issue, Bradshaw v. Stumpf, 545 U.S. 175, 187 (2005). Notwithstanding the observation by the Stumpf concurrence -- "This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories." -- the issue remains potentially viable. Granted that the result was vacated on a different ground, the lower court holding is worth keeping in mind, Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004):

    Drawing on the principle that the Constitution’s “overriding concern [is] with the justice of the finding of guilt,” United States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister circuits have found, or implied, that the use of inconsistent, irreconcilable theories to secure convictions against more than one defendant in prosecutions for the same crime violates the due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc) (Clark, J., specially concurring); cf. Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a situation where both defendants had shot at the victim and it was unclear whose bullet had actually hit and killed the victim; the court found that the two theories advanced by the prosecution were not inconsistent because both defendants could have been convicted under the law of parties). On this issue of first impression in this court, we now join our sister circuits in finding that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation.
    See also the analysis by the California supreme court, in   In re Sakarias, Cal SCt No. S082299, 3/3/05:
    ... we conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.

    We also conclude, however, that where, as here, the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice....

    See also People v. Caballero, 794 N.E.2d 251 (2002):
    These cases stand for the proposition that a party is not as bound by his prior arguments as he is by prior assertions of fact. We conclude that no due process violation has occurred in the present case when the State's shifting positions involved matters of opinion, not of underlying fact. We, therefore, decline to hold the State to the argument it made to the LaBoy jury that he is the most culpable of the four killers. That argument was permissible in the context of the LaBoy trial and supported by the evidence presented to that jury. In this proceeding, however, the purpose is the direct comparison of the relative culpability of defendant and LaBoy. We do not find it necessary to constrain the State's argument on this issue.
    And, State v. Watkins, 659 N.W.2d 526 (2003) ("(A) selective use of evidence by the prosecution in order to establish inconsistent factual contentions in separate criminal prosecutions for the same crime may be so egregious and lacking in good faith as to constitute a denial of due process. We view those situations as a narrow exception to the right of the prosecution to rely on alternative theories in criminal prosecutions albeit that they may be inconsistent. "); Shaw v. Terhune, 9th Cir. No. 02-16829, 12/22/03 (dissent) ("The state’s decision to prosecute both Shaw and Watts separately under inconsistent factual theories for acts that only one could commit displayed shocking indifference toward 'the fundamental conceptions of justice which lie at the base of our civil and political institutions,' Herbert v. Louisiana, 272 U.S. 312, 316 (1926), and thus violated the core interests protected by the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103, 112-13 (1935)."). The language used by Johnson -- "The doctrine of judicial estoppel is not directed at the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of its machinery," ¶9 -- might well be put to use in this other but related context.

    For a US Supreme Court case discussing judicial estoppel, see New Hampshire v. Maine, 532 U.S. 742 (2001). However, authority should be noted to the effect that judicial estoppel, a common-law doctrine not constitutionally mandated, "is not applicable in criminal cases," Roberts v. State, GA SCt No. S04G0219, 11/8/04 (further noting split nationally on this principle and citing 121 ALR5th 551). While that holding might (or might not) be correct at a sufficient level of generality, it seems that a) Wisconsin falls on the other side; and b) the specific question of inconsistent prosecutorial theories of guilt raises problems distinct from the typical instance of merely shifting positions.

    Double Jeopardy -- Multiplicity
    Particular Crimes

    Multiplicity – First-Degree Reckless Homicide by Deliver of Controlled Substance, § 940.02(2)(a) and Contributing to Delinquency Resulting in Death of Child, § 948.40(4)(a): Not Multiplicitous 
    State v. Patrick R. Patterson, 2009 WI App 161,
    For Patterson: David R. Karpe
    Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.
    ¶12      Patterson argues that Wis. Stat. § 939.66(2) shows a clear legislative intent not to allow punishment for both reckless homicide and contributing to the delinquency of a child with death as a consequence. However, this argument, albeit in the context of § 939.66(2m), was rejected in Davison. Davison explained that the statute is ambiguous and the statute’s legislative history does not show a legislative intent to prevent cumulative punishments. Davison, 263 Wis. 2d 145, ¶¶74, 90. Instead, the Davison court concluded that § 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged. See Davison, 263 Wis. 2d 145, ¶¶65-67. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that § 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.

    ¶19      In short, Wis. Stat. § 940.02(2)(a) and Wis. Stat. § 948.40(4)(a) address two different categories of proscribed conduct that differ markedly in their essential nature. That Patterson’s particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment.

    The court merely “assume(s), without deciding, that ‘homicide’ in § 939.66(2) includes contributing to the delinquency of a child with death as a consequence,” ¶11 n. 5.
    Multiplicity – Particular Crimes – Reckless Injury – Same Victim, Multiple Blows 
    State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
    For Kelty: Michael J. Fairchild
    Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.
    Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
    State v. Thomas A. Nommensen, 2007 WI App 224
    For Nommensen: Anthony L. O’Malley
    Issue/Holding: lthough charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
    ¶8        Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id. (citation omitted). Charges are not the same in fact if each requires proof of a fact that the other does not. Blockburger v. U.S., 284 U.S. 299, 304 (1932). Multiple offenses are significantly different in nature if each requires “a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis. 2d at 750 (citation omitted).

    ¶9        Here, it is self-evident that the separate allegations against Nommensen in Washington county and Fond du Lac county are different in fact since the conduct occurred in different locations. From that, it is also self-evident that the conduct had to have occurred at different times. In short, Nommensen could not have been in two different locations at the same time. From that, it also follows that the conduct alleged against Nommensen in Fond du Lac county and the separate conduct alleged in this case each represent “a new volitional departure in [Nommensen’s] course of conduct.” See id. So, despite the “overlap” period of April 1998, a future fact finder in this case could not convict Nommensen based on the conduct for which he was acquitted in the Fond du Lac county case.

    The court also rejects challenges based on venue, ¶¶10-12, and claim/issue preclusion, ¶¶19-20, largely for the same reason: the offenses were not “identical in fact.”
    Multiplicity: Sexual Assaults, Single Incident 
    State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543 
    For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate 
    Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy. 
    Holding: Though the offenses weren't separated in time, each required separate volitional acts and were therefore significantly different in nature for double jeopardy purposes. ¶¶24-26.
    Go To Brief
    Multiplicity: Sexual Assault -- Distinct Intrusions 
    State v. William Koller, 2001 WI App 253, PFR filed
    For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
    Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
    Holding: “¶59 … When a perpetrator moves from having mouth-to-vagina contact to having penis-to-vagina intercourse, he necessarily engages in a new volitional act warranting a separate charge, conviction, and punishment.” (State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987), distinguished. ¶60.)
    Multiplicity: Car-Jacking (§ 943.23(1g)) and Operating without Owners Consent (§ 943.23(3)) 
    State v. Prentiss M. McKinnie, 2002 WI App 82, PFR filed 3/14/02
    For McKinnie: Bryan J. Borman, SPD, Waukesha Trial
    Issue: Whether separate charges, of carjacking and operating the same motor vehicle without owner’s consent are permissible where, after allegedly taking the car, the defendant continued to drive it the next day.
    Holding: Though these offenses are the same in law, under § 939.66(2r), the facts as alleged are distinct and therefore support separate charges in this particular instance:

    ¶11. The principles described in Koller, having been applied in Harrell and several types of prosecutions in which multiple convictions were affirmed, are applicable to this case and require the holding of this court that, on the alleged facts before us, McKinnie was properly charged with separate crimes. On May 21, 2001, at approximately 9:04 p.m., in the north parking lot of Brookfield Square Mall, in Waukesha county, McKinnie allegedly armed with a dangerous weapon by threat of use of force decided to steal a car out from under its driver, Shirley Katt; on the next day, May 22, 2001, at approximately 9:30 a.m., in Milwaukee county, McKinnie, after sufficient time for reflection, again committed himself to driving a stolen car. Each act required "a new volitional departure in [McKinnie's] course of conduct." See Koller, 2001 WI App 253 at ¶31. As alleged, McKinnie's offenses are separate and distinct and may be separately charged.

    Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
    State v. Michael A. Sveum
    , 2002 WI App 105, PFR filed 5/10/02
    For Sveum: Ian A.J. Pit
    Issue/Holding: Violation of harassment injunction isn't lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be "subject" to injunction but not actually violate it. ¶25.)
    Multiplicity: Child Enticement -- Single Act
    State v. William J. Church, 2000 WI 90, 223 Wis. 2d 641, 589 N.W.2d 638, dismissing review as improvidently granted, thereby affirming State v. Church , 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998). 
    For Church: James L. Fullin, SPD, Madison Appellate 
    Issue: Whether the child enticement statute, § 948.07, supports multiple charges and punishments based on a single act. 
    Holding: Based on its argument in State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, the state concedes that § 948.07 creates a single offense with alternative mental states; as a result the state's petition for review in this case is dismissed as improvidently granted, which has the effect of leaving intact the court of appeals' published decision, State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998). 
    Go To Brief
    Multiplicity: -- Attempted Child Sexual Exploitation and Child Enticement 
    State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27 
    For Derango: Robert G. LeBell 
    Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous. 
    Holding: The two offenses are elementally distinct and therefore aren't the "same" for multiplicity purposes, ¶¶32-34; nor is there any indication that the legislature intended to prohibit cumulative punishment for these different offenses, ¶¶34-36. 
    Multiplicity: Bail Jumping -- Single Bond, Same Condition but Different Cases
    State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
    For Eaglefeathers: Patricia A. Fitzgerald
    Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:
    ¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, Wis. Stat. § 946.49. Rather, the dispute is over whether the offenses are identical in fact.  Offenses are different in fact if the offenses “are either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.  2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The test for whether offenses are significantly different in nature “is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis.  2d 739, ¶20 (citations omitted).

    ¶11      An offense is different in nature from another offense when it requires proof of a fact that the other offense does not.  Anderson, 219 Wis. 2d 739, ¶20. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis.

    The court goes on to say that the resulting presumption of legislative intent to impose cumulative punishments in this context isn’t rebutted, ¶¶15-18. But: “separate” proof? The conditions were contained in a single bond compelling an appearance at prelims “scheduled for the same time” (¶1). In other words, the cases were consolidated as a functional if not formal matter; and, even if that overstates the matter, how would it have been possible for Eaglefeathers to appear at the one but not the other? In the somewhat stilted language of the test: “each requires a new volitional departure in the defendant’s course of conduct”; how is it remotely possible to intentionally fail to appear at one hearing but not the other, when they're both scheduled for the same time and place? The court doesn’t quite get around to saying, but instead merely asserts: “Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other.” Sorry, but that’s just not a self-evident proposition. At least it wasn’t before, but perhaps it is now, but only because of judicial fiat -- or, perhaps, the tendency of the judiciary to think it can suspend elementary laws of physics, in this instance by presuming that someone really can be in two different places at the same time.
    Multiplicity: Bail Jumping -- Single Bond, Different Conditions
    State v. Daniel Anderson, 219 Wis.2d 739, 580 N.W.2d 329 (1998), reversing State v. Anderson 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997) 
    For Anderson: Jack E. Schairer, SPD, Madison Appellate. 
    Issue: Whether violating different conditions of a single bond supports multiple bail jumping counts. 
    Holding: Anderson, released on an otherwise unrelated case, was ordered as a condition of bail not to drink or have contact with the victim. His violation of both conditions, albeit at the same time and place, supports two convictions and sentences. 
    Analysis: The test for multiplicity has two parts, identity in law and fact; and legislative intent. These bail jumping offenses are the same in law, but are "significantly different" in fact, because drinking and contact each "requires a different and new volitional act on the defendant's part." (Note: these are plea-based convictions, yet the court does not discuss waiver. The court has previously held that double jeopardy claims are not subject to waiver. State v. Morris, 108 Wis. 2d 282, 284 n. 2, 322 N.W.2d 264 (1982) See also State v. Jimmie Davison, 2002 WI App 109 ¶¶12-13, reversed on other grounds, 2003 WI 89.) The court's analysis of the facts relies on the complaint, information, and statements at a pretrial hearing. Different-fact counts may still be multiplicitous if there is "clear indication" the legislature intended to allow only a single prosecution. The court's review of the legislative history leads it to conclude otherwise. The dissent (Justices Geske, joined by Justice Bradley and Chief Justice Abrahamson) takes issue with the last conclusion. "The appropriate unit of prosecution," they would hold, "is the bond, not the individual conditions." )
    Go To Brief
    Multiplicity: Battery, by Prisoner and Simple
    State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
    For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project
    Issue/Holding: The legislature did not intend to preclude cumulative punishments for both aggravated battery, § 940.10(6) and battery by prisoner, § 940.20(1), for the same conduct. ¶¶47-111.
    Multiplicity: § 948.12, Child Pornography -- Photographs Stored on Disk
    State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
    For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
    Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50. State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, followed, with this caveat:
    ¶52. We are not persuaded by Schaefer's effort to distinguish Multaler. In Koller, we explained:
    When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the State has alleged facts which, if proven, demonstrate a new volitional departure. However, just because the State has properly alleged facts for purposes of multiplicity analysis does not mean the State can prove the alleged facts. Thus, apart from whether there is a basis for a multiplicity challenge to pretrial allegations, events at trial, or otherwise may suggest that the State is unable to actually prove a new volitional departure supporting multiple charging.
    Koller, 2001 WI App [253] at ¶34. We take this opportunity to further clarify the appropriate question when a multiplicity challenge is directed at charging. Restating and modifying the first sentence from ¶34 in Koller: When a defendant complains prior to trial that criminal charges improperly split a single crime into multiple counts because the alleged factual basis does not show a "new volitional departure," the pertinent question is whether the facts alleged by the State, and reasonable inferences from those facts, demonstrate a new volitional departure.

    ¶53. Schaefer's argument is better suited to a multiplicity objection made during or at the end of trial. Had we a full evidentiary record to review, it is possible that the State's allegations may not withstand a multiplicity challenge. For example, evidence that images were copied wholesale from another disk or computer could convince the trial court that the charges were not different in fact and therefore only one count should be considered by the jury. But here we have only the charging document and the evidence from the pretrial hearing. Under these circumstances, we determine that Multaler is dispositive. Thus, the fact that there were over thirty-nine separate image files "supports a conclusion that [Schaefer] made a new decision to obtain each one." Multaler, 2002 WI 35 at ¶58. Here a reasonable inference from the alleged fact that each photograph was contained in a separate computer file is that Schaefer downloaded each file separately and made a separate volitional decision to retain each file.

    Nor does the rule of lenity apply as to the permissible unit of prosecution; rather, there is a presumption that the legislature intended cumulative punishment, Multaler controlling this point. ¶¶54-55. Again, a potentially important reservation, ¶56 n. 11:
    For example, if the accused downloads several images at once, that are contained in a single computer file, is that still on par with a traditional photo album or is that more like a magazine, which is generally not divided into separate counts for each picture? See City of Madison v. Nickel, 66 Wis. 2d 71, 83-84, 223 N.W.2d 865 (1974) (single sale of four obscene magazines charged as four obscenity offenses under city ordinance precluding sale of obscene material). Under Wis. Stat. § 948.12, the use of the term "motion picture" indicates legislative intent that possession of one movie is a single offense, although a reel of film could contain thousands of individual images. Similarly, the statute refers to a videotape in the singular form. But what if several movies are copied onto one DVD or videotape? It does not appear that State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, provides a ready answer to such situations
    Multiplicity: Child Pornography -- Possession of Materials Stored on Disks
    State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
    For Multaler: Jeffrey W. Jensen

    ¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he "began downloading . . . in the winter of 1998," thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.

    ¶59. Having determined that the charges are different in fact, we turn to examine the legislature's intent regarding the allowable unit of prosecution. Where charges are different in fact, we presume that the legislature intended multiple punishments. Anderson, 219 Wis. 2d at 751. This presumption is rebutted only by a clear indication of legislative intent to the contrary. Id. We use four factors to determine legislative intent in a multiplicity analysis: (1) statutory language; (2) legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Id.....

    ¶64. Nothing in the plain language of Wis. Stat. § 948.12 supports Multaler's position that the legislature intended that a computer disk, rather than an image, is the intended unit of prosecution. Rather, the plain language of the statute provides that a possessor of "any photograph . . . or other pictorial reproduction" has violated the statute. Section 948.12 (emphasis added). The singular formulation of these items covered under the statute modified by the term "any" is evidence that the legislature intended prosecution for each photograph or pictorial reproduction. In short, the plain language of the statute leads us to the conclusion that for purposes of the second part of the multiplicity analysis each image Multaler possessed could be prosecuted separately.

    Unit-of-prosecution result appears to turn on particular wording of statute, which prohibits "pictorial representation"; criminal penalty for "possession of a computer or other visual medium that contains a pornographic image" could lead to different result: State v. Muhlenbruch, Iowa SCT No. 06/05-2028, 2/23/07.
    Multiplicity: Theft by Fraud, § 943.20(1)(d), Same Victim Over Period of Time
    State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
    For Swinson: Pamela Pepper
    Issue/Holding: Separate theft by fraud charges, § 943.20(1)(d), involving a scheme to defraud the same victim over a period of time, were not multiplicitous. Though identical in law, they weren’t identical in fact, because each charge involved a distinct false representation, as well as separate volitional acts. 31-32. Nor does legislative intent support telescoping the distinct acts into one charge. ¶¶34-47; State v. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, distinguished (largely because this “case concerns the theft of fifteen separate amounts of money taken in fifteen distinct episodes of theft,” ¶44, emphasis in original).
    Multiplicity: theft and concealment, §§ 943.20(1)(a) & (3)(d)5 
    State v. Jason J. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884 
    For Trawitzki: Donald T. Lang, SPD, Madison Appellate 
    Issue: Whether multiple charges of theft of firearms taken at the same time, and multiple charges of concealing those firearms, violated double jeopardy. 
    Holding: Multiplicity is a two-part test: determine whether the offenses are identical in both law and fact; if not, whether the legislature intended multiple prosecutions. ¶21. The specific identity of each firearm stolen (and, as well, concealed) is distinct and must be proven separately from any other stolen (or concealed) firearm; therefore theft of (or concealing stolen) firearms taken at the same time aren't identical in fact, and may be proven separately.
    The second part of the multiplicity test employs a four-factor presumption of legislative intent to support separate charging. That presumption isn't overcome in this context. ¶29.
    Go To (COA) Brief
    Multiplicity: perjury -- testimony during same proceeding, multiple counts. 
    State v. Roger L. Warren, 229 Wis. 2d 172, 599 N.W.2d 431 (Ct. App. 1999). 
    For Warren: Daniel F. Snyder. 
    Holding: Warren's perjured testimony at a single hearing dealing with a single general subject supports multiple perjury counts, because each charge dealt with different perjured details and is therefore "different in fact" if not law. In other words, "different evidence is required to establish that Warren responded falsely to the questions upon which" the separate counts are based. 
    Multiplicity: Burglary (Intent to Steal) While Armed, § 943.10(2)(a) (1997-98) and Burglary (Intent to Steal) While Committing Battery, § 943.10(2)(d) (1997-98)
    State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04
    For Beasley: Robert Ruth
    Issue: Whether charges and convictions for burglary while armed (§ 943.10(2)(a)) and burglary while committing battery (§ 943.10(2)(d)) are multiplicitous.
    ¶5. We reject Beasley's challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they define distinct crimes. Second, Beasley has not met his burden of showing that the legislature did not intend to impose multiple punishments.

    ¶12. In Beasley's view, the subsections of Wis. Stat. § 943.10(2) define penalty enhancers for the underlying crime of burglary, as defined in § 943.10(1). … 


    ¶14. Penalty enhancers, such as those defined in Chapter 939, authorize specified increases to separate specified penalties for underlying crimes. Thus, the underlying crime has a penalty, and the enhancer adds an additional penalty. Because of this structure, when the facts support multiple penalty enhancers, multiple enhancers may normally be applied to the same underlying crime. That is not the structure of Wis. Stat. § 943.10(2).

    ¶15. The subsections of Wis. Stat. § 943.10(2) each define a complete stand-alone crime. …

    ¶16. Further, unlike penalty enhancers, the various aggravating circumstances in the subsections of Wis. Stat. § 943.10(2) cannot be added to the underlying crime of burglary, either singly or in multiples. The reason is simple: they are fully defined stand-alone crimes, not penalty enhancers.


    ¶20. Having rejected Beasley's penalty enhancer argument, we now apply the first step of multiplicity analysis, the Blockburger test. The question is "whether each of the offenses in this case requires proof of an element or fact that the other does not." Derango, 236 Wis. 2d 721, ¶30. It is readily apparent that Count 5 requires proof of an element and a fact that Count 6 does not, namely, while armed with a dangerous weapon. Similarly, Count 6 requires proof of an element and a fact that Count 5 does not, namely, battery.

    ¶24. Beasley's only other legislative intent argument is based on language in the comment to Wis. Stat. § 343.11 in 1953 A.B. 100 (a prior version of the aggravated burglary statute), which states:

    Before a person can be convicted under this section, it is necessary to find the existence of all the elements necessary to constitute a crime under section 343.10 [currently sec. 943.10(1)], and in addition the existence of one of the aggravating factors set forth in this section.
    Comment to Wis. Stat. § 343.11, 1953 A.B. 100 (codified as Laws of 1953, ch. 623 (the Criminal Code)). This language, however, does not support Beasley's legislative intent argument. To the contrary, it describes the statutory scheme in a manner consistent with our discussion rejecting Beasley's enhancer argument.
    There’s been surprisingly little litigation aimed at defining the boundary between substantive offense and sentencing enhancement. And what little there is isn’t terribly helpful. Compare, for example, State v. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248 (§ 941.29(2m) (1997-98), which contains language “whoever violates ... is guilty of a Class D felony,” is substantive offense), with State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982) (similar language in § 946.62 (1979-80) creates sentence enhancer). The court’s conclusion in Beasley’s instance isn’t indefensible, but it doesn’t really come to grips with the problem he poses: what if the jury found him guilty of burglary in both counts, but then refused to find the existence of either aggravator? He would then stand convicted of two counts of the (indisputably) same offense; that simply can’t be right. The court’s way of finessing the problem is to say that this is really a challenge to the jury instructions and, because there wasn’t an objection, this potential defect has been (mirabile dictu!) waived. ¶¶17-18. The court’s discussion (see ¶19) suggests that it has misconstrued the argument; either that, or it simply refuses to accept the idea that any jury under any circumstances could fail to find the, um, enhancers; no, aggravators; yes: additional elements that allow for greater punishment for the same underlying offense.

    Double Jeopardy -- Multiplicity
    Juvenile Discipline

    Multiplicity: criminal charge and juvenile discipline for same conduct. 
    State v. Jamerrel Everett, 231 Wis.2d 616, 605 N.W.2d 633 (Ct. App. 1999). 
    For Everett: Timothy T. Kay; Michael Patrick Cotter. 
    Issue: Whether the prosecution constituted double jeopardy because the defendant had been disciplined for the same conduct by the juvenile institution. 
    Holding: Although prison discipline may carry punitive aspects, its principal purposes are institutional order and rehabilitation, State v. Fonder, 162 Wis. 2d 591, 469 N.W.2d 922 (Ct. App. 1991), which don't invoke double jeopardy protections; the same applies to juvenile facilities. ¶29. 

    Double Jeopardy -- Multiplicity

    Double Jeopardy -- Guilty Plea Waiver Rule
    State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
    For Kelty: Michael J. Fairchild
    ¶2        We are asked to decide whether an otherwise satisfactory guilty plea is sufficient to relinquish a double jeopardy/multiplicity challenge upon direct appeal. We conclude that a guilty plea relinquishes the right to assert a multiplicity claim when the claim cannot be resolved on the record. When a defendant enters a knowing, intelligent, and voluntary guilty plea, the nature and effect of the plea necessarily mean that the defendant gives up the right to a fact-finding hearing on the propriety of multiple charges. United States v. Broce, 488 U.S. 563, 576 (1989).

    ¶3        Our decision should not be understood to render guilty pleas impervious to double jeopardy challenges. A defendant retains the right (1) to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, __ Wis. 2d __, __ N.W.2d __ and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective assistance of counsel pursuant to State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); and (3) to challenge the authority of the state to prosecute her and the power of a court to enter the conviction or impose the sentence, where the existing record allows the court to determine whether the defendant's double jeopardy rights have been violated. See Broce, 488 U.S. at 569, 574-75. [3] Because Kelty's attempt to withdraw her guilty plea cannot meet any of these grounds for withdrawal, [4] we reverse the court of appeals.

    The court undertakes an exploration of the “guilty plea waiver” rule. Highlights: the unembellished pronouncement of a number of reported Wisconsin cases that a guilty plea does not waive a double jeopardy claim turns out to be something of an overstatement. Surprisingly, no prior case discusses “whether a defendant who seeks to withdraw a guilty plea on double jeopardy grounds should be granted a fact-finding hearing, at which evidence will be presented, so that the court can determine whether the charges to which she pled are multiplicitous,” ¶14. The court now says there shouldn’t be a hearing in this situation. But first, the basics.

    Generally a guilty plea waives all nonjurisdictional defects, ¶18, so why should there be an exception at all for double jeopardy? The court is less than clear on this point, but it is readily stated: because a double jeopardy claim is indeed in the nature of a jurisdictional defense; a claim that conviction (or sentence) violates double jeopardy is a challenge to the State’s power to exact punishment. (The court hints at this very doctrinal basis for the exception, ¶26, but no more than that.) As the court notes, the first Wisconsin case to recognize the exception was State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982) which “was somewhat unusual in that it overruled, sub silentio, a number of Wisconsin cases,” ¶21. But this wasn’t really unusual, because in fact Menna v. New York, 423 U.S. 61, 62 (1975)—cited by Morris—did the overruling. And the passage from Menna relied on by Morris was: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” That is simply another way of saying that where double jeopardy denies a state the power to proceed against a defendant then a guilty plea doesn’t bar a challenge to the state’s authority to impose punishment on the plea. That, then, is the background.

    The wrinkle here is that Kelty’s claim involves a “unit-of-prosecution” claim (whether multiple counts under the same statute are distinct on the specific facts), which “is significant because resolving this type of claim often requires close scrutiny of the facts to determine whether the defendant's underlying conduct was identical in fact. … Resolution of a unit-of-prosecution challenge is likely to be more fact dependent than other types of double jeopardy challenge, and thus, less susceptible to successful attack on appeal, since a guilty plea relinquishes a defendant's right to fact-finding into disputed or uncertain facts,” ¶17 n. 9. Morris, by contrast, dealt with the purely legal question of whether separate convictions could be entered under separate statutes (no, because one was a penalty enhancer not a separate substantive offense); indeed, Morris correctly invoked Menna, and nothing in the present decision would affect Morris were it to be litigated today. But as just suggested, the unresolved fact-contingent nature of Kelty’s claim makes all the difference to waiver; the court now, in effect, applies Broce to limit the waiver exception to instances where the double jeopardy issue appears of record, ¶34. This means, more concretely, that a guilty plea waives the right to a fact-finding hearing on a double jeopardy claim, ¶38. Again: “a court will consider the merits of a defendant's double jeopardy challenge if it can be resolved on the record as it existed at the time the defendant pled,” ¶38. Kelty’s claim was fact-contingent rather than established in the record and thus waived by her plea.

    What, though, of a defendant who has raised but lost a DJ claim after a fact-finding hearing before entering a guilty plea? The issue would then expressly satisfy the condition just quoted in that it is capable of resolution on the record at the time of plea. See also ¶46 (“Absent an express waiver, a guilty plea relinquishes a double jeopardy claim if a court is unable to determine from the record whether there has been a constitutional violation. Our inquiry, therefore, is whether it is possible to resolve Kelty's multiplicity claim on the current record.”—if a pre-plea hearing has in fact been held then it would be possible to resolve the claim on review of the current record.) Such a claim might well be allowed to proceed.

