Criminal Process

Summer 2018
INTRODUCTION
I. Overview of the Criminal Justice System
1. Course is Arrest/Charge- Post-Conv.
2. Each of the fifty state governments retains the authority to enact its own criminal
code. (1) Federal Criminal Law (2) State Criminal Law (3) D.C. Criminal Law.
a. Congress has added to these fifty-state criminal justice processes its two distinct
federal criminal justice processes:

i.Separate criminal justice process for the District of Columbia (used to enforce a
separate criminal code that applies only in the District.

ii.It has created a criminal justice process for the enforcement of the general federal
criminal code, which applies throughout the country.

1. Utilizes national law enforcement agencies and relies on prosecutions brought in

the federal district courts.

3. Law of Criminal Procedure (Where are we going to get our law?)

a. Bill of Rights (U.S. Constitution)
i.Intended to limit Federal power.
ii.Post-Civil War-14th Amendment Due Process Clause
1. Only item in BOR not within State is right to Grand Jury (5th Amendment).

iii.1940(s)-Government went through the Bill of Rights

1. Very few cases go through the Federal Courts.
iv.Individuals-As protected under the Federal and State Constitution(s).
1. There can be greater protection under the State Constitution, but the State
cannot provide less protection than what is provided under the Federal Constitution. (ex.
A more liberal state may have additional protections for the individual).

b. Wisconsin Criminal Procedure Code:

i.Rules adopted by State Supreme Court
ii.WI Codes of Procedure
1. Last overhauled in the 1960(s), thus lots of court opinions and interpretations of
the law.
2. You must always look at the Rules of procedure and appellate application and
the subsequent interpretation of those Courts to determine how the law is being applied.
iii.WI. Supreme Court holds the supervisory/authoriary role over the lower courts (ex.
Wisconsin Supreme Court can direct Judges of the lower courts in application of a
specific code.)

4. Attributes of Criminal Justice System:

a. Humanized System: (Critical Final Term) Although it is aided by technology,
the police, prosecution, defense, and judge are all human beings prone to both pros and
cons as a results of this human actor element.
i.Pros=Exercise good judgement, discretion, compassion, and good arguments.
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ii.Cons=Humans make mistakes (which can have very significant consequences, Ex.
Someone is accidently released from jail, or you give a person a 2nd chance and they
take it and blow it.) Humans are also prone to bias, which is always a factor to be
cautious of in the criminal justice system.
b. Highly Discretionary: The Criminal Justice System is a highly discretionary
process.
i.Police have a lot of discretion in where they will focus their resources, such as areas
with serious crime.
ii.Prosecutor has massive discretionary power as far as what charges to bring, what bail
will be, and what to argue for.
iii.Defense has discretion as to how a case will be argued.
iv.Judge has discretion as to bail, sentencing, decisions made within the court.

c. Highly Balkanized System: (Critical Final Term)

i.No Central authority coordinating all parts of the system.
ii.The Criminal Justice System is highly balkanized, as it’s various components work
separately from one another.
iii.They are all working independently thus balkanized, as each part decides how and with
what resources they approach their goals/objectives (how the law will be focused, what
crimes will be targeted, and with what resources.)
iv.Local conditions can vary thus, application of the law can vary in how it’s applied.

v.The Components include:

1. Police: How law is enforced, varies a great deal (ex. Jurisdiction)
2. Prosecutor: Elected official, There is no 1-DA that directs all DA’s on how they
should function. No Super Prosecutor that tells all 70+ Das what to do.
5. Defense
a. Questions we will ask:
i.Who has the right to the assistance of counsel?
1. There was never any doubt that since the founding of our country, that a person
could be represented by privately retained counsel.
2. In colonial times, the English practice indicated that an individual who committed
a misdemeanor could have counsel, but for a Felony, you could not. (Yes, this is
correct, and weird.)
3. Right to counsel in federal court has been effective since the adoption of the 6th
amendment, but not applicable to the States until Powell v. Alabama-Scottsboro Boys
Case.
a. Powell v. Alabama-Scottsboro Boys Case.
b. US supreme Court concluded that under 14th amendment due process clause. In
1932, the US government had not made the 6th amendment applicable to the States.
(The only way the supreme court could address this is if there is a piece of the federal
constitution involved; here the due process clause in the 14th amendment was utilized.)
c. Due process guarantees a fair trial, which we ensure this is done with the 6th
amendment.
d. The two critical outcomes of Powell:
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i.In a state criminal case the D has a constitutional due process right to retain his own
attorney. (1932)
ii.D’s who are indigent have a due process right to counsel, to receive a fair opportunity at
trial.
4. Johnson v. Zerbst (1938)
a. It therefore “withholds from the federal courts, in all criminal proceedings, the
power and authority to deprive an accused of his life or liberty unless he has or waives
the assistance of counsel.
5. Warren Court Revolution: Went through the Bill of Rights and made the Rights
held therein applicable to the States.
6. Gideon v. Wainwright (1963)
Rule of Law: The Fourteenth Amendment incorporates the Sixth Amendment right to
counsel to the states. (FINAL CRITICAL)
Issue: Does the Fourteenth Amendment incorporate the Sixth Amendment right ot
counsel to the states? (YES)
a. Assistance of counsel for his defense if the D is indigent.
b. Only was speaking about felonies.
7. Argersinger v. Hamlin (1972)
Rule of Law: The Sixth Amendment right to counsel extends to D’s charged with any
offense that carries a possible penalty of imprisonment.
Issue: Does the Sixth Amendment right to counsel extend to a D charged with a petty
or misdemeanor offense? (YES).
a. If Prosecution intended for an outcome of jail then D was given counsel, if
prosecution did not then they D did not get counsel.
b. “Imprisonment in-fact” standard.

i.Two ways in which court can place someone on probation (probation

disposition):
a. Court can with-hold sentence and put person on probation.
i.D doesn’t know what sentence is, but if he blows probation he goes to jail for a pre-
determined time.
b. Impose a sentence on a D-stay the execution of the sentence, and place D
on probation.
i.D knows his sentence, and if revoked on probation he goes right to jail.
8. Ala. v. Shelton (2002)
Rule of Law: The right to counsel extends to D’s that have a suspended sentence
which could lead to imprisonment.
Issue: Is a D who receives a conditional or suspended sentence with the possibility of
jail time entitled to counsel under the sixth amendment (YES).
a. Shelton didn’t have a lawyer and was found guilty of a crime and sentenced for
30-days, judge stayed, and placed on probation for 2-years, he messed it up, and
argued that he didn’t have a lawyer in the first trial. The Supreme Court Said it was a
sentence that could not be enforced.
b. The substantial majority of States do what Wisconsin does.
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c. Today in Wisconsin, all persons facing a felony have a right to appointed
counsel, if facing a misdemeanor and it has possible jail time (most do) Person is
afforded the right to counsel if they are indigent.

i.When does that right attach?

1. Commencement of the Adversarial Proceedings
a. Starts when Prosecutor Charges Defendant: (not at the point of arrest).
2. When is D afforded counsel?: D is afforded counsel at all critical stages in the
process, critical stages are defined as a moment where defenses could be irretrievably
missed or lost, mount a meaningful defense, or significant consequences for the
accused. (He does not believe the initial appearance is a critical stage).
a. Preliminary Hearing is deemed a critical stage therefore D needs counsel
because what happens at the hearing can have consequences with what happens at
trial.
3.
a. If jurisdiction gives indigent D right to counsel and there is a right to appeal a
conviction, the jurisdiction Not under the 6th Amendment, grants the indigent D right to
counsel on appeal.
b. Due Process and equal protection of the law (Right of appointed counsel to
appeal as a matter of right, NOT THE 6th Amendment.)
ii.When does it end?
1. Ends at sentencing and/or post-conviction motions.
iii.If a person has a right to the assistance of counsel, can D waive that right and
represent themselves.
1. This issue comes up under two different circumstances:
a. D wants to plead guilty and move on
b. D wants to waive counsel and have a trial and represent themselves at trial.
iv.If there is going to be a defense attorney in the case, how are we going to get that
attorney into the case, and how does it happen that sometimes a lawyer leaves a
case before its over?
1. One way a defendant brings in a lawyer is through a retainer.
2. Another is by appointment
a. Once you are D’s lawyer, you are until the court relieves you. The judge decides
if you can leave or not; OR if D wants to relieve you or fire you, the judge again has
discretion to say Yes or No. You are council of status until/unless judge relieves you!
3. In retained counsel circumstances: Ordinarily unless its in the 11th hour (ex. On
the verge of trial), a judge will likely allow for a change.
a. 11th hour requests could inconvenience the parties and the court, is the reason
for the request legitimate.
b. Adjournment can be a result of such requests, delaying the trial.
4. In Appointed Counsel circumstances: If it not in the 11th hour, it still may be likely
the court will approve a change. (ex. A cause of this could be a breakdown in
communication between D and appointed counsel.)
a. 11th hour requests could inconvenience the parties and the court, is the reason
for the request legitimate. Adjournments are likely to result, delaying the trial.
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b. A disagreement between lawyer and client about strategy is not a reason to
relieve appointed counsel in a case.
c. In either event the court has to be careful in making a good record because if the
court does not grant a change of request, it becomes a 6th amendment question.
d. WI is governed by the administrative rule, which allows D using the Public
defender 1-change.-unless ordered by the court.
v.Assuming D wants and has a lawyer, what do we expect as by way of
performance by the lawyer in the Defense of a party.
vi.What do we expect from a defense attorney in terms of loyalty to their client
(business of conflicts).
2. Courts: Each judge has their own judicial philosophy (as long as each is
following the law you could get two different decisions, which are both correct. (even in
the same court-house.)
3. Corrections: 1-Probation officer may revoke where another may not.
9. Over-Worked System: Massive caseloads, large Court dockets.
a. This can result in mistakes
b. When you have too much work and the decisions are critical mistakes can be
disastrous (sometimes life or death consequences)
c. Can include wrongful convictions (deprivation of liberty is incredibly serious
as well.
10. Very Expensive system
a. Because we spend a lot of money and still have a crime problem are we
spending wisely? (spend a lot on corrections as well, but cheaper to enforce a person
outside of corrections system.)
b. Criminal justice System is publicly scrutinized.
c. People demand changes (it is a very visible system, everything is captured on
video, more visibility on police than ever before.)
11. CJS often blamed for the crime problem.
a. Root problems cannot be fixed by CJS (What produces crime? Economic
poverty, quality of education, gang affiliation, lack of employment) **CJS can’t fix these
problems, yet these individuals end up in the CJS.
b. CJS can include rehabilitation, but cannot fix the root problems that exist. (NOTE
THE ATTRIBUTES OF THE SYSTEM FOR FINAL)
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II. Habeas Corpus: Writ commanding a detaining official to prove lawful authority to
detain a person.
III. The Institutions of the Justice System
A. Police
B. Courts:
1. Federal District Judges Federal Substantive Law Cases are brought in the district
in which it the offense was committed. Article 3-Judges, Assisted by United States
Magistrate Judges-appointed to serve a term of 8 years, and can complete a number of
tasks to support the Federal judges. Magistrate Judges issue, arrest/search warrants,
preside at the hearing when the D has first been brought in after the have been
charged, make the determination upon D’s bail. In the Federal system the magistrate
judge oversees the grand jury. In The federal system, the magistrate judge listens to
motions and gives guidance to the district judge.
2. State Court Judges (every 6-years they face an election). Circuit Court: (In
Wisconsin the Circuit Court is a court of general jurisdiction, 1-circuit judge
in every county in the State (50-judges in Milwaukee), they have jurisdiction to hear
criminal cases. Circuit Judges are assisted by Court Commissioners (just like the
magistrates). Circuit Judges preside over the riverside review, they serve at the
pleasure of the chief judge of the circuit, and aid in saving time dealing with the matters
that occur at the very start of the process.
C. Prosecution Services:
1. Federal Court: Front line prosecutors are members of the US Attorney’s office.
(US-ATTORNEY)
a. They are part of the Department of Justice. 1870 when department of justice was
created.
b. Department of Justice is divided into divisions, but the regular run of the mill stuff
is handled by the US attorney. ex. Anti-trust division.
2. Divided into 94-Federal Districts, each has 1-US Attorney and a staff (WI has two
districts; Eastern District (Milwaukee), Western District (Madison)
a. The US Attorney is appointed by the President, and at the end of the Presidential
term, typically there is a fresh set of attorneys throughout the country.
3. State Court: Prosecutor is called different things in different states. Typically, the
district attorney is elected in each county (ex. WI has 72 counties).
a. Most states elect their DA’s. Because the DA is local and has to face election, it
ensures that the DA is serving the values of the people in which they serve. The people
are a ‘check’ on the power of the DA.

b. In WI we also have an attorney general who heads the Wisconsin department of

justice but does not have overarching power of the local DA’s.
i.They are the attorneys of the State, but only provide some services in criminal law.
ii.Can initiate criminal process of only specifically-defined violations.
iii.Lawyers in the DOJ are at the request of the DA to aid in helping with a case. (His
example of student who ran for DA fresh out of law school and won, and then needed
help from the DOJ to handle a murder trial.)
iv.Local DA can call DOJ for advice, and DOJ provides training.
v.DOJ handles felony appeals.
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1. Misdemeanor appeals are handled by local DA.
4. Municipal Courts: Municipal Prosecutors, Court this heard by City attorneys.
D. Defense Services:
E. Corner Stone Objectives:

III. §1.4 The Cornerstone Objectives of the Process (pg. 24)

1. Implementing the Enforcement of the Substantive Law:
a. Criminal Law is not self-executing. If there is a violation of the law, there must be
a mechanism to identify those who are a suspect in the commission of a crime, and we
also need a process to determine if the person did in fact infringe upon the law, and how
those individuals should be handled.
b. This is a universal starting point mandates a process that promotes effective
enforcement of the substantive criminal law-that is, a process through which the
government can detect, apprehend, prosecute, convict, and impose punishment upon
those who have violated the prohibitions of the substantive criminal law.

2. Discovery of the Truth:

a. Truth Finding Two Elements:

1) Uncovering of the Crime

2) Discovering who did/who did not commit the crime.
i. Truth Deflecting Device: (Ex. D is a major heroin dealer, and the police searched his
house and found heroin, and now the dealer was charged with possession with intent to
sell, but the search was in violation of the 4th amendment. D-gets attorney, who sees
that the police did not have a proper warrant for the search, and in the pretrial phase,
the judge says it was a blatant violation of the 4th amendment, thus the heroin evidence
would be suppressed, thus gutting the prosecutions case (Using the exclusionary rule)

Exclusionary rule=Court created rule-Created by United States Supreme

Court, If Police violate the constitution in obtaining evidence, that evidence cannot be
used in the prosecution’s case in chief (the evidence is suppressed, as is any testimony
about its acquisition.) There is a higher value in being free from unreasonable searches
and seizures, than the police executing unreasonable searches and seizures.

c. Adversary Adjudication: Unlike the European court’s the judge plays a far more
neutral role in the American System. In the American system we have prosecutors and
defense attorneys as advocates to protect the interests of the State and the D. We
believe this will derive a more truthful result.

d. Accusatorial burdens: The government has the greatest burden (Beyond a

reasonable doubt). We cloak the D with a presumption of innocence, The D is
presumed innocent until the government can prove the D guilty beyond a reasonable
doubt.
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e. Minimizing Erroneous Convictions: Goal to minimize the risk of erroneous
convictions is served by various legal standards that include standards that relate to find
finding accuracy, such as the prosecution required to turn over exculpatory evidence.

f. Minimizing the Burdens of Accusation and litigation: The right to a speedy trial.
Bail.

g. Providing Lay Participation: Venue (Tried in the community where the individual
committed the alleged crime), double jeopardy protections, lay-participation (cases tried
before the jury).

h. Respecting the Dignity of the Individual: Requiring that CJ practices respect

human dignity is justified on several grounds: 1) it is argued that all persons,
including criminals, are entitled to governmental respect for their dignity as an inherent
element of the social compact which provides the foundation for a democratic society.

2) In light of the combination of the severity of the sanctions administered by the

criminal law, the status-degrading potency of criminal proceedings and the community
outrage that temps official to solve crime at all costs, the preservation of human dignity
in the administration of the CJ law is characterized as the Sine qua non for maintain a
society that respects individual liberty.

3) Ensuring respect for individual dignity is viewed as essential in obtaining the public
acceptance of the process and in the encouragement of citizen cooperation in the
enforcement of the law.

i. Maintaining the Appearance of Fairness: The criminal justice court system is open
to the public, media is allowed. The idea is the more open we are about our business
the fairer the results.

j. Achieving Equality in the Application of the Process: There exists racial bias
issues, and a high level of vigilance upon the police and the criminal justice system is
now more present than ever before.

k. Addressing the Concerns of the Victim: Victim bill of rights is a more modern
ideology in the criminal justice system. Our system ‘woke up’ and realized that victims
should be treated far better, concerned the victim is made whole economically (IN WI
judge must order restitution), protecting the victim, ensuring victim has an opportunity to
participate in judicial proceedings. (Victim’s Rights).

1. Sixth Amendment Right to the Assistance of Counsel

Text § 3.1 (a)

Sixth-Amendment Provides “In all criminal prosecutions, the accused shall enjoy the
right to have the assistance of counsel for his defense. That this provision guaranteed a
right to representation by privately retained counsel was obvious from the outset.
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The Court eventually came to interpret the 6th Amendment as granting a right to
representation by counsel to all D’s with the state required to provide counsel where the
D was indigent. SCOTUS, precedent also indicates that the proceedings encompassed
by the 6th amendment right to counsel are precisely the same whether the issue is
allowing representation by retained counsel or requiring the state to appoint counsel for
the indigent.
Text § 3.2 (a) and (b)
2. Waiver of Right to Counsel; The Right to Proceed Pro Se
a) Faretta v. California –D wanted to Represent himself, court initially said yes, but
after further questioning, the court said no. The man was found guilty and sentenced.
The SCOTUS over-turned.-Court indicates the literal text of the constitution gives D the
right to assistance of counsel, and the history (Judiciary Act of 1789) signed by
President Washington provided that ‘in all courts of the US, parties may plead and
manage their own causes personally or by the assistance of counsel.’ (Footnote: A
judge may terminate the pro se representation if the D engages in serious disruptive
misconduct. A D who elects to defend himself cannot argue ineffective assistance of
counsel.)
b) Rule of Law: The right to defend is personal and defendants have the
constitutional right to represent themselves at trial if they so choose.

Reading Assignment: Text § 3.3 (a), (b), (c), and (d)

§3.3 (a): Waiver of Right to Counsel: Waiver of this right can occur at each of the
various stages in the Criminal Justice Process.
Principles that apply to all waivers of the right to counsel in order to be valid MUST be
made: 1) Knowingly 2) Intelligently and 3) Voluntarily.
There must be “an intentional relinquishment or abandonment of a known right or
privilege, and it may not be the product of governmental tactics that amount to coercion.

The Supreme Court has directed the lower courts to “indulge in every reasonable
presumption against waiver”, thus a waiver is not to be presumed from a “silent record”
the record must show that the D was informed specifically of his right to the assistance
of appointed or retained counsel and that D CLEARLY rejected it. “No amount of
circumstantial evidence that D may have been aware of his right will suffice to stand” in
place of a specific notification of rights.

A waiver at one stage does not necessarily constitute a waiver for all stages.
(ex. D who waves at preliminary hearing cannot thereby be assumed to have waived for
subsequent proceedings before the trial court. (standards of whether the court asks D if
he wishes to continue with the waiver varies).

§3.3 (b): Waiver at Trial: The Necessary Inquiry: Even if D states unequivocally that
he wishes to proceed without counsel, that is not enough to establish that this waiver
was made “intelligently” as well as “knowingly”. (It could be enough for a waiver in the
course of a police investigatory procedure, but not in establishing an acceptable waiver
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before the trail court, which requires much more. On a direct appeal from a conviction,
the prosecution ordinarily must be able to point to a trial court inquiry establishing the
necessary level of understanding by the D.

Habeas Corpus: When a waiver is challenged on collateral attack, “It is the D’s
burden to prove that he did not competently and intelligently waive his right to the
assistance of counsel.

The Supreme Court has refused to “prescribe any formula or script to be read to
a defendant,” or questions to be directed to a defendant, to ensure that the waiver of
counsel is intelligent. Noting, “the information a defendant must possess in order to
make an intelligent election will depend on a range case-specific factors, including: D’s
Education or sophistication, the complex or easily grasped nature of the charge, and the
stage of the proceeding.”

Stage of the proceeding: The Supreme Court stressed the need for a “pragmatic
approach to the waiver question. One needs to ask “what purposes a lawyer can serve
at the particular stage to the proceedings in question, and what assistance he could
provide to an accused at that stage, in order to determine the type of warnings and
procedures that should be required before a waiver of that right will be recognized.
(Tovar).

Iowa v. Tovar, Rule of Law: The Sixth Amendment does not require specific warnings
regarding the usefulness of counsel before a pro se defendant pleads guilty. Issue:
Does the sixth Amendment require specific warnings regarding the usefulness of
counsel before a pro se defendant pleads guilty? (No)

The court requires the most extensive inquiry when the D desires to waive
counsel and procced to trial representing himself.

The Trial court must warn the defendant of the specific “dangers and
disadvantages of self-representation, so that the record establishes D’s awareness of
the general skill that counsel could have brought to the litigation process (Faretta v.
Cal).

Tovar differed as the waiver of counsel was inadequate under the

Sixth Amendment, when entering the plea of guilty, because the trial court had:

1) Failed to advise the D that ‘waiving the assistance of counsel in

deciding whether to plead guilty entails the risk that a viable defense will be over looked

2) failed to ‘admonish’ the D that ‘by waiving his right to an attorney

he will lose the opportunity to obtain an independent opinion whether, under the facts
and applicable law, it is wise to plead guilty.
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The Supreme Court responded in their unanimous holding
that “Neither warning is mandated by the 6th Amendment.” The constitutional
requirement is satisfied when the trial court informs the accused of the nature of the
charges against him, of his right to be counseled regarding his plea, and of the range of
allowable punishments attendant upon the entry of a guilty plea.”

Various lower courts have held that it is sufficient that the D be aware of the general
character of the offense charged, which does not require knowledge of all of its
elements, and the general range of the punishment. However, as Tovar noted, States
are free to require advisements that go beyond the constitutional minimum, and as to
these elements, most jurisdictions require more advice as part of the guilty plea
procedure.

§3.3 (c): Competency: Godinez v. Moran-Whether a court was required constitutionally

to conduct an inquiry into defendant’s competency where there was some question
about his mental state, but he had just been held competent to stand trial.

The Court Held: The standard for competency to stand trial requires that the D have a
‘sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding’ and a ‘rational as well as factual understanding of the proceeding
against D.’

Further reasoning, “No greater mental capacity is required constitutionally for a waiver
of counsel, as the right of the D to proceed without counsel does not require that he
have “Greater powers of comprehension, judgment and reason than would be
necessary to stand trial with an attorney.”

Godinez cautions, a prior determination that a D is competent to stand trial does

not mean that D has the necessary understanding of the particular decision to waive
counsel (or to plead guilty).

If there is some serious concern that D is incompetent, the judge must

have the D evaluated. If it is determined the D is incompetent, the judge will put the D in
a state mental facility until D is restored to competency, and then at that point they face
trial. *If D is not restored to competency the case remains indefinitely on-hold.

§3.3 (d): Forfeiture of the Right: “Waiver or Waiver by Conduct of the Right to
counsel” D was advised of their right to retain counsel, given ample time to obtain
counsel prior to the scheduled trial date, and nevertheless appeared in court on that
date without counsel (without reasonable excuse for having failed to obtain counsel.)