    Does the decision work any large changes? As noted, Morris itself isn’t overruled. The court does overrule the holding of State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996) that waiver of a double jeopardy claim must be express, ¶¶33-34, but goes on to urge that express waivers nonetheless be taken as a matter of practice, “to guard against the possibility of reversible error,” ¶45. Can you, though, waive a valid DJ claim that appears of record? If the defect is, as suggested above, tantamount to a subject-matter jurisdictional error (power of the state to hale the defendant into court on the charge), and if a subject-matter jurisdictional claim can’t be waived even by a guilty plea, then can it be waived by express consent of the defendant? Note the long-standing principle that “(a) complaint which charges no offense is jurisdictionally defective and void and the defect cannot be waived by a guilty plea; the court does not have jurisdiction,” Champlain v. State, 53 Wis.2d 751, 754, 193 N.W.2d 868 (1972); restated recently in State v. Bush, 2005 WI 103, 283 Wis.2d 90, 699 N.W.2d 80 as, “a … matter of subject matter jurisdiction … cannot be waived.” Cannot be waived; not, cannot be waived except upon express consent of the defendant. We’ll have to see then if the court can implement its proposed express-waiver fix. Otherwise, the court of appeals had previously moved toward limiting the waiver-exception to instances where “the potential double jeopardy violation is facially ascertainable on the record without supplementation,” State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89, so it’s hard to see any major changes being effectuated by this decision.

    Two final points. First, the court takes pains to say that waiver of a DJ issue doesn’t necessarily inhibit an argument that the plea wasn’t knowing, intelligent or voluntary, nor an argument that the plea was induced by ineffective assistance of counsel, ¶43. Second, the court reminds that “forfeiture” has a different coloration than “waiver,” ¶18 n. 11, a distinction taken up by the Chief’s concurrence, ¶¶62-63. Maybe it’ll catch on with litigants; if so, keep in mind that the distinction is much more well-developed in federal court: for recent examples, see e.g. United States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006) (“One forfeits his rights by failing to assert them in a timely manner. Where waiver is accomplished by intent, forfeiture comes about through neglect.”) (cite and quotes omitted.); and United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005) (“A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law.”)

    Multiplicity: Waiver -- Guilty Plea Rule
    State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
    For Davison: Keith A. Findley, UW Law School
    Issue/Holding: A guilty plea doesn't waive a facially valid multiplicity claim. ¶13.
    The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2. Rejecting relief on the merits, the court expressly declines to decide this waiver issue. ¶111. The result therefore does not affect the viability of the non-waiver holding. State v. Gary M.B., 2003 WI App 72, ¶¶13 and id. n. 4, (supreme court reversal on merits, without reaching preliminary conclusion of non-waiver doesn't affect latter holding), affirmed on other grds.2004 WI 33. To be sure, Gary M.B. may be reversed on this point; however, the principle of non-waiver of a facially valid multiplicity claim appears otherwise supported by substantial authority.

    Double Jeopardy -- Prosecutorial Misconduct

    Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial, Generally 
    State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
    For Jaimes: Joseph L. Sommers
    Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant”; and, the prosecutor’s action was designed to provoke mistrial, ¶¶7-8. The prosecutor’s intent is a factual finding, reviewed deferentially, ¶10 (citing State v. Rovaugn Hill, 2000 WI App 259, ¶12).
    Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial – Inadmissible Evidence from State’s Witness 
    State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
    For Jaimes: Joseph L. Sommers
    Issue/Holding: A trial court finding that the prosecutor did not intend to provoke mistrial, when a State’s witness testified to inadmissible misconduct by the defendant, was not clearly erroneous, where: the State opposed mistrial; this was the State’s first witness and it was unlikely the State could perceive the trial was going poorly; the prosecutor immediately indicated that he had told the witness not to mention the prohibited matter; and the answer was non-responsive to the prosecutor’s question, ¶10.
    The witness’s answer—adverting to something that had been declared off-limits by motion in limine—is what used to be called in caselaw an “evidential harpoon,” and used to be the subject of appellate condemnation, e.g., Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966):
    The volunteering by police officers of inadmissible testimony prejudicial to the defendant has been condemned time and again by both state and federal courts. For example, in Wright v. State, Okl.Cr.App., 325 P.2d 1089, 1093 (1958), where a law enforcement officer injected this type of prejudicial testimony, not twice as here, but only once, the court stated: “This type of testimony has often been referred to as an ‘evidential harpoon’ that has been wilfully jabbed into the defendant and then jerked out by an admonition to the jury not to consider the same. This court has never condoned, but often criticized a witness being intoxicated with eagerness in an all out effort to obtain a conviction. … Officers must be aware that an over-zealous attitude is, in most instances, detrimental to the prosecution and often results in a retrial of the case at considerable expense to the state.”
    The idea in that line of cases is that a curative instruction doesn’t work. Jaimes isn’t to the contrary, indeed offers at least implicit support for that idea given the grant of mistrial, but does mean that something more is needed to bar retrial.
    Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial – Ascribing to Prosecutor Misconduct by State’s Witness 
    State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
    For Jaimes: Joseph L. Sommers
    ¶11      Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the prosecutor, and when an officer testifies about explicitly excluded evidence, it is binding on the prosecutor so as to attach double jeopardy.

    ¶12      In response to this argument, the State acknowledges that no Wisconsin court has addressed this argument. It urges us to follow other jurisdictions’ holding that a police officer’s testimony creating a basis for the mistrial—in the absence of evidence of collusion by the prosecutor’s office intended to provoke the defendant to move for a mistrial—does not constitute prosecutorial overreaching to bar a retrial. We agree …

    Citing with approval, People v. Walker, 720 N.E.2d 297, 301 (Ill. App. Ct. 1999), ¶13, and several other cases, ¶13 n. 1. The court also notes: “The test for overreaching is meant to be an onerous one as many trials admittedly will have some evidentiary error, and the remedies of striking the testimony, admonishing the prosecutor or witness or issuing a cautionary instruction typically are viewed as sufficient to remove prejudice to a criminal defendant,” ¶14. There was no “evidence that the prosecutor colluded with the officer to provoke the defendant into moving for a mistrial,” and so retrial wasn’t barred, ¶15.
    Prosecutorial Misconduct: Retrial Following Mistrial at Defense Request -- Necessity of prosecutorial overreaching 
    State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34 
    For Hill: Gerald P. Boyle 
    Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial. 
    Holding: "[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions." ¶12. Here, mistrial followed from the prosecutor's filing at trial an amended information containing reduced charges, based on his view that the jury would be confused by the elements of the charged, greater offenses. The trial court's finding that this action was not intended to provoke a mistrial is upheld, as not clearly erroneous, and retrial therefore allowed to proceed on the amended information. 
    Prosecutorial Misconduct: Retrial Barred Notwithstanding Absence of Defense Request for Mistrial  
    State v. Lettice (II), 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998)
    (prior history: State v. John A. Lettice (I), 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996); subsequent history: BAPR v. Steven M. Lucareli, 2000 WI 55)
    For Lettice: John Allan Pray, UW Law School
    We conclude that (1) Lettice is not estopped from seeking a dismissal based on double jeopardy; (2) Lettice's failure to move for mistrial does not prevent him from asserting that prosecutorial misconduct bars retrial when the prosecutor engaged in misconduct with a covert motive which Lettice was not aware of until after trial; and (3) double jeopardy bars retrial because the prosecutor's action was undertaken with the intent to prevent an acquittal or to prejudice the possibility of an acquittal that the prosecutor believed would occur in the absence of his misconduct. The trial court's order of dismissal is therefore affirmed.


    We specifically hold that even in the absence of a motion for mistrial, the double jeopardy clause bars retrial when the prosecutorial misconduct is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct. See Wallach II, 979 F.2d at 916. This protects a defendant from multiple successive prosecutions for the same offense that result from prosecutorial misconduct done with the deliberate intent of interfering with the defendant's right to have his trial completed by a particular tribunal or by prejudicing the possibility of an acquittal that the prosecutor believed likely. See Pavloyianis, 996 F.2d at 1473.

    Lettice's postconviction, 1st-appeal request for retrial didn't estop him from seeking double jeopardy to retrial after relief granted on basis of prosecutorial misconduct, "because the issue was not ripe for determination at that time." Rather, the defendant is required to move for dismissal only after the State has decided whether to proceed with retrial, 221 Wis. 2d at 78. On the merits, this case presents the novel issue of "whether the double jeopardy clause affords protection against retrial to a defendant who has not moved for a mistrial because he or she is not fully aware at trial of the motivation for or effect of the prosecutor's misconduct." 221 Wis. 2d at 82. Under the unusual facts -- the prosecutorial misconduct became apparent only after trial, and "was not in the form of trial errors but rather was Lucareli's insidious plan to force Burgy's removal as defense counsel to avoid going to trial on the date for which it was set" -- Lettice may avail himself of the rule that, due to prosecutorial fear of acquittal, intentional prosecutorial misconduct aimed at provoking defense request for continuance may bar retrial. See Oregon v. Kennedy, 456 U.S. 667, 673; and State v. Hampton, 207 Wis.2d 367, 384, 558 N.W.2d 884 (Ct. App. 1996) (1982).
    Prosecutorial Misconduct: Vindictiveness -- increased charge following hung jury 
    State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330. 
    For Johnson: Russell D. Bohach, under SPD appointment 
    Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury. 
    Holding: No presumption of prosecutorial vindictiveness applies to an increase in charges following mistrial due to hung jury. 
    Analysis: Johnson went to trial on a single count of first degree sexual assault, after rejecting an original offer to plead to second degree. The jury hung, and mistrial was declared. The prosecutor then added a count of first degree sexual assault and a count of burglary, arising out of the same event. She also offered to allow Johnson to plead to one of the assaults, with the other counts dismissed, with sentencing consideration (a plea, that is, to the first-trial charge). Johnson rejected the offer; he unsuccessfully challenged the added charges on vindictiveness grounds, lost both that argument and the trial, and this appeal results. The first question is whether there's a realistic likelihood - a presumption - of prosecutorial vindictiveness. It's settled that (in general) a presumption of vindictiveness arises when charges are increased following successful appeal; and that no presumption apples to an increase in a pretrial setting. This case is unique, because "no previous Wisconsin case has examined a claim of vindictiveness arising before a defendant's successful appeal." ¶19. To make a long story very short, the court basically discerns that mistrial falls into the pretrial rather than successful-appeal category. Merely insisting on a retrial following hung jury is not an assertion of a "protected right," in that "retrial was necessary because of the jury's inability to reach a verdict, not because of the exercise of any right by the defendant." ¶38. Thus, the rationale of Bordenkircher v. Hayes, 434 U.S. 357 (1977), a plea bargaining case which permits a prosecutor to threaten to bring a more serious charge unless the defendant pleads guilty, applies. There is, it should be noted, reason to see the holding as limited to hung-jury mistrials: the court stresses that the jury's inability to reach a verdict is distinct from the defendant's exercise of some right, and the court takes pain to distinguish the results in other cases which "involved mistrials granted upon the defendant's motion, to preserve fair trial rights." ¶38 and id., n. 5. 
    Issue2: Whether the defendant showed that the increase in the charge was due to actual vindictiveness. 
    Holding: Defendant did not establish actual vindictiveness, and there was, additionally, evidence of non-vindictive intent. 
    Analysis: The defendant may show actual vindictiveness, where no presumption attaches. ¶47. The fact that the new charges were not based on new information didn't establish actual vindictiveness. Given the prosecutor's "great discretion in charging decisions ... the prosecutor's belief that sufficient evidence exists to support a conviction of a new charge provides justification for the decision to file additional charges." ¶50. And, the offer to dismiss the new charges for a plea to the first-trial charge was sanctioned by Bordenkircher. Finally, the prosecutor's express desire to induce a plea for the purpose of having young witnesses spared the trauma of testifying "suggests a non-vindictive reason." ¶52. 
    Prosecutorial Misconduct: Vindictiveness -- Adding New Charges After Postconviction Relief
    State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 7th Cir No. 05-4736, 3/20/07
    For Williams: Margaret A. Maroney, SPD, Madison Appellate
    Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:
    ¶45 … As Humphrey [v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989)] suggests, the fact that a defendant is facing stiffer charges arising out of a single incident is important because where such is the case, the concern is that the defendant will be discouraged from exercising his or her right to appeal because he or she is afraid the State will retaliate by substituting a more serious charge for the original one on retrial. However, this concern does not come into play where the new charges stem from a separate incident. In that situation, it is not the appeal that opens the door for the second charge. The prosecutor could have brought the charges against the defendant at any time, regardless of whether the defendant chose to appeal his or her conviction in the original case.

    ¶46. Furthermore, in this case, the present prosecutor had new evidence available to him that the earlier prosecutor did not-the testimony of the two alleged victims from the first trial. …

    ¶47. Contrary to Williams' assertions, the fact that the present prosecutor made his decision to press charges without actually seeing the witnesses testify is not relevant…. ¶48. Williams also asserts that the presumption of vindictiveness arises in this case because in July 2000, prior to filing the new charges, the prosecutor informed Williams that if he insisted on going to trial, the State would charge him with the 1990 incidents. It is well established that this conduct does not give rise to a presumption of prosecutorial vindictiveness. …

    Prosecutorial Misconduct: Vindictiveness -- More Onerous Plea Offer After Defendant Obtains Relief
    State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
    For Tkacz: Mark S. Rosen
    Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The prosecutor offered a less favorable resolution because he had additional evidence and a stronger case, therefore no presumption of vindictiveness was established. ¶¶26-30. Nor, for similar reasons, was actual vindictiveness shown. ¶¶31-32.

    Double Jeopardy -- Retrial Following Mistrial Over Defense Objection

    Double Jeopardy – Bar on Retrial: Mistrial over Defense Objection – Counsel Held in Contempt (Which Was Itself Later Reversed on Appeal)
    State v. Otis G. Mattox, 2006 WI App 110
    For Mattox: Scott D. Obernberger
    Issue: Whether grant of mistrial over objection, after defense counsel was held in contempt for supposedly violating a court order with respect to questioning a witness, was manifestly necessary so as to permit retrial.
    ¶19      As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt, and the concern that charges of vindictiveness would be lodged against the trial court and the court would have to bend over backwards for Mattox’s attorney in order to avoid a charge of impartiality and unfairness. However, the trial court was mistaken about the contempt, and we have determined that any concern about its reputation did not constitute manifest necessity. [8] Thus, we are left with only one conclusion—no manifest necessity existed requiring a mistrial over the objections of both the State and Mattox. Consequently, the trial court erroneously exercised its discretion in terminating the trial because the trial court erred as a matter of law in its finding of contempt, and no other stated reasons rose to the level of a manifest necessity. Under these circumstances, Mattox’s exercise of his constitutional rights prevents a retrial. Accordingly, we reverse.
     [8]   While we acknowledge that other reasons were proffered later by the trial court for its decision, we are satisfied that the analysis given at the time of the mistrial trumps later explanations, particularly when the new explanations contradict what was said at the time the mistrial was declared.
    At the time mistrial was granted, the trial court gave four reasons, ¶8: Mattox would have an ineffectiveness claim, evidenced by counsel’s “contemptuous behavior”; the trial court otherwise would have to bend over backward to rule in Mattox’s favor, else risk being seen as vindictive; accusations of unfairness would reflect poorly on the court’s reputation; soldiering on wouldn’t be in anyone’s best interest. On the face of it, these reasons seem make-weight, but the court of appeals’ discussion makes the result more fact-specific than one might like:
    ¶15      … We are mindful that the trial court felt it was being placed in an awkward situation. However, the trial was close to a conclusion. The last of the State’s witnesses was on the stand when the mistrial was announced. It appears as though the only remaining witness was Mattox himself. The trial court could have easily completed the trial without having to “bend over backwards” for Mattox’s attorney or be exposed to a charge of vindictiveness. Indeed, while it may have been unpleasant to preside over the trial under the existing conditions, we cannot conclude that being perceived as “looking bad” is a manifest necessity. Although there is one sentence in the three pages of the transcript explaining the trial court’s decision to call a mistrial, where the trial court stated that the mistrial was in “Mattox’s best interest,” the trial court never explained why this was true. [7] Thus, our review of the record made at the time of the mistrial reveals no manifest necessity.
    And, of course, the earlier reversal of the contempt finding kicked the legs out from under the mistrial. (Earlier, unpublished decision: Schnake v. Circuit Ct. for Milw. County, No. 04-2471, 5/17/05.) The court of appeals did reject (see fn. 8) the trial court’s months’-later rationalization that mistrial was necessary to avoid prejudice to Mattox. But to a large extent this rejection isn’t based on the idea that a trial court can’t come up with previously unexpressed notions, but rather that in this instance those notions were both unsupported in the record and also inconsistent with remarks made contemporaneous to the mistrial:
     ¶18      The trial court’s later statement that jury prejudice against Mattox resulting from his attorney’s conduct was the underpinning for the mistrial, is inconsistent with its contemporaneous statements. At the time the mistrial was ordered, there was no mention of the jury having been prejudiced by Schnake’s actions. We note that most of Schnake’s transgressions were done outside the jurors’ presence. Further, there is no evidence here supporting the trial court’s later conclusion. Unlike the situation existing in United States v. Spears, 89 F. Supp. 2d 891 (W.D. Mich. 2000), where the trial court sua sponte declared a mistrial after the trial court noticed signs of juror exasperation with the defense attorney by “raising their eyes, shaking their heads negatively,” and individual voir dire revealed bias against the defendant due to his counsel’s actions, see id. at 895, here we have no indication of juror bias. Indeed, the trial court commented at the time that, “[t]his case could very easily turn out to be an acquittal,” and earlier stated that “he may very well not get convicted….” Thus, it would appear that earlier, contrary to the court’s later comments, the trial court did not think that the jurors had been negatively influenced by Schnake’s behavior.
    All of which is to say that the facts probably place this case at the margins of manifest necessity caselaw.
    Retrial Following Mistrial over Defense Objection, Generally
    State v. Barbara E. Harp, 2005 WI App 250
    For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
    ¶13      The Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution prevent the state from trying a defendant multiple times for the same offense. [4] “[G]iven the importance of the constitutional protection against double jeopardy, the State bears the burden of demonstrating a ‘manifest necessity’ for any trial ordered over the objection of the defendant.” Seefeldt, 261 Wis. 2d 383, ¶19 (citations omitted).  “Manifest necessity” means a “high degree” of necessity. Id.
    The trial court’s error was in deeming certain testimony to be in the nature of an “alibi” and thus in violation of the notice-of-alibi requirement; because the testimony was not, as a matter of law, alibi-related, no such violation occurred and the mistrial wasn’t manifestly necessary, ¶¶21-25.
    Retrial Following Mistrial over Defense Objection
    State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
    For Moeck: David D. Cook
    ¶37 A mistrial is warranted if the mistrial is "manifestly necessary." The State bears the burden to demonstrate that a "'manifest necessity' [exists] for any mistrial ordered over the objection of the defendant." A "manifest necessity" warranting a mistrial is a high degree of necessity. The determination whether a manifest necessity exists is a fact-intensive question. If the State does not meet this burden, the State is not permitted to commence another trial against the accused.
    Issue2: Whether mistrial granted over defense objection on the ground that the defense never presented evidence to support a theory advanced in the opening statement (namely that the defendant would testify that the purported victim was a liar and thief, but the defense rested without presenting any evidence) was supported by manifest necessity.

    ¶68 We agree with the State that a circuit court may, in an appropriate case, declare a mistrial on the basis of an opening statement that summarizes evidence that is not produced. We disagree with the State, however, that the circuit court exercised sound discretion in granting the mistrial in the defendant's third trial.

    ¶71 We conclude that the circuit court did not exercise sound discretion in declaring a mistrial when it failed to give adequate consideration to the State's ability to refer to the defendant's silence and to the effectiveness of a curative jury instruction. Although the circuit court expressed its belief that the State's response and a curative jury instruction could not rectify any prejudice caused by defense counsel's opening statement, this belief is unfounded.

    ¶72 … Sound discretion includes considering alternatives such as a curative jury instruction.

    ¶73 The circuit court erred as a matter of law in its assessment of the State's inability in closing argument to rebut the defense counsel's opening statement. The circuit court overstated the difficulty the prosecuting attorney would have in both commenting on the weakness of the opening statement and avoiding error by referring to the defendant's failure to testify.

    This result should be contrasted with State v. Clyde Baily Williams, 2004 WI App 56, which denied relief on similar facts (improper defense question required mistrial). Hard, not to say impossible, to believe that a curative instruction would have worked its magic in one context but not the other. Interestingly, the supreme court in Moeck did not accept the court of appeals' rationale for error, that the trial court improerly delegated to the prosecution the decision as to remedy, see 2004 WI App 47, ¶23. Had that rationale remained in place, future courts might have been able to say that in Moeck but not Williams the trial court improperly delegated the mistrial decision to the prosecutor. While such a distinction seems pretty flimsy (either an instruction would have cured the harm or it wouldn’t have; if the latter, then there could have been no manifest necessity for mistrial), it is no longer available even in theory. To the extent that the Williams trial court didn't consider the remedy of curative instruction (and there is no indication in the decison of such consideration) then Williams can't be reconclied with Moeck.

    See also U.S. v. Toribio-Lugo, 1st Cir. No. 01-2565, 7/21/04: "Where there is a viable alternative to a mistrial and the district court fails adequately to explore it, a finding of manifest necessity cannot stand." (Holding that failure to offer defendant option of proceeding with 11-person jury after a juror went missing precluded manifest-necessity support for resultant mistrial.)

    Double Jeopardy: "Manifest Necessity" for Mistrial Where "Counsel Aired Improper and Highly Prejudicial Evidence Before Jury"
    State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 7th Cir No. 05-4736, 3/20/07
    For Williams: Margaret A. Maroney, SPD, Madison Appellate
    ¶22. We begin by addressing Williams' double jeopardy claim. He submits that the trial court failed to exercise "sound discretion" in declaring a mistrial after his counsel had asked a State witness, the victim's mother, whether she was aware that White, whom the witness had identified as a caretaker of the victim, "had sexually molested two children in the past."


    ¶30. Thus, if a trial judge acts irrationally or irresponsibly, his or her action cannot be condoned. Washington, 434 U.S. at 514. However, our review of this record indicates that this was not such a case. First, Williams' counsel aired improper and highly prejudicial evidence before the jury. Williams' counsel was ordered to raise the question of admissibility before asking "a question pertaining to other sexual conduct of any witness" and he failed to do so. As pointed out by the trial judge, the alleged molestation of the other children, who were much older than the victim in this case, was irrelevant to who sexually assaulted the victim and that mention of the alleged molestation was highly prejudicial to the State. Furthermore, and most importantly, after questioning defense counsel about the factual basis for the alleged molestation, the trial court concluded that there was no "firm basis" for it. The posing of questions asserting the existence of facts for which there is no evidentiary basis constitutes behavior that courts cannot condone. See Kiner v. State, 643 N.E.2d 950, 954 (Ct. App. Ind. 1995); United States v. Harris, 542 F.2d 1283, 1307 (1976), cert. denied, Clay v. United States, 430 U.S. 934 (1977) ("It is improper for the Government to ask a question which implies a factual predicate which the examiner knows [he or she] cannot support by evidence or for which [he or she] has no reason to believe that there is a foundation of truth.")

    ¶31. Second, the trial judge did not act precipitately in response to the prosecutor's request for a mistrial. Rather, the trial judge gave both Williams' counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. The judge entertained Williams' suggestion that the court "try to save the trial" but rejected it stating that "the State has been very seriously harmed. And I don't know any alternative but declare a mistrial."3 The record, therefore, persuades us that the trial judge acted responsibly and deliberately and accorded careful consideration to Williams' interest in having the trial concluded in a single proceeding. Since the trial judge exercised "sound discretion" in handling the sensitive problem of possible juror bias created by the improper question by Williams' counsel, the mistrial order is supported by the "high degree" of necessity that is required in a case of this kind. See Washington, 434 U.S. at 516.

    3   Williams likens this case to State v. Collier, 220 Wis. 2d 825, 838-39, 584 N.W.2d 689 (Ct. App. 1998), in which we held that the court failed to exercise sound discretion where the court did not consider the possibility of an alternative measure to a mistrial. However, unlike the trial court in Collier, the trial court here considered other alternatives before making its final determination. We, therefore, reject Williams' argument that this case compels the same result as Collier.
    Defense counsel asked a single pernicious question; no answer was ever given. See ¶4. This in and of itself is so shatteringly harmful that mistrial was manifestly necessary? Remember this case next time the State [or court] flippantly says that a curative instruction presumptively cures any harm, or that questions by counsel aren’t regarded as evidence so the prosecutor’s objectionable question couldn’t possibly be harmful. That aside, this decision runs roughshod over the idea that alternatives to mistrial must be considered—the very point, by the way, of Collier. (“Not all errors warrant a mistrial; ‘the law prefers less drastic alternatives, if available and practical.’”) Collier is indeed difficult to distinguish: there, an objectionable but unanswered question caused an unnecessary mistrial – unnecessary because, among other things, no consideration was given to a curative instruction. (“A curative instruction would have been the least drastic but most effective method of addressing the problem, and the trial court's failure to consider it constitutes a misuse of discretion.”) What about Williams? The court says alternatives were considered, but in what sense? The trial judge simply announced there was no alternative; is this perception unreviewable? Why wouldn’t it have been sufficient to strike the question? The court doesn’t say. Taking at face value the court’s perception that the question had no “firm basis” in fact, ¶30, then you might conclude that the question was tinged with ethical impropriety. If that is the distinction, then it is a fairly artificial one. If ethical impropriety is indeed the tipping point, then the court simply conflated that concern with concern over the impact on the jury: mistrial is not a mechanism for enforcing ethical rules.

    UPDATE: See also summary, and yellow-highlighted commentary for, State v. Richard A. Moeck, 2005 WI 57, immediately above, as basis to challenge result in Williams.

    Retrial Following Mistrial over Defense Objection -- “Manifest Necessity”
    State v. Brian D. Seefeldt, 2003 WI 47, affirming 2002 WI App 149
    For Seefeldt: Donald T. Lang, SPD, Madison Appellate
    Issue/Holding: The trial court erred in determining that the state met its burden of proving “manifest necessity” to support mistrial over defense objection, where the matter mentioned by the defense in its opening statement and spurring the mistrial related to evidence that would have been admissible anyway, notwithstanding a standing order not to mention the matter prior to an admissibility ruling. ¶39. Mere violation of an order “is not a basis for a mistrial unless the violation creates that high degree of necessity required by the double jeopardy clause”; the trial court should have gone on to determine admissibility of the referenced matter, something it did not do. ¶40. Nor did the trial court explore alternatives to mistrial, such as imposing sanctions on defense counsel. ¶41.

    Double Jeopardy -- Remedy

    Remedy: Partial Acquittal on Multi-Count Trial
    State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698
    For Henning: Steven D. Phillips, SPD, Madison Appellate
    Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do the acquitted charges pose any direct bar to retrial of the reversed convictions?” (In this case, more particularly, it is whether acquittal on charges of possession of a controlled substance with intent to deliver bars retrial on charges of bail jumping based on simple possession – “¶29. The issue to be decided is whether the defendant could be retried for bail jumping on a different theory, that is, bail jumping predicated on the commission of the crime of simple possession of THC or LSD.”)
    ¶60. 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 Ashe's collateral estoppel principles. In this case, the court of appeals erroneously conducted its double jeopardy analysis as one of successive prosecution. We reverse the court of appeals decision with respect to double jeopardy and remand the matter to the circuit court.
    (Easy enough for the court to say, but what does it mean, other than that the State gets another kick at the Henning cat? The court isolates several double jeopardy principles, ¶¶16-24 – “same offense” (second prosecution following acquittal or conviction and multiple punishment all barred for “same” offenses under Blockburger test); continuing jeopardy (subject to very limited exceptions, such as insufficient evidence, no bar to retrial after conviction reversed); collateral estoppel (“extra” protection, beyond double jeopardy, precludes litigation of issue already determined by “full and valid judgment”). The fault line for determining which principle applies is, in the first instance, whether the circumstance involves retrial or successive prosecution. If retrial, then the “continuing jeopardy” doctrine applies, and double jeopardy protection via the Blockburger test is inapplicable, ¶47-56; if successive prosecution, then the test does apply, ¶¶34-36. Because this case involved simultaneous charges in a single prosecution, it falls on the continuing jeopardy side of this fault line, ¶37. The upshot, stated baldly, is “that an acquittal in these circumstances is not equivalent to a first prosecution in a successive prosecution scenario: an acquittal poses no direct bar to retrial on the reversed charges. … In other words, when jeopardy on one count of a multi-count complaint terminates, this does not mean that other counts brought simultaneously become subject to successive prosecution analysis.” ¶¶41, 44. This is where estoppel, an “extra” double jeopardy principle, kicks in though not, on the facts, to Henning’s benefit:
    ¶57. However, it is important to note the protections defendants enjoy through issue preclusion. As the Seventh Circuit made clear, collateral estoppel applies where double jeopardy does not foreclose a second trial entirely, see Bailin, 977 F.2d at 275, and therefore "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." Ashe, 397 U.S. at 443. According to Bailin, direct estoppel, like collateral estoppel, "bar[s] the government from relitigating issues that were necessarily and finally decided in the defendant's favor by reason of the jury's partial acquittal on other counts." Bailin, 977 F.2d at 276.