U.S. v. Olano, “A forfeiture rests on the failure to make a timely assertion of a

right rather than an intentional abandonment of the right.”
The states interest in maintaining an orderly trial schedule and the D’s
negligence, indifference, or possibly purposeful delaying tactic, combined to justify a
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forfeiture of D’s right to counsel in much the same way that a D’s physical assault upon
his counsel can result in D’s loss of the right to representation by counsel.
Some courts have refused to adopt such an analysis insisting that here be
at least some evidence of an intentional relinquishment in the D’s failure to retain
counsel prior to the scheduled trial date.

Reading Assignment Text § 3.5 (a), (b), (c), (d), (e), (f),
and (g)
§ 3.5 (a): The Faretta Ruling: Faretta v. Cal- Divided Court recognized a 6th
amendment right of the D to proceed ‘Pro Se’ (i.e., to represent themselves).
In contrast to Faretta, McKaskle v. Wiggins noted, “Since the right of self-
representation is a right that when exercised usually increases the likelihood of an
unfavorable trial out come to the D, its denial is not amenable to harmless error
analysis. The right is either respected or denied; its deprivation cannot be harmless.

§3.5 (b): Notification: Justice Blackmun raised the question “ whether every D must be
advised of his right to proceed pro-se” Lower courts have uniformly assumed there is no
constitutional requirement to inform the D of his constitutional right to proceed pro se in
the absence of a clear indication on the D’s part that they want to proceed prose.

This position is based in part on concern that notification of the right to proceed
pro se might undermine the ‘overriding constitutional policy’ favoring the provision of
counsel.

§3.5 (c): Requisite Warnings and Judicial Inquiry: Before permitting a D to represent
himself, must determine that they knowingly and intelligently are relinquishing the
benefits of representation by counsel.

Appellate opinions have suggested that D should be informed at least of

the following:

1) “Presenting a defense is not a simple matter of telling one’s story,” but

requires adherence to various “Technical rules” governing the conduct of a trial
2) That a lawyer has substantial experience and training in trial procedure and
that the prosecution will be represented by an experienced attorney
3) That a person unfamiliar with legal procedures may inadvertently give the
prosecutor a windfall by failing to make objections to inadmissible evidence, may fail to
make effective use of such rights as the voir dire of jurors, and may make tactical
decisions that produce unintended consequences.
4) That there may be possible defenses and other rights of which counsel would
be aware and if those are not timely asserted, they may be lost permanently.
5) that a D proceeding pro se will not be able to later complain of ineffective
counsel.
6) that the effectiveness of his defense may well be diminished by his dual role
as attorney and accused.
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§3.5 (d): Grounds for Denial: Faretta pointed to three possible grounds for denying
self-representation, notwithstanding an unequivocal request by the D, which included:
1) The request be made well before the date of trial. (Time)
2) The Judge may terminate the D’s self-representation including before seeking
to obtain self-representation may in itself be disruptive and thereby justify denying D’s
pro se motion. (Misconduct-Judge takes the right from D)
3) The trial court can refuse to permit self-representation when, the defendant is
unable to reach a level of appreciation for the consequences of the waiver needed for a
knowing and intelligent execution of the waiver (Faretta makes it clear that the d does
not need legal expertise nor unusual intelligence to meet its standard of awareness of
the dangers and disadvantages of self-representation.) (Not knowing or intelligent)

Indiana. v. Edwards: Recognized a 4th ground for denial, which related to a D’s mental
illness. The court held that a State had the authority to allow its trial courts to deny self-
representation to mental ill D’s-even where those D’s: 1) were mentally competent to
stand trial, and 2) had the understanding of the disadvantages of self-representation
required by Faretta-based on the trial courts proper finding that the D suffered from
severe mental illness to the point where they are not competent to conduct trial
proceedings by themselves.

Rule of Law: A state court may require a D to be represented by a lawyer if he does not
have the ability to conduct the trial himself due to severe mental illness, even if the D is
competent to stand trial under the Dusky standard.
Issues: May a state court require a D to be represented by a lawyer at trial if the
defendant meets the Dusky standard for mental competence to stand trial? (YES)

§3.5 (e) Subsequent Challenge to Ineffective Representation.

“Any D who elects to represent himself cannot thereafter complain that the quality of his
own defense amounted to the denial of ‘effective assistance of counsel.”

§3.5 (f) Standby Counsel: Faretta noted that “a state may-even over objection by the
accused-appoint a ‘standby counsel’ to aid the accused if and when the accused
requests help, and to be available to represent the accused in the even that termination
of the defendant’s self-representation is necessary.

(WI-Says ‘stand-by’ counsel is to aid the court in preventing the trial from becoming
derailed.)

D-going pro-se is trying to: 1) Control the defense of their own case and 2) Create the
impression before the jury of going it alone.
-So as standby counsel you must consider the two factors noted below
- When the Jury is present stand-by counsel needs to be careful about doing or
saying anything, when the Jury is not present it is okay to be more direct with the D.
 Criminal Process
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Two Prong Test To determine if Standby Counsel Participation violates D’s

Pro Se representation:

1) Did Standby counsel’s participation over defendant’s objection effectively allow

counsel to make or substantially interfere with any significant tactical decisions, or to
control the questioning of witnesses, or to speak instead of the defendant on any matter
of importance?

2) Even if the D was able to present his case in his own way, did the additional
unsolicited participation of counsel “destroy the jury’s perception that the D is
representing himself?

§3.5 (g) Hybrid (mixed) Representation: D and counsel act, in effect, as co-counsel,
each speaking during different phases of the trial. Trial courts may permit hybrid
representation, at its discretion, as a “matter of grace.” The D does not have a right to
this hybrid (mixed) approach. (Moore v. WI said D with counsel does not get both pro-se
and counsel.)

Indiana v. Edwards-D has mental illness, and fit to stand trial, but not to represent
himself pro-se. Supreme Court notes elements in which the state can remove this right
from a D. In order to hold a D back from representing himself, there must be a finding of
some mental disease or defect.

Competency issue in WI Supreme Court v. 7th Circuit:

WI-7th Circuit, to represent oneself is to have a mental disease or defect.

Supreme Court for years says that no, you need to look at education, language
ect…See Waiver in textbook).

Wis. S. Ct. tells the Circuit Courts what they must follow.-(So you follow the
waiver document in text) Problem exists when this is applied D files in Federal
under appeal of Habeus Corpus.

US District tells the 7th Circuit what they must follow-(So you look at mental
disease or defect not the other factors noted in waiver.)

***Circuit Court Form (Textbook): “Waiver of Right to Attorney”

3. Provision of Counsel for the Accused, Substitution of Counsel and Forfeiture of
Counsel
Reading Assignment Text Text § 3.2 (c)
1. §3.2(c): Delivery Systems: The administrative system that is used to provide
appointed counsel to indigent defendants.
a. Varies from state to state, and often county to county within a state.
 Criminal Process
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b. The three most common delivery systems are:
1. Automatic representation by a public defender agency
2. Individual appointments of private attorneys
3. A “contract attorney system,” which provides representation through attorneys
furnished by an organization that has contracted with the local government to provide
representation for a particular portion of indigent defense cases.

Reading Assignment Text § 3.4 (a), (b), (c), and (d)

§3.4 Choice of Counsel
1. § 3.4 (a): Judicial Discretion in Selecting Appointed Counsel
a. Courts hold that the 6th amendment right to counsel of choice applies only to
retained counsel (including those willing to represent a defendant pro bono) Otherwise,
the federal constitution only guarantees representation by competent counsel, and
allows the state to place administrative concerns over the D’s preference as to state-
funded counsel.
2. § 3.4 (b): Replacement of Appointed Counsel
a. Because the indigent defendant has no right to appointed counsel of choice, he
also has no right to replace appointed counsel with another even if that can be done
without causing delay to the proceedings.
b. The D has no right to substitution only upon establishing “good cause, such as a
conflict of interest, a complete breakdown of communication, or an irreconcilable conflict
which (could) lead to an apparently unjust verdict. “The mere loss of confidence in his
appointed counsel does not establish “good cause.” D must have some well-founded
reason for believing that the appointed attorney cannot or will not competently represent
him. (courts warn that D cannot manufacture good cause by abusive and uncooperative
behavior.
3. § 3.4 (c): Choice of Retained Counsel:
a.
4. § 3.4 (d): The Pro Se Alternative

United States v. Gonzalez-Lopez- D-wanted to have a specific attorney, Admission

Pro-Hac-Vice=A lawyer is admitted to a district ‘just for this case’. The court said No, D
was then represented by someone else, there was a trial and D was convicted. D
appealed and the court said No, D was given adequate counsel. Supreme Court of US
said the decision to not allow Pro-Hac-Vice, was erroneous, the real issue is whether or
not D being forced to go through trial with counsel he did not want was unconstitutional.
The right to counsel of choice was deprived, which is structural error.

Rule of Law: If a trial court errs by denying a defendant’s choice of counsel, the court
must reverse the D’s conviction without harmless error analysis.

Structural error: 1. Complete denial to Right to counsel 2. The exclusion of members

of the D’s race in a grand Jury 3. Deny D’s right to self representation 4. Giving jury
defective instruction as to what is meant by ‘reasonable doubt’ 5. Denial of D’s right to
be represented by a lawyer of his choosing (when D is paying for counsel), not many of
 Criminal Process
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these have been identified, but when you have these reversal is automatic, and we do
not force D to prove way in which they have been prejudiced by the error. These errors
seriously impact the integrity of the system.

In WI there is no right as to advise D’s right to self-representation.

After the waiver of right to counsel, to reaffirm is at the court’s discretion,
considering the timing, the practical concerns of managing it’s docket and managing the
prudent administration of justice, avoiding a mere tactic to delay the trial. (when you
have a last minute/11th hour switch by D who now wants a lawyer to represent
him, as a tactic to delay trial, conviction, and sentencing. -These request are
frowned upon, but courts must be careful because this could be an issue on
appeal.)

Federal System.

Federal defender organization-Some districts have federal defenders who will defend
the indigent individuals. These are government employees who are paid substantially
more than their State counterparts.

Community defender organizations-This is what we have. Nonprofits that are funded

through the judiciary and are not government employees.
81-community 91/94 are served by a form of a community defender
organizations.

Private Lawyer Paid-Paid at a predetermined rate.

State

State Public Defender: WI- (in other jurisdiction it might be a county public defender,
paid for by the county) (Some jurisdictions have their defense for the indigent done by a
private organization).

Indigent: What the State defines as indigency is determined by use state wide by
noting the line of Indigency, and if you are below that line you meet the requirements for
appointed counsel.

State v. Suriano- D forfeited his right to counsel after threatening, frustrating the
process, and caused counsel to fear him. -Circuit Court Held that he was manipulating
and the case to delay the trial. (Forfeiture Case)

Waiver: In a waiver situation, the circuit court must hold a hearing and engage in a
colloquy with the D to ensure the D 1) Made a deliberate choice to proceed without
counsel, 2) was aware of the difficulties and disadvantages of self-representation, 3)
was aware of the seriousness of the charge or charges against him, and 4) was aware
of the general range of penalties that could have been imposed on him. ***The circuit
court must also determine whether a defendant is competent to represent himself.
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Forfeiture: requires very different procedures covering a variety of scenarios where a

D’s conduct results in the involuntary loss of counsel by operation of law. **The
triggering event for forfeiture is when the court becomes convinced that the orderly and
efficient progression of the case is being frustrated. Scenarios trigging forfeiture include
1) a D’s manipulative and disruptive behavior 2) withdrawal of multiple attorneys based
on a D’s consistent refusal to cooperate with any of them and constant complaints about
the attorneys’ performance 3) a defendant whose attitude is defiant and whose choices
repeatedly result in delay, interfering with the process of justice, and 4) physical or
verbal abuse directed at counsel or the court.