    ¶58 … Where there are multiple charges proceeding simultaneously, Ashe's estoppel principles provide a substantial bulwark that mitigates any harsh effects that the continuing jeopardy principle might work against a defendant.

    ¶59. Because the State already tried Henning unsuccessfully for possession with intent to deliver, the State cannot retry him on that issue. Therefore, the State cannot base a retrial for bail jumping on possession with intent to deliver. However, whether Henning is guilty of committing the crime of simple possession is not an issue that has been litigated in his favor. The State would not violate double jeopardy if it retried Henning for the bail jumping predicated upon simple possession.

    Detailed discussion of Ashe collateral estoppel doctrine, in U.S. v. Ohayon, 11th Cir No. 05-17045, 4/12/07 (acquittal on attempted possession with intent barred retrial on conspiracy count involving those drugs).
    Remedy: Multiplicity -- Felony Murder, § 940.05
    State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
    For Krawczyk: John T. Wasielewski
    Issue: Whether vacating plea-bargain based conviction and (concurrent) sentence for multiplicitous charge was adequate remedy, as opposed to reinstating the not guilty pleas.

    ¶34. We see no reason to disturb the remedy the trial court granted for the double jeopardy violation. First, when a multiplicitous count is reversed on appeal, that action may create uncertainty regarding what sentences the trial court would have imposed on the remaining counts had it known of the lesser number of valid convictions. See State v. Church, 2002 WI App 212, 13, __ Wis. 2d __, 650 N.W.2d 873, review granted, 2002 WI 121 (Wis. Oct. 21, 2002) (No. 01-3100) (noting that "the reason for vacating all sentences rather than just the one held invalid [is] to give the trial court the opportunity to resentence with a corrected understanding that there was only one valid conviction"). Here, however, relief from the multiplicitous conviction was granted by the sentencing court. The court expressed that it saw no reason to resentence Krawczyk because the remaining convictions and sentences satisfactorily achieved the court's sentencing goals.

    ¶35. Second, we observe that setting aside the remaining convictions and sentences and restoring the parties to their pre-plea positions is not necessary to further the State's interests. As we have noted, the State is not requesting such a disposition. It is apparently satisfied that leaving intact the seventy-one-year total sentence on the remaining charges does not substantially deprive it of the benefit of the plea agreement it made with Krawczyk. See Robinson, 2002 WI 9 at ¶¶47, 52. A restoration of the single dismissed charge would increase Krawczyk's exposure to imprisonment by only eight years, which is not a significant period in relation to the 131 years he faced on the remaining, unreversed charges to which he pled guilty. Accordingly, unlike in Robinson, there appears to be no need to vacate all remaining sentences and convictions in order to remedy a breach of the plea agreement. See id.

    (The trial court didn't formally resentence, but it might have done so in a functional sentence (i.e., look at the entire package closely), ¶33, which is one reasonable construction of the holding – i.e., a rule-based, predictable approach. Another possibility is that resentencing is required only when necessary to effectuate the original sentencing intent -- a discretionary and therefore much more unpredictable approach. The court's reference to Church is interesting, simply because of the supreme court's subsequent reversal, State v. Church (II), 2003 WI 74, but not particularly problematic given that the reversal essentially butresses Krawczyk's conclusion that the trial court correctly refused to disturb the unchallenged count. See discussion here.)
    Remedy: Multiplicity 
    State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
    For Davison: Keith A. Findley, UW Law School
    Issue/Holding: Remedy for a multiplicity violation is left to trial court, applying test in State v. Robinson, 2002 WI 9, ¶57, 249 Wis. 2d 553, 638 N.W.2d 564.
    Remedy: Multiplicity
    State v. Robert S. Robinson, 2002 WI 9, on certification
    For Robertson: Leonard D. Kachinsky

    ¶2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy? ....

    ¶3. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy 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 so that the parties are restored to their positions prior to the negotiated plea agreement. We further conclude, however, that under some circumstances this remedy might not be appropriate. A court should, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the State's interests. Under the circumstances of the present case, we reverse the judgment of conviction and the order of the circuit court and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct further proceedings not inconsistent with this decision.

    (Note: The parties agree that the plea bargained charges were identical in law and fact -- i.e., multiplicitous, ¶5; they further agree that absent express waiver a guilty plea doesn’t waive a double jeopardy violation, ¶6 and id. nn. 5-6. Remedy for the conceded violation is the singular dispute. Robinson wants one of the counts vacated, with the other (and its sentence) left untouched. In the course of rejecting that argument -- one of the points being that otherwise the sentence might be increased after successful litigation -- the court cautions: “the cases also recognize that when one conviction and sentence is vacated on double jeopardy grounds, the validity of the sentence on the other conviction is implicated, resentencing on the valid conviction is permissible, and the circuit court may increase the sentence on the valid conviction. Thus, although the defendant correctly reminds us that he ought not to be punished for exercising his constitutional rights, the cases do not proscribe every increase in a sentence when a defendant challenges his conviction on constitutional grounds.” ¶38. The court agrees with the state that a challenge of this nature repudiates the plea bargain, and the parties should be restored to the pre-plea position, based on contract principles. ¶47-51. An exception might be made where “the State's ability to prosecute or the defendant's ability to defend against the counts set forth in the original information” would be “adversely affected.” ¶49.)

    Remedy: dismissal with prejudice prior to attachment of jeopardy. 
    State v. John P. Krueger, 224 Wis.2d 59, 588 N.W.2d 921 (1999), affirming unpublished decision. 
    For Krueger: Gary S. Cirilli. 
    Holding: The court reaffirms the holding of State v. Braunsdorf, 98 Wis.2d 569, 297 N.W.2d 808 (1980) that prior to attachment of jeopardy trial courts don't possess the authority to dismiss a charge with prejudice except for denial of speedy trial.

    Double Jeopardy -- Sentence
    Also see "Sentence -- Finality"

    Double Jeopardy – Resentencing – No Presumption of Vindictiveness
    State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
    For Lamar: Donna L. Hintze, SPD, Madison Appellate
    Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.
    ¶17      In Naydihor, our supreme court found that the Pearce presumption did not apply. Id., ¶35. Nor does it apply here. As noted, case law has evolved since Pearce was handed down. Double jeopardy does not apply where a correction to an original invalid sentence results in a sentence increase, State v. Martin, 121 Wis. 2d 670, 677-78, 360 N.W.2d 43 (1985) (citing Bozza v. United States, 330 U.S. 160 (1947)), or where an increased sentence occurs after a retrial, id. at 678 (citing Pearce, 395 U.S. 711). We see no distinction which requires a different result between a new sentencing that takes place after a sentence is vacated and a new guilty plea entered and a sentencing that takes place after a retrial. Consequently, Lamar’s sentence given after his second guilty plea did not violate the prohibition against double jeopardy.
    Keep in mind that the Naydihor resentencing was, as here, accomplished by a different judge. Broadly speaking for that matter, where the trial court itself grants relief, a presumption of vindictiveness probably isn’t going to apply to resentencing, State v. Lord L. Sturdivant, 2009 WI App 5, ¶15. Contrast grant of relief by appellate court: e.g., State v. William J. Church, 2003 WI 74, ¶¶53-57. In other words, Lamar’s argument was probably doomed at the outset.

    The court also notes that “the sentence meted out by the second judge was not more severe than that of the original judge,” ¶18. That observation is a bit jarring, because you’d think it the basis of a narrower decision (one that avoids the question of presumptive vindictiveness, that is, in favor of the idea that Lamar ended up no worse anyway). But the court has a broader message to impart:

    ¶18      Finally, we are not persuaded that Lamar’s circumstances fall within the double jeopardy penumbra for another reason. Here, the sentence meted out by the second judge was not more severe than that of the original judge. Originally, Lamar was sentenced to twelve years of initial confinement, to be followed by five years of extended supervision. Lamar’s second sentence, occurring one year and approximately three-and-one-half months later, consisted of ten years of incarceration, to be followed by five years of extended supervision. The original combined sentence was seventeen years. The second combined sentence is fifteen years. Although the second sentence was to be served consecutively to the original bail jumping charge, this second sentence was not greater than that given at the first sentencing—a seventeen-year sentence. Further, at his initial sentencing, Lamar got sentence credit on the misdemeanor bail jumping as a habitual criminal charge of 177 days.

    ¶20      Although we do not believe Lamar is “worse off” for having one of his convictions overturned, he is not entitled to additional sentence credit. Finally, it is well to remember that Lamar brought this upon himself by seeking to withdraw his plea after receiving a combined sentence of seventeen years because the trial court told him he faced a nineteen-year sentence, when in fact the maximum possible sentence was twenty-one years. For the reasons stated, the judgment and order are affirmed.

    What the court doesn’t say is just how Lamar found himself in this predicament. He was charged with 3 counts and pleaded to 2 with the 3rd dismissed pursuant to plea bargain. CCAP reflects that, when he withdrew one of these counts, “The court further ordered Count 3 REINSTATED in its entirety as the dismissal was pursuant to a plea negotiation. The court further advised all parties that it will take no action as to Count 2 at this time but will take under advisement whether the plea and sentencing in Count 2 should also be vacated.” Not clear why no further action was taken on 2, maybe that was Lamar’s own choice, very possibly vacating 2 would have been counter to his interests, but for whatever reason 2 remained intact. The point is that the potential remedy for “partial” plea withdrawal lies at the heart of the case—and as to which, extraction of overarching principles has become difficult, with recent cases collected here (scroll down to State v. Mark J. Roou, 2007 WI App 193).  

    Final word: file Lamar under, “Risk-assessment Counseling.” Indeed, the court pointedly quotes its prior warning in State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999) that, with respect to sentence credit, “a defendant could actually be worse off for having one of several convictions reversed.” For that matter, if you don’t inform your client that a motion to vacate any conviction runs the risk of a greater sentence (assuming, of course, an initial sentence under the maximum), then you’re probably asking for trouble.

    Sentence: Amending Sentence to Correct Mistaken Oral Pronouncement
    State v. Frank James Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42 
    For Burt: Michael P. Jakus 
    Issue: Whether the trial court violated double jeopardy by amending sentence the same day of imposition, before judgment of conviction had been entered, after realizing it had mistakenly said "concurrent" instead of "consecutive."
    Holding: "The double jeopardy clauses did not attach a degree of finality to Burt's original sentence that prevented the trial court from correcting its error later in the same day." ¶11. (Note: the opinion simply isn't clear as to when an expectation of finality, in a double jeopardy sense, attaches to sentence. The court rejects the idea that § 973.15(1) -- all sentences commence at noon of the day of sentence -- is relevant to double jeopardy analysis, ¶13, but doesn't say what might fill the vacuum.) 
    See also U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04, and cases string-cited:
    After service of the sentence had begun, it was once thought that a sentence could never be increased, see United States v. Benz, 282 U.S. 304, 307 (1931). This view, however, has been altered in more recent times. See DiFrancesco, 449 U.S. at 138-39 (limiting import of language in Benz) .... The modern principle governing all of these situations appears to be, as succinctly synthesized by then-Judge Bork, “that the application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence.” United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987).

    The same principle applicable to sentence increases in general has been applied to determine the validity of written judgments that purport to increase a sentence as orally pronounced....

    Sentence: Modification -- Four Months After Sentencing, As Violating Expectation of Finality 
    State v. Guy R. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881 
    For Willett: Susan E. Alesia, SPD, Madison Appellate 
    Issue: Whether the trial court had authority to change its sentences from concurrent to consecutive to a separately imposed sentence, four months later, after concluding that its sentencing was based on an erroneous understanding of the law. 
    Holding: Although the trial court clearly wanted its sentences to run consecutive to a separately imposed sentence, the court (erroneously) believed that it lacked that authority, and therefore imposed its sentences concurrent with the other sentence. When the error was pointed out, the court modified the sentence structure four months later, so that its sentences would run consecutive to the other sentence. Given that Willett was four months into his sentence and that the trial court (even if based on misconstruction of its authority) imposed a valid, concurrent sentence, "a legitimate expectation of finality" vested in that sentence, and double jeopardy therefore precludes its increase. ¶6. 
    Go To Brief
    Sentence: Defendant's Fraud -- No Expectation of Finality
    State v. Ary L. Jones, 2002 WI App 208
    For Jones: Arthur B. Nathan

    ¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence. ...

    Here, the defendant's lie was a substantial factor in the original sentence and the trial court therefore had authority to resentence. ¶18. (Court distinguishes between puffery/innocent-bragging/exaggeration, and fraud. ¶20. Court also says that the fraud need not amount to a new factor. Id. n. 2.)

    Double Jeopardy -- Successive Prosecutions

    Successive Prosecutions 
    State v. Prokopios G. Vassos, 218 Wis.2d 330, 579 N.W.2d 35 (1998), on certification
    For Vassos: Edmund C. Carns 
    Holding/Analysis: Defendant was acquitted of felony battery (sec. 940.19(3)), then charged with misdemeanor battery (sec. 940.19(1)), arising from same incident. SCt holds that this successive prosecution isn't barred by the double jeopardy clause. 
    Successive prosecutions are barred under sec. 939.71 when the subsequent charge is the "same" offense under the "elements-only" test. That test isn't met here, misdemeanor battery containing elements not found in felony battery. 
    A separate bar is imposed under sec. 939.66, which prevents conviction of both a charged and an included crime. By virtue of sec. 939.66(2m), misdemeanor battery is "included" within felony battery. But the statute doesn't apply to prosecution following acquittal, and does not make a less serious form of battery the "same" as a greater form, within the meaning of sec. 939.71. 
    Because the offenses aren't the same, double jeopardy doesn't bar this successive prosecution. 
    Collateral estoppel, though, is a separate component of double jeopardy. This requires examination of the prior proceeding, but since the record of the first trial was not part of the appellate record, the case is remanded for this determination. 
    (Four justices, including the author of the lead opinion, concur, to express reservations about the protection afforded by exclusive reliance on the elements-only test. They implicitly request corrective legislation.) 
    Successive Prosecutions: "Statutory Double Jeopardy," § 939.71 -- Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim's Subsequent Death
    State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
    For McKee: Kenneth P. Casey, SPD, Jefferson Trial
    Issue/Holding: "(T)he prohibition against double jeopardy does not bar a prosecution for murder when the victim of an ‘assault and battery’ dies after a defendant has been convicted of the lesser offense. Diaz v. United States, 223 U.S. 442 (1912)." ¶6.


    • Exculpatory Evidence
    • Identification Procedure
      • Photo Array
      • Show-up
    • Jury Unanimity
    • Notice
    • Parole
    • Present Defense
    • Presumptions
    • Resentencing
    • Restraints on Defendant
    • Scienter
    • Substantive Due Process
    • Testify on Own Behalf (incl. Deft.'s Perjury)
    • Vagueness Challenge (See Cases Here)
    • Vindictiveness
    Exculpatory Evidence, Failure to Disclose – Impeachment: Not Material, Where Cumulative
    State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
    For Rockette: Timothy A. Provis
    Issue/Holding: Failure to disclose evidence that a prosecution witness had falsely implicated Rockette in another homicide did not violate Brady, because it would not have had an impact on the outcome of the trial:
    ¶41      Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987), or “where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case.” United States v. Payne , 63 F.3d 1200, 1210 (2d Cir. 1995). Impeachment evidence is not material, and thus a new trial is not required “when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.” Id. (citations omitted). In sum, “Generally, where impeachment evidence is merely cumulative and thereby has no reasonable probability of affecting the result of trial, it does not violate the Brady requirement.” United States v. Dweck, 913 F.2d 365, 371 (7th Cir. 1990); see also United States v. Fallon, 348 F.3d 248, 252 (7th Cir. 2003) (finding no Brady violation in part because the additional evidence would have been merely cumulative and therefore not material).     

    ¶42      The evidence allegedly withheld was merely cumulative of other evidence presented at trial that challenged Grandberry’s credibility and would not have placed his testimony in a different light. …

    ¶43      In addition, Grandberry’s testimony certainly did not supply the only evidence linking Rockette to the murder, see Petrillo, 821 F.2d at 90, and the excluded evidence would not have impacted Grandberry’s credibility in such a way as to undermine a critical element of the State’s case, see Payne, 63 F.3d at 1210. The jury had before it other evidence implicating Rockette in the Furet murder. …

    Exculpatory Evidence -- Lenient Treatment of Prosecution Witness
    State v. Dale H. Chu, 2002 WI App 98, PFR filed 4/23/02
    For Chu: Andrew Shaw
    Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.

    ¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not evidence that the witness has been convicted of a crime." See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

    ¶38. Instead, Chu's entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness's motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

    ¶39. Here, however, Weiss's criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly, Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss's motive to lie, we reject his argument.

    Of course, failure to disclose that a prosecution witness has negotiated a plea bargain in exchange for testimony violates the right to exculpatory evidence -- even where the deal hasn't been "finalized," and the realization of benefit is more a matter of the witness's subjective expectation see, e.g., State v. Delgado, 194 Wis. 2d 737, 535 N.W.2d 450 (Ct. App. 1995) (an ineffective assistance of counsel case, because counsel should have known the information, but the basic point is transferable to suppression of exculpatory information: a plea bargain whch provides an incentive of the witness to cooperate with the prosecution is highly relevant to impeachment). Indeed, one case goes so far as to say that even where the witness "was already severely impeached" on other grounds, failure to inform the defense that the witness testified under an immunity agreement denied fair trial, Horton v. Mayle, 9th Cir No. 03-56618, 5/10/05 ("The recurrent theme of these cases is that where the prosecution fails to disclose evidence such as the existence of a leniency deal or promise that would be valuable in impeaching a witness whose testimony is central to the prosecution’s case, it violates the due process rights of the accused and undermines confidence in the outcome of the trial").

    Relief isn't limited to suppression of prosecutorial concessions but, rather, extends to virtually any matter -- for powerful exemplars of this point, see e.g., Conley v. U.S., 1st Cir No. 04-2424, 7/20/05 (re: witness's suggestion that hypnotism might help him "truly recall" the event; this information could have been used to impeach his ability to recall and its suppression required new trial); Silva v. Brown, 9th Cir No. 04-99000, 7/26/05 (similar, re: failure to disclose deal that witness not submit to psychiatric exam -- "Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case. ... [E]vidence that calls into question a witness’s competence to testify is powerful impeachment material.").

    Exculpatory Evidence -- Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose,  § 971.23(1)(f)
    State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
    For White: James A. Rebholz
    ¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense "[t]he criminal record of a prosecution witness which is known to the district attorney." A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered. See Wold v. State, 57 Wis. 2d 344, 349, 204 N.W.2d 482, 486 (1973) (prosecutor's duty to disclose encompasses duty "to obtain all evidence in the possession of investigative agencies of the state") (emphasis in original); see also Brady v. Maryland, 373 U.S. 83, 87 (1963) (non-disclosure of evidence favorable to defendant, when defendant has requested that information, violates due process "irrespective of the good faith or bad faith of the prosecution"); cf. State v. DeLao, 2002 WI 49, ¶21, 252 Wis. 2d 289, 301, 643 N.W.2d 480, 486 ("under certain circumstances, the knowledge of law enforcement officers may be imputed to the prosecutor"). Moreover, in this case an assistant district attorney signed the trial court's pre-trial order and, by virtue of her signature on that order, "acknowledge[d] an obligation to diligently seek and provide discoverable materials in a timely manner." (Emphasis added.) White's lawyer was entitled to rely on this acknowledgment. See Wold, 57 Wis. 2d at 351, 204 N.W.2d at 487 ("If there is to be pretrial discovery, broad or limited, in criminal cases, defense counsel should be able to rely upon evidence as disclosed by the state; otherwise, the purpose of discovery is frustrated and more injustice is done than if no discovery were allowed.").

    ¶24. The trial court held that Ehlers's deferred-judgment probationary status was not relevant because White disclosed to the jury that Ehlers had been convicted of a crime. …

    ¶25. A witness's probationary status is relevant because it and the fear of possible revocation are pertinent to the material issue of whether the witness has "ulterior motives" to shape his or her testimony. Davis v. Alaska, 415 U.S. 308, 311, 316, 317-318 (1974). Indeed, unless a defendant can "make a record" so the jury can assess why the witness might be testifying falsely, attacks on credibility will often be perceived by the jury as "a speculative and baseless line of attack." Id., 415 U.S. at 318; see also State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) ("extrinsic evidence may be used to prove that a witness has a motive to testify falsely"). Significantly, the non-disclosed evidence need not necessarily be of such force to result in an acquittal: "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. It may very well be that the jury would have adopted the trial court's analysis, but, under our system, White had the right to lay a foundation to present his theory to the jury and have the jury decide-every defendant is entitled to "`a meaningful opportunity to present a complete defense.'" State v. St. George, 2002 WI 50, ¶14 n.8, 252 Wis. 2d 499, 512-513 n.8, 643 N.W.2d 777, 781-782 n.8 (quoted source omitted). In sum, we cannot say that failure to apprise the jury that Ehlers had a motive to lie about the robbery was "`harmless beyond a reasonable doubt.'" See State v. Norman, 2003 WI 72, ¶¶47-48, 262 Wis. 2d 506, 528-529, 664 N.W.2d 97, 108-109 (quoted source omitted).

    Exculpatory Evidence – Generally
    State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
    For Harris: Steven A. Koch
    ¶12 In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The prosecutor has a duty to disclose this evidence although there has been no formal request by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999). Evidence is favorable to an accused, when, "if disclosed and used effectively, it may make the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence that is favorable to the accused encompasses both exculpatory and impeachment evidence. Strickler, 527 U.S. at 281-82 ("The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching") (emphasis added); Bagley, 473 U.S. at 676 ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule."). The Court has indicated that there is no distinction between the two types of evidence that are "favorable to accused" for Brady purposes. Strickler, 527 U.S. at 280-82; Bagley, 473 U.S. at 676 ("This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.").

    ¶13 In order to establish a Brady violation, the defendant must, in addition to demonstrating that the withheld evidence is favorable to him, prove that the withheld evidence is "material." …

    ¶14 … "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. … See also State v. DelReal, 225 Wis. 2d 565, 570-71, 593 N.W.2d 461 (Ct. App. 1999) (recognizing the Bagley formulation of the materiality requirement). …

    ¶15 The United States Supreme Court has summarized the three prerequisites for a Brady violation as follows: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281-82. …

    For a case critically distinguishing between after-the-fact and pre-trial analysis of materiality, see U.S. v. Carter, 2004 U.S. Dist. LEXIS 665 (E.D. Wis. 4/12/04), no non-commercial link available: “This (Ritchie) standard was developed in the context of appellate consideration of the effect of non-disclosure … Specifically, the materiality prong presumes that the trial has already occurred … But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.” Consequently, “in the pretrial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.… Therefore, the court should ordinarily require the pretrial disclosure of all exculpatory or impeachment evidence.”
    Exculpatory Evidence -- Destruction of Notes by State's Investigator.
    State v. Debra Noble, 2001 WI App 145, 629 N.W.2d 317, reversed, other grounds, State v. Debra Noble, 2002 WI 64
    For Noble: Jeff P. Brinckman
    Issue: Whether a state investigator’s destruction of interview violated the defendant’s due process right to exculpatory evidence.

    ¶17. A defendant's right of pretrial access to exculpatory evidence needed to prepare a defense is protected by the Due Process Clause of the Fourteenth Amendment. State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994). The defendant's due process rights are violated by the destruction of evidence if: (1) the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. Id. at 885-86.

    ¶18. Noble has not argued that Matthews destroyed his notes in bad faith, so she must demonstrate that the evidence they contained is apparently exculpatory and of such a nature that she could not obtain it by other reasonably available means. However, she offers no reasoning to support her claim that Matthews' original notes were exculpatory other than the general assertion that the notes would have shown that she did not say what Matthews reported. … Therefore, we conclude that Noble has not demonstrated that the notes contained any apparently exculpatory evidence.

    Exculpatory evidence - failure to disclose - hand-swabbing results. 
    State v. Andres DelReal, 225 Wis.2d 565, 593 N.W.2d 461 (Ct. App. 1999). 
    For DelReal: Richard D. Martin, SPD, Milwaukee Appellate. 
    Holding: The defense was denied exculpatory evidence when a detective testified that the defendant had not been swabbed for gunshot residue when in fact he had, with negative results. 
    Go to Brief
    Exculpatory Evidence -- Posttrial Destruction
    State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
    For Parker: William Christopher Rose
    Issue: Whether posttrial destruction of potentially exculpatory evidence (taped drug transaction) requires new trial.
    ¶14. A defendant's due process rights are violated by the destruction of evidence (1) if the evidence destroyed is 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. Noble, 2001 WI App 145, ¶17, 246 Wis. 2d 533, 629 N.W.2d 317, review granted, 2001 WI 117, 247 Wis. 2d 1031, 635 N.W.2d 781 (Wis. Sept. 24, 2001) (No. 99-3271-CR).

    ¶15. Neither condition is present here. The tape can hardly be said to be "apparently exculpatory." Both Parker and his trial defense counsel reviewed the tape and declined to introduce it as evidence. The inescapable conclusion is that the tape was not "apparently exculpatory." A defendant may not sit back while evidence is available and then argue for a new trial on the grounds that evidence is no longer available to him or her. See State v. Holt, 128 Wis. 2d 110, 134, 382 N.W.2d 679 (Ct. App. 1985).

    Additionally: trial counsel testified that the tape contents were consistent with trial testimony; the tape contents could be effectively reconstructed; and the tape's destruction wasn't the result of governmental bad faith. ¶¶16-18.

    Similar effect, Ferguson v. Roper, 8th Cir No. 03-3252, 3/14/05, in sense of its holding that Arizona v. Youngblood, 488 U.S. 51 (1988) applies to pre-trial not post-trial destruction of evidence.

    Exculpatory Evidence -- prosecution witness's understating number of prior convictions - harmless error. 
    State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999). 
    For Carnemolla: Robert T. Ruth. 
    Holding: A state's witness testified that he had two priors, when in fact he had three. The court finds any error harmless, stressing that the witness was a prison inmate and testified in prison clothes - therefore the jury necessarily knew in any event that he'd been convicted of a serious crime. (Note: the court seems to assume the existence of error, but doesn't discuss its nature, which is probably the state's due process obligation to ensure accurate information and/or its duty to turn over exculpatory material.) 
    Identifcation Procedure - Showup ID: Probable Cause Specific to Purpose of ID Unncessary
    State v. Jonathan W. Nawrocki, 2008 WI App 23
    For Nawrocki: Scott D. Obernberger
    ¶2        The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. [3] We conclude that whenever probable cause exists to justify detention of a suspect, regardless of whether it exists on the offense under investigation, a showup identification is not necessary within the meaning of Dubose.

    ¶3        Because it is undisputed that officers, while lacking probable cause to arrest Nawrocki on the offense under investigation, had probable cause to arrest him on another offense, we conclude the showup was not necessary and was thus inadmissible under Dubose. We therefore reverse the circuit court’s order denying Nawrocki’s motion to suppress evidence of the showup identifications. However, we remand for the circuit court to determine whether the victim’s in-court identification was based on an untainted, independent source, and for further proceedings that may be necessary consistent with this opinion.