Judge’s should follow the warnings and procedures outlined in cummings in

giving warnings and proceeudres in forfeiture of counsel cases:

4. “Effective” Assistance of Counsel

Reading Assignment Text 3.6,7,8, and 10.
§ 3.6 (a) Strategic vs. Personal Decisions:

A D who chooses to be represented by counsel thereby relinquishes to counsel the

authority to make various decisions related to the defense presentation.

Client -attorney disagreement on a strategic decision does not constitute the “just
cause” needed to mandate replacement of counsel. The indigent defendant will not be
granted new state-funded counsel.

Supreme Court has stated, that it is for the D to decide whether to take each of the
following steps: Plead guilty or take action tantamount to entering a guilty plea; waive
the right to jury trial; waive his right to be present at trial, waive his right to be present at
trial; testify on his own behalf; or forego an appeal.

§ 3.6 (b) Balancing Interests

Gonzales v. US.
§ 3.7 The Right to Effective Assistance of Counsel: Guiding Principles:
§ 3.7 (a) The prerequisite of a Constitutional Right to Counsel
§ 3.7 (b) Retained v. Appointed Counsel
§ 3.7 (c) The Adversary System Touchstone
§ 3.7 (d) Per Se v. Actual Ineffectiveness
§ 3.8 (a) Ineffective Assistance Claims Based Upon State Interference and Other
Extrinsic Factors-Restrictions upon Counsel’s Assistance
§ 3.10 Ineffective Assistance Claims Based upon Lawyer Incompetence:
§ 3.10 (a) Guiding Considerations
§ 3.10 (b) The Competency Standard
§ 3.10 (c) Applying The Reasonableness Standard
§ 3.10(d) The Prejudice Element
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Strickland v. Washington (Final Critical)-2 prong test-Determines the proper
standards for judging a criminal D’s contention that the Constitution requires a
conviction or death sentence to be set aside because of counsel’s assistance at the trial
or sentencing was ineffective. -During a 10 day period D committed 3 groups of crimes
including three capital murders, torture, kidnapping and attempted murders.-Against his
lawyer’s advice, he pled guilty to all of the charges. Also, against counsel’s advice he
waived his right to an advisory jury at his capital sentencing hearing-The court
sentenced him to death on each of the murder courts.-The Florida Supreme Court
upheld the convictions and sentences.-The federal district court denied relief-The court
of appeals remanded the matter to the district court for purposes of applying a new
framework it had developed for analyzing claims of ineffective assistance of counsel.
Holding: The appropriate test hast roots in test for materiality of exculpatory information
not disclosed to the D by the P, and in the Test for materiality of testimony made
available to the D by the government deportation of a witness.

The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having proceed a just result.

Two Components required to reverse a conviction or death sentence (After the

fact/looking back in time) (Final Critical):
1) The D must show that counsel’s performance was deficient, And (D must
show both prongs (1) Deficient in performance in both conduct, and reasonableness.
(Conduct=factual matter: ‘what the counsel did or didn’t do).

This requires showing that counsel made errors so serious that counsel was not
functioning as the “Counsel” guaranteed the D by the 6th amendment.

In WI we conduct a Machner trial, where the former lawyer has a right to

testify, and to explain/defend his actions in this case, and if he has to disclose
information, the former client cannot invoke the attorney client privilege if it is relevant to
the matter of deficiency; whatever is disclosed must be relevant to the issue of
deficiency.

Judge must determine as a matter of Fact what the lawyer did or Did not Do, and
whether that performance was reasonable given all the circumstances present in this
case.
Judge can use the ABA norms of practice standards as a guideline to determine
if counsel had performed on par with those standards or not. (Only guides, not law,
Court recommends following these.) ABA Standards exist for: Evidence, entry of guilty
pleas, joinder/severance, bail/pretrial release.

2) D must show that the deficient performance Prejudice the defense. This
requires showing that counsel’s errors were so serious as to deprive the D of a fair trial.
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**Unless D makes both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that renders the result
unreliable. The proper standard for attorney performance is that of a reasonably
effective assistance.

Reasonably Effective Assistance (REA) Under prevailing professional norms

=proper standard for attorney performance. (Final Critical)The 6th amendment relies on
the legal profession’s maintenance of standards sufficient to justify the law’s
presumption that counsel will fulfill the role in the adversary process that the
Amendment. (ABA)

Prejudice: is presumed only if the D demonstrates that counsel “actively represented

conflicting interests’ and that ‘an actual conflict of interest adversely affected his
lawyer’s performance. Supreme Court found only 3 settings which such a presumptive
approach was justified: 1) Counsel was either totally absent or prevented from assisting
the accused during a critical stage of the proceedings 2) counsel was physically
present, but completely absent in effort 3) occasions when although counsel is available
to assist the accused during trial, the likelihood that any lawyer, even a fully competent
one, could provide effective assistance is so small that a presumption of prejudice is
appropriate without inquiring into the actual conduct of the trial (Powell v.
Alabama.)Actual or constructive denial of the assistance of counsel altogether is legally
presumed to result prejudice.
Does the judge lack confidence in the outcome of the trial?

Rule of Law: To establish the ineffective assistance of counsel, a convicted defendant

must show that his counsel’s performance was deficient because the lawyer did not act
as a reasonably competent attorney, and that he was prejudiced by the deficiency
because there is a reasonable probability that, but for his attorney’s unprofessional
errors, the result of the proceeding would have been different.

Issue: Has a defendant suffered from the ineffective assistance of counsel where the
attorney’s conduct has fallen below the objective standard of reasonableness and the
defendant has been prejudiced by this conduct? (Yes)

Selected Excerpts from ABA Standards for Criminal Justice – Defense Function

1. Decisions to be made by a competent D:

a. What pleas to enter
b. Whether to accept a plea offer
c. Whether to waive a jury trial (occurs in two ways)
i.When D pleads guilty (needs consent of state and approval of the court)
ii.Take the case to trial with judge alone.
1. There is a technical/ legal issue
2. The jury will hate D for the acts accused
d. Whether to testify in his or her own behalf:
i.Very tricky, and D requires D/c advice, but ultimately D’s decision.
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e. Whether to Appeal
f. Whether to speak at sentencing
i.D has a RIGHT OF ALLOCUTION to speak at sentencing.
ii.Never allow client to speak at sentencing unless you’ve worked with them prior. D/c
needs to prepare D for what is going to be said and rehearsed prior.
g. Defendant decides the objectives of their own case.
i.Not allowing D’s autonomy, D does not have to prove prejudice because this is
structural error therefore the case must be reversed.
ii.McCoy v. Louisiana- D was charged with 3 murders, wanted to use an alibi defense in
his death penalty case, attorney said no, and went ahead with mental-defect defense
and D was found guilty.
1. The violation of McCoy’s protected autonomy right was complete when the court
allowed counsel to usurp control of an issue within McCoy’s sole prerogative.
2. Violation of a D’s 6th amendment-secured autonomy has been ranked “structural
error” when present such an error is not subject to harmless-error review.
a. An error is structural if it is not designed to protect d from erroneous conviction,
but instead protects some other interest, such as the fundamental legal principle that a
D must be allowed to make his own choices about the proper way to protect his own
liberty.
2. Decisions to be made by a D/c:
a. Strategic and tactical decisions
i.If a disagreement between D and D/c occurs. D/c should make a record of the
circumstances, counsel’s advice and reasons, and the conclusion reached. The record
should be made in a manner which protects the confidentiality of the lawyer-client
relationship.

State v. Pitsch-D was convicted of stealing jewelry from victim. Judgement held was on
conviction of theft $2100 in jewelry (girlfriend testified, he testified, pawn broker testified,
acquaintance, and victim), and order denying post-conviction relief.- D-took the stand
against D/c’s advice, and was asked about his past criminal record-The D gave an un-
truthful answer, as a result D gave a wrong answer, which allowed the Prosecution to
go through the D’s past conviction record, thus showing D has prior attempts to steal
(similar to crime he was currently facing).-D/c did not obtain the D’s record.-D appealed
arguing ineffective assistance of counsel-pointing to 7 specific deficiencies, including,
D/c did not file demand for discovery, D/c did not avail itself to ‘Open file policy’, Before
a witness can be impeached with their prior record, a hearing has to occur outside of
the presence of the jury, where the judge selects what will/will not be let in (hearing
concerning prior record, judge determines if the record is the record of D, and which
crimes could be used to impeach the D), after the hearing counsel should have asked
“Counsel should have asked 1) have you ever been convicted of a crime? 2) how many
crimes have you been convicted?” then the DA would have had to drop the issue right
there-Court of appeals certified the appeal to the supreme court, requesting that the
court decide “What is the appropriate standard to be applied in Wisconsin in the
determination of whether a D has been denied his state and federal constitutional
right to the effective assistance of counsel. -Holding: The court analyzed D’s claim
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of ineffective assistance of counsel under the 6th and 14th amendments of the US
Constitution, and held that the D was denied this federal right, the conviction is
reversed, and remanded the cause for a new trial.-Used two prong test in Sullivan to
determine this the D pointed to 7 specific deficiencies in D/C performance, and
prejudice is obvious because D’s credibility was critical and was destroyed by the failure
of the D/c.

Strickland Test: Prong 1) Deficient performance by attorney, And Prong 2) Prejudice.

(D has to show that ‘but for’ D’s action/inaction the outcome would not have reasonably
occurred, leaving no confidence with the trial’s outcome.

**In multiple count complaints where D/c encountered prejudice, each case has to
be evaluated independently, to determine what count or counts within the
complaint were affected. If it affected all counts then D would get a new trial, If
only some were affected, then D would only get a new trial on those particular
counts.

5. Discovery: Defense counsel has a duty to investigate in ALL cases, and to

determine whether there is a sufficient factual basis for criminal charges.
a. Duty to investigate is not terminated by factors such as the apparent force of
the prosecution’s evidence, a client’s alleged admissions to others of facts suggesting
guilt, a client’s expressed desire to plead guilty or that there should be no investigation
or statements to defense counsel supporting guilt.

b. Defense counsel’s investigation of the merits of the criminal charges

(discovery) should include efforts to secure relevant information in the possession of the
prosecution, law enforcement authorities, and others, as well as independent
investigations.

i.Prosecution/DA must hand over most items in discovery.

ii.Prosecution must hand over both verbatim (recorded) statements or not verbatim.
iii.You want your own expert to conduct testing on state’s evidence, you would
need a court order, but most everything else you get form the prosecution.

6. You absolutely want your client’s criminal Record! (Final Critical) 1.Clients
criminal record is going to influence the DA at the time of charging (DA wants to know if
this is an individual who violated the law for the 1st time or a repeat offender. Criminal
record plays a role in bail/release, Criminal record plays a critical role at trial (See Pitsch
Case), If D taking the stand and says his record is one thing, and prosecution
impeaches the D, by showing that it is in fact something else (counsel may advise the
client that if he takes the stand, it could be damning because 2. Prior bad acts, whether
resulting in convictions in past or not, can play a role in how the client is perceived. We
will demand this record from the state, and will not get it on our own.
7. You need both a command of the facts, but also fully informed about the
relevant law.
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Summer 2018
a. Make sure you understand the crime your client is being charged with and it’s
elements, and what they are.
b. Ensure you also understand the law as relates to the investigation (constitutional
considerations)..You want to stay on top of it because this stuff is changing all the time.
c. Defense counsel should keep the client reasonably and regularly informed about
the status of the case. Before significant decision points, and at other times if requested.

Court Deciding an Actual Ineffectiveness claim (Final Critical): Must judge the claim
upon the reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.

Convicted D making a claim of ineffective assistance (Final Critical): Must identify

the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine whether, in light of all
the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance. Keeping in mind that counsel’s function, as
elaborated in prevailing professional norms, is to make the adversarial testing process
work in the particular case. The court should also recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgement.