    All the rest is commentary. The parties agreed that the police had probable cause to arrest Nawrocki for various possible offenses but not the offense for which they obtained a show-up ID, ¶23. Dubose, 2005 WI 126, ¶33, says there must be some necessity for use of the show-up procedure (such as that “the police lacked probable cause to make an arrest”) and the question therefore becomes whether they need probable cause for this offense, or whether any old offense will do. The court of appeals says it’s the latter:
    ¶26      We observe that the absence of probable cause makes a showup procedure necessary because officers lack a legal basis to detain the person and thus cannot acquire identification evidence by another, less suggestive procedure, such as a lineup or photo array. Id. Stated differently, a showup is necessary when officers lack other constitutional means to obtain a suspect’s identification. However, where probable cause exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. We therefore conclude that a showup is unnecessary and thus inadmissible under Dubose when probable cause exists to justify an arrest, regardless whether it exists on the particular offense under investigation.[8]

    ¶27      The State’s narrow interpretation of the necessity test runs counter to the purposes of Dubose. The supreme court in Dubose established a rigorous test for the admissibility of showup identification evidence grounded in the due process guarantees of Article 1, Section 8 of the Wisconsin Constitution and the principles enunciated by the Supreme Court in Stovall. The Dubose court adopted this standard in light of evidence that misidentification had led to an epidemic of wrongful convictions, and that the showup procedure was particularly suggestive and thus conducive to misidentification. A rule permitting admission of inherently suggestive showup identification evidence in situations in which officers have a legal basis to detain a suspect (but lack a legal basis related to the offense under investigation) would likely result in a higher incidence of misidentification and wrongful convictions in Wisconsin, the serious ills Dubose sought to remedy.

    ¶28      Applying the necessity test as we have construed it here, we conclude the circuit court erroneously admitted evidence of Gerhardt’s and Albert’s showup identifications of Nawrocki. It is undisputed that the officers had probable cause to detain and arrest Nawrocki for other potential criminal violations and thus could have employed an identification procedure less prone to misidentification. Therefore, the showup procedure was unnecessary in this case, and the circuit court thus erred in admitting testimony about the showup identifications at trial.

    The underlying idea, that probable cause is not offense-specific, is certainly well-grounded in search-and-seizure caselaw. State v. Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277 (“as long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed”) – which reinforces a point made elsewhere on this page that showups are now tested by fourth amendment principles.
    Identifcation Procedure - In-Court ID as Untainted by Impermissible Showup
    State v. Jonathan W. Nawrocki, 2008 WI App 23
    For Nawrocki: Scott D. Obernberger
    ¶29      Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source.” Dubose, 285 Wis. 2d 143, ¶38 (citation omitted).

    ¶30      The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether “the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Roberson, 292 Wis. 2d 280, ¶34 ( quoting State v. Walker, 154 Wis. 2d 158, 186, 453 N.W.2d 127 (1990) ( quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))). To be admissible, “the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect.” Roberson, 292 Wis. 2d 280, ¶34 (citations omitted). The party seeking admission of the in-court identification carries the burden of demonstrating by clear and convincing evidence that the in-court identification was not tainted by the inadmissible out-of-court identification. See id., ¶35 (citation omitted).

    The court proceeds to conclude that fact-finding is required, necessitating remand:
    ¶38      While Gerhardt’s testimony raises questions about whether his in-court identification actually rests on his recollection of his initial encounter with the assailant, we cannot decide this issue on the record before us. The critical question not fully answered in the record is whether, during the robbery, Gerhardt got a good enough look at the assailant to identify the person as Nawrocki. We therefore remand for the circuit court to hold an evidentiary hearing for the purpose of determining whether the in-court identification was based on an independent source untainted by the impermissible showup identification. When making its determination, the circuit court should take into account the following seven factors adopted from United States v. Wade, 388 U.S. 218, 241 (1967):
    (1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused’s actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed concerning the conduct of the lineup.
    State v. McMorris, 213 Wis. 2d 156, 168, 570 N.W.2d 384 (1997) (citing Wade, 388 U.S. at 241).
    Identifcation Procedure -- Photo Array: Analysis Unchanged by Dubose Show-up Standard
    State v. Ryan W. Drew, 2007 WI App 213, PFR filed 9/27/07
    For Drew: Steven Zaleski
    Issue/Holding: Analysis of admissibility of photo array ID remains unchanged by the new standard for show-ups set by State v. Tyrone L. Dubose, 2005 WI 126:
    ¶2 We conclude that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process. Because the court applied the correct standard and because Drew concedes the identification from the photo array was admissible under this standard, we conclude that admission of the out-of-court identification did not violate Drew’s right to due process. Because the inadmissibility of the out-of-court identification is the only ground on which Drew challenges the in-court identification, we conclude the in-court identification did not violate his right to due process. Accordingly, we affirm.

    ¶13 The standard for the admissibility of identification based on photo arrays was articulated in Powell v. State, 86 Wis. 2d 51, 271 N.W.2d 610 (1978), and reaffirmed in State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200. The standard is the same as that for showups under Wolverton. First, the defendant has the burden to demonstrate the out-of-court photo identification was impermissibly suggestive; if the defendant meets this burden, the State has the burden to show that the identification is nonetheless reliable under the totality of the circumstances. Mosley, 102 Wis. 2d at 652 (citing Powell, 86 Wis. 2d at 64-66).

    ¶15 Drew argues that, in light of Dubose, the first step in the inquiry for photo arrays has changed and is now whether they are “unnecessarily suggestive,” rather than “impermissibly suggestive.” Drew asserts that the photo array procedure used in this case was “unnecessarily suggestive” because of the process-of-elimination method Bubb used and because of other ways in which the procedure did not conform to the OAG Model Policy. [3] He asserts that the photos themselves were unnecessarily suggestive because he was the only person in the array wearing “jail-issued clothing.” According to Drew, because of this unnecessary suggestiveness and because the State presented no evidence of reliability, the circuit court erred in admitting the photo identification.


    ¶17 We do not adopt the position Drew advances for the following reasons. First, while some of the Dubose court’s discussion of the unreliability of eyewitness identification would appear to apply to procedures other than showups, the only procedure for which the court expressly adopts a new test is for showups. 285 Wis. 2d 143, ¶33. Second, the new test adopted in Dubose—based as it is on the necessity of having a showup in the first place—provides no guidance for what “unnecessarily suggestive” might mean in the context of a photo array. Third, in discussing the necessity of a showup, the Dubose court expressly states that a “lineup or photo array is generally fairer than a show up…,” id., which raises the question whether that court sees a need to impose a stricter standard for those two types of identification procedures.

    ¶18 Fourth, the supreme court has recently characterized Dubose’s holding as being limited to showups[, i]n State v. Hibl, 2006 WI 52, ¶32, 290 Wis. 2d 595, 714 N.W.2d 194 ….

    ¶19 We recognize that the photo array here, unlike the spontaneous encounter in Hibl, is a law enforcement procedure and therefore that distinction between Hibl and Dubose does not apply here. Nonetheless, we read Hibl as emphasizing the limited nature of the actual holding in Dubose. …

    Identifcation Procedure -- Show-up
    State v. Tyrone L. Dubose, 2005 WI 126
    For Dubose: Jefren E. Olsen, SPD, Madison Appellate
    Issue: Whether the test for admissibility of a pretrial showup should be changed. ("A 'showup' is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes." ¶1, n. 1, quoting State v. Wolverton, 193 Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995).)
    ¶2 We agree with Dubose that the circuit court erred in denying his motion to suppress the out-of-court identification evidence. However, we decline to adopt his proposed per se exclusionary rule regarding such evidence. Instead, we adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court's decision in Stovall v. Denno, 388 U.S. 293 (1967). We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. Since the motion to suppress the out-of-court identifications of Dubose should have been granted here, because such identifications were unnecessarily suggestive, we reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings consistent with the standards adopted herein.


    ¶33      With Stovall as our guide, we now adopt a different test in Wisconsin regarding the admissibility of showup identifications. [9] We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification. See Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. of Personality & Soc. Psych. 525, 527 (1993). In a showup, however, the only option for the witness is to decide whether to identify the suspect. [10] See id.

    ¶34      We emphasize that our approach, which is based to some extent on the recommendations of the Wisconsin Innocence Project, is not a per se exclusionary rule like Dubose requests. Showups have been a useful instrument in investigating and prosecuting criminal cases, and there will continue to be circumstances in which such a procedure is necessary and appropriate. [11]  

    ¶35      If and when the police determine that a showup is necessary, special care must be taken to minimize potential suggestiveness. …

    ¶38     On remand, we recognize that the exclusion of evidence of the out-of-court identifications "does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source. And properly conducted pretrial viewings can still be proven at trial and, would be encouraged by the rule prohibiting use of suggestive ones."  People v. Adams, 423 N.E.2d 379, 384 (N.Y. 1981). … The court may uphold any in-court identification if the circuit court determines that it "had an origin independent of the lineup or was 'sufficiently distinguishable to be purged of the primary taint.'" State v. McMorris, 213 Wis. 2d 156, 175, 570 N.W.2d 384 (1997) (quoting Wade, 388 U.S. at 241). In other words, if the circuit court determines that any in-court identification of Dubose was not tainted by out-of-court identifications, then the conviction should stand. "[T]he in-court identification is admissible if the State carries the burden of showing 'by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the [out-of-court] identification.'" McMorris, 213 Wis. 2d at 167 (quoting Wade, 388 U.S. at 240.

    [10] "'There is a great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement.'" State v. Cromedy, 727 A.2d 457, 463 (N.J. 1999) (citation omitted).
    [11] An example of this would be when the police apprehend a suspect during a Terry stop. If that person is suspected of committing a crime, but the police do not have the requisite probable cause to arrest and then to conduct a lineup or photo array, a showup could be considered necessary.
    To the extent the decision reasserts the self-evident idea that a showup is inherently suggestive, its reformation of identification law is probably just incremental – see, e.g., U.S. v. Newman, 144 F.3d 531, 535 (7th Cir. 1998) (“We have noted many times that a show-up identification, in which witnesses confront only one suspect, is inherently suggestive and should be employed only if compelled by extraordinary circumstances”); Rodriguez v. Young, 906 F.2d 1153, 1162 n. 6 (7th Cir. 1990) (“Showups, however, will almost always lead to undue suggestion”); Brisco v. Phillips, 2005 U.S. Dist. LEXIS 14181 (E.D. N.Y. 7/16/05) (quoting LaFave, to effect that a showup is “the most grossly suggestive identification procedure now or ever used by the police”). However, the change is much more profound than that. Indeed, the decision is as noteworthy for what remains unresolved as for what it does say. Here are some of the more obvious points that will require clarifying litigation:
    1. Fourth amendment concepts. By holding that probable cause to arrest renders a showup "unnecessary" the court has seemingly imported into due process reliability analysis 4th A principles that ultimately exclude perfectly reliable evidence. (This point is made, somewhat discordantly, by one of the very authorities cited by Dubose, People v. Adams (rule suppressing showups and their derivative evidence “different in purpose and effect from” suppression rule relating to illegal searches and seizures). Maybe this makes sense, maybe it doesn’t, but it’s going to create a host of analytical problems, beginning with the idea that there isn’t a clearly marked border between reasonable suspicion and probable cause. See, e.g., U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (“the line between a lawful Terry stop and an unlawful arrest is not bright”). Should, then, the courts give benefit of doubt to the police in close cases? Maybe, but that’s hard to square with the court’s skepticism about eyewitness IDs (¶¶29-31). And that skepticism creates a real conundrum, one that, to be frank, the majority simply ignored but was adduced by the dissent with brutal efficiency: “the majority opinion provides those suspects for whom law enforcement has less evidence of guilt with less constitutional protection when that person comes to trial,” ¶87. Or, to put the matter this way: a showup doesn’t become any more accurate simply because it’s necessary; rather, a showup may be necessary despite its inherent problems. Systemic costs of unreliable evidence (conviction of the innocent; letting the guilty go unpunished; loss of public confidence, etc., etc.) very strongly suggest that all doubt be resolved against necessity, otherwise you’re just encouraging the use of unreliable evidence. And what this means is perhaps a sort  of hydraulic pressure on lower courts to find that maybe the police had reasonable suspicion but they didn’t have PC, so the procedure was “necessary.” And what if the suspect “consents” to the showup (even if the police had ample PC but did not, within the meaning of State v. Swanson, place the suspect in custody tantamount to arrest)?
    2. Burden of proof. Who has the burden of proving what, and by what standard? You won’t find the answers in the opinion. Necessity is inextricably bound up in search & seizure law, which is to say, whether the police had PC to arrest (if so, the showup was unnecessary; if not, then presumably necessary). The State has the burden of proving PC for a (warrantless) arrest. It makes no sense to require the defendant to prove PC to arrest when that’s paradigmatically a matter of State’s proof. Besides, just on a practical level it’s not fair; the State’s going to have access to records such as police logs that the defendant may not. In other words, the entanglement of 4th A (PC to arrest) with due process (reliability of ID) law has significant procedural implications. The burden ought to be on the State to prove the showup necessary. Yet, it’s not quite that simple, because the typical 4th A stances will be inverted: the defendant will seek to show that the police did have PC, the State that they didn’t. And, what happens when the defendant also raises an illegal-arrest argument? (Of course, identification evidence may be suppressible if derived from an illegal seizure, e.g., State v. Walker, 154 Wis.2d 158, 185-88, 453 N.W.2d 127 (1990).) Both sides will have to argue in the alternative: the defendant that the showup was unnecessary because there was PC for arrest, but maybe there wasn’t PC and the ID should be suppressed as fruit of an illegal arrest. None of this is, to use a word, necessrily bad. The net effect may be to halt the steady erosion of the test for probable cause. It's just the practitioner will have to be sensitive to the potential for role-reversing sort of argumentation.
    3. Other ID procedure.
      • In-court ID. Why is an in-court ID any less inadmissible (because suggestive) than a showup? For one thing, an in-court ID is a showup, for that matter is even more of a set-piece. The accusatory machinery of the State, not the mere investigatory efforts of a handful of its agents, is now formally arrayed against the lone individual sitting in the defendant's chair. How is that meaningfully distinguishable from a pretrial "procedure in which a suspect is presented singly to a witness for identification purposes"? And just how is such an undeniably suggestive procedure necessary, at least as defined by Dubose? By the time it gets to trial, the case has long since passed through PC filters finer than that needed for arrest. The logic of Dubose inexorably rules out in-court IDs. Ought to, anyway, though the court plainly doesn't seem to think so. (See below, re: reservation of admissibility of in-court ID notwithstanding unnecessarily suggestive showup.)
      • Line-ups and photo arrays. These are, the court says, "generally fairer than a showup," ¶33, and it seems pretty obvious that the decision is meant to deter the use of showups so as to encourage use of  lineups and arrays. And yet, it's not as if the court seems quite sold on these alternative, putatively "fairer" procedures, either. To the contrary, the court appears skepical of any eyewitness ID. Thus, the court laments "that eyewitness testimony is often 'hopelessly unreliable," ¶30, such that "it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and indetifications that were unreliable," ¶31. Not quite a ringing endorsement. And so, the court's generalized skepticism could reflect an inclination toward much more exacting scrutiny of fairness in lineup / array procedures. The court may well accept intimations of suggestiveness that would have been summarily dismissed before. In short, the court's tolerance for any suggestion of suggestiveness appears to have undergone a sea-change.
      • Nor should any of this agonizing over mistaken IDs (cross-racial or not) be limited, of course, to suppression issues. Whether expert testimony and jury instructions are affected by Dubose will simply have to be played out. See, e.g, State v. Ledbetter, 275 Conn. 534; 881 A.2d 290 (2005) (court invokes supervisory authority to "direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure." (Text of instruction follows, in linked opinion file.); Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) ("In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as 'the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,' we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification").
    4. Taint analysis. What happens when you prove unnecessary suggestiveness (or, perhaps, the State fails to prove necessity), so that the showup is suppressed? The court says that in-court ID is nonetheless permissible, if "based on an independent source," that is, if the State proves that the ID is based on observations "other than" the showup, ¶38, citing State v. McMorris. The court thus confidently implies that a reliable, admissible ID may well follow the taint of a showup. This part of the holding is a bit terse but the only reasonable reading is that the court is uncritically adopting McMorris and its 7-factor test for attenuating the taint of a Wade violation (denial of counsel at a post-charge lineup), ¶26. This approach could prove seriously flawed: "independent source" analysis is suitable for 4th amendment taint analysis, as McMorris expressly recognizes, and makes sense when the goal is to deter police practices that, though improper, lead to reliable evidence, while the goal in this context is to suppress unreliable ID evidence. These are not necessarily compatible goals, and do not necessarily lead to compatible analyses. Does the mere fact that a lawyer isn't at a lineup make the procedure unreliable? Of course not; the lineup is still reliable, it's just that we want to discourage the practice of excluding counsel from the procedure. The 7 McMorris attenuation-factors, then, are more or less aimed at determining whether the witness could have ID'ed the person anyway, given that the lineup wasn’t suggestive or otherwise unreliable. But these factors have little if anything to do with a suggestive and therefore presumptively unreliable ID. (The whole idea, if you take the opinion literally, as you must, is that a showup creates grave risk of irreparable misidentification; in the rare instance where some exigency is present, then that risk is presumably overridden.) The importation of 4th amendment law into this context may prove ill-advised. Still, the meta-message is that the court is now very receptive to arguments based on deterrence of illicit police practices.
    5. Relevant research. Dubose relies heavily on scientific research on eyewitness identifications, see, e.g. ¶35. Defense lawyers now have a responsibility to be fully aware of that research, and the various model guidelines on eyewitness identification promulgated by such organizations as the Wisconsin Department of Justice, the Avery Task Force, and the National Institute of Justice. Counsel should be arguing that, any time police deviate significantly from those guidelines, and where the deviation cannot be justified by some “necessity,” the identification procedure was unnecessarily suggestive and hence inadmissible.
    But: see State v. Forest S. Shomberg, 2006 WI 9 ¶17 (expert testimony re: frailties of ID probably admissible by today's, Dubose-type standards, but exclusion upheld under 2002 standards).
    Identifcation Procedure -- Show-up -- "Accidental" Encounter
    State v. Brian Hibl, 2006 WI 52, reversing 2005 WI App 228
    For Hibl: Joel H. Rosenthal
    Issue: Whether an identification resulting from an “accidental” encounter between witness and defendant in a courthouse hallway immediately before trial is suppressible, in the absence of any evidence that this incident involved a law enforcement procedure directed at obtaining an identification.
    ¶31      For the reasons stated below, we determine that Dubose does not directly control cases involving evidence derived from "accidental" confrontations resulting in "spontaneous" identifications. However, we further determine that in light of developments since the time of Marshall, including those recognized in Dubose, Marshall does not necessarily resolve all such cases. Although most such identifications will be for the jury to assess, the circuit court still has a limited gate-keeping function. It may exclude such evidence under § 904.03 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. …

    ¶39      Courts have traditionally employed several factors to assess reliability, based on common sense notions of human perception and memory. Those factors are the ones recited in Wolverton that the circuit court applied here: the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.

    ¶40      More recently, other phenomena that may affect the reliability of eyewitness identifications have been widely proffered or recognized. These phenomena may not be within the common knowledge of many jurors or judges. They include the "relative judgment" process; [9] the stressfulness of the event for the eyewitness; [10] whether the event involved "weapon focus"; [11] the cross-racial nature of an identification; [12] and whether an eyewitness is given positive feedback during or immediately following the identification. [13]

    ¶41      Many of the phenomena said to affect the reliability of eyewitness identification are the subject of ongoing debate. [14] One thing not subject to debate is that even unintentional suggestiveness can become a key factor in identification errors. See State of Wisconsin, Office of the Attorney General, Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005 ) at p. 2 (emphasis added). What is important for our examination here is that many of these phenomena do not depend on the presence of a law enforcement procedure. To the extent that identification evidence is extremely unreliable based on such phenomena, independent of any law enforcement procedure, Marshall's holding may need to be modified.

    ¶47      Based on the record before us, however, we are not prepared to declare that the admission of the identification evidence in this case would violate Hibl's right to due process. The circumstances of Stuller's identification of Hibl in the courthouse hallway are not sufficiently suggestive. Thus, we need not and do not modify Marshall at this time. …

    ¶50      Despite the right to a trial by jury, the law permits and sometimes requires that a trial court keep evidence from the jury. …

    ¶54      In exercising its gate-keeping function, the court should consider whether cross-examination or a jury instruction will fairly protect the defendant from the unreliability of the identification. The court may take a number of other factors into consideration, including those we have articulated in ¶¶38-40, if appropriate, but litigants and trial courts should not be bound to an inflexible list of factors. We urge circuit courts, with assistance from the litigants before them, to take into consideration the evolving body of law on eyewitness identification. Any tests for reliability and suggestiveness in the eyewitness identification context should accommodate this still-evolving jurisprudence, along with the developing scientific research that forms some of its underpinnings.

     [9]   See State v. Shomberg, 2006 WI 9, ¶28, ¶49 (Abrahamson, C.J., dissenting), ___ Wis.  2d ___, 709 N.W.2d 370; State of Wisconsin, Office of the Attorney General, Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005) at p. 2 (footnotes omitted). The "relative judgment" process refers to "the tendency when viewing a simultaneous presentation (viewing an entire photo array or lineup at once) for eyewitnesses to identify the person who looks the most like the real perpetrator relative to the other people." Model Policy and Procedure, at 2.

     [10]  See United States v. Sebetich, 776 F.2d 412, 419 (3d Cir. 1985); see also Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).

     [11]   Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).

     [12]   See State v. McMorris, 213 Wis.  2d 156, 170 n.9, 570 N.W.2d 384 (1997).

     [13]   Shomberg, 2006 WI 9, ¶71 (Butler, J., dissenting).

     [14]  There is also debate over the traditional factors from Biggers. At least one of those factors, eyewitness certainty in the identification, has come under serious attack. The Wisconsin Innocence Project, amicus in this case, provided a copy of an amicus brief recently submitted to the United States Supreme Court in Ledbetter v. Connecticut, No. 05-9500, on behalf of numerous university professors who hold themselves out as experts in the field. They assert that the certainty factor has no scientific basis. In support of this assertion, they engage in an extensive review of research suggesting that the relationship between eyewitness certainty and eyewitness accuracy is generally weak and easily subject to corruption. The State maintains, however, that research shows certainty remains a reliable predictor of accuracy.

    The immediate holding can be efficiently stated as: where there’s no state involvement in a show-up identification, then the State v. Dubose, 2005 WI 126, ¶16, 285 Wis. 2d 143, 699 N.W.2d 582 necessity-of-procedure test simply isn’t triggered; the trial court does retain a limited gatekeeper function to screen the identification from the jury, with a heavy bias (¶31) toward letting the jury resolve the issue of ID reliability. Why, then, such a lengthy summary? Largely to reproduce the “phenomena that may affect the reliability of eyewitness identifications” listed by the court. These factors are probably not static—the court is clearly open to considering new developments in the field, which the practitioner therefore will have to track assiduously—but for the near term these will have to do.

    Although the trial court retains authority to exclude the identification under § 904.03, it’s not clear how Hibl could attain such a result. The court says that exclusion is appropriate if the evidence is so unreliable that the resulting danger of prejudice and confusion substantially outweighs probative value, ¶48. And yet, in the immediately preceding paragraphs (¶¶46-47) the court baldly declares that Hibl’s identification was not “highly unreliable.” Maybe you can have evidence that is not highly unreliable but still be so unreliable as to warrant exclusion. Maybe. But it would seem that this is a jury instruction case in all but name (this appeal is pre-trial, so instructions aren’t at issue) and in that sense the various factors listed by the court might assist in crafting a special instruction. Indeed, even in a DuBose case much thought will have to be given to the instruction on identification. Couple of recent examples: State v. Ledbetter, 275 Conn. 534; 881 A.2d 290 (2005) (court invokes supervisory authority to "direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure." (Text of instruction in linked opinion file.); Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) ("In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as 'the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,' we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification"). Ledbetter is mentioned in fn. 14; cert, incidentally, was denied 4/17/06; here’s the Innocence Project’s amicus brief in the Connecticut supreme court, which even though isn’t directed at the witness-certainty issue does contain some discussion about jury instructions:

    Judicial Intervention in Presentation of Case
    State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148
    For Carprue: Stephanie G. Rapkin
    ¶58. Carprue contends that he was denied his due process right to a fair trial because Judge Schellinger was not impartial. His evidence consists of the judge's actions in calling and questioning Morrow and in questioning Carprue.

    ¶59. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955); see also State v. Kywanda F., 200 Wis. 2d 26, 35, 546 N.W.2d 440 (1996); State v. Walberg, 109 Wis. 2d 96, 105, 325 N.W.2d 687 (1982); Asfoor, 75 Wis. 2d at 436; State ex rel. Mitchell v. Bowman, 54 Wis. 2d 5, 7, 194 N.W.2d 297 (1972). Case law makes clear that when a judge presides in a case where the judge has a direct, personal, substantial pecuniary interest in the outcome of the proceeding, Tumey v. Ohio, 273 U.S. 510, 523 (1927), this constitutes "structural error" and would be subject to automatic reversal. State v. Harvey, 2002 WI 93, ¶37, 254 Wis. 2d 442, 647 N.W.2d 189.


    ¶63. Carprue bases his claim on the broader argument that Judge Schellinger was anti-defendant. As we noted above, for judicial disqualification based on general allegations of bias to be constitutionally required, Carprue must demonstrate that Judge Schellinger's conduct represented the "extreme" case. The record does not warrant such a finding.


    ¶68. Although we reverse the decision of the court of appeals, we stand with the court of appeals in calling upon our circuit courts to foster an atmosphere of perfect impartiality and to strive for absolute objectivity in carrying out judicial functions. Carprue, 266 Wis. 2d 168, ¶12 (citing Glasser v. United States, 315 U.S. 60, 82 (1942), superseded on other grounds by Fed. R. Evid. 104(a)).

    For an instance of impermissibly intrusive judicial involvement, violating defendant's due process right to fair trial, see Wallace v. Bell, E.D. MI., 03-CV-10115-BC, 8/31/05 ("the trial judge trenched onto forbidden territory when he called and questioned an unlisted expert witness in violation of his own sequestration order who bolstered the prosecution’s DNA witness").
    Jury Unanimity on Underlying Acts
    State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455
    For Johnson: Martha K. Askins, SPD, Madison Appellate
    Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.
    Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process. ¶¶12-13. The predicate acts of assault under § 948.025 are not themselves elements; therefore, under the statute, unanimity is not required regarding these individual assaults. ¶¶15-16. And, because the predicate acts "all involve the sexual abuse of children, crimes of the same or similar nature and level of culpability[,]" due process doesn’t compel unanimity under "an inquiry into the fundamental fairness and rationality of the legislative choice." ¶¶18-19.
    Go to Brief
    Notice, Generally
    Amy Z. v. Jon T., 2004 WI 73
    For Jon T.: Geoffrey Dowse
    ¶20. Due process requires that the notice provided reasonably convey the information required for parties to prepare their defense and make their objections. Bachowski v. Salamone, 139 Wis. 2d 397, 412, 407 N.W.2d 533 (1987).

    ¶21. The guardian argues that Jon should have anticipated that all of the issues addressed in the guardianship petition would be addressed at the hearing. … No reasonable person responding to this petition would anticipate that the petitioner was asserting a claim for support.

    ¶22. As to the proceeding itself, the issue of support was first raised as the parties were making their closing statements to the circuit court. Given that the matter of support was not raised until the final moments of the hearing and was not otherwise addressed at any earlier point in the proceedings, we hold that the proceedings did not provide Jon with fair and adequate notice to address the issue. We reverse the child support order and remand for a new hearing

    Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary
    State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09
    For Conner: J. Steven House
    Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
    State v. Kaufman, 188 Wis. 2d 485, 492, 525 N.W.2d 138 (Ct. App. 1994), distinguished, as involving crime for which state had discretion to charge as either continuous or single offense(s) and that information therefore didn’t notify Kaufman she would have to prepare a defense to a continuing offense, ¶32:
    ¶33      The present situation is different. Here, a course of conduct is an element of the charged offense, not a charging option within the State’s discretion. The law does not require that the information specify with particularity upon which dates the course of conduct occurred, and Conner provides no authority for such a requirement. The supreme court has stated that “[i]n drafting an information the state should not have to spell out every act which would comprise an element of the crime ….” Wilson v. State, 59 Wis. 2d 269, 275-76, 208 N.W.2d 134 (1973). Instead, allegations of the elements of the crime charged will suffice. Id. at 276.
    Notice of Charge -- Vague Charging Period
    State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
    For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
    Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim's youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions, which allowed the defendant to considerably narrow the time frame, ¶¶32-36.
    Notice of Charge -- Amendment of Information at Close of Case
    State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
    For Malcom: John D. Lubarsky, SPD, Madison Appellate
    Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place "which is resorted to by persons using controlled substances" to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
    Holding: An amendment to the charge must satisfy two tests: it must not be "wholly unrelated" to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom's statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.
    Parole -- “Presumptive” MR Liberty Interest
    State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163
    Issue: Whether the “presumptive mandatory release date” under § 302.11(1g) creates a liberty interest in parole protected by due process.
    Holding: Prisoners sentenced for a “serious felony” between April 21, 1994, and December 31, 1999, are given a “presumptive” MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does. The “presumptive” MR regime is a form of discretionary parole, because the inmate is not entitled to release; instead, the parole commission has broad discretion to deny parole “when the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment.” ¶¶9-10. Moreover, by providing a hearing at which Gendrich could present his case for parole, and by providing written reasons for denial of parole, the commission afforded all the process he was due even had his interest in release been protectible. ¶11. Finally, the evidence supported the decision to deny parole, in

    that Gendrich's release would pose a substantial risk to the public because he remains an untreated sex offender. Gendrich has completed the "Denier's Program" but has not yet completed Sex Offender Treatment. Early during his incarceration, he refused to participate in the treatment program because he was still pursuing an appeal of his conviction. Recently, he has been on the institution's waiting list for Sex Offender Treatment. No matter the reason for his not participating in treatment, a reasonable person could conclude that as an untreated sex offender, Gendrich poses a substantial risk to the public.


    (Note: This decision has the effect of denying parole based on failure to obtain or submit to SOT. Though the implication isn’t discussed in the opinion, this situation could create “compulsion” sufficient to trigger 5th amendment protection. That is, SOT is generally conditioned on full disclosure of assault history, which the inmate is now compelled to reveal on pain of forgoing release on parole. Moreover, even on its face, the decision at least arguably punishes Gendrich for asserting his rights: he refused to talk during pendency of his appeal of his conviction -- something he was plainly entitled to do, see State ex rel. Gary Tate v. Schwarz, 2001 WI 127 ¶¶18-19, affirmed in pertinent part 2002 WI 127 -- which delayed his entry into SOT and thereby made him ineligible for parole. ¶11 n. 9. Gendrich, a pro se litigant, never raised this issue. For discussion on interplay between sexual offender treatment programs and fifth amendment go here.)

    PBT: Expert Testimony, Even if only Partly Based on PBT, Inadmissible, § 343.303
    State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
    For Fischer: James M. Shellow, Robin Shellow; Urszula Tempska
    Issue1 Whether the express statutory bar on PBT results, § 343.303, precludes admissibility of expert opinion based on those results, notwithstanding that expert opinion generally may be based on inadmissible data, § 907.03.
    ¶25      Fortunately, in this case, the legislature's policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer. Reading the statutes together to create an exception to Wis. Stat. § 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature's intent. The alternative would likely nullify Wis. Stat. § 343.303 whenever a party attached the opinion or report of an expert to the PBT result it wished to get before the jury.
    Bit more to it than that, of course, but it reduces to categorical bar on
    ¶20      The thorny question of what to do with inadmissible evidence that experts rely upon as a basis for an opinion is one that has proved difficult to answer with a fair and workable rule.

    ¶21      Law professor Daniel Blinka concisely summarizes the practical difficulty of explaining the bases for expert opinions when they include inadmissible evidence, and the unsatisfactory options for resolving the question ….

    If you’re looking for a “fair and workable rule,” for “[]satisfactory options for the resolving the question,” this opinion isn't for you. Nor, for that matter, does the court suggest it's even trying to do more than kick this particular can down the road. Sure, the court says there are good, “practical” reasons for absolute inadmissibility, ¶26, but the court doesn’t bother to explain why the generally available options (such as limiting instruction re: substantive use of PBT result) wouldn’t work. Juries are supposed to ignore patent hearsay underlying an expert opinion, why can’t they just ignore the PBT? The court doesn’t attempt to penetrate this mystery, precisely because it doesn’t have to: its holding relates solely to statutory construction of a clearly expressed statute which creates categorical inadmissibility: § 343.303 is an exception to § 907.03, rather than the other way around. The underlying problem—endemic, for example, to all Ch. 980 litigation, wholly dependent as it is on expert opinion based largely on hearsay—is a doctrinal crisis, really, related to administering expert opinions and it simply isn’t going to disappear. No need to use this case to delve into it, hence the otherwise inexplicably relieved tone (“Fortunately ….”).
    Issue/Holding 2 Assuming without deciding that an expert opinion based at least partly on inadmissible PBT results has probative value and is necessary to the defendant’s case, the constitutional right to present this evidence “is nonetheless outweighed by the State’s compelling interest in excluding the expert evidence based on PBT results,” ¶32.
    ¶5        Fischer argues that excluding the expert's opinion violates his right under the constitutions of the United States and Wisconsin to present a defense. We disagree. In United States v. Scheffer, the United States Supreme Court held that state rules that result in exclusion of defense evidence are constitutionally valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” … For reasons explained herein, we hold that in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the State's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding such evidence in OWI prosecutions, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the State's compelling interest in public safety on its roads. The legislature's decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get——cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. 
    The court of appeals had held that “the testing mechanism for the PBT is simply not designed so the result obtained during the investigation of a possibly intoxicated driver is accurate enough that it can be used to help a jury determine the driver’s guilt or innocence,” 2008 WI App 182, ¶17. The supreme court, while not quite rejecting that holding, expressly “take[s] a different approach,” ¶34, namely one that assumes PBT accuracy. As the majority goes on to concisely explain, the lower court’s approach simply trades one problem for another: “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact, which continues to be the law, cannot be squared with an analysis that excludes evidence on the basis of its lack of reliability,” ¶34. No, it can’t. But that doesn’t stop the 3-Justice concurrence from making the attempt, ¶¶37-43. It might be tempting to dismiss that attempt as merely result-oriented, but consider this: if, given “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact,” reliability doesn’t determine admissibility, then how do we explain categorical inadmissibility of diminished capacity evidence? Or, as the concurrence alludes to, ¶40, polygraph evidence? Odd as it might seem, we’re a very long way from some Grand Unifying Theory of admissibility for expert opinions.

    For discussion of court of appeals decision, now seemingly supplanted, go here.

    Right to Present Defense – Misconduct in Public Office, § 946.12(3) – Intent to Obtain Dishonest Advantage – Testimony of Long-Standing Legislative Practice
    State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
    For Jensen: Robert H. Friebert, Matthew W. O’Neill
    ¶36      We agree with the State that the testimony of Jensen’s defense witnesses as to the practices of both Democrats and Republicans in the legislature of using state resources for campaign purposes is not relevant to show whether Jensen intended to obtain a dishonest advantage by doing the same. Whether or not Jensen’s opponents were known by others to use state resources for campaign purposes is not relevant as to whether Jensen intended to obtain a dishonest advantage by doing so. That is, the question is not whether others were actually engaged in use of state resources for campaign purposes or whether Jensen had a legitimate belief that they were doing so. The question is, when Jensen used state resources for campaign purposes, what was his intent? The beliefs of others are not relevant to this inquiry.

    ¶37      However, Jensen’s beliefs are relevant to this inquiry. The State’s arguments to the contrary rest on its assertion that Jensen’s intent to obtain a dishonest advantage was not at issue, based on Jensen I. We have explained that we disagree with this reading of Jensen I. We see no other reason why Jensen should not have been given the opportunity to explain his reasoning in acting as he did, to rebut the State’s accusation that he acted with the intent to obtain a dishonest advantage. Thus, while we conclude that the testimony of Jensen’s defense witnesses was properly excluded as irrelevant, we do not reach the same conclusion as to Jensen’s own testimony on the same issue.

    The result was characterized in some quarters as being based on a mere “technicality.” (See, e.g., discussion here; to be sure, Marquette Law Prof Rick Esenberg at the linked site, doesn’t himself take view.) Technicality? That you’ve got the right to defend against a specific-intent crime by ensuring factual resolution of your denial of intent? At Case Summaries, we like to term that sort of thing, your constitutionally guaranteed right to present a defense. It’s been a while since we’ve come across a case where the defendant wasn’t allowed to put intent in issue, but here’s an older one, Brown v. Israel, 449 F. Supp. 1029, 1030 (D. Wis. 1978):
    In an effort to disprove the charge of first degree murder, the petitioner attempted to testify that he lacked the specific intent to kill … The petitioner argues that the judge's exclusion of the proffered testimony concerning his intent at the time of the offense violated his right to present a defense …. The respondent concedes that the trial court's rulings were erroneous under both state law and the United States Constitution …
    In other words, the essence of Jensen is that a defendant can defend against a specific-intent crime by … denying specific intent. It does not seem more complicated than that, the State’s argument apparently being that “intent to obtain a dishonest advantage was not at issue,” ¶37. It does make prosecution of specific-intent crime immeasurably easier if you do away with specific intent. Well-known criminal defense expert Chris Van Wagner puts it efficiently:
    Without the jury deciding these two issues, we could never be sure these verdicts were accurate. Our system relies heavily on accurate verdicts, but we can only be sure of accuracy if the jury, not the state or a judge, decides all the basic facts that constitute the crime.
    Right to Present Defense – Generally: Limited to Relevant Evidence
    State v. John W. Campbell, 2006 WI 99, on certification
    For Campbell: Charles B. Vetzner, SPD, Madison Appellate
    ¶33      The Sixth Amendment and Due Process Clause right to present a defense requires that a defendant be allowed to introduce relevant evidence, subject to reasonable restrictions. …

    ¶34      The right to present a defense does not require that a defendant be allowed to present irrelevant evidence. …

    ¶35      In this case, before Campbell can collaterally attack the family court's custody order for fraud, it must appear that Campbell's collateral attack, if successful, would tend to negate an element of a crime or raise an affirmative defense. In other words, the evidence adduced by the collateral attack must be relevant.

    Right to Present Defense – Prosecution Witness’s Attempts to Curry Favor in Other Cases – Cumulative to Credibility
    State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
    For Rockette: Timothy A. Provis
    Issue/Holding: Excluding evidence that in other, unrelated instances a witness had lied to the police in an attempt to curry favor in his own criminal cases did violate Rockette’s right to present a defense, where this evidence was merely cumulative to other evidence that called the witness’s credibility into question, ¶¶31-37.
    Right to Present Defense -- Expert Testimony, Identification Procedure
    State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
    For Shomberg: Charles W. Giesen; Morris D. Berman
     ¶27     In St. George, this court held that the circuit court's exclusion of testimony of a defense expert about the victim's recantation, and about interview techniques particular to child sexual assault cases, unconstitutionally deprived the defendant of his right to present a defense. St. George, 252 Wis. 2d 499, ¶73. In St. George, this court applied a two-part inquiry ….

    ¶28      Applying the facts of this case to the first part of the inquiry, we conclude that even though the first, second and fourth factors are arguably met (making no assessment as to the qualification of the individual to testify as an expert), Shomberg failed to establish that the expert eyewitness testimony was necessary to his case. Although the expert himself did not testify, Shomberg's counsel was able to convey adequately the concepts of relative judgment and recognition memory, as well as the factors present in this case that would tend to render the eyewitness' testimony unreliable in his cross-examinations of both S.B. and Ferguson.

    ¶32      The facts of St. George are distinguishable from this case in three critical respects. First, St. George involved the recantation of an alleged victim of child sexual assault. Recantation is a subject clearly beyond the common knowledge or understanding of a jury or other fact finder. …

    ¶33      In contrast, Shomberg's expert was to testify on eyewitness identifications. The difficulties with eyewitness identification are something we all have some appreciation for as part of our common knowledge and understanding. In addition, in this case, the State of Wisconsin presented no expert testimony supporting the accuracy of the eyewitness identifications. Therefore, unlike the defendant in St. George, there was no expert testimony to rebut, and no inference of guilt due to the absence of rebuttal. 

    But ... the holding is much more limited than that, as the court itself explicitly indicates, ¶17:
    Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory. However, the issue before us is not what we would have done, or what a court might do today. The issue is whether, at the time of the decision, the bases upon which the circuit court decided to exclude Shomberg's expert testimony constituted an erroneous exercise of discretion. ...
    And, critically, this was a bench trial. Had a the trial court precluded a jury from hearing such evidence a differnt result might well have obtained on appeal. See also U.S. v. Brownlee, 3rd Cir No. 04-4134, 7/18/06 ("Given that 'witnesses ofttimes profess considerable confidence in erroneous identifications,' expert testimony was the only method of imparting the knowledge concerning confidenceaccuracy correlation to the jury.")
    Right to Present Defense -- "Denny" Evidence
    State v. Matthew J. Knapp, 2003 WI 121, on certification; vacated and remanded on other grounds for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590); subsequent decision on remand, Miranda issue: State v. Knapp (II), 2005 WI 127
    For Knapp: Robert G. LeBell
    Issue/Holding: The defendant may obtain admission of evidence implicating other suspects if such evidence “creates ‘a “legitimate tendency” that the third person could have committed the crime.’” ¶160, quoting, State v. Denny, 120 Wis. 2d 614, 623, 357 N.W.2d 12 (Ct. App. 1984).
    ¶179. In summary, Denny expressly states that "as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place, or circumstances, the evidence should be admissible." Id.

    ¶180. The State concedes that motive and opportunity regarding Brunner are not at issue in this case. Therefore, this court must determine whether the testimony of Maas and Farrell presents evidence showing a "direct connection" between Brunner and the murder with which Knapp is charged….

    ¶182. The evidence at issue in this case connects Brunner and Maas to the crime in a number of ways: (1) It establishes that Brunner lied to investigators about his whereabouts at the time of the murder; (2) Maas was with Brunner at the time his [Brunner’s] wife was murdered, and Maas was observed a short time after Mrs. Brunner's death carrying a paper bag and getting into Brunner's waiting truck; and (3) most importantly, the evidence puts Brunner in Watertown in relative proximity to the location where the homicide occurred and near the time of the murder.

    ¶183. Based upon that information, we hold that the circuit court correctly determined that the evidence established Brunner's motive, opportunity and connection to the crime. Further, we hold that the circuit court applied the proper legal standard and appropriately exercised its discretion in admitting this evidence under Denny.

    For a more recent survey of U.S. Supreme Court cases discussing right to present defense, see Holmes v. South Carolina, No. 04-1327, 5/1/06 (may not exclude evidence of 3rd-party guilt merely on the strength of case against defendant, regardless of probative value or any tendency to undermine strength of prosecution’s case: “by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt”). In a footnote, the Court cites Denny, among other cases, as not running afoul of this principle. (Amicus brief in support of Holmes, here.)
    Presumptions, Generally
    State v. Eric Benjamin Gardner, 2006 WI App 92
    For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
    ¶9        In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a “trier of fact to determine the existence of an element of the crime--that is, an ‘ultimate’ or ‘elemental’ fact--from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” Ulster County Court v. Allen , 442 U.S. 140, 156 (1979). The presumption can be permissive, which “allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one,” id. at 157, or it can be mandatory, requiring that the trier of fact “ must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts,” id.

    ¶10      In general, a permissive presumption is constitutional as long as there is a rational connection between the basic fact and the elemental fact. Id. at 165. A mandatory presumption, however, whether conclusive or rebuttable, is not constitutional because it relieves the State of its burden to prove every element of an offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 521-24 (1979).

    Resentencing -- Increase in Original Sentence After Appellate Relief
    State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
    For Church: James L. Fullin, SPD, Madison Appellate
    Issue: Whether an increase in sentence on re-sentencing violated due process, where the resentencing judge deviated from the original sentencing scheme by increasing the term of imprisonment.
    Holding: Due process precludes an increase in sentence which is meant to punish a successful appeal; a more severe sentence imposed after re-trial is presumptively vindictive and must be overcome by objective information in the record. ¶¶29-34, citing North Carolina v. Pearce, 395 U.S. 711, 725 (1969). This presumption does not apply whenever a harsher result follows relief, but only where there is a realistic likelihood of vindictiveness. ¶38. Pearce is not applicable to a resentencing based on an originally invalid sentence “as long as the circuit court does not deviate from the original sentencing record and dispositional scheme.” ¶48.  Here, the judge increased the sentence by four years because Church had spent four years in prison “without acknowledging his offense and without doing anything to obtain treatment,” ¶15, and by this manifest intent to deviate from the original sentencing scheme triggered Pearce’s protection:
    ¶53…. The circuit court evidently treated this resentencing as an opportunity to revisit the original sentence based upon updated information and argument. Under these circumstances, we conclude that the Pearce presumption is triggered. Although Church was not resentenced after retrial, as in Pearce, the circumstances of this case created the same sort of likelihood of vindictiveness as to require application of the presumption.

    ¶54. In this case, as in Pearce, the defendant received a longer sentence upon resentencing after successful post-conviction proceedings. The appeal in this case posed a direct challenge to a decision of the circuit court. The circuit court's decision on multiplicity was reversed, the entire case was remanded, and the circuit court was essentially "'do[ing] over what it thought it had already done correctly.'" Smith, 490 U.S. at 801 (quoting Colten, 407 U.S. at 117); Goodwin, 457 U.S. at 374, 383 nn. 5, 16 (quoting Colten). Inherent in these circumstances is the "reasonable likelihood of vindictiveness" that the Pearce presumption is intended to protect against. Goodwin, 457 U.S. at 373.

    ¶55. The Pearce presumption of vindictiveness can be overcome if "affirmative reasons" justifying the longer sentence appear in the record and if those reasons are "based upon objective information" regarding events or "identifiable conduct on the part of the defendant" subsequent to the original sentencing proceeding. Pearce, 395 U.S. at 726.

    ¶56. The longer sentence in this case was premised on the passage of time: four years of incarceration had gone by, and Church was still (mostly) in denial and had not sought or received treatment. This does not constitute "objective information" of "identifiable conduct on the part of the defendant" subsequent to the original sentencing. It constitutes a subjective evaluation of the status of Church's rehabilitation at the time of resentencing, based not on any new facts but on the mere continued existence of the original facts.

    ¶57. Church was in denial and untreated at the time of the original sentencing. That he remained so four years later is not a new factor justifying a longer sentence after a successful appeal; it is merely a continuation of the status quo ante. Defendants who exercise their right to appeal often maintain their innocence. To premise an increased sentence after a successful appeal on a defendant's continued denial of responsibility, without more, comes far too close to punishing the defendant for exercising his right to appeal.

    Restraints on Defendant in Courtroom – Sua Sponte Duty of Court to Investigate
    State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
    For Champlain: Martha K. Askins, SPD, Madison Appellate
    Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire into the necessity for the device,” ¶32. “The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision,” ¶34.
    Scienter, § 948.12
    State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
    For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
    ¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant "reasonably should know" that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as "knows or reasonably should know," the legislature created a statute that allows conviction for mere negligence. In Schaefer's view, "reasonably should know" invokes the objective "reasonable man" standard applied in civil tort actions, the result being that Wis. Stat. § 948.12 creates criminal liability for those individuals who lacked actual knowledge but, through ignorance, mistake or accident, failed to exercise reasonable care and possessed pornographic material depicting children. However, we conclude that the statute is not constitutionally deficient with regard to scienter.
    The legislative fix, stemming from the overturn of the prior § 948.12 in State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), is ratified. An objective form of scienter – reasonably should know – satisfies a constitutionally minimal scienter requirement:
    ¶41. Delineating the precise level of scienter in a criminal statute is a policy decision reserved for the legislature. We conclude that, in a criminal statute for possession of child pornography, "reasonably should know" is less than actual knowledge but still requires more than the standard used in civil negligence actions. "Criminal negligence" after all, is defined as "something less than wilful and wanton conduct which, by the law of this state, is the virtual equivalent of intentional wrong." State ex rel. Zent v. Yanny, 244 Wis. 342, 347, 12 N.W.2d 45 (1943).6 The State must show that the defendant had an awareness of certain facts and information that would have caused a reasonable person to conclude that the persons depicted in the materials were minors. The burden is not on the defendant to show that he attempted to ascertain the age of the photographed individuals. Considered in that light, Wis. Stat. § 948.12 is not constitutionally infirm because, as amended, it requires the "some level of scienter" that was lacking in the version of the statute examined in Zarnke.
    Sex Offender Registration Juvenile -- Constitutionality
    State v. Jeremy P., 2005 WI App 13
    For Jeremy P.: Adam B. Stephens
    Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate procedural due process, ¶¶8-15. The court's retention of discretion in administering registration defeats a substantive due process claim, ¶22. An equal protection argument, based on claim of children-as-supsect-class, is also rejected, ¶¶23-29.
    Substantive Due Process, Generally
    Monroe Co. DHS v. Kelli B., 2004 WI 8, affirming 2003 WI App 88, 263 Wis. 2d 413, 662 N.W.2d 360
    For Kelli B.: Timothy A. Provis
    ¶19 Kelli asserts that the statute, as applied to her, violates her constitutional right to substantive due process. This right emanates from the Fourteenth Amendment of the Constitution. In essence, it protects against governmental actions that are arbitrary and wrong "regardless of the fairness of the procedures used to implement them." Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (citations omitted). Substantive due process has been traditionally afforded to fundamental liberty interests, such as marriage, family, procreation, and bodily integrity. Id. at 480-81, n. 10. Its analysis balances the state's compelling interests with its chosen method of protecting those interests.
    Substantive Due Process -- Automatic SVP commitment to secure confinement
    State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
    For Ransdell: Ellen Henak, SPD, Milwaukee Appellate
    Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.
    Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination; and, “there are many safeguards against arbitrary confinement” (such as, various options for petitioning for release or discharge). ¶¶7-9.
    (Note: The court relies heavily on the automatic-commitment procedure for NGI defendants, § 971.17(1) (1981-82), upheld by State v. Field, 118 Wis. 2d 269, 279-82, 347 N.W.2d 365 (1984). ¶8. But this merely begs the question of whether NGI and SVP procedure are really comparable. As the Supreme Court has indicated, "insanity acquittees constitute a special class that should be treated differently from other candidates for treatment," Jones v. United States, 463 U.S. 354, 370 (1983). Field, for that matter, is premised in significant part on the idea that an insanity acquittee has necessarily committed a criminal act, itself “indicative of dangerousness.” 118 Wis. 2d at 279. Same can’t be said for an SVP subject, whose commitment is premised on a “predisposition” not actual commission of a crime. Then, too, Field stresses that automatic commitment ensures “a thorough and accurate evaluation,” 118 Wis. 2d at 281, something that will necessarily precede an SVP petition. Finally, an NGI acquittee is eligible for immediate conditional release, making the court’s reliance on the case somewhat odd. Neither side, incidentally, even cited Field in the briefs.)
    Go to Brief
    Defendant's Right to Testify - Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify
    State v. Mark A. Jaramillo, 2009 WI App 39
    For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate
    Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.
    ¶16      We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v. Perez, 170 Wis. 2d 130, 137, 487 N.W.2d 630 (Ct. App. 1992). Rather, “Wisconsin’s constitution and statutes limit such a law-developing or law-declaring function exclusively to the Wisconsin Supreme Court.” Id. Our constitution gives the supreme court supervisory authority over all of the courts of this state, but delegates such authority to the court of appeals only over “the courts in the district.” Wis. Const. art. § 3(2)-(3). A mandate that all courts in Wisconsin must conduct a colloquy to ensure a defendant knowingly and voluntarily waives the right not to testify must therefore come from the supreme court.

    ¶17      Although we cannot require a colloquy, we do recommend it as good practice. The comments to Wis JI—Criminal SM-28 [2] acknowledge Weed only requires a colloquy when a defendant seeks to waive the right to testify; however, the jury instruction committee “concluded that a similar inquiry should be conducted when the defendant decides to testify, because a constitutional right is involved regardless of the decision that is made.” Wis JI—Criminal SM-28, comment. A colloquy benefits not just the defendant, but the courts as well. Just as in Weed, a colloquy “serves the dual purposes of ensuring that a defendant is not deprived of his [or her] constitutional rights and of efficiently guarding our scarce judicial resources.” Weed, 263 Wis. 2d 434, ¶39 (quoting State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)).

    Defendant's Right to Testify - Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify
    State v. Mark A. Jaramillo, 2009 WI App 39
    For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate
    Issue/Holding: Because the right not to testify is a fundamental constitutional right, its waiver must be knowing and voluntary (¶8), and Jaramillo is entitled to a hearing on his postconviction motion arguing that he did not validly waive the right when he testified at his trial:
    ¶18      Jaramillo had a fundamental constitutional right not to testify. The circuit court was not obligated to conduct a colloquy during the trial to ensure Jaramillo waived that right. Nevertheless, the court was required, once the issue was raised in the postconviction motion, to determine whether Jaramillo knowingly and voluntarily waived his right not to testify. Therefore, we remand for the parties to offer evidence should they so choose, and for the court to decide whether Jaramillo knowingly and voluntarily waived his right not to testify.
    The court rejects the idea that this claim is cabined by ineffective-counsel principles:
    ¶13      We agree with Jaramillo that his claim he did not knowingly and voluntarily waive the right not to testify is not confined to a claim of ineffective assistance of counsel. To hold to the contrary would mix apples and oranges: whether a defendant has been denied effective assistance of counsel is an inquiry directed at the attorney’s behavior; whereas whether a defendant knowingly and voluntarily waived the right not to testify asks what the defendant knew and understood. While defendants no doubt depend upon their attorneys to inform them of their rights, what a defendant comprehends is not necessarily a result of the attorney’s performance.
    The court does not, however, otherwise explain what goes into the knowing / voluntary inquiry.
    Defendant's Right to Testify - Retraction of Waiver - Offer of Proof Required
    State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
    For Winters: Ralph Sczygelski
    Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion, waived his right to seek retraction:
    ¶17      Wisconsin Stat. § 901.03(1) requires a party challenging the trial court’s ruling excluding evidence to make an offer of proof ….

    ¶18      Here, the trial court excluded evidence, namely Winters’s own testimony. Accordingly, Winters was obligated based on Wis. Stat. § 901.03(1)(b) to make an offer of proof in order to assert error. …

    ¶20      Although the facts in Brown are different from the instant case, the same legal principles apply. Here, Winters did not request an opportunity to give testimony outside the presence of the jury nor did he submit an affidavit detailing what he planned to say. Without such offer of proof, we cannot review Winters’s claim on appeal that granting his request to revoke his previous waiver and allowing him to take the stand would not have prejudiced the State.

    ¶21      The determination of whether to allow a defendant to testify after the evidence has closed and after he has previously executed a valid waiver of his right to testify is left to the discretion of the trial court. Arredondo, 269 Wis.  2d 369, ¶¶11, 13, 19. “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.’” Id., ¶19 (citation omitted). Without an offer of proof, the trial court could not consider the potential for prejudice and neither can we.

    ¶22      Winters offers two excuses for not seeking an offer of proof: (1) his attorney did not want him to testify and thus made no effort to do an offer of proof; and (2) the trial court failed to sua sponte inquire about the substance of his testimony. Neither excuse suffices here. With regard to the latter, as noted above, the trial court was not under any obligation in this instance to be the instigator of an offer of proof. With regard to the former, Winters is correct that his trial attorney made no effort to seek an offer of proof most likely because his counsel believed that taking the stand would not be in Winters’s best interest; however, that moment was not Winters’s only opportunity to submit an offer of proof. He could have done so via an affidavit when he filed his postconviction motion. He did not.