Test for Prejudice Under Strickland v. Washington Applied: The D must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”

***(Final Critical) Were counsel’s errors so significant it deprived the D of their right to a
fair trial/sentencing? (ex. If state does not occur

You can see challenging of effectiveness of counsel at:

1. Trial
2. Sentencing
3. Pre-Trial (Plead guilty/take the case to trial (D’s decision, but after consulting with
D/c)

Ineffective Counsel Deportation Cases:

Padilla v. Kentucky-D was a Honduras native and long-time permanent U.S. resident,
after conviction on drug charges, he sought post-conviction relief on the ground his
attorney provided ineffective counsel, in failing to advise him that his plea of guilty made
him subject to automatic deportation.-In effective assistance cases failure to warn about
explicitly worded threat of immigration consequences resulting in post-conviction
deportation, depends if he law is clearly and unambiguous as to what degree D/C must
warn the D.- If the wording is not clear, the D must do little more than note that there
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exists an opportunity for deportation as a consequence if convicted.-The court used the
2 prong Strickland test Prog #1 the instant case fell below an objective standard of
reasonableness because the terms were explicitly and unambiguously laid out in the
pure language of the ‘Removal Statute’ (Final Critical Term). statute, all they had to do
is read it, instead they gave the D false assurance that he would not be deported.

Issue: Does the Sixth Amendment’s requirement of effective assistance of counsel

require an attorney to provide accurate advice concerning the potential deportation
consequences of a noncitizen defendant’s guilty plea to a crime? (YES)

Rule: When the law is not succedent and straightforward, a criminal defense attorney
need do no more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences. But when the deportation
consequence is truly clear, the duty to give correct advice is equally clear.

State v. Ortiz-Mondragon-D/c did not render ineffective assistance when advising the
D about the deportation consequences of his conviction. The Court uses the Rule in
Padilla note above, specifically noting that the D here argued that trial counsel
performed deficiently by failing to inform him that his no-contest plea to substantial
battery, with a domestic abuse enhancer, was certain to result in his deportation, and
permanent exclusion from the US.-Although D argues that these immigration
consequences were clear and certain because “substantial battery was a crime
involving moral turpitude, thereby rending him automatically deportable and
permanently inadmissible-Circuit Court, Appeals Court, And now Supreme Court
Disagree. There D/C satisfied the requirement by conveying the immigration
consequences, and the consequences were NOT absolutely certain.

State v. Shata-No ineffective assistance when advising D about the deportation

consequences of conviction. -D wanted to withdraw his guilty plea to one count of
possession of marijuana with intent to deliver. -D argued that he should be allowed to
withdraw his plea on the basis of ineffective assistance of counsel under Padilla v.
Kentucky.-Court said No, (note those who were in dissent)-D/c told the D that he faced
a “strong chance” of deportation if convicted which satisfied the requirement to ‘give
correct advice’ to the D. D-argued that immigration law clearly provides that he would
have been subject to mandatory deportation upon conviction, but although it made him
subject to deportation “deportable” it did not make his deportation an absolute certainty.
-Court Notes that Executive action, including the United States Department of homeland
Security’s exercise of prosecutorial discretion, can block the deportation of deportable
aliens.

***WI uses Plea/Questionnaire/Waiver of Rights (in red book)-to ensure D-

understands what right’s-including the admonition of the chance of deportation.

Ineffective Counsel during plea bargains

1. Plea bargains have become very central to the D/c role
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Summer 2018
2. As a general rule, D/c has the duty to communicate formal prosecution offers to
accept a plea on terms and conditions that may be favorable to the accused. (It is the
D’s decision to accept the plea offer).

Missouri v. Frye-D was charged with driving with a revoked license. Because he had
been convicted of the same offense three times before, he was charged, under Missouri
law, with a Felony carrying a maximum 4-year prison term. -Prosecutor sent Frye’s
counsel a letter offering two possible plea bargains, including an offer to reduce the
charged to a misdemeanor and to recommend, with a guilty plea, a 90-day sentence.
D/c did not convey this to the D who was subsequently pulled-over again and arrested. -
D pled guilty and was sentenced to 3-years in prison.-D seeking post-conviction relief
argued that counsel’s failure to inform him of the earlier plea offers denied him the
effective assistance of counsel, and had he known of the offers he would have pled
guilty to the misdemeanor.-The court denied his motion, but the appellate court
reversed, holding that the D met both of the requirements (prongs) of the Strickland
Test, specifically that D/c had been ineffective in not communicating the plea offers to
the D, and concluded that the D had shown that D/C’s deficient performance cause him
prejudice because he pleaded guilty to a felony instead of a misdemeanor.

Rule: The 6th amendment requires Defense counsel to communicate to a Defendant

formal plea offers from the prosecution.

Lafler v. Cooper-
Rule of Law: A criminal defense attorney fails to provide effective assistance of counsel
required under the Sixth Amendment if he prejudices the defendant by advising against
acceptance of a favorable plea bargain offered by the prosecution.

Issue: Does a criminal defense attorney fail to provide effective assistance of counsel
required under the Sixth Amendment if he prejudices the defendant by advising against
acceptance of a favorable plea bargain offered by the prosecution?

When Deal is offered to D/c and D/c fails to inform D:

Prejudice Contexed in D/c advice during pleadings: If there was deficient
Performance with respect to the first prong: where counsel’s ineffective advice led the D
to stand trial. A D must show that ‘but for the ineffective advice of counsel to reject a
plea’, there is a reasonable probability that the plea would have been presented, and
accepted, and the terms under this offer would have would have been less severe than
the sentence imposed. If D can establish this, they get a trial.

Right to effective assistance still applies (not 6th amendment) during appeals process.
In WI counsel wants to file against D/c effectiveness habeus corpus must be filed.-If
facts have to be found the appellate court either appoints a lawyer to conduct an
evidentiary hearing, or appellate court could send back to the lower court to figure out
the evidentiary facts.

Lee v. United States-

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Rule of Law: A statute that requires pretrial disclosure by the defense of classified
information it reasonably intends to use at trial does not violate the Fifth and Sixth
Amendments.

5. “Loyal” Assistance of Counsel

Loyal Assistance of Counsel:

Ineffective assistance claims Based Upon Attorney Conflicts of Interest

Text § 3.9 (a), (b), (c), and (d)
§ 3.9 (a)-Range of Possible Conflicts of Interest: 1) Joint representation of
codefendants. 2) Joint representation of codefendants who will be tried separately 3)
defense counsel has previously represented or is currently representing in another
matter or the same matter, a likely prosecution witnesses. 4) a third-party with some
interests in the case is paying the D’s legal fees. 5) Single lawyer or part of the same
firm, or Public Defender office, representing more than one member involved in a single
criminal activity.

ABA Standard 4-4.5 Conflicts of Interest: Except for preliminary matters such as initial
hearings or applications for bail, defense counsel who are associated in practice should
not undertake to defend more than one defendant in the same criminal case if the duty
to one of the defendants may conflict with the duty to another. The potential for conflict
of interest in representing multiple defendants is so grave that ordinarily defense
counsel should decline to act for more than one of several co-defendants except in
unusual situations when, after careful investigation, it is clear either that no conflict is
likely to develop at trial, sentencing, or at any other time in the proceeding or that
common representation will be advantageous to each of the codefendants represented
and in either case; that.
1. the several defendants give an informed consent to such multiple
representation; and.
2. the consent of the d’s is made a matter of judicial record.

§ 3.9 (b)- Holloway v. Ark.-Rule of Law: When the trial court is aware of potential
conflicts of interest in a joint defense representation, the court’s failure to take adequate
steps to ensure the avoidance of conflict deprives the defendants of the Sixth
Amendment right to the effective assistance of counsel.

Glasser v. U.S.-Rule of Law: whenever a trial court improperly requires joint

representation over timely objection, reversal is automatic.

Cuyler v. Sullivan- Rule of Law: A trial court is not required to investigate whether
there is a conflict of interest when a lawyer represents multiple parties in a case and no
party objects to the multiple representation. “Sullivan’s inquiry requirement”

§ 3.9 (c)- Mickens v. Taylor- Rule of Law: Reversal of a conviction is not automatic in
cases where defense counsel did not raise an objection to a multiple representation
issue and the trail court did not inquire into the question.
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§ 3.9 (d)- The Sullivan Standard: Requires that the D presenting a postconviction
challenge “demonstrate that an actual conflict of interest adversely affected the lawyer’s
performance. This requires a showing both that 1) counsel was placed in a situation
where conflicting loyalties pointed in opposite directions (an “actual conflict”, and 2)
counsel proceeded to act against the D’s interests (“Adversely affecting counsels
performance.

Wheat v. United States- Wheat (defendant) and a number of coconspirators were

charged with the operation of a drug conspiracy. Eugene Iredale represented two of the
coconspirators, Bravo and Gomez-Barajas. Iredale did not represent Wheat, but two
days before Wheat’s trial, Wheat moved that he be represented by Iredale. The
prosecution objected to Iredale’s representation. Gomez-Barajas had reached a plea
agreement, although the agreement had not yet been approved by the court. The
district court denied Wheat’s request based on a conflict of interest. Wheat was
convicted. The United States Court of Appeals for the Ninth Circuit affirmed. The United
States Supreme Court granted certiorari.- A defendant does not have an unqualified
right under the Sixth Amendment to the attorney of his choice if the attorney has
represented other defendants charged in the same criminal conspiracy. Although
defendants have an option to waive any potential conflict of interest, courts may deny
that waiver. Courts must ensure trials “are conducted within the ethical standards of the
profession” and appear fair to outside observers. And trial courts must be given wide
latitude to determine that a defendant’s chosen counsel should be disqualified for a
conflict of interest. In the case at bar, the district court did not commit an error by
denying Wheat’s request to be represented by Iredale. Although Wheat was willing to
waive any potential conflict of interest, the district court was within its discretion to deny
that waiver. The prosecution could easily have called both Bravo and Gomez-Barajas
as witnesses in Wheat’s trial. Iredale would not have been able to ethically cross-
examine those witnesses because of his representation of them independent of Wheat’s
trial. Accordingly, the district court did not err in finding that denial of Wheat’s request to
be represented by Iredale was not a violation of Wheat’s Sixth Amendment right to
counsel. The judgment of the district court is affirmed.

Rule of Law: A defendant does not have an unqualified right under the 6th amendment
to the attorney of his choice if the attorney has represented other defendants charged in
the same criminal conspiracy.

Issue: Does a defendant have an unqualified right under the 6th amendment to the
attorney of his choice if the attorney has represented other defendants charged in the
same criminal conspiracy? (NO)

(Final Critical)***If you get through a trial and D comes back and argues that their
D/c was conflicted. D must show: 1) There was an actual conflict of interest (not just
potential). AND 2) As a result of this conflict, the lawyers performance was adversely
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affected (Does not have to show prejudice here. Would point to a defect such as not
pursuing a line of questioning with a witness due to the conflict.)
F. Corrections: If a person is convicted, and judge sentences them they are placed
within the system of Corrections. Includes State Prison, Local County Jails, Those put
on probation (judge render’s a disposition of probation), Parole.
(1) On a national level, the US DOJ statistics for 2016 show grand total correctional
population of 6.6 million people are under some form of correctional supervision.
(cheaper to monitor someone in the community than incarcerate them.) 1/38 adults
were on some form of corrections at the end of 2016.
(a) 1.5 million serving time in state or federal prison
(b) 740K serving time in the local county jail (misdemeanor or short felony sentence
not more than 1-year).
(c) 3.6 million on probation .
(d) 875k on parole (called extended supervision in WI)
(e) Wisconsin: As of May 18th 2018, in Wisconsin the total prison population is
23,627, however the capacity is only 17,700. The system is overcrowded.
(i) There was a time 15-years ago, we would ship our overcrowding to out-of-state
private-for-profit prisons (ex. Oklahoma, Texas)
(ii) We wanted the prisoners back under state control.
(iii) Who is in Wisconsin State Prison? Do they all need to be there? (You would
have to look at each individual case, but Wisconsin looks to probation first).
1. Every year ½ of those going in have a fresh conviction, whenever a judge
sentences a person, unless it has a mandatory sentencing guideline, when the judge
sentences a person, the JUDGE MUST CONSIDER PROBATION, and SHOULD give
probation, unless probation would undermine the seriousness of the crime committed,
or it would endanger the safety of the community. (1. Judge Considers probation before
all else 2. Probation is preferred. 3. Judge determines if there are factors that warrant
someone to not get probation thus go to jail.)
2. The other ½ are those who have failed community supervision (violating the
terms of their probation) Once probation is violated they go to prison.

G. Victims ***See Green DOJ Victim’s Rights Handout.

Wis. Stat. secs. 950.04 and 950.055

950.04: Basic Bill of rights for victims and witnesses

950.055: Child Victims and Witnesses; rights and services:

Wis. Stat. secs. 971.095, 972.14, and 972.15(2m)

971.095: Consultation with and notices to victim-(Final Critical)-In any case in which a D
has been charged with a crime, the DA shall, as soon as practicable, offer all of the
victims in the case who have requested the opportunity an opportunity to confer with the
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DA concerning the prosecution of the case and possible outcomes of the prosecution,
including potential plea agreements and sentencing recommendations. The duty to
confer under this subsection does not limit the obligation of the DA to exercise his or her
discretion concerning the handling of any criminal charge against the D.

-If a victim wants some participatory role, they convey this to the DA and the DA
must honor this, but the DA (the lawyer for the state) makes the decisions in
respect to the prosecution of the case, but the victim’s input is valued.

972.14: Statements before Sentencing-(Final Critical)- D-has a right of allocution (to

address the court).-The Victim also has the right of allocution at the court’s discretion at
this point.-Victim Statements can take a long period of time, as people address the court
as to what the sentence should be.

972.15(2m)-(Final Critical)-Presentence Investigation-Aids judge in making an

effective sentencing determination.-Felony Only-Provides a report pre-sentencing
after D has been convicted, judge may adjourn the matter, while the probation
department completes this investigation prior to sentencing, (provides
background of D and of the victim and the impact.)- The person preparing the
presentence investigation report shall make a reasonable attempt to contact the
victim to determine the economic, physical and psychological effect of the crime
on the victim. The person preparing the report may ask any appropriate person for
information. This subsection does not preclude the person who prepares the report from
including any information for the court concerning the impact of a crime on the victim.
CRIMINAL INVESTIGATIONS AND ARRESTS
IV. Types of Investigations: Police Investigations, John Doe Investigation,
Grand Jury Investigation, Medical Inquest Investigation.

A. Police Investigations-Majority of crimes come to the DA via police

investigations. Police solve a crime and bring to the DA to bring charges against the D.-
DA typically has no involvement or is even aware of the investigation (sometimes the
DA does participate in the investigation of criminal activity.)-Prosecutors must be careful
during this period, because once the prosecutor charges and renders a case to
completion the prosecutor has full immunity from civil action after.

B. Prosecutor-Coordinated Investigation-The small amount of cases that the DA is a

participant.-If involved at this point the prosecutor does not have full immunity.

1. John Doe Investigation

Wis. Stat. sec. 968.26-John Doe Proceeding.- (Final Critical)-There are matters that
are more difficult to investigate including criminal organizations, people who are
involved in gangs, drug distribution rings, these people are not cooperative with
investigators-A grand jury or John Doe proceeding to compel these individuals to talk
with investigators via subpoena to testify-You can have a lawyer with you at these
proceedings.-Lawyer does not have a speaking role here, but individual can invoke their
5th amendment privilege against self incrimination-If this happens the state can grant
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immunity for that witness, if there is an immunity grant and you still refuse then you can
be held in contempt and locked up.-This is an investigation that is less cumbersome
than a grand jury as it is only conducted in front of a judge rather than assembling a
group of citizens as required in a grand jury.-A doe can be instituted: 1) on the request
of a DA (if the DA wants it the judge will grant it). or 2) on the request of anybody
else.-The judge sends it to the DA who has discretion to charge or not, if they do not
charge they must send the decision, the evidence, and their rationale for not charging,
and then the judge determines if the matter should go forward or be terminated.-If there
is going to be a ‘Doe’ then a secret meeting takes place.-Immunity grants however must
be done in public.-A ‘Doe’ can only last for 6 months, and the only way to extend it
beyond 6 months is by a majority vote of judicial administrative district chief judges, who
find good cause for the extension and identification of the vote of each judge is available
to the public.-The scope is limited to the original request or complaint without the same
vote of the judicial administrative district chief judges, only with that vote could the
scope be expanded.-Judge can issue a search warrant only if the judge is not presiding
over the ‘Doe’.

2. Grand Jury Investigations-Has a long history in American criminal justice.-A

group of citizens (number specified by statute) seated.
a) Completes two different functions. Federal=Investigative and Screening
Wisconsin=Investigative Function Only.

b) 1) Investigative:
Investigation conducted by this group (secret) with the prosecutor-call witnesses and
develop evidence pertaining to the matter being investigated-If as a result there is
enough evidence to charge someone with a crime, the grand jury can request an
indictment.
c) 2) Screening:
To screen the prosecutorial merit of the charges. There is a Federal Right under the
constitution to have a Grand-Jury

Wis. Stat. secs. 968.40 to 968.53

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3. Medical Inquests into suspicious deaths-Whether these death’s were related
to criminal Activity.-We do not use these much as we rely on police investigation to
make this determination-Can be requested by the prosecutor, if the prosecutor wants a
public airing of the death under investigation.-The prosecution puts forth a case in front
of a 6-person jury-The verdict is only advisory to the DA and must be unanimous (all 6
people hold the same determination of probable cause to believe that the death was by
criminal means, by what crimes, ect..)-“There is probable cause here to determine that
they caused the death by these means” the DA then determines whether or not to
proceed.-These can bring a lot of pressure on the prosecutor to bring charges when the
jury returns a verdict noting probable cause.-DA can charge either the same, higher or
lower, or nothing, it is up to them.
V. Arrest of the Accused-How we get the body of the defendant in order to charge
them and start the process.
A. Arrest Warrant-The law enforcement officer has a warrant commanding that
such person be arrested or officer believes on reasonable grounds that a warrant for the
person’s arrest has been issued in this state or believes, on reasonable grounds, that a
felony warrant for the person’s arrest has been issued in another state.-A warrant is a
mechanism to get a D into custody. and Warrantless Arrests-The police on their own
authority arrest a person and take them into custody-This is how we get the body in the
vast majority of cases.-
Wis. Stat. sec. 968.07 (warrant & warrantless arrests authorized)
B. Warrant: Warrant is command by judge to go out and find person and return
them to the court. Warrant shall: 1) be in writing and signed by judge 2) state the name
of the crime and the section charged and number of the section alleged to have been
violated 3) Have attached to it a copy of the complaint 4) State the name of the person
to be arrested, if known, or if not known, designate the person to be arrested by any
description by which the person to be arrested can be identified with reasonable
certainty *You would issue a john/jane doe warrant, but you need to be specific in your
description. 5) State the date when it was issued and the name of the judge who issued
it together with the title of the judge’s office. 6) Command that the person against whom
the complaint was made be arrested and brought before the judge issuing the warrant,
or, if the judge is absent or unable to act, before some other judge in the same county.
7) the warrant shall be in substantially the defined form: (see supplement).-Only a judge
or judicial officer can issue a warrant-Benefits of using an arrest warrant include: 1) prior
blessing of a judge with respect to this arrest, police do not have to get a warrant, but
can and if later on there is a challenge by D that evidence to get the warrant was slim,
deference will be given to the judge who gave the warrant, thus the challenge is less
likely to prevail. 2) Once issued by the judge it can be entered into the national police
communications network, if the D is stopped anywhere in the state of Wisconsin the
warrant can be served anywhere, if the D is stopped anywhere else in the United
States, the warrant will also pop up during a traffic stop/police encounter.-To get the
person back in the state to answer to the charge the D can either 1) waive extradition or
2) fight extradition-There is a uniform procedure to get the person back in WI which
requires signatures by both governors to get extradition.
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C. Securing the Defendant’s Presence by Summons
Wis. Stat. sec. 968.04 (warrants & summonses)

Summons: different than a warrant because when served w/defendant with complaint,
it commands the D to show up to court at later date, unlike warrant which D goes into
custody.-Can be issued by a DA not just the judge as in a warrant-With felonies the DA
has a choice to use either a warrant or a summons, and can use the warrant without
justification for going this route-For a serious misdemeanor (penalty of more than 6
months in county jail), also does not have to justify the use of a warrant-For a minor
misdemeanor the DA has to use a summons unless the DA convinces the judge that a
warrant is required to get the D.-If you go the summons route and is served the D has to
show up on the appointed date, and the court can show he was properly served then
the court can issue a warrant to take the D into custody.

Wis. Stat. sec. 968.085 (citation option)

D. The Citation Option-Misdemeanor citation-In WI if on the way home you get

pulled over and gives you a speeding ticket that is a traffic citation, which gives you
notice of what you are charged with, confers on the court personal jurisdiction, and
while you are welcome to show up to contest it, you don’t have to, and the court will find
a disposition against you.-Or you get a municipal citation for Disorderly conduct-confers
personal jurisdiction in the municipal court if you don’t show up on the date the court
can find a disposition against you-If you hunt and fish and the game warden finds you
committed a crime you may get a natural resource citation, the DA signs the citation and
it becomes the complaint in the case.-968.085 Citation provides that a municipal citation
provides a date the misdemeanor offender has to appear in court, but this citation has
no legal force or effect as there is no penalty if you do not show up.

E. Voluntary Appearance: DA says they are going to put out a warrant

anyway and offers the D to turn themselves in voluntarily without a warrant or a
summons.

Text § 4.5

§4.5(a) Summons in Lieu of Arrest Warrant: Efforts to prevent unnecessary pretrial

detention, especially in minor cases, is invocation of the criminal process against a
person without taking custody.
One way in which this may be done is by a judicial officer issuing a summons
instead of an arrest warrant, as is now authorized by the law in most jurisdictions. There
is considerable variation in these laws. Arrest warrants are seldom required and are
seldom sought so that the occasion for choosing between a warrant and summons
rarely arise.

§4.5(b) Citation in Lieu of Arrest Without Warrant:

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Atwater v. City of Lago Vista- The officer has the power to opt for “the discretionary
leniency of a citation in lieu of custodial arrest is adequate because it is in the interest of
the police to limit petty offense arrests.

Rule of Law: The fourth Amendment does not prohibit a warrantless arrest for a minor
offense.

U.S v. Robinson-A search of the person could be conducted incident to ta lawful

custodial arrest.

Rule of Law: During a lawful arrest, it is reasonable under the Fourth Amendment to
search the person being arrested.

Arizona v. Gant: The passenger compartment of an automobile may be searched

incident to the lawful custodial arrest of an occupant when either 1) the arrestee is
unsecured and within reaching distance of the passenger compartment at the time of
the search or 2) it is reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle.

Rule of Law: Police may search a vehicle after a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe that crime-related evidence is located in the vehicle.

Knowles v. Iowa

Rule of Law: The “search incident to arrest” exception to the Fourth Amendment does
not authorize the full search of the car after the issuance of a citation.

Whren v. U.S.- The existence of probable cause of arrest makes any arbitrary selection
of violator to be arrested irreverent under the Fourth Amendment.