    Embellishment of State v. David Arredondo, 2004 WI App 7 (Arredondo similarly waived right to testify, state released rebuttal witnesses, and then retraction of waiver was sought). But there, the trial court found that Arredondo was simply trying to game the system, and the consequential refusal to allow him to testify was upheld on appeal as an appropriate exercise of discretion. And yet another interesting similarity, in Arredondo’s noted failure to make an offer of proof, ¶ 20 n. 2 (“Arredondo did not present any evidence from which the trial court could evaluate the likely value of his testimony.”). But in that case, the absence of a proffer was cited as support for manipulation by defendant, ¶20. Here, no finding of manipulation was made, so the court is in effect taking Arredondo a step farther. Pretty clearly, then, if you’re attempting to undertake a good-faith retraction of waiver you won’t have much choice but to give the state a preview of the testimony. Worse: if the trial court insists, as might well be its prerogative, on a Q & A proffer, then you’re also giving the state a free swipe at the defendant. All in all, the procedure greatly pressurizes the initial decision (not) to testify. Arredondo, incidentally, recently lost his 2254 challenge, David Arredondo v. Huibregtse, 542 F3d 1155 (7th Cir 2008) (for habeas purposes, no controlling authority establishes that trial court must engage in an on-record colloquy with the defendant as to his or her desire not to testify; administration of right to testify reviewed for reasonableness at high level of generality, such that refusal to countenance retracted waiver not objectively unreasonable, given prejudice to prosecution and delay in trial).
    Defendant's Right to Testify - Waiver
    State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
    For Arredondo: James A. Rebholz
    Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence, to rescind the waiver and allow the defendant to testify.
    Holding: The trial court’s contemporaneous colloquy with Arredondo “unequivocally demonstrates that Arredondo was aware of his right to testify, and discussed that right with his lawyer. See State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434, 464, 666 N.W.2d 485, 499 (colloquy should consist of inquiry to ensure that defendant was aware of his right to testify and discussed the right with counsel).” ¶13. And, after the last defense witness testified Arredondo told counsel that he did not want to testify (and the trial court concluded that Arredondo had made an “irrevocable decision not to testify in this case”). Though Arredondo later disputed counsel’s assertion, the trial court made a credibility determination in favor of counsel’s version, given which a second on-the-record colloquy wasn’t required. ¶¶14-17. Nor, considering that the State had dismissed its rebuttal witnesses after Arredondo’s waiver, was the court’s refusal to reopen the case to allow Arredondo to testify erroneous:
    ¶19. "The right to testify must be exercised at the evidence-taking stage of trial." United States v. Jones, 880 F.2d 55, 59 (8th Cir. 1989). "Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion." Ibid. 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." United States v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000).

    ¶20. In this case, the trial court considered the potential for prejudice. Arredondo made his request after the trial court told the jury that the evidence-taking stage of the trial was complete, and after the State dismissed its rebuttal witnesses. The trial court determined that "substantial prejudice ... would exist to the state and the system and the sequestered jury in order to reopen the case at this time." As noted, the trial court also found that Arredondo voluntarily gave up his right to testify. Moreover, the trial court found that Arredondo was engaging in "theatrics and ... playing for the cameras, perhaps, and that this is a gross attempt to manipulate the system."2

    ¶21. "[T]he need for order and fairness in criminal trials is sufficient to justify firm, though not always inflexible, rules limiting the right to testify." Jones, 880 F.2d at 59. Under the circumstances, we see no infringement of Arredondo's constitutional right to testify. Further, it is clear from the context of the trial court's statements that the trial court did not mean that Arredondo's decision to waive his right to testify was irrevocable as a matter of law. Rather, it determined that it should not re-open based on what it believed was Arredondo's "attempt to manipulate the system." The trial court did not erroneously exercise its discretion in not re-opening the evidence.

    (The court stresses “that Arredondo did not adequately explain what he would have said if allowed to testify,” an omission that supported the trial court’s finding that he was merely being manipulative. Para. 20, n 2.)
    Defendant's Right to Testify -- Personal Waiver Required
    State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
    For Weed: T. Christopher Kelly
    Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.

    ¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury. The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel.

    In this instance, the trial court held a postconviction hearing that established that Weed’s waiver had been knowing, intelligent and voluntary. ¶46. The court thus leaves open "the appropriate remedy if a circuit court fails to conduct an on-the-record colloquy with a criminal defendant to ensure that the defendant is waiving his or her right to testify," ¶47 -- by which the court means "the appropriate remedy if a circuit court fails to conduct an on-the-record colloquy with a criminal defendant to ensure that the defendant is waiving his or her right to testify." Harmless error is something else, and presumably by terming the right to testify so fundamental as to require for ist waiver an on-record colloquy, and by likening it to right to jury trial, the court is saying that harmless error is out-of-bounds. The court recognizes that its holding is in the minority, ¶41; for a representative case in the majority (issue must be raised as ineffective assistance of counsel and must show prejudice inasmuch as error isn't "structural," see Johnson v. State, Tex Crim App No. PD-1623-03, 5/25/05.
    Defendant's Right to Testify, as Affected by Intent to Commit Perjury -- Counsel's Role
    State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70, ¶¶42-47
    For McDowell: Christopher J. Cherella
    Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL
    Issue/Holding: The defendant’s right to testify does not include a right to testify falsely, Nix v. Whiteside, 475 U.S. 157 (1986):
    ¶37. From Nix, we derive five principles that lay the foundation for our analysis:

    • Whether simply "assumed," or as a corollary to the Fifth Amendment privilege against compelled testimony, or as a corollary to the Sixth Amendment right to assistance of counsel, a defendant in a criminal trial has a right to testify. See id. at 164. See also Rock v. Arkansas, 483 U.S. 44, 51-53 (1987) (defendant's right to testify "is one of the rights that `are essential to due process of law in a fair adversary process'" under the Fifth, Sixth, and Fourteenth Amendments).

    • "Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely." Nix, 475 U.S. at 173.

    • "It is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct." Id. at 169.

    • "Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law." Id. at 166.

    • "For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully." Id. at 173-74.

    (Interestingly, the court doesn’t mention the recent holding in State v. Weed, 2003 WI 85, ¶39, that a defendant has a “fundamental” constitutional to testify. But this omission should not impact the result; it is clear [“elementary,” as Nix puts it, that no matter how fundamental the right it is trumped by an intent to commit perjury. As to the way these competing policies are synthesized: this part of the holding is discussed under the topic, "Counsel ," inasmuch as this is counsel’s cross to bear.
    UPDATE: Though this holding resolves Wisconsin's approach, for additional aupport for the idea that counsel's "mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse [defendant’s] need for assistance in presenting his own testimony," see U.S. v. Midgett, 01-4674 (4th Cir. 9/4/03):
    The question of what a lawyer should do when confronted by potentially perjurious testimony has long caused consternation in the legal profession, producing heated debate and little consensus. On the one hand are the series of constitutional rights to which a defendant is entitled and for which the defendant’s lawyer is called to provide zealous advocacy; on the other hand are the lawyer’s obligations to the court to seek the furtherance of justice. Similarly, the court itself is obliged to ensure that the constitutional rights of the defendant are protected, while also seeing that proceedings are conducted fairly and truthfully. Midgett argues that these obligations were not adequately met when his lawyer, disbelieving Midgett’s proffered testimony, sought to withdraw from representing him and approached the court to discuss the lack of corroborative evidence in support of Midgett’s case. Likewise, Midgett argues that the court should not have confronted him with a choice between exercising his right to take the stand and his right to be represented by counsel. Under these circumstances, we agree.
    And for further federal support for the idea that the right to testify being personal and fundamental, its waiver must be knowing and intelligent, see Ward v. Sternes, 02-3104 (7th Cir. 8/8/03) ("the right is personal to the accused, and not capable of being waived by counsel on the defendant’s behalf ... personal waiver of this fundamental right, which protects the fairness of the criminal proceeding, must have been knowing and intelligent to be valid"); caution: Ward does not hold that the on-record procedure mandated by Weed is required under the U.S. Constitution.)
    Due Process – Judicial Vindictiveness - Resentencing (Following Successful Attack on Conviction), Generally
    State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
    For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
    ¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). “[W]henever 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. See Pearce, 395 U.S. at 726. Because retaliatory motives can be complex and difficult to prove, the Supreme Court has found it necessary to “presume” an improper vindictive motive. See United States v. Goodwin, 457 U.S. 368, 373 (1982). This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. See State v. Carter, 208 Wis. 2d 142, 154-55, 560 N.W.2d 256 (1997). 

    ¶9        The underlying concern of all vindictiveness case law is that a defendant could be punished by a resentencing court for exercising postconviction rights to challenge a conviction or a sentence. See State v. Martin, 121 Wis. 2d 670, 687-88, 360 N.W.2d 43 (1985); Grobarchik v. State, 102 Wis. 2d 461, 474, 307 N.W.2d 170 (1981). Vindictiveness is not presumed in all cases where a defendant’s sentence is increased at resentencing. The presumption stands only where “a reasonable likelihood of vindictiveness exists.” See Goodwin, 457 U.S. at 373.


    Equal Protection – Rational Basis Test – Punishment Classification Scheme
    State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
    For Lynch: David R. Karpe
    Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.
    ¶13      The State, on the other hand, argues that we should employ the lower level of scrutiny, or the “rational basis” standard. Under this standard, we uphold a statute against an equal protection challenge “if a plausible policy reason exists for the classification and the classification is not arbitrary in relation to the legislative goal.” Id., ¶73 (citations omitted). A statute is unconstitutional if it “is shown to be ‘patently arbitrary’ with ‘no rational relationship to a legitimate government interest.’” [4] Id.

    ¶14      We agree with the State that the rational basis standard is the appropriate one. The supreme court and this court have consistently applied the rational basis standard when deciding equal protection challenges to statutes involving differences in criminal penalties. See State v. Jorgensen, 2003 WI 105, ¶¶28-41, 264 Wis. 2d 157, 667 N.W.2d 318 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Smart, 2002 WI App 240, ¶¶5-12, 257 Wis. 2d 713, 652 N.W.2d 429 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Gardner, 230 Wis. 2d 32, 47, 601 N.W.2d 670 (Ct. App. 1999) (penalty structure for armed burglary versus unarmed burglary); State v. Block, 222 Wis. 2d 586, 590-95, 587 N.W.2d 914 (Ct. App. 1998) (classification of some crimes as “serious” for purposes of persistent repeater penalty).

    ¶17      In analyzing whether a statutory classification meets the rational basis standard, we “‘are obligated to locate, or, in the alternative, construct a rationale that might have influenced the legislative determination.’” Ferdon, 284 Wis. 2d 573, ¶74 (citations omitted). The point of our “inquiry [is to] determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose.” Id., ¶78. This standard “does not require the legislature to choose the best or wisest means to achieve its goals. Deference to the means chosen is due even if the court believes the same goal could be achieved in a more effective manner.” Id. at ¶76 (citations omitted). [5]

     [5] In his argument, Lynch uses the five-part formulation of the rational basis test from Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶58, 237 Wis. 2d 99, 613 N.W.2d 849: (1) the classification must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it cannot be based only on existing circumstances (that is, it must not preclude addition to the numbers in the class); (4) it must apply equally to all members of the class; and (5) the characteristics of the class must be substantially different from other classes such as to suggest the propriety of substantially different legislation. However, as the State points out, Lynch does not discuss each of the five criteria in a clear and separate argument. In any event, in Ferdon, 284 Wis. 2d 573, ¶71 n.77, the court referred to the five-part test in a footnote as one of a number of different formulations of the rational basis test but did not employ it. Because Ferdon is the most recent supreme court opinion discussing the standard to be employed when using the rational basis test, we use Ferdon’s formulation of that standard, not Aicher’s. However, even if we employed the five-part test, our conclusion would be the same and our analysis would be essentially the same.
    The court doesn’t explain the significance of Ferndon being “the most recent supreme court opinion” on the point at hand, but it presumably embodies this principle: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court's most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857, citing Krawczyk v. Bank of Sun Prairie, 203 Wis.2d 556, 567, 553 N.W.2d 299 (Ct. App. 1996), which in turn says, “When the pertinent supreme court precedents appear to lead to different results, we follow that court's last pronouncement.” So, there first must be some conflict in the pronouncements and Lynch doesn’t explicitly find one before casually deciding that Aicher controls over Ferndon. Perhaps the court meant to imply the existence of a conflict; perhaps the conflict was thought too obvious to bear elaboration. But it still ought to be said outright that mere chronology isn’t enough to deem one pronouncement controlling over another. Mention is made because this isn’t the first time the court of appeals has articulated the “rule” too broadly; see, e.g., State v. Walter Leutenegger, 2004 WI App 127, ¶5: “More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, ¶30, 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995) (‘[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.’).” No coincidence, perhaps, that Leutenegger involved a virtually identical panel. You can see, then, how the court has loosened the “rule” so that it threatens to stray from its mooring. That said, it might be wondered why the properly-articulated rule ought to be followed in any event. Without making too fine a point of it, Jones cites State v. Olsen, 99 Wis.2d 572, 583, 299 N.W.2d 632 (Ct. App. 1980) in support of the rule, but that case says no such thing. Rather, Olsen merely recognizes the irrefutable idea that “the court of appeals is bound by prior decisions of the Wisconsin Supreme Court,” citing Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339 (Ct. App. 1979), which itself says no more than that. Support, then, must be found elsewhere. The earliest iteration seems to be this, from Bruns VW, Inc. v. DILHR, 110 Wis.2d 319, 324, 328 N.W.2d 886 (Ct. App. 1982): “If the decisions of the supreme court are inconsistent, we should follow that court's practice of relying on its most recent pronouncement,” citing Purtell v. Tehan, 29 Wis.2d 631, 636, 139 N.W.2d 655 (1966). And that last case, interestingly, simply indicates: “Ordinarily, where there is a conflict in our past decisions, we prefer to adhere to the more recent cases.” Hardly a “rule,” then, is it? Ordinarily the court has a preference for the more recent pronouncement? Sounds more like a standard, which allows for exercise of discretion, than a rule, which allows for none. Just something to keep in mind if you find dueling pronouncements crossing swords over your desk.
    Equal Protection – Statutory Ineligibility for Earned Release Program
    State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
    For Lynch: David R. Karpe
    Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.
    ¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis. Stat. ch. 940 to participate in the earned release program. While one purpose of the earned release program is undoubtedly to encourage inmates to participate in treatment for substance abuse, it is also significant that the result of successful participation is a reduction in the time a convicted person must serve in confinement. [6] In effect, participation in the program is an opportunity to have a lesser punishment than that originally imposed. Excluding persons who have committed more serious crimes from this opportunity for reduced confinement is rationally related to the legitimate purpose of punishing more serious crimes more severely. A classification that treats persons differently, for purposes of participation in this program, based on whether their conduct has caused death or great bodily harm, is rationally related to the legitimate purpose of punishing more severely those persons who commit more serious crimes. It is rational to treat conduct that causes death or great bodily harm differently from conduct that does not have that result and to punish the former more severely.   
     [6] Lynch does not contend that, if he cannot participate in the earned release program, he is denied all treatment for substance abuse.
    Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21.
    Differential, County-Based Sentencing Guidelines
    State v. Roland Smart, 2002 WI App 240, PFR filed 9/24/02
    For Smart: Donald T. Lang, SPD, Madison Appellate
    Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
    Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as "(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions." ¶6. The guidelines' function is to reduce sentencing disparity among persons who commit similar offenses. Although "the statute may not be the best way of reducing drunk driving sentencing disparity, a rational basis inquiry does not require perfection." The statute thus need only bear "some relationship to advancing" its goal; this one does -- though a statewide system might be more equitable -- because it attempts to reduce disparity within judicial districts. ¶7. The analysis for substantive due process is the same. ¶12.
    (Note: The statute is supposed to reduce, but is effectuated so as to increase, disparity. The court finesses this problem by focusing on reduced disparity within, while ignoring increased disparity across, districts. Why isn't it arbitrary for someone to get more time simply because he or she was picked up just on one side of a county line?
    Holding approved, State v. Patty E. Jorgensen, 2003 WI 105.)
    Sex Offender Registration Juvenile -- Constitutionality
    State v. Jeremy P., 2005 WI App 13
    For Jeremy P.: Adam B. Stephens
    Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate procedural due process, ¶¶8-15. The court's retention of discretion in administering registration defeats a substantive due process claim, ¶22. An equal protection argument, based on claim of children-as-supsect-class, is also rejected, ¶¶23-29.
    Sex Offender Registration -- Juvenile -- False Imprisonment 
    State v. Joseph E.G., 2001 WI App 29, 240 Wis. 2d 481, 623 N.W.2d 137 
    For Joseph E.G.: Susan E. Alesia, SPD, Madison Appellate 
    Issue: Whether § 301.45(1m) (1997-98) violates equal protection and substantive due process in failing to excuse juveniles convicted of false imprisonment from sex offender registration. 

    ¶12 In contrast to the facts that could relieve an offender from registration for those crimes enumerated in WIS. STAT. § 301.45(1m), the crime of false imprisonment is never consensual and never a crime solely because of the age of the victim. ... Therefore, we conclude the classification created by § 301.45(1m) is rationally related to protecting the public, meets one of the legislative objectives of registration, and does not violate constitutional guarantees of equal protection as applied to Joseph." "¶14 Joseph's substantive due process contention is simply a restatement of his equal protection claim. ... Accordingly, we need not provide a separate substantive due process analysis.


    Go To Brief


    Change in Statute of Limitations
    State v. Jeffrey B. Haines, 2003 WI 39, affirming, 2002 WI App 139
    For Haines: Mark A. Huesmann, Sonja Davig Huesmann
    Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.

    ¶15. In sum, the court of appeals succinctly and correctly reasoned that:

    [T]he 1994 amendment to Wis. Stat. § 939.74(2)(c) did not remove a defense that was available to Haines in 1992. At the time of the alleged assault, Haines had no statute of limitations defense. Indeed such "defense" would not have been available until 1999, when the former statute of limitations would have run. Accordingly, there is no ex post fact violation under the third consideration set forth in Kurzawa.

    State v. Haines, 2002 WI App 139, ¶7, 256 Wis. 2d 226, 647 N.W.2d 311. We cannot improve upon the court of appeals' analysis and reasoning. Accordingly, we affirm the decision of the court of appeals that applying the amended age 26 statute of limitations under Wis. Stat. § 939.74(2)(c) (1993-94) to Haines does not violate the ex post facto clause of the Wisconsin Constitution.

    (Haines raised no argument under the US Constitution. ¶6 n. 6. This omission is probably due to apparent uniform agreement "that retroactive application of an amended statute of limitations, which is enacted at a time when the prior limitations period has not yet run, does not violate the ex post facto clause." ¶14, cases collected id., n. 7. UPDATE: The US Supreme Court subequently held that retroactive enlargement of an expired statute of limitations violates ex post facto protection. Stogner v. California, 01-1757 -- a result that doesn't affect Haines, in that the SOL enlargement occurred pre-expiration.)
    Continuing Offense
    State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
    For Ramirez: Elizabeth A. Cavendish-Sosinski
    Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it violated the ex post facto clause because the statute was promulgated after he commenced the activity that formed the basis for the charge.

    ¶18. We hold that Ramirez obtained money in the form of wages, not merely the opportunity for employment, as the result of his unauthorized use of Wulfenstein's personal identifying information. We also hold that Wis. Stat. § 943.201(2) creates a continuing offense. Since Ramirez's identity theft allowed him to obtain wages after the effective date of the statute, we hold that the application of the statute did not violate the ex post facto provisions of the Wisconsin Constitution.

    Noncriminal Disability flowing from prior conviction.
    Monroe Swan v. Douglas LaFolette, 231 Wis.2d 633, 605 N.W.2d 640 (Ct. App. 1999). 
    Issue: Whether denial of opportunity to become notary public due to felony conviction violates ex post facto provision. 
    Holding: Ex post facto clause forbids punishing as crime any act which wasn't punishable when committed, but laws that merely disadvantage someone don't; because the plain language of the new notary public provision evinces no intent to punish, it doesn't offend ex post facto notions. ¶¶6-9. 


    Overbreadth: Sexual Assault of Child, § 948.02, Not Unconstitutionally Overbroad re: “Proper Medical Purpose”
    State v. Christopher J. Lesik, 2010 WI App 12, PFR filed 1/7
    For Lesik: Anthony Cotton
    Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical, health care, and hygiene procedures,’” ¶13.
    The court all but says that the issue is controlled by its prior decision under an identically worded statute in State v. Neumann, 179 Wis. 2d 687, 712 n. 14, 508 N.W.2d 54 (Ct. App. 1993), ¶13.
    First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Regulation of Speech
    State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
    For Baron: Daniel P. Dunn
    Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:
    See Texas v. Johnson, 491 U.S. 397, 403-04 (1989); State v. Robins, 2002 WI 65, ¶41, 253 Wis.  2d 298, 646 N.W.2d 287. If speech or expressive conduct is being regulated, the First Amendment is implicated.

    ¶21      In the case at hand, Wis. Stat. § 943.201(2) provides in relevant part: "Whoever, for any of the following purposes[, e.g., to harm the reputation of the individual,] intentionally uses . . . any personal identifying information . . . of the individual . . . without the authorization or consent of the individual and by representing that he or she is the individual, . . . is guilty of a Class H felony."

    ¶22      We conclude that, as charged and as applied to the facts of this case, Wis. Stat. § 943.201(2)(c) regulates speech in addition to conduct. The statute punishes a person for using another individual's personal identifying information with the intent to harm that individual's reputation. [10] Under the facts of this case, the statute regulates conduct because it restricts the use of another's identity and the distribution of reputation-harming materials, but speech is also being regulated because the content of the e-mails is critical in order to evidence Baron's intent to use personal identifying information to harm Fisher's reputation. Therefore, this is not a case as in Robins where the conduct was merely initiated, evidenced, or carried out in part by speech. Rather, this is a case where the reputation-harming portion of the charge is evidenced by the content of the speech, i.e., the content of the e-mails.

    ¶23      Unlike in Robins, where speech was used to show the defendant's intent to entice a child, speech in this case is not used to show the defendant's intent to use another individual's personal identifying information. Absent the e-mails, i.e., speech, which were used with the intent to harm Fisher's reputation, Baron has not committed an element of the crime as alleged. Therefore, just as communicative elements were being regulated in Johnson and O'Brien, communicative elements are being regulated in this case. Under the statute as charged and applied to the facts of this case, it is the content of the e-mails, i.e., the speech, that evidences the defendant's intent to use personal identifying information to harm Fisher's reputation. Thus, here, speech in addition to conduct is being regulated. [11]

    The court rejects the idea that the prohibited conduct at issue (unauthorized use of ID) is analogous to child enticement. The latter focuses on the act of taking a child to a secluded place, which is to say a single offense supported by alternative possible mental state components. If the analogy held up, then the identity theft charge would similarly be focused on the conduct (misappropriating Fischer’s identity). But it doesn’t hold up, and the charged identity theft by contrast involves conduct (unauthorized use) “coupled with reputation-harming speech.” Unlike enticement, “identity theft can occur in multiple ways,” so that “the prohibited conduct charged includes more than simply the use of Fischer’s identity”—namely, communications intended to harm his reputation. Note that enticement is a single offense, State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998); whether identity theft might support multiple charges wasn’t before the court but becomes a plausible outcome in light of the court’s discussion.

    Interesting concurrence from Justice Bradley, expressing the idea that the statute regulates only conduct, not speech, ¶¶59-68. Worth mention, because she’s ratifying the thrust of the court of appeals’ analysis, and thus expressing her disagreement with the majority on this point; the supreme court’s affirmance, then, is in effect, “as modified.”

    First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Content-Based Speech
    State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
    For Baron: Daniel P. Dunn
    Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:
    ¶38      In the case at hand, we conclude that Wis. Stat. § 943.201(2)(c) is content based because whether Baron's conduct is prohibited depends entirely upon whether Baron's speech, i.e., the content of the e-mails, was intended to be reputation-harming speech, which is similar to the content-based provisions in Boos and Burson where the prohibition was dependent upon whether signs were critical of foreign governments or related to political campaigns. However, we do not decide today whether subsection (c) of Wis. Stat. § 943.201(2) must always be deemed content based under all circumstances as we do not address potential situations where something other than speech is used with the intent to harm another's reputation.

    ¶39      Unlike Taxpayers for Vincent, Renton, or Brock where the statutes were not designed to suppress certain ideas, this statute under the facts of this case, suppresses reputation-harming speech when it is accompanied by intentionally using another's identity. There is no identity theft in this case unless the trier of fact determines that Baron used Fisher's personal identifying information with the intent to harm Fisher's reputation. Therefore, Baron is prohibited from disseminating speech that is intended to be harmful to Fisher's reputation when that speech occurs through the unauthorized use of Fisher's personal identifying information. As a result, Wis. Stat. § 943.201(2)(c), as applied to Baron, is content based.

    ¶44      Accordingly, the State bears the burden of showing that the statute overcomes strict scrutiny in order to survive Baron's as-applied challenge.

    Fischer, the target of Baron’s alleged reputation-harming effort, was a public official: does that matter to the content-based conclusion? The court doesn’t say.
    First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Charge Survives Strict Scrutiny
    State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
    For Baron: Daniel P. Dunn
    Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):
    ¶45      To survive strict scrutiny, the State has the burden to show that the "'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Boos, 485 U.S. at 321 (citation omitted).

    ¶48      In the case at hand, Baron concedes that the State has a compelling interest in preventing identity theft. [13] He, however, asserts that the statute is not narrowly tailored to achieve that interest because it eliminates Baron's First Amendment right to defame a public official with true information. The State, in turn, argues that the statute survives strict scrutiny because the statute is narrowly tailored in that it applies only when the defendant intentionally uses an individual's personal information to harm that individual's reputation. We agree with the State and conclude that this is one of those "rare cases" that a government regulation survives strict scrutiny. See Burson, 504 U.S. at 211 (stating "we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny"). As applied to Baron, the statute is narrowly tailored to achieve the government's compelling interest.

    Long and short of it is that Fischer could have exercised his right to defame a public official without falsely assuming that official’s identity, ¶¶49-52. Justice Prosser’s concurrence makes the same point: sending the documents obtained from Fischer’s computer from Baron’s own computer wouldn’t violate this statute; nor would sending them anonymously, ¶80. Note that truthfulness of the information disseminated is simply irrelevant; focus, instead, is in the way the information was disseminated, ¶¶53-54.

    Bit of back ground. Baron was an EMT, working under Fischer, the county’s Emergency Medical Services director. Baron allegedly accessed Fischer’s computer without authorization, obtained emails showing an extramarital affair, then sent those emails to various people from Fischer’s own account. Fischer committed suicide the next day. Baron allegedly admitted to this conduct, explaining he wanted others to see that Fischer wasn’t “golden,” ¶¶4-5. If you don’t live in Jefferson County but this still sounds vaguely familiar, you might be confusing it with a much more recent and widely reported tale of a public official gone astray. A most curious coincidence, this lurid account also coming to light when someone sent out emails written by the principals. This busybody, though, chose to remain anonymous and therefore can’t be accused of identity theft with intent to harm reputation. And those of you with much longer memories will find echoes from State v. Eisenberg, 48 Wis.2d 364, 180 N.W.2d 529 (1970). But you already knew that the Reports are littered with tragic stories of hubris, lust and revenge.

    Child Enticement Initiated Over Internet
    State v. Brian D. Robins, 2002 WI 65, on bypass
    For Robins: Craig W. Albee
    Issue: Whether  prosecution for child enticement initiated over the Internet violates the first amendment.
    Holding: The first amendment doesn't extend to speech that is incidental to or part of the criminal course of conduct.

    ¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places, away from the protection of the general public, for illicit sexual or other improper purposes. Derango, 2000 WI 89, ¶¶17-19. That an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny.
    ¶44. Robins' internet conversations and e-mails with "Benjm13" do not by themselves constitute the crime of child enticement. Rather, Robins' internet conversation and e-mails are circumstantial evidence of his intent to entice a child, which, combined with his actions in furtherance of that intent, constitute probable cause for the crime of attempted child enticement. That some of the proof in this case consists of internet "speech" does not mean that this prosecution, or another like it, implicates First Amendment rights. Simply put, the First Amendment does not protect child enticements, whether initiated over the internet or otherwise.

    See also U.S. v. Hornaday, 11th Cir No. 03-13992, 12/13/04 (terming 1st amdendment challenge frivolous: "Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.")
    Overbreadth – “True Threat” – False Bomb Scare
    State v. Robert T., 2008 WI App 22
    For Robert T.: Bradley J. Bloch
    Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
    ¶12      Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable, and consequently, Wis. Stat. § 947.015 must be read with the limitation that only a false bomb scare that constitutes a “true threat” can be charged.

    ¶15      Indeed, this is exactly what the supreme court of the state of Washington did with a similar statute prohibiting threats. In State v. Johnston, 127 P.3d 707, 708-09 (Wash. 2006), an intoxicated man, Tracey Johnston, made various threats following his arrest at the airport. He was charged with making threats to bomb or injure property, contrary to the Washington statutes. Id. at 709. At his jury trial, the trial court refused to give an instruction offered by Johnston defining a “true threat.” Id. In reversing the conviction, the supreme court explained:

                Here, the statute reaches a substantial amount of protected speech. For example, threats made in jest, or that constitute political statements or advocacy, would be proscribed unless the statute is limited to true threats. Accordingly, the statute must be limited to apply to only true threats.
    Id. at 711-12.

    ¶16      Wisconsin Stat. § 947.015 must be read with the requirement that only “true threats” can be prosecuted. Here, the police who responded to Robert T.’s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a “true threat.” Therefore, the statute is constitutional.

    The court rejects Robert T.’s interpretation of Virginia v. Black, 538 U.S. 343 (2003) that a “true threat” is limited to threats to a specific person or group:  
    ¶19      In addition, we note that Wisconsin law has never limited a “true threat” to one which is directed at a person or group of persons and threatens bodily harm or death. Also, our research has been unable to find any cases which have adopted Robert T.’s interpretation of Virginia. Since Virginia was decided, numerous states have dealt with related statutes criminalizing bomb scare/threat and false alarms and numerous prosecutions have taken place for threatening to blow up property. See, e.g., Johnston, 127 P.3d 707; State v. Gibson, No. 2007-G-2755, slip op., 2007 WL 4150950 (Ohio Ct. App. Nov. 21, 2007); see also United States v. Brahm, ___ F. Supp.2d ___, 2007 WL 3111774, at *1 (D.N.J. Oct. 19, 2007) (charging a Wisconsin resident for posting information on a website that he knew to be false concerning acts that would cause damage to buildings or vehicles, and involving use of weapons of mass destruction and radiological dispersion devices). Certainly if the Supreme Court meant to severely limit the definition of “true threats” to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.’s interpretation is wrong. Consequently, the trial court erred in so finding. Thus, the trial court’s order is reversed and remanded with directions that the trial court reinstate the delinquency petition.
    But compare, Fogel v. Collins, 9th Cir No. 06-15395, 6/27/08 ("In most cases where courts have found that speech constituted a true threat, the threatening speech was targeted against specific individuals or was communicated directly to the subject of the threat.")
    Overbreadth -- Juvenile Curfew 
    Hodgkins v. Peterson, 7th Cir. 01-4115, 1/22/04
    In order not to offend the First Amendment, a statute that regulates the time, place, and manner of expression must be (1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) allow for ample alternative channels for the expression. Ward, 491 U.S. at 791, 109 S. Ct. at 2753. The O’Brien standard for content neutral regulations which incidentally impact expression requires: (1) that the regulation is within the constitutional power of the government; (2) that it furthers an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of free expression (in other words, content neutral); and (4) the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest....
    Indiana juvenile curfew statute held to be overbroad despite allowing "defense" for various protected activities -- "because the defense imposes no duty of investigation on the arresting officer, as a practical matter it protects only those minors whom the officer has actually seen participating in protected activity."
    Granted, Indiana’s curfew does not forbid minors from exercising their First Amendment rights during curfew hours, but it does forcefully discourage the exercise of those rights. The First Amendment defense will shield a minor from conviction, assuming that she can prove to the satisfaction of a judge that she was exercising her First Amendment rights, but, as discussed, it will not shield her from arrest if the officer who stops her has not actually seen her participating in a religious service, political rally, or other First Amendment event. Hodgkins II, 175 F. Supp. 2d at 1148. The prospect of an arrest is intimidating in and of itself; but one should also have in mind what else might follow from the arrest....
    The Wisconsin supreme court upheld a juvenile curfew ordinance against overbreadth challenge, in Milwaukee v. K.F., 145 Wis. 2d 24, 426 N.W.2d 329 (1988). The ordinance made it unlawful for anyone under the age of 17 to "congregate, loiter," etc., in "public places" between 11 pm and 5 am unless accompanied by parent, guardian, etc. No provision was made for defense on basis of protected activity. The result is probably not reconcilable with Hodgkins. See also State v. J.P, FL. SCt. No. SC02-2288 (overturning local Florida juvenile curfew ordinances).
    Overbreadth -- Injunction -- Prostitution-Related Activity 
    City of Milwaukee v. Tanya M. Bean, et al., 2001 WI App 258, PFR filed 11/8/01
    For Bean: Jerome F. Buting, Pamela S. Moorshead
    Issue1: Whether prostitution activities in the area encompassed by the injunction were shown sufficiently to constitute a nuisance.

    ¶13. Although it is true, as the appellants argue, that the infusion of prostitution in the affected areas can, on one level at least, be addressed by the enforcement of the laws making that and related activity illegal, the difficulties and dangers inherent in that route make injunctive relief appropriate because enforcement of the injunction can be done by police officers in uniform with adequate means of self-protection. Additionally, although the individual appellants are but a small part of the problem, the same is true of all the persons prostituting themselves in the affected areas. A rule that prohibited injunctive relief against a person acting independently but whose independent acts when combined with the independent acts of others created a public nuisance, merely because the person was acting independently, would render this type of public nuisance immune to effective redress. Accordingly, the trial court had the authority to issue an injunction to abate the appellants' role in what the undisputed evidentiary submissions prove is a public nuisance.

    Issue2: Whether the injunction was reasonably related to abatement of the nuisance it addressed.
    Holding: The prohibition against loitering in doorways, and at bus stops and pay phones "gives fair notice and is easy to obey." ¶16. However, the ban on being within 25 feet of any other person subject to the injunction while engaged in proscribed activities is struck as unconstitutionally vague. Id. The prohibition against engaging passersby in conversation is overbroad and trenches on the right of association; it is to be modified on remand "to ensure that it does not encompass appellants' relatives and friends[.]" ¶18. But this restriction is valid as to strangers, ¶¶19-20, excepting legitimate efforts to hail cabs, ¶20 n. 4.

    Overbreadth -- Flag Desecration 
    State v. Matthew C. Janssen, 219 Wis.2d 362, 580 N.W.2d 260 (1998), affirming 213 Wis. 2d 471, 570 N.W.2d 746 (Ct. App. 1997). 
    For Janssen: Eugene A. Bartman, Brian G. Figy, SPD, Appleton Trial 
    Issue: Whether the flag desecration statute is constitutional. 
    Holding: The flag desecration statute, sec. 946.05, violates first amendment overbreadth principles, and can't be saved by severing the unconstitutional portions.
    Overbreadth - Travel Restrictions -- "Banishment" from Victim's County
    Predick v. O'Connor, 2003 WI App 46
    Issue/Holding: Banishment from victims' county, under harassment injunction, § 813.125, upheld:
    ¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.

    ¶19 We therefore turn to the facts of this case. Here, we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county. The evidence in the record demonstrates that while she does not live or work in the county, Margaret frequently rents cars to drive around Walworth county. Further, her statements on the record indicate an absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. In fact, the trial court found that if Margaret were even in Walworth county, she would be tempted to prey upon her victims. Hence, Margaret poses a constant and dangerous threat any time she is present in the county.

    ¶20 Here, we also have three people who, as the record evidences, are victims for no apparent reason and have been driven to desperation by Margaret’s continuous harassment. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction the trial court imposed will provide them with a margin of territorial safety in which they can live in peace.

    Overbreadth -- Video Showing Nudity, § 944.205 (1999-2000) 
    State v. Scott L. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 72, on certification 
    For Stevenson: Elizabeth Cavendish-Sosinski, Daniel P. Fay 
    Issue: Whether § 944.205(2)(a) is overbroad. 
    Holding: Yes. 
    Analysis: § 944.205(a) (a) prohibits depictions of nudity without the person's knowledge and consent. Because this statute implicates first amendment rights, the state assumes the burden of proving its constitutionality beyond a reasonable doubt. ¶10. The question is overbreadth -- broadly written statutes substantially inhibiting free expression are open to attack even by a party whose own conduct isn't protected, ¶¶11-13 (i.e., Stevenson has standing to raise hypothetical examples of overkill). Though overbreadth is "only sparingly utilize(d), ¶14, the AG concedes that this statute is overbroad on its face, ¶21. The court agrees: as drafted, the statute disallows even reproductions of works of art. 22. Courts have three options when confronting an overbroad statute: limit its reach by judicial construction; sever the offending portion; invalidate the entire statute. ¶15. The court chooses the last option for several reasons. As written, the statute evinces clear legislative preference for broad and expansive interpretation. ¶28. That is, the court would have to substitute judicial for legislative intent (limited vs. expansive reach). ¶32. An overbroad statute must be "'readily susceptible' to [limiting] construction," ¶27, and this one isn't; the court would have to add elements that would alter its meaning, ¶29. Severance would be equally problematic. ¶38. The court therefore "leave(s) the drafting of a narrowly tailored statute to the legislature," which is better placed to debate the competing interests of privacy and free expression. ¶40. 
    Note that the legislative fix was passage of a new statute penalizing non-consensual depictions of nudity, § 942.09, which incorporates two changes. The first is superficial: the statute is now placed in the chapter involving crimes against reputation and civil liberties rather than against sexual morality. The second is substantive: the elements are (of course) different, most prominently in that the non-consensual depiction has to have been made "while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy." The new statute also deletes "reproduction" from the basic defnition of capturing a representaion, § 942.09(1)(a). Stevenson based overbreadth on the idea that the subject's "contemporaneous presence" was not required, ¶¶22-40; presumably, the addition of "reaosnable expectation of privacy" and deletion of "reproduction" would go a ways toward fixing the problem.
    Scienter -- Exposure to Harmful Materials via Internet, § 948.11 
    State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification  
    For Weidner: Steven D. Phillips, SPD, Madison Appellate 
    Issue: Whether § 948.11(2) is constitutional. 
    Holding: "Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact. Because the statute does not require the State to prove a defendant's knowledge of the victim's age when disseminating materials deemed harmful to children, Wis. Stat. § 948.11(2) has an impermissible chilling effect on protected speech and is therefore constitutionally invalid." ¶43. 
    Analysis: Scienter plays an important role in First Amendment jurisprudence. This statute makes it illegal to transmit harmful material to a minor, thereby making the recipient's age the fault line for criminal liability. However, the statute doesn't require that the defendant have known the recipient's minority status, and therefore omits that form of scienter. ¶¶11-12. Instead, the statute creates an affirmative defense, whereby the defendant may prove that he or she reasonably believed the child was 18: this affirmative defense impermissibly shifts what should be the burden of proving the necessary scienter element. ¶1. The court can't save the statute by judicial construction, and urges the legislature to take swift remedial action, "so that the welfare of children and protected First Amendment expression may both be safeguarded and co-exist in harmony." ¶¶38-42. Keep in mind, though, that the invalidation of the statute is limited to "the context of the internet and other situations that do not involve face-to-face contact[.]" ¶38. Thus, the court takes pains to distinguish and "not disturb" a prior court of appeals decision upholding the statute's validity in the context of face-to-face exposure of harmful material. ¶37, citing, State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997). 
    Go To Brief
    Speech -- Criminalized Threat.
    State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
    For Perkins: William E. Schmaal, SPD, Madison Appellate
    Issue: Whether and to what extent threats are protected from prosecution under the first amendment.

    ¶17 This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment. Only a "true threat" is constitutionally punishable under statutes criminalizing threats. The phrase "true threat" is a term of art used by courts to refer to threatening language that is not protected by the First Amendment.…

    ¶29 This court has considered these cases and concludes that the test for a true threat that appropriately balances free speech and the need to proscribe unprotected speech is an objective standard from the perspectives of both the speaker and listener. A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

    Go To (COA) Brief
    Like effect: U.S. v. Fuller, 7th Cir. No. 03-4081, 10/27/04; U.S. v. Stewart, 7th Cir No. 03-2675, 6/14/05. For detailed discussion as to why the "true threat" test is "determined under an objective standard that focuses on the speaker" -- i.e., focus is on the fear instilled in the person threatened, not the speaker's actual intent to carry out the threat -- see State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004). But in determining the sufficiency of evidence establishing a true threat under this standard
    An appellate court must be exceedingly cautious when assessing whether a statement falls within the ambit of a true threat in order to avoid infringement on the precious right to free speech. It is not enough to engage in the usual process of assessing whether there is sufficient evidence in the record to support the trial court's findings. The First Amendment demands more.
    Thus, the appellate court must, in this context, independently review "those 'crucial' facts that necessarily involve the legal determination whether the speech is unprotected." See also State v. Johnston, WA SCt No. 76544-8, 1/26/06.

    But for an opposing view, possibly creating a cert-worthy split, see U.S. v. Cassell, 9th Cir No. 03-10683, 5/24/05 ("We are therefore bound to conclude that speech may be deemed unprotected by the First Amendment as a 'true threat' only upon proof that the speaker subjectively intended the speech as a threat"), specifically taking Fuller to task for not taking into account Virginia v. Black, 538 U.S. 343 (2003).

    Speech -- Criminalized Threat.
    State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision.
    For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate.
    Issue: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.
    Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor "underbroad" (i.e., discriminating on the basis of content), and therefore "the First Amendment does not inherently bar the State from applying § 947.01 to unprotected speech, even if the unprotected speech is purely written speech." ¶21.
    Go to COA Brief
    Go To SCt Brief
    Also see People v. George T., Cal. SCt No. S111780, 7/22/04 (high school student's "dark poetry," which referred to bringing guns to school to kill students, enjoyed 1st amendemnt protecttion from criminal prosecution; note, however, that the result is narrowly fact-specific and turns on characterization of the poem as "ambiguous and plainly equivocal"). And, detailed discussion in Porter v. Ascension Parish, 5th Cir No. 04-30162, 12/10/04 (somewhat unusual facts in that Porter's sketch of a violent siege was two years old and taken to school by his brother without his knowledge: "For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.")
    Speech -- Criminalized Threat
    State v. A.S., 2001 WI 48, 243 Wis. 2d 204, 626 N.W.2d 725, affirming unpublished court of appeals opinion
    For A.S.: Stephen P. Hurley, Marcus J. Berghahn
    Issue: Whether it is permissible under the first amendment to apply the disorderly conduct statute, § 947.01, to speech alone.

    ¶17 We conclude that application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable.


    -- Trial Court Communication with Jury 
    State v. William Koller, 2001 WI App 253, PFR filed
    For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
    Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony -- that these items were “not available” -- without first seeking defense input was error.
    Holding: The defendant’s presence is required at any critical stage, but not where a mere point of law is discussed. Although the jury’s requests in this case were doubtfully mere points of law, any error was harmless -- the report was never moved into evidence and therefore couldn’t have been sent to the jury, and the witness’s testimony raised nothing complicated or difficult to remember. ¶¶65-66. (The court reiterates “strong” disapproval of ex parte judicial communication with a deliberating jury. ¶64 n. 7.)
    Voir Dire
    State v. George S. Tulley, 2001 WI App 236
    For Tulley: Patrick M. Donnelly
    Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.
    Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings. ¶6. However, deprivation of these rights is not subject to automatic-reversal and, largely because the court excluded the jurors interviewed in camera, the error was harmless. ¶11. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999) distinguished. (On-line brief for Harris.)
    (Note: Beyond narrowly distinguishing Harris on the facts, the court cites no authority for the idea that denial of assistance of counsel at a critical stage is subject to harmless error analysis.)
    Go To Brief


    Right to Public Trial – Failure to Object, Generally
    State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
    For Ndina: Richard L. Kaiser
    Issue/Holding: (The court leaves unresolved the question of whether failure to object to closure of the courtroom works “waiver” (requiring knowingly relinquishment) or “forfeiture” (resting on mere failure to object) of right to public trial:)
    ¶34      Thus the court of appeals decision leaves open the question whether the defendant's failure to object at trial to closure on the ground of a violation of the Sixth Amendment constitutional right to public trial should be analyzed as a "waiver" or as a "forfeiture" of the defendant's right to raise the issue on appellate review.

    ¶35      The defendant and State dispute whether a "waiver" or "forfeiture" standard applies to a defendant's assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant's failure to object timely to a trial court's alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the Sixth Amendment right to a public trial, there must be an intelligent relinquishment of the known right. [9] Other cases conclude that a defendant loses (forfeits) the Sixth Amendment right to a public trial when the defendant or defense counsel fails to assert a timely objection at trial to the court's order of closure. [10]

    ¶38      … Here both parties failed to make objections in a timely manner, but they have fully briefed the important substantive issue. This court should, under these circumstances, reach the merits of the issue presented, namely whether the circuit court's order violated the defendant's right to a public trial, rather than address whether either or both of the parties waived or forfeited their right to make certain arguments on review.

    The court of appeals held, 2007 WI App 268, ¶11, that "to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs"; the supreme court did not distinctly overrule that holding and it is therefore best to assume the necessity of contemporaneous objection to preserve the issue.
    Public Trial – Violation: Structural Error
    State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
    For Ndina: Richard L. Kaiser
    ¶43      If a defendant's right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. [15]
     [15]  See Neder v. United States, 527 U.S. 1, 8 (1999) (listing "denial of [a] public trial" among errors deemed "to be 'structural,' and thus subject to automatic reversal"); Johnson v. United States, 520 U.S. 461, 468-69 (1997) (same); Fulminante, 499 U.S. at 310 (same); Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984) (agreeing that "the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee because such a requirement "would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.") (alterations in original; quoted source omitted).

    See also State v. Ford, 2007 WI 138, ¶ 43 and n.4, 306 Wis.   2d   1, 742 N.W.2d   61 (citing cases; characterizing the right to a public trial as a structural error subject to automatic reversal).

    The question whether a constitutional error is susceptible to harmless-error analysis or rather is structural, requiring automatic reversal, should not be conflated with the question whether a constitutional right may be forfeited by timely failure to assert it or rather must be waived knowingly, voluntarily, and intelligently. The two inquiries, although related, are distinct.

    The court of appeals had held that the public-trial issue had been waived and therefore was reviewable through the lens of ineffective assistance of counsel, which in turn required a defense showing of prejudice, 2007 WI App 268, ¶9. The supreme court did not distinctly overturn that holding which may as a result remain viable. Use of the term “prejudice” may be a bit confusing in this context. Indeed, Waller itself uses the term—but it’s obvious in context that what the court means is that the error is “structural,” which is to say, not subject to harmless error analysis. See Waller, at 50 n. 9. This (the “structural” nature of the error) is a point made implicitly by State v. David L. Vanness, 2007 WI App 195, and a bit more explicitly by Ndina. To be sure, this wouldn’t be the first time a court has held that “structural” error nonetheless requires a showing of “prejudice.” E.g., State v. Jesse Franklin, 2001 WI 104, ¶24 (“when not falling within one of the three presumptions enumerated in Strickland, prejudice will only result when the counsel's errors have deprived the defendant of a fair trial whose result is reliable”), holding that violation of right to 12-person jury non-prejudicial. But at a certain level of generality a conundrum remains: How may a right be so “fundamental” as to require automatic reversible on preserved error yet nonetheless be subject to proof of prejudice when counsel fails to preserve objection? A riddle, wrapped in a mystery, inside an enigma? Or merely to be set aside as forgettable grist for the law review industry?
    Public Trial – Violation: Standard of Review
    State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
    For Ndina: Richard L. Kaiser
    ¶45      … We apply the standard of review set forth in State v. Vanness, 2007 WI App 195, ¶6, 304 Wis. 2d 692, 738 N.W.2d 154. In Vanness, the court of appeals concluded that the issue whether the Sixth Amendment right to a public trial was violated presents the application of constitutional principles to historical facts. [18] An appellate court upholds the circuit court's findings of evidentiary or historical fact unless those findings are clearly erroneous. [19] The appellate court determines the application of constitutional principles to those evidentiary or historical facts independently of the circuit court and court of appeals but benefiting from those courts' analyses. [20]

    ¶46      An appellate court applies a two-step analysis to determine the question of law whether a defendant's Sixth Amendment right to a public trial has been violated. The appellate court first determines whether the closure at issue implicates the Sixth Amendment right to a public trial. If the closure does not implicate the Sixth Amendment right to a public trial, the appellate court need not reach the second step of the analysis. If a closure implicates the Sixth Amendment right to a public trial, the appellate court then must determine whether the closure was justified under the circumstances of the case. This type of analysis has been used in some federal cases. [21]

    The court stresses that, although the right to public trial isn’t absolute, “(a) ‘presumption of openness exists,” ¶44.
    Public Trial – Test for Closure, Generally and with Respect to Defendant’s Family
    State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
    For Ndina: Richard L. Kaiser
    Issue/Holding1: Closure of the courtroom to numerous members of defendant’s family during witness testimony implicated the right to public trial:
    ¶51      Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, "an accused is at the very least entitled to have his friends, relatives and counsel present," [27] federal appellate courts have recognized that "the exclusion of a family member or friend may, in rare circumstances . . . , not implicate the Sixth Amendment public trial guarantee." [28]

    ¶52      Such "rare circumstances" are not present in the instant case. The circuit court's exclusion of every family member except the defendant's mother (who did not understand English) plainly implicates the values served by the Sixth Amendment right to a public trial. A criminal defendant's family may play a critical role in verifying that the defendant "is fairly dealt with and not unjustly condemned"; in keeping the defendant's "triers keenly alive to a sense of their responsibility and to the importance of their functions"; and in "encourag[ing] witnesses to come forward and discourag[ing] perjury," particularly in a case in which many of the witnesses for either side are themselves members of the defendant's family. [29]

    ¶53      The facts of the instant case contrast sharply with the facts of cases in which courts have concluded that a closure was so trivial as not to implicate the Sixth Amendment right to a public trial. Cases holding that a closure is trivial are typically characterized by the exclusion of an extremely small number of persons from the courtroom [30] or, alternatively, by a more general exclusion in effect for an extremely short period of time. [31]

    ¶54      In the instant case, the circuit court excluded the defendant's entire family, with the sole exception of the defendant's mother, for three full days of witness testimony. The closure encompassed several people, and it was not brief or inadvertent. The closure implicated the values of the right to a public trial. The closure implicated the values of (1) ensuring a fair trial; (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) encouraging witnesses to come forward; and (4) discouraging perjury.

    Issue/Holding2: The closure was, however, justified under the circumstances:
    ¶56      Closure of a criminal trial is justified when four conditions are met: "(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure." [32] The case law typically refers to this four-part test as the "Waller test," referring to the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39 (1984). [33]

    ¶61      The circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant's family members. The circuit court's determination that family members were contributing to violations of the sequestration order is supported by the following information that appears in the record: (1) the circuit court witnessed family members entering and leaving the courtroom; (2) members of the victim's family went to the prosecutor with concerns that the persons entering and leaving the courtroom had been conveying information to potential witnesses; and (3) the circuit court witnessed family members in the courtroom gallery talking loudly as witnesses were testifying and even "nodding in approval or disapproval of witnesses' testimony, in full view of the jury."

    The court adds that generally the trial judge should hold an evidentiary hearing before ordering closure, but that this record is sufficient to support closure even without a hearing, ¶¶63-64. Nor was the exclusion order (17 members of Ndina’s family) overbroad: “it would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous family members slated to testify,” ¶66. And, given that the defendant failed to present any reasonable alternatives to exclusion to family members, the trial court did not “err[] in failing to consider alternatives that no party asked it to consider,” ¶82. (Moreover, the trial court in the supreme court’s view implicitly concluded that “no less restrictive alternative” sufficed, ¶83.)
    Public Trial -- Locked Courthouse
    State v. David L. Vanness, 2007 WI App 195
    For Vanness: Chad Lanning
    Issue/Holding: Right to public trial under the 6th amendment was violated when the courthouse was locked (though the courtroom doors themselves remained open) during the defense case and State’s rebuttal:
    ¶8 The right to a public trial is a basic tenet of our judicial system, Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004), rooted in “the principle that justice cannot survive behind walls of silence….” Sheppard v. Maxwell, 384 U.S. 333, 349 (1966).

    ¶9 While a public trial is a basic tenet of our judicial system, it is not without exceptions. Walton, 361 F.3d at 433. A trial may be closed only when the test set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), has been met. [3] See Waller v. Georgia, 467 U.S. 39, 47 (1984). However, where an unjustified closure is trivial, there is also no constitutional violation. See Braun v. Powell, 227 F.3d 908, 919-20 (7th Cir. 2000); Peterson v. Williams, 85 F.3d 39, 42-43 (2nd Cir. 1996). Absent these exceptions, closing a trial to the public violates the constitution.

    ¶12 … In short, the triviality inquiry goes principally to the length of the closure and what parts of the trial were closed.

    ¶13 … We also conclude the court’s intent is irrelevant to determining whether the accused’s right to a public trial has been violated by an unjustified closure. Rather, our analysis must focus on the effect of the closing to determine whether a defendant’s constitutional right to a public trial has been violated.

    ¶16 Here, the courthouse was closed from 4:30 p.m. to about 7 p.m. From 4:24 p.m. to 5:04 p.m., the court was in recess. From 5:04 p.m. to 6:15 p.m., the court was in session, and the jury heard Vanness’s defense and the State’s rebuttal. The court was then in recess until the doors to the courthouse were opened around 7 p.m. Unlike Peterson and Al-Smadi, the closure of over an hour while the court was in session of a one day trial was not “extremely short.” See Peterson, 85 F.3d at 44.

    ¶17 Additionally, like Walton and Canady, important portions of the trial were closed. The public was denied access to the trial during both Vanness’s defense and the State’s rebuttal, including testimony from two new witnesses. Like the announcement of the verdict, we conclude the accused’s response to the accusations against him or her, and the State’s rebuttal are critical proceedings in criminal trials. See Canady, 126 F.3d at 364. Therefore, the closure was not a trivial violation. Consequently, because Vanness’s constitutional right to a public trial was violated, the order and judgment are reversed and the matter is remanded for a new trial.

    Other cases, discussion: here. Separately: though the court isn’t explicit on the point, it’s clear that violation of the right to public trial is “structural” error, i.e., reversible without resort to harmless error analysis; in effect, “triviality” analysis serves as a harmless error test in this context—once you get past it reversal is automatic as the result in this case illustrates.


    (See also Confessions)
    Self-Incrimination – Civil Proceeding – Withdrawal of Previously-Invoked Privilege
    S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09
    Issue/Holding: A person may invoke the 5th amendment privilege against self-incrimination in a civil action as protection against adverse use of such evidence in a subsequent criminal action, ¶11. And, the person may later withdraw the privilege and testify, but if such withdrawal would harm a party, the trial court has discretion to prevent it:
    ¶13   Based on this policy, 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 which strikes a fair balance and accommodates both parties. See id. at 191, 194; Certain Real Prop., 55 F.3d at 84. Striking a fair balance between both parties requires a careful assessment of each case’s precise facts. Certain Real Prop., 55 F.3d at 85. The court should give due consideration to the nature of the proceeding and the potential for harm or prejudice to opposing parties. Id. at 84.

    ¶14   One of the most important factors in the balancing process is the timing of the withdrawal. See, e.g., id. at 84-85. …

    ¶19   The importance of Certain Real Property’s conclusion that this decision is made in the exercise of a trial court’s discretion cannot be understated. 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 strikes us as eminently fair and reasonable that the trial court have the responsibility to perform the balancing test and make the ultimate decision in the exercise of its discretion and we adopt it. This means, of course, that we will defer to the trial court’s discretionary determination.

    Trial court refusal to allow withdrawal of the privilege, which effectively barred the person from testifying and thus was “a severe remedy,” is upheld as a proper exercise of discretion, largely because the effort came so late that it would have deprived the opposing party “of investigating or conducting discovery” as to that testimony, ¶¶20-22.
    Self-Incrimination – Coercion – Threat of Job Loss (Police Officer)
    State v. Jeffrey C. McPike, 2009 WI App 166
    For McPike: Nicholas E. Fairweather
    Issue/Holding: Statement by police officer’s superior that she was “administratively compelling” him to submit to PBT wasn’t an express threat of termination, therefore State v. Vanessa Brockdorf, 2006 WI 76, controls and his ensuing statements weren’t involuntary.
    Why publish the decision, given that Brockdorf says it all? (“Here, the circumstances are substantially similar and, if anything, less coercive,” ¶17.) Perhaps because Brockdorf might not really say it all; the court is understandably perplexed about the administration of the test, ¶24: why is the person’s knowledge of the likelihood of termination off-limits? Grist for further review … but not in this instance: McPike didn’t file a petition for review.
    Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
    State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
    For Cockrell: Paul R. Nesson, Jr.
    ¶14      Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio, 426 U.S. 610 (1976), which we applied in State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), and State v. Nielsen, 2001 WI App 192, ¶31, 247 Wis. 2d 466, 634 N.W.2d 325, the two cases on which Cockrell primarily relies. Cockrell does not cite to any cases that do not use the Doyle due process framework to analyze a prosecutor’s use of a defendant’s silence to cross-examine the defendant and in closing argument. [3] Therefore, we analyze Cockrell’s challenge under the due process clause of the Fourteenth Amendment. The application of constitutional principles to undisputed facts presents a question of law, which we review de novo. See, 247 Wis. 2d 466, ¶32.
    Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Partial Exercise of Rights
    State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
    For Cockrell: Paul R. Nesson, Jr.
    ¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest. One situation is where the defendant’s testimony conveys that he or she cooperated with the police; it is not then fundamentally unfair for the prosecutor on cross-examination to elicit, or in closing argument to comment upon, the fact that the defendant was non-responsive or remained silent in answer to certain questions. …

    ¶17      Other situations in which courts have found no violation of due process under Doyle include those where the defendant volunteered on direct his reason for not telling the police his version of the crime, United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir. 1983), and where the defendant testified that he attempted to tell the officers what happened but they would not let him speak. United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979).

    ¶18      However, even if the defendant “opens the door” to cross-examination or closing argument on his post- Miranda silence, to be permissible under the due process clause, the State’s response must be directed at impeaching the defendant’s credibility regarding his testimony. …

    Self-Incrimination – Impeachment with Post-Miranda Silence – Refusal to Answer Certain Questions without Counsel Present
    State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
    For Cockrell: Paul R. Nesson, Jr.
    ¶24      Cockrell argues that the cross-examination was improper because he did not testify that he cooperated with police, but instead accurately stated that he had declined to answer questions about the incident. Therefore, he asserts, unlike Wulff and Nielsen, there was no reason to impeach his credibility on that point and the cross-examination had the impermissible purpose of suggesting he fabricated his trial testimony. …

    ¶26      … However, Cockrell did more than volunteer that he declined to answer questions about the shooting: he explained why he declined—that he wanted an attorney present so his story would not be misinterpreted.

    ¶30      … However, we do not agree this is fundamentally unfair. Had Cockrell said nothing about declining to talk to the police about the shooting incident itself, the State under Doyle could not have used Cockrell’s post- Miranda silence to suggest that his trial testimony about the man in the back seat was fabricated. However, Cockrell chose to volunteer what he did and did not say to the police and why. In these circumstances it is not fundamentally unfair to permit the State to “explor[e] the soundness of that explanation [for not telling the police that he acted in self-defense] by measuring it against the defendant’s subsequent failure to assert it … [after he obtained counsel].” Saulsbury, 702 F.2d at 656.

    Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use
    State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
    For Cockrell: Paul R. Nesson, Jr.
    ¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences, if accepted by the jury, might make it more likely it will find the defendant guilty. See Wulff, 200 Wis. 2d at 343-44.

    ¶32      In this case, the prosecutor wanted the jury to infer that Cockrell was not telling the truth as to why he did not tell the police about the man in the back seat. It is true that, if the jury accepted these inferences, it was more likely to decide Cockrell did not act in self-defense but was instead guilty of attempted homicide. However, we do not agree that this is the same as asking the jury to make a direct inference of guilt from Cockrell’s silence.

    ¶33      The due process inquiry under Doyle is whether the cross-examination of Cockrell or the challenged comments in closing argument were fundamentally unfair to Cockrell given his volunteered testimony on declining to talk to the police about the shooting and his reason for that. Balancing the defense and prosecution interests and applying “considerations of fairness within the context of the truth-seeking function of trials[,]” Mavrick, 601 F.2d at 933, we conclude the challenged cross-examination and closing argument were not fundamentally unfair.

    The court also holds that failure to object to efficacy of the “limiting” instruction waived any right to raise it on appeal, ¶¶34-36.
    Self-Incrimination – Coercion – Threats, Generally
    State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
    For Brockdorf: Martin E. Kohler, Brian Kinstler
    Issue/Holding: The general rule that the privilege against compelled self-incrimination is not self-executing
    is inappropriate in certain well-defined situations [where] some identifiable factor was held to deny the individual a free choice to admit, to deny, or to refuse to answer." Id. (internal quotations omitted). One such situation is the so-called "penalty" case, where the state seeks to induce a witness to "forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions 'capable of forcing the self-incrimination which the Amendment forbids.'" …
    ¶16 (and ¶18, citing the Garrity v. New Jersey, 385 U.S. 493 (1967) “holding that statements given under threat of discharge from public employment are compelled and may not be used in subsequent criminal proceedings”:)
    ¶20      This court has not had much occasion to analyze and apply Garrity, save for the decision of Oddsen, 108 Wis. 2d 143. …

    ¶21      … Thus, without even considering the egregious facts of the interrogation, the statements were inadmissible as a matter of law because the officers' Fifth Amendment privilege against self-incrimination was essentially eradicated under the duress of an expressly stated "choice" between self-incrimination or the known possibility of job termination for remaining silent. In other words, it was expressly communicated to the officers that a failure to answer the questions posed could actually result in their termination. …

    Self-Incrimination – Coercion – Threat of Job Loss (Police Officer)
    State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
    For Brockdorf: Martin E. Kohler, Brian Kinstler
    ¶35      After reviewing the abundant case law interpreting Garrity, we elect to adopt the two-pronged subjective/objective test, as we believe it provides the most useful mode of analysis for determining whether, as a matter of law, an officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression under Garrity. Thus, in order for statements to be considered sufficiently compelled such that Garrity 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. The determination of the voluntariness of a statement is a question of constitutional fact, which is a mixed question of fact and law reviewed with a two-step process. State v. Hajicek, 2001 WI 3, ¶¶14-15, 240 Wis.  2d 349, 620 N.W.2d 781. We review the circuit court's findings of historical fact under the clearly erroneous standard, while the circuit court's determinations of constitutional fact are reviewed de novo. Id., ¶15.

    ¶36      In applying this analysis, we must ultimately examine the totality of the circumstances surrounding the statements, State v. Clappes, 136 >Wis.  2d 222, 235-36, 401 N.W.2d 759 (1987). However, in accordance with the analysis of Indorato and its progeny, an express threat of job termination or a statute, regulation, rule, or policy in effect at the time of the questioning which provides for an officer's termination for failing to answer the questions posed, will be a sufficient circumstance to constitute coercion in almost any conceivable situation. We believe that the subjective/objective test we adopt today is most in line with the original intent of Garrity.


    ¶43      In our view, however, the only "significant coercive action of the state[,]", 934 P.2d at 1373, that Brockdorf can point to is the alleged threat Harrison and Wilk made to Brockdorf to talk or get charged with obstructing. Without an express threat of termination, however, we conclude that this admonishment did not deprive Brockdorf of her right to make a free and reasoned decision to remain silent. In other words, Brockdorf's belief that she would be terminated for maintaining silence remained objectively unreasonable. …

    ¶44      If any other citizen had made the statement Brockdorf did in a similar non-custodial, criminal investigation, a court would have no difficulty in concluding such statement was voluntary as a matter of law. Essentially, Garrity as providing the expansive protection Brockdorf asks for.

    Brockdorf, it is stressed, was not in custody and, further, was being questioned pursuant to a criminal investigation, not a personnel matter, ¶39. In the latter instance, an officer may be threatened with job termination so long as his or her statement is immunized from use in a criminal prosecution, id. Thus, Brockdorf was in the same circumstance as any citizen, which means that her 5th A right wasn’t self-effectuating. The 3-vote dissent though agreeing with the majority’s legal test, ¶46, isn’t buying the criminal-personnel distinction posited by the majority. Instead, the dissent perceives that “(i)f what occurred here is not coercion, without any of the required warnings, then I don't know what is,” id. Brockdorf was ordered to report to internal affairs and threatened with obstructing if she didn’t provide a statement, ¶49; and, the MPD manual requires obedience to an order, ¶51. To the extent the dispute is narrowed in this manner the holding is of course correspondingly narrowed, namely whether the express threat of job loss necessary to trigger Garrity was apparent on these facts. Moreover, threat of job loss, implied or express, isn’t typically at issue with an SPD client – when was the last time you had to cite Garrity on a motion to suppress? One potentially recurrent context involving threatened consequence is where an inmate must submit to “therapy” which requires disclosure of criminal activity failing which loss of privileges and possibly release may follow; a complicated area, but some discussion here. Another recurrent area: threatened loss of conditional liberty for parole, etc.; see State v. Charles Mark, 2006 WI 78 summarized below.
    Self-Incrimination, Generally: Necessity to Establish Statements as Testimonial, Compelled, and Incriminating
    State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
    For Mark: Glenn L. Cushing, SPD, Madison Appellate
    Issue: Whether Mark’s statements to his parole officer were compelled and therefore inadmissible in his subsequent SVP trial.
    ¶16      … (W)hen a defendant seeks to exclude prior statements based upon his or her Fifth Amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. See id. Therefore, we reject Mark's argument that the mere fact that a statement is compelled requires it be excluded from a ch. 980 commitment trial. [7]

    ¶17      … (A) defendant's custody status alone is not sufficient to determine whether the statements were, in fact, compelled. …

    [7] Mark relies on several authorities ( Minnesota v. Murphy, 465 U.S. 420 (1984); State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438; State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987); State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)) to argue that a compelled statement by a probationer may not be used for any evidentiary purpose in a criminal prosecution, and therefore, in a ch. 980 trial. Yet Mark misstates the holdings in those cases by suggesting that compulsion alone is sufficient to exclude a statement from a criminal prosecution. A statement must be testimonial, incriminating, and compelled to be excluded from a criminal prosecution by virtue of the Fifth Amendment.
    Note: The applicability of 5th amendment analysis generally to SVP trials hinged on § 980.05(1m), which mandated that all constitutional rights available to a criminal defendant are available to a 980 respondent, ¶¶13-15—“hinged,” because that provision has been repealed, 2005 Wis Act 434. The decision oddly fails to mention this development, which greatly limits its precedential value. For a glimpse of the impact of this repeal see Justice Butler’s partial dissent, ¶¶53-61.
    Self-Incrimination: Pre-Arrest Statements by Person under Supervision to Agent
    State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
    For Mark: Glenn L. Cushing, SPD, Madison Appellate
    ¶24      Examining Zanelli I in light of the United States Supreme Court's decision in Murphy, we now conclude that the language in Zanelli I sweeps too broadly in declaring that "'[t]he Fifth Amendment protects a person from compelled self-incrimination at all times. . . .'" Zanelli I, 212 Wis. 2d at 371 (citing Fencl, 109 Wis. 2d at 236).  While we agree with the Zanelli I court that the Fifth Amendment guarantee against self-incrimination extends to prearrest silence and that Wis. Stat. § 980.05(1m) gives ch. 980 respondents the same constitutional rights as criminal defendants at trial, Murphy reaffirms the general rule that the Fifth Amendment privilege must be asserted in all but "certain well-defined situations." Murphy, 465 U.S. at 429.

    ¶25      … Therefore, the mere fact that an individual is required to appear and report truthfully to his or her probation (or parole) officer is insufficient to establish compulsion.

    ¶27      Therefore, in a prepetition or prearrest situation, in order for an individual to effectively invoke his or her Fifth Amendment rights against self-incrimination, he or she must ordinarily assert the privilege. [8] We hereby withdraw any language in Zanelli I that conflicts with the United States Supreme Court's decision in Murphy.

    Self-Incrimination: Definition
    State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
    For Mark: Glenn L. Cushing, SPD, Madison Appellate
    ¶29      In Zanelli II, the court of appeals defined "incriminating" as such "statements [that] could incriminate [one] in a pending or subsequent criminal prosecution. . . ." Zanelli II, 223 Wis. 2d at 568. Mark argues that the court of appeals' reliance on the definition of incriminating in Zanelli II is inappropriate in light of a footnote in the United States Supreme Court decision in Rhode Island v. Innis, 446 U.S. 291 (1980), which suggests a different definition, although in regard to the term "incriminating response."

    ¶30      … The flaw in Mark's argument is that the Innis definition of "incriminating response" necessarily contemplates the use of statements by the prosecution in a criminal trial. In such circumstances, it is reasonable to infer that any statement of the defendant that the prosecution might seek to admit would have the tendency to incriminate or inculpate the defendant. The same cannot be said in a ch. 980 civil commitment trial, where the object of the proceeding is to determine the likelihood the defendant will commit a future act of sexual violence, not to convict him of a crime. Outside of the criminal context, the rationale behind the Innis definition loses its force. Therefore, for purposes of a ch. 980 trial, we conclude that the definition of incriminating adopted by the court of appeals in Zanelli II is the appropriate one.

    Marks’ admission to conduct for which he had already been convicted couldn’t subject him to future prosecution; nor could his admission to a parole violation which wasn’t criminal in nature, ¶31. Two other statements could be the basis for criminal charge, but remand is necessary to determine whether these statements were compelled, ¶33.
    Self-Incrimination: “Evans-Thompson” Rule
    State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
    For Mark: Glenn L. Cushing, SPD, Madison Appellate
    Issue/Holding: ¶33, n. 12:
    While the written statement contains information which could incriminate Mark in a subsequent criminal prosecution, the heading on the statement leads us to remand the case for a determination of whether there was compulsion, and for review of all of the circumstances, including those that relate to immunity. Supra, ¶4.

    The concurrence of Justice Roggensack, which is based on this court's holding in Evans, 77 Wis. 2d 225, claims that the written statement was not incriminating, since the heading on the statement granted Mark limited use immunity. Justice Roggensack's concurrence, ¶45.

    In Evans, we noted, however, that the limited use immunity discussed therein only applies where the statement is given "in response to questions by a probation or parole agent or at a probation or parole revocation hearing, which questions are prompted by pending charges or accusations of particular criminal activity. . . ." Evans, 77 Wis 2d at 235. Prior to the taking of testimony, upon remand, concerning the circumstances surrounding the giving of the written statement by Mark, it is impossible to determine whether the conditions required for a grant of limited use immunity ever existed.

    Evans requires "timely objection in criminal proceedings," permits the use of such statements for purposes of impeachment or rebuttal, at least where a defendant testifies to matters directly contrary to what is stated in the excluded statement, and discusses the possibility of a charge of perjury where such statement is inconsistent with a statement previously made. Id.  It is premature, in this case, to assess the applicability of Tate, 257 Wis. 2d 40, Thompson, 142 Wis. 2d 821, or Evans, 77 Wis. 2d 225.

    Self-Incrimination -- Comment on Silence
    State v. Maurice S. Ewing, 2005 WI App 206
    For Ewing: David R. Karpe
    Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13. (Various authorities— State v. Feela, 101 Wis.  2d 249, 268, 304 N.W.2d 152 (Ct. App. 1981); State v. Wulff, 200 Wis.  2d 318, 340-41, 546 N.W.2d 522 (Ct. App. 1996), rev’d on other grounds, 207 Wis.  2d 143, 557 N.W.2d 813 (1997); United States v. Hale—distinguished, on same basis: “The prosecutor impeached the alibi witnesses with Ewing’s statements, not his non-statements.” ¶¶14-16.)
    -- Self-Incrimination (Compelled Psychological Examination of Defendant) -- Waiver by Intent to Introduce Richard A.P. Evidence
    State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
    For Davis: James M. Shellow
    Issue: "¶27.... (W)hether a defendant who intends to introduce Richard A.P. evidence may be compelled to undergo an examination from a state-selected expert without violating the defendant's right against self-incrimination."

    ¶40. A defendant who seeks to introduce Richard A.P. evidence must notify the court and the state that he or she intends to introduce this evidence at trial and precisely identify the exact testimony that the expert will provide at trial and the bases for the expert's opinion. Upon this disclosure, the state may then bring a motion requesting the court to compel the defendant to undergo an examination by an expert from the state. On this motion, the circuit court must then carefully examine the defendant's disclosure regarding his or her expert's testimony and the expert's basis for his or her opinion. If this disclosure statement shows that the expert will either explicitly or implicitly provide testimony regarding relevant facts surrounding the alleged crime that amounts to the defendant's own denial of the crime, the court may then order the defendant to undergo a reciprocal examination from the state based on the fact that the defendant has waived his or her right against self-incrimination. In this way, the defendant is permitted to introduce expert opinion testimony pursuant to Richard A.P., but restricted from introducing statements that amount to nothing more than the defendant's own statements on the crime.

    ¶41. In his reply brief, Davis asserted that he did not intend on using the opinions of Levin as a mechanism to present his version of the facts of the alleged offense before the jury. Levin, Davis contends, would only testify to the results of psychological tests and to his opinions based on the results of these tests; Levin would not be used as a conduit. To the extent that Levin will testify that he used only standardized tests that did not require Levin to inquire into the relevant facts surrounding the case, we conclude that no waiver of the right against self-incrimination would have occurred and the State is not entitled to a reciprocal examination of the defendant. However, as he concedes, Davis must disclose all results of Levin's tests to the State if he introduces testimony from Levin. The State may then have its own expert examine these tests and testify to rebut any testimony from Levin. The State, we conclude, is not unfairly prejudiced by this result. The State is afforded sufficient means to question this evidence through cross-examination and through rebuttal expert testimony.

    Self-Incrimination – Impeachment with Silence
    State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
    For Cooper: John A. Birdsall
    ¶19. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. State v. Nielsen, 2001 WI App 192, 32, 247 Wis. 2d 466, 487-88, 634 N.W.2d 325, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784 (Wis. Oct. 23, 2001) (No. 00-3224-CR). The court must look at the context in which the statement was made in order to determine the manifest intention that prompted it and its natural and necessary impact on the jury. Id.
    (Comment with respect to Cooper’s prearrest silence -- that Cooper chose not to talk to investigating officer at some point after previously talking -- not manifestly intended to imply invocation of right to silence, but instead explained why the investigation terminated at that point. ¶19. And, that Cooper remained silent at one point during postarrest interrogation in which he was otherwise responsive similarly not intended to be comment on invocation of right to silence. ¶20.)
    -- Impeachment with Post-Miranda Silence
    State v. William Nielsen, 2001 WI App 192, PFR filed
    For Nielsen: Waring R. Fincke

    ¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant's silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant's choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post-Miranda silence)).

    ¶32. If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or by defense counsel's questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution's permissible use of post-arrest silence to "challenge the defendant's testimony as to his behavior following arrest"), the government may use the defendant's silence for the limited purpose of impeaching his testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant's silence is inconsistent with his claim of innocence. Id.

    ¶33. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant's right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.…

    ¶36 … We conclude that Nielsen opened the door to government questioning by his counsel's questioning, and the State was permitted to clarify that Nielsen had not answered all questions for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview.…”

    Defendant’s Right to Refuse to Testify at NGI Phase
    State v. James G. Langenbach, 2001 WI App 222
    For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
    Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
    Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal, ¶¶10-11. Nor does it matter that this is an NGI trial:

    ¶13. Contrary to the State's arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." McConnohie, 121 Wis. 2d at 69 (citation omitted). "The privilege is not only intended to protect a defendant when his answers would lead to a conviction ... but is intended to protect a defendant when the defendant 'apprehends a danger from a direct answer.’” Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one's liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach's liberty, either through commitment to a mental hospital or imprisonment.

    Right to Silence Regarding Offense During Pendency of Direct Appeal
    State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
    For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
    Issue/Holding: The Evans-Thompson rule -- "the state may compel a probationer to answer self-incriminating questions from his probation or parole agent, or suffer the consequence of revocation for refusing to do so, only 'if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the [probationer] in a criminal prosecution'" -- applies during the pendency of a direct appeal, or the time during which a direct appeal could be taken. ¶¶20-22. (Meaning, of course, that there is an absolute right not to discuss the crime of conviction during this period of time, absent grant of immunity. However, the court holds open whether the same safeguards apply "regarding uncharged conduct" or "where the probationer pleaded guilty or no contest." ¶22 n. 10.)
    (See State v. Evans, 77 Wis. 2d 225, 235, 252 N.W.2d 664 (1977), and State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987). For a like result, see State v. Kaquatosh, 600 N.W.2d 153 (Minn. App. 1999).) For a different result, where the problem arises outside the time for direct appeal, see State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).)
    Right to Silence -- Sex Offender Treatment Program
    See discussion here.


    Separation of Powers Doctrine - Prosecutorial Veto and § 973.195, TIS Sentence Adjustment
    State v. David S. Stenklyft, 2005 WI 71, on bypass
    For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate
    Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:
    ¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis. Stat. § 973.195. …

    ¶84 We conclude that the judicial power is compromised when the district attorney is given the unilateral power to end a circuit court's consideration of an inmate's petition for sentence adjustment. A district attorney's exercise of a core judicial function is barred by the separation of powers doctrine. [17]

    ¶85 Wisconsin Stat. § 973.195(1r)(c) is unconstitutional if read to grant a district attorney veto power over a petition for sentence adjustment. A district attorney's veto power invades the exclusive core constitutional power of the judiciary to impose a criminal penalty. It empowers an executive branch officer to direct a court decision on the merits of a case, thereby violating the doctrine of separation of powers under the state constitution. [18]

    ¶86 Even if we were to conclude that the statute does not invade the exclusive core constitutional powers of the judiciary, the elimination of a circuit court's power to decide an inmate's petition without the approval of the district attorney is an impermissible burden and substantial interference with the judicial branch's authority. [19] The statute interferes with the impartial administration of justice by delegating judicial power to one of the parties in the litigation.

    ¶105 Because deciding the merits of a case is the essence of a court's function, and because the statute delegates to a district attorney the power to mandate the denial of a petition in each case, we conclude that the legislation in question is an unconstitutional violation of the doctrine of separation of powers.

    The holdings are contained in two separate, 4-vote concurrence/dissents; see ¶82. The misleadingly referred-to “lead opinion” – a mere 80 ¶¶ – is written as if it were the majority, replete with “we hold” and “we conclude” but it garners only 3 votes. In reality, it is not the lead opinion, or the plurality, or anything other than, quite simply, the dissent. Indeed, the “lead opinion’s” recognition of its dissent-status is coy, not to say grudging, ¶6 fn. 2. We here at Case Summaries strive to be above the fray, but would be remiss if we failed to draw attention to the majority’s dismissive criticism of the dissent, ¶85 n. 18: “The lead opinion goes to great length, making numerous arguments to uphold the statute. I do not undertake an analytical critique of each argument, although I could. The lead opinion builds its case on weak underpinnings, supported by quotations taken out of context. Very little research by a reader will quickly reveal the weaknesses that permeate the lead opinion.” Ouch! And we won’t even mention ¶94 fn. 34, which instructs the “lead opinion” on the need to actually consult a dictionary when tossing around definitions.

    If all this indicated was trouble in paradise, then it would be mere distraction. But it must be said that the majority’s spare, elegant analysis strikes just the right tone, making the necessary point efficiently and clearly: although sentencing may be a shared power (that is, shared among governmental branches), a statute simply may not compel a court to decide a case in a particular way; yet, the veto provision does just that, by allowing the prosecution to trench on judicial exercise of discretion. Indeed, the court says that it’s more than separation of powers at stake, it’s “the judiciary’s duty to administer justice impartially,” which would be impaired by unilateral, prosecutorial authority to decide whether a sentence may be adjusted, ¶106. In a sense, this is akin to the circuit court’s reservation of authority to determine dismissal of a pending prosecution at prosecutorial request, e.g., State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”). The prosecution can no more unilaterally determine the outcome of sentence adjustment then it can unilaterally terminate a pending case. Like all bureaucracies, the judiciary jealously guards its powers; and because it derives much of its power from the respect accorded its independence, it is likely to be especially vigilant against such encroachments. At least on this particular occasion it is, by a razor-thin one-vote margin

    Separation of Powers Doctrine - Shared Power Regarding Judicial Continuances
    State v. Charles Chvala, 2003 WI App 257, affirmed, 2005 WI 30
    For Chvala: Lawton & Cates
    ¶1. The criminal complaint in this action charges Charles Chvala, a senator in the Wisconsin Legislature, with extortion, misconduct in public office, and violations of campaign finance statutes. The issue on appeal is whether, as Chvala contends, Wis. Stat. § 757.13 (2001-02) prohibits the trial court from scheduling the trial in this case before the last general business floor session ends on March 11, 2004. Section 757.13 provides:
    Continuances; legislative privilege. When a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms.
    ¶2. We conclude that Wis. Stat. § 757.13 violates the doctrine of separation of powers if it is construed to mandate the court to grant Chvala's request that the trial not be scheduled until after March 11, 2004. We therefore construe the statute to direct courts to consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when such persons request a continuance or adjournment for that reason. Because the trial court correctly construed § 757.13 in denying Chvala's request that the trial be scheduled after March 11, 2004, we affirm the trial court's order.
    (The court summarizes the doctrine in these terms:
    ¶9. Whether a statute violates the doctrine of separation of powers also presents a question of law. Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691 (1998). The doctrine of separation of powers, while not explicitly set forth in the Wisconsin Constitution, is implicit in the division of governmental powers among the judicial, legislative, and executive branches. State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). "The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another." State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). Each branch has a core zone of exclusive authority into which the other branches may not intrude. Friedrich, 192 Wis. 2d at 13. In these core areas, any exercise of authority by another branch of government is unconstitutional. Barland, 216 Wis. 2d at 573.


    ¶14. In determining whether a statute unconstitutionally infringes upon judicial power, this court must first consider whether the subject matter of the statute in question falls within the power constitutionally granted to the legislature. Friedrich, 192 Wis. 2d at 14. If it does, we must then inquire whether the subject matter of the statute also falls within the judiciary's constitutional grant of power. Id. at 14-15.

    Applying the doctrine, the court is "persuaded for two reasons that the subject matter of Wis. Stat. § 757.13 falls within the constitutional powers of the legislature." ¶16. First, the legislature has authority to legislate with respect to its ability to carry out its own business (which means ensuring the availability of its own members); second it has authority to enact legislation for general welfare. ¶¶17-18. And, because the judiciary has inherent authority to manage its own docket, controlling continuances and adjournments is within the constitutional authority of the judiciary. ¶19. Finally, if § 757.13 were construed as mandating continuance/adjournment, a violation of separation of powers would result, because of the "direct and significant interference with the judiciary's ability to exercise its inherent authority to decide, on the specific facts before it, whether the interests of efficiency and fairness will or will not be best served by a continuance or adjournment." ¶21. Instead, the statute is construed "to direct the courts to consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when such person seeks a continuance or adjournment for that reason."