Rule: Except with inventory searches and administrative inspections, when probable
cause of illegal conduct exist, an officer’s true motive for searching or detaining a
person does not negate the constitutionality of the search or seizure.
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VI. Prompt Judicial Review of Warrantless Arrests
**Under the 4th amendment there is a requirement of a prompt judicial review of
probable cause after arrest.. Pugh allowed states to become laboratories to
implement the prompt judicial review. In WI, there is completed in the initial
appearance. **Pugh left ambiguity as to what is meant by “prompt”
Gerstein v. Pugh- Pugh (plaintiff) was one of two defendants arrested under an
information issued by a prosecutor in Dade County, Florida. County procedures
provided for a probable cause determination only by way of preliminary hearing or
arraignment. A preliminary hearing could not be held any earlier than 30 days after
arrest. Arraignments were commonly delayed for at least 30 days after arrest. Pugh
joined a class action suit in federal court asserting a constitutional right to a prompt
judicial determination of probable cause. The district court held that criminal defendants
charged by information were entitled to a timely judicial determination of probable
cause. Before the district court issued its opinion, the Florida Supreme Court enacted a
new procedural rule governing preliminary hearings. The district court reviewed the
amended rule and found that it had not addressed the constitutional issues because
defendants charged by information could still be detained without a probable cause
determination. The court of appeals affirmed the district court decision. Gerstein
(defendant), in his capacity as State Attorney for Dade County, petitioned the Supreme
Court for review. -A defendant charged with a crime by information may not be detained
for an extended period of time without a judicial determination of probable cause. The
Fourth Amendment requires that any restrictions upon an individual’s liberty be justified
by probable cause. Although a judicial determination of probable cause would best
protect liberty rights, imposing the requirement of a judicial determination prior to arrest
would hamper law enforcement activities. As such, we have upheld the warrantless
arrest and brief detention of crime suspects based upon a determination of probable
cause made by law enforcement officers in the field.

Even if police and the DA have made a decision of probable cause, it is required
that a judicial officer determines probable cause. The court understands that there is a
period of time in which administrative tasks need to be completed, but it is not a blank
check, and is a severe impact on a person’s liberty. An individual is entitled to a prompt
judicial review of probable cause.

Wisconsin has the probable cause hearing interwoven into the preliminary hearing,
does not apply when there is an arrest warrant because the judge has already
determined probable cause when they issued the warrant-Or if at the conclusion of a
grand jury decision to issue an indictment because the grand jury in their indictment has
already determined sufficient probable cause.

**Only applicable in warrantless arrest situations.

Issue: May a defendant charged with a crime by information be detained for an

extended period of time without a judicial determination of probable cause? (NO)
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Rule: A defendant charged with a crime by information may not be detained for an
extended period of time without a judicial determination of probable cause.

County of Riverdale v. McLaughlin-Only worried here when a person has been

arrested without a warrant. -The probable cause hearing is conducted in combination
with the arraignment, but the 2-day period was counting only working days, so over the
easter weekend, a D could be held for up to 7 days.-The court sough to come up with a
numerical time limit to determine what is ‘prompt’.- If a jurisdiction conducts judicial
review within 48 hours, that jurisdiction is immune from civil liability, but we still must
look at the individual case/defendant.-A hearing conducted within the 48 hours, can be
argued to be unreasonable if delayed to collect more evidence, or delay for the sake of
delays sake.-If D is not given probable cause within 48 hours, the burden shifts to the
government to show the bona-fide emergency (EXAMPLE: A HURCANE OR
NATIONAL DISASTER)-

Issue: Is a judicial determination of probable cause within 48 hours of arrest generally

sufficiently prompt? (YES)

Rule: A judicial determination of probable cause made within 48 hours of arrest is

generally sufficiently prompt.

The Riverside rule only starts after an individual is arrested! (Final Critical)

State v. Koch-The Sweetheart Swindler-He met and fast-tracked the marriage within 2-
3 days. Received $10,200 to buy a certificate. -The female’s friend is suspicious and
hires a private detective, the private detective and the police encounter Koch, and find
some evidence that shows he is swindling others including Brand. Koch is arrested and
given an initial appearance the next day, (probable cause determined), but the D had
been held in jail for 92 todays.- You need your judicial review within 48 hours-
Riverside Rule (Final Critical)!-Kochs’ lawyer pushed for a determination of what a
remedy would be given that the Riverside Rule was breached.-Koch’s attorney filed a
motion to dismiss the case because of the riverside violation, and also filed a motion to
suppress evidence (looking at the evidence the police obtained the day after Koch’s
arrest, in order to tear the hotel room apart that Koch had been renting.

To get completed with the first 48 hours:

1)Sworn statement
2) Or Probable Cause Statement and Judicial determination within 48 hours.

When a probable cause determination is made within 48 hours of the arrest

(page 696 Add Notes)

When a confession is obtained after a Riverside 48-hour violation:

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When the police make an arrest without probable cause (illegal arrest) and they obtain a
statement after the fact: 1) did the police give the D Miranda warnings 2) how close in
time did the confession follow the bad arrest 3) were there any interviewing
circumstances that would break the taint of the arrest 4) what is the potency and
flagrancy of the arrest.

Intervening circumstances to the Riverside 48-hour violation rule: A visit from an

attorney, friend, priest or minister, may break the timeline of a riverside 48-hour
violation.

Circuit Court Form: Probable Cause Statement and Judicial Determination

THE CHARGING DECISION

VII. The Decision to Charge
A. The Role of the Prosecutor and An Introduction to Prosecutorial Discretion
O’Neil v. State-O’Neil was charged for indecency with a minor via his barber salon.
The Prosecutor said some very inflammatory things at trial, and the court merely asked
the jury to ignore them. The appeals court said that what the prosecutor said was bad
enough to inflame the jury, and thus the D is ordered to re-stand trial because of the
error.

ABA Standards for Criminal Justice – Prosecution Function (4th ed. 2015)
3-1.2:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not
merely to convict.

The prosecutor should know and abide by the standards of professional conduct as
expressed in applicable law and ethical codes and opinions in the applicable
jurisdiction.

The Prosecutor should make use of ethical guidance offered by existing organizations
and should seek to establish and make use of an ethics advisory group akin to that
described in Defense Function Standard 4-1.11.

The Prosecutor is not merely a case-processor but also a problem-solver responsible

for considering broad goals of the criminal justice system. The prosecutor should seek
to reform and improve the administration of criminal justice, and when inadequacies or
injustices in the substantive or procedural law come to the prosecutor’s attention, the
prosecutor should stimulate and support efforts for remedial action.

3-2.4-Office Policies and Procedures

Each Prosecutors office should seek to develop general polices to guide the exercise of
prosecutorial discretion, and standard operating procedures for the office.

3-4.3-Minimum Requirements for Filing and Maintaining Criminal Charges

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A prosecutor should seek or file criminal charges only if the prosecutor reasonably
believes that the charges are supported by probable cause, that admissible evidence
will be sufficient to support conviction beyond a reasonable doubt, and that the decision
to charge is in the interest of justice.

After criminal charges are filed, a prosecutor should maintain them only if the prosecutor
continues to reasonably believe that probable cause exists and that admissible
evidence will be sufficient to support conviction beyond a reasonable doubt.

A prosecutor’s office should not file or maintain charges if it believes the defendant is
innocent no matter what the state of the evidence.

3-4.4-Discretion in Filing, Declining, Maintaining, and Dismissing Criminal

Charges
The Prosecutor is not obliged to file or maintain all criminal charges which the evidence
might support. Among the factors which the prosecutor may properly consider in
exercising discretion to initiate, decline, or dismiss a criminal charge, even though it
meets the requirements of standard 3-4.3 are: (see 107-D).

The prosecutor should consider the possibility of noncriminal disposition, formal or

informal, or a deferred prosecution or other diversionary disposition, when deciding
whether to initiate or prosecute criminal charges. The prosecutor should be familiar with
the services and resources of other agencies, public or private, that might assist in the
evaluation of cases for diversion or deferral from the criminal process.

Prosecutorial Discretion Points:

Filling of charges in criminal complaint:
-Number of Charges
-Severity of Charges
-Penalty Enhancements
Discretion “Points”
-Bail Recommendation
-Selection of Charges For The Information.
-After preliminary the Prosecutor files the information, where the
prosecution has discretion in what charges will be filed in the formation.
-Plea Negotiations
-Discretion at Trial (how to present the case at trial.)
-Sentencing Recommendation
Why So much Discretion For Prosecution?
-Legislative “Overcriminalization” There is a lot of overlap where in the
instance of a single criminal act a D can violate multiple criminal statutes.
-The legislature gave the Prosecutor a very large ‘buffet’ to select from.

-Jurisdictional Overlap between State law and federal law, and overlap
between State law and municipal law. (who is going to handle the case)
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-Limitations on resources
-Prosecutors do not have unlimited resources, so decisions have to be
made as to what cases are and are not prosecuted. *They simply might decline the
cases

-Need to individualize Justice

-To come up with a decision that is individualize to the case at hand.
-Answering the question of what we need to do in this case to achieve a
just result.
-“Rearrangement” of Discretion by the legislature: in 1984 the sentencing
system was going to be changed in the Federal courts, and impose sentencing
guidelines on the federal judges. Previously the judges had broad discretion in their
sentencing. In the 80’s there was a boom against crime and the legislature passed laws
that including the sentencing commission which told the judge how to sentence
someone given the seriousness of the persons crime and past convictions. This
required the judges to give a very specific sentence noted within the grid for the
convicted. The congress that passed this law wanted a national sentencing structure to
have a level of fairness across the united states. This ‘grid system’ took away from the
judges a lot of the sentencing discretion the judges once had. Ironically what they took
away from the judges they gave the power to the prosecutor who chose the ‘box’ with
where the D existed on the box based on the charges the prosecutor picked.-About 10
years ago the united states supreme court determined that mandatory sentencing
structure unconstitutional, we still have this box structure, however the discretion
become more balanced between the prosecutors and the judges.

Factors Affecting Exercise of Discretion:

Offense specific Factors: Relating to the Crime:

-Gravity of Offense

-Impact on Victim (If there is a victim)

-Circumstances of the Offense

-Strength of the Evidence

-Office Policy
-Prosecutor office have policy to guide prosecutors in guiding the use of
discretion.
-Ex. “If someone completed a sex offense against a minor, if you could
prove it, you charged it.

-History of Enforcement of the Statute.

Factors Affecting Exercise of Discretion:

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-Defendant Specific Factors

-Age and other personal factors (including those that might be addressed
by treatment.)
-Prior Record

-Role in the crime.

-Office Policy (see above)-ex. If a person has a certain type of record, we

will proceed with charges.

-Need for Defendant’s Testimony.

-Defendants explanation of conduct (if any)

Other Factors Affecting Exercise of Discretion

-Cooperative arrangement between federal and municipal prosecutors.

-Victim Consultation

-Office Resources

- “Alternatives to prosecution” and Deferred prosecution” Program Availability.

-Community Consciences
-Communities have values have values and they are not always the same
when you go to community to community.
-Las Vegas is different than WI, so a as a prosecutor you have to adjust
discretion accordingly.

-System Pressures.

Controls on Prosecutor Discretion

-Constitutional Controls:

Double Jeopardy protections

1. Retrial for “same offense” after acquittal *P cannot re-try for same offense after
acquittal
2. Retrial for “same offense” after conviction *P cannot re-try after conviction
3. Multiple punishment for the “same offense” *D cannot receive multiple punishments
for the “same offense”
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Addenda

1) “Dual Sovereignty” Doctrine: Every state is a sovereign and the USA is a

sovereign as well, and if the D violates the laws of multiple sovereigns each can
prosecute D because each as the right to justice in their own sovereign.-Each state has
the right to protect and enforce it’s own law, as does the Federal Government.
-The Federal government if involved will back off of the states in which the
violation occurs, but if the State fails to adequately protect the interests under federal
law, the federal law can take over the case.

2) Statutory Double Jeopardy- 939.71 (Final Critical)

-D’s conduct violates the laws of two states (under the dual sovereignty clause
both could convict and impose a separate punishment), The WI statute 939.71 gives a
special protection for D’s charged in WI.-IF D has violated the laws of another state, and
they are prosecuted and given results on the merits, WI says we cannot then prosecute
that person under WI unless we look at the elements of the crimes and there must be
one element in each state’s laws that are not present in the other States Law.-There
must be enough of a difference between State v. State Law and State v. Federal Law to
bring forth prosecution.

*Make sure that each state or in some cases the federal Law has 1 different
element in the statute!!

EX. (Although Ill has A, WIS has BCD, so in WI we do not charge.

ILL WIS
Elements Elements
A B
B C
C D
D

Ex. (Wisconsin could proceed in this circumstance.)

ILL WIS
Elements Elements
A B
B C
C D
D E

3) Federal “Petite Policy”: Policy of the Federal Government: where the D’s conduct
violates State and Federal Policy, and the state convicts or acquits, the Federal
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Government will not step in unless the results did not vindicate the federal interests in
their state at which point they will.

Equal Protection

Equal Protection:
1. Motion: Dismiss on the basis of selective prosecution
2. NOT A DEFENSE ON THE MERITS

-(Final Critical)There is a presumption (someone climbing the hill) that a

prosecution for violation of criminal law, is taken in good faith and in a nondiscriminatory
fashion, to bring violators of the law to justice.

Selective Prosecution Elements: (Final Critical)

1) Persons similarly situated were not prosecuted
2) Selection of D was purposeful
3) Selection made on impermissible basis EX. Race religion, 1st amendment rights.

Litigation “Points”
1) Discovery
**There must be a showing of ‘some evidence’ that the D is being picked out for
an impermissible basis.
2) Obtaining a Hearing
**D must make out a prima facie case that a person similar situated.
3) Hearing

Due Process

Motion: Challenges exercise of prosecutorial discretion on basis of

vindictiveness.

Blackledge v. Perry-D was convicted of misdemeanor. And a got 6 months sentence,

and exercised right to new trial in higher court.-Before the new trial the Prosecutor hit
the D with a Felony charge-The D then pled guilty to the Felony assault charge, and
drew a sentence of 5-7 years.

N.C. v. Pearce-Due process prohibits a judge from imposing a more severe sentence
upon retrial for the purpose of discouraging defendants from exercising their statutory
right to appeal.-D was convicted, D got a reversal and then appeared before the same
judge and was imposed with a more severe sentence.

There are two-types of claims of vindictiveness:

1)Post Trial Vindictiveness Claims

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*The appearance for vindictiveness is presumed when the D has been put through the
process and convicted, and the same Prosecutor raises the charges on appeal. This
can only be overcome by the prosecutor stating valid/non-vindictive reasons for the
charge.

2)Vindictiveness in the Pretrial Setting

*If the challenge is before the 1st trial, the D is not aided by the presumption of
Vindictiveness as they would be Post-Trial. This is because on this the first time, there
is no reason to suppose vindictiveness.
Other Controls (checks) on Prosecutor Discretion:

-Statutes-Sometimes the legislatures try to regulate the discretion of the Prosecutors

via statute.

-Judicial Controls- The power of the court to in some circumstances to decline the
prosecutors motion to dismiss or reduce charges.
(Judicial Approval of Nolle Prosequi-an entry on the record by the
prosecutor declaring that he will not prosecute.)
In Wisconsin up until the time D enters their first plea at the arraignment, the
prosecutor has discretion to change any charge that has been brought, but after, if the
prosecutor wants to change the charge, it must only be done with the approval of the
court, even if the D is going to plead guilty.-If prosecutor wants to dismiss a case all
together or charges within the case, it must be done with the approval of the judge as
well. Any dismissal by the prosecutor will be evaluated by the judge to determine if the
dismissal is within the public’s best interest.

-968.02-Issuance and filing of complaints-If a DA refuses or is unavailable to issue a

complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is
probable cause to believe that the person to be charged has committed an offense after
conducting a hearing. If the district attorney has refused to issue a complaint, he or she
shall be informed of the hearing and may attend. The hearing shall be ex-parte without
the right of cross-examination.
This is a statue in connection to a check upon the prosecutor. The Judge in these
circumstances authorizes charges when the D/A refuses or is unavailable.

Rules of Professional Conduct-ABA standards

Electorate-The voters in the community.

Suspension/removal By Governor-Governor has the power to suspend or remove a

prosecutor. (EX. Prosecutor is being accused/prosecuted for committing a crime, the
governor may suspend or remove the prosecutor while the charges are pending, also
EX. The governor can remove the prosecutor can be removed ‘for cause’ such as if the
prosecutor loses their Bar-License.)
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Office Policies & Procedures-How cases are handled in the DA office by the ADA’s.

Text § 5.1 and § 5.2

§5.1-Nature of the Decision

§ 5.1 (a) In general

§ 5.1 (b) Evidence Sufficiency:
§ 5.1 (c) Screening Out Cases:
§ 5.1 (d) Diversion
§ 5.1 (e) Selection of the Charge

§ 5.2 Discretionary Enforcement

§ 5.2 (a) The Prosecutor’s Discretion
1) Because of legislative “overcriminalization.”
2) Because of limitations in available enforcement resources:
3) Because of a need to individualize justice:
§ 5.2 (b) Police Discretion
§ 5.2 (c) Jury and Judge Discretion
§ 5.2 (d) The Problem of Discretion
§ 5.2 (e) Confining the Prosecutor’s Discretion
§ 5.2 (f) Structuring the Prosecutor’s Discretion
§ 5.2 (g) Checking the Prosecutor’s Discretion
§ 5.2 (h) Mandating the Prosecutors Discretion

Wisconsin Rules of Professional Conduct for Attorneys sec. SCR 20:3.8: “Special
Responsibilities of a Prosecutor”
B. Controls on the Prosecutor’s Discretion
Wis. Stat. sec. 968.02(3)
Text §§ 5.3, 5.4, 5.5, and 5.7
C. Factual and Legal Issues Related to Charging
1. Factual Assessment of the Case-Need to figure out what happened in this
case?
Police Reports: They are only as good as the individual who wrote the police report.
Not every officer is equally experienced or talented, and you should never make a
mistake that because it’s in a police report it is 100% truth. -The quality of the police
report can often depend on the quality of the officer who wrote it.***Be careful of police
reports, ensure you view/watch/see the other materials. (Reviewing cases on paper is
what we do now for a lot of cases.)
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2. Legal Assessment of the Case
a) Identification of the Base Substantive Law Violation(s)
What crime(s) occurred based on the elements of the case. Are there holes in the facts
that would require additional investigation? What evidence is present that I might be
able to use in court? (Ex. Person is stopped and searched, drugs are found…the first
thing the prosecutor must assess if the stop was lawful.)-What should be charged and
what discretion does the prosecutor want to utlize.

Minimum Requirements for Filing and Maintain Criminal Charges ABA Standard:

3.43(a): “A prosecutor should seek or file criminal charges only if the prosecutor
reasonably believes that the charges are supported by probable cause, that
admissible evidence will be sufficient to support conviction beyond a reasonable doubt,
and that the decision to charge is in the interests of justice.”

Wisconsin Standard: A prosecutor in a criminal case or a proceeding that could

result in deprivation of liberty shall not prosecute a charge that the prosecutor knows is
not supported by probable cause.

3.43 (b): “After criminal charges are filed, a prosecutor should maintain them only if the
prosecutor continues to reasonably believe that probable cause exists, and that
admissible evidence will be sufficient to support conviction beyond a reasonable doubt.”
If probation or parole: The officer could put a hold on the D to allow more time for
the prosecutor to investigate the case.
You still must have probable cause to hold someone. If you don’t have probable
cause, then you have a much larger problem. **remember that the passage of time
does not lend itself to making a case stronger because people die, memories fade, ect..

b) Issues of Group Criminality (Party To A Crime)

Wis JI-Criminal 402 (2005)
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Wis. Stat. secs. 939.05: Parties to a crime (1): Whoever is concerned win the
commission of a crime is a principal and may be charged with and convicted of the
commission of the crime although the person did not directly commit it and although the
person who directly committed it has not been convicted or has been convicted of some
other degree of the crime or of some other crime based on the same act.
(2): A person is concerned in the commission of the crime if the person: a.
Directly commits the crime; or b. Intentionally aids and abets the commission of it; or c.
Is a party to a conspiracy with another to commit it or advises, hires, counsels, or
otherwise procures another to commit it. Such a party is also concerned in the
commission of any other crime which is committed in pursuance of the intended crime
and which under the circumstances is a natural and probable consequence of the
intended crime (Natural and probable outgrowth). This paragraph does not apply a
person who voluntarily changes his or her mind and no longer desires that the crime be
committed and notifies the other parties concerned of his or her withdrawal within a
reasonable time before the commission of the crime so as to allow the others also to
withdraw.

Three Ways in which Defendant Can Be a Party to a Crime:

1) Direct Actor: Add Notes
2) Aiding and Abetting the person who directly committed it, or
i. Hawpetoss: “The elements of complicity, or aiding and abetting are that a
person:
1) Undertakes conduct (either verbal or overt action) which as a matter of
objective fact aids another person in the execution of a crime, and further
2) he consciously desires or intends that his conduct will yield such assistance.”
a. “Aid or encouragement to another who is actually perpetrating a felony
will not make the aider or encourager guilty of the crime if it is rendered without Mens
Rea . . . . it is the abettor’s state of mind rather than the state of mind of the perpetrator
which determines the abettors guilt or innocence. (Final Critical)

3) Conspirator: Is a party to a conspiracy with another to commit it or advises, hires,

counsels or otherwise procures another to commit it. Such a party is also concerned in
the commission of any other crime which is committed in pursuance of the intended
crime and which under the circumstance is the natural and probable consequence of
the intended crime.

This paragraph does not apply to a person who voluntarily changes his
mind and no longer desires that the crime be committed and notifies the other
parties concerned of his withdrawal within a reasonable time before the
commission of the crime so as to allow the others also to withdraw.

Unanimous Agreement Not Required Regarding Theory of Party To A Crime: All

12 jurors do not have to agree whether the Defendant directly committed, intentionally
aided and abetted, or was a member of a conspiracy to commit the crime. However,
each juror must be convinced beyond a reasonable doubt that the defendant was
concerned in the commission of the crime in one of those three ways.
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Summer 2018

They do not have to be unanimous as to who was who in the commission of the
crime, but they have to all agree that the Defendant fits into one of the three categories.

As a matter of procedure when there is party liability in a charge, you should put
them on notice there is party liability in the case.

c) The Role of the Penalty Enhancers

Three types of penalty enhancement:
1) Statutes that are themselves enhanced versions of other crimes
Ex. Battery To A Judge 940.203
-Battery (base offense)
-Battery to Judge (aggravated offense with a higher penalty)
This crime has a greater penalty than ordinary battery because it’s more serious
than ordinary battery. Thus it is an enhanced version of the ordinary Battery.
WI legislature has many of these enhanced versions of Battery against
person(s).

2) Penalty Enhancers
Most are codified in Wis. Stat. ch. 939.
Examples:
Dangerous Weapon Enhancer
Violent crime in a school zone
Hate crime enhancer
Domestic abuse enhancer

-Controlled Substance Act contains some important enhancers as well.

Examples:

-Delivery or Possession with Intent to Deliver within 1000ft. of schools,

parks, youth centers, ect.

-Distribution to persons under 18 years of age.

-2003 truth-in-sentencing legislation recharacterizes most other enhancers as

“sentencing aggravators.”

-“Sentencing aggravators” (final critical) do not increase maximum penalty for

underlying offenses but may influence the judge to impose a heavier sentence for
underlying offense.
See Wis. State. Sec. 973.017(3)

Ex. Charge =10 years

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Sentencing Aggravator 10 years-for underlying offense. Max penalty is 10
years, the judge has discretion to go higher within the 10 years max. The judge
can give up to 10 years, not more.

-Effective Date: February 1, 2003.

Penalty Enhancers
-Not crimes
-Add to the element structure of underlying offenses
-Must be pleaded and proved beyond and reasonable doubt to satisfaction of
factfinder.
-Penalty enhancers do not support their own sentences. You don’t do a separate
sentence when you have an enhancer.

Dangerous Weapon Enhancer

-Using A Dangerous Weapon

-Actor actually used a weapon in the underlying crime.
-Threatening to Use a Dangerous Weapon
-Possessing a Dangerous weapon )”Nexus” requirement)
-Actor possessed a crime during the commission of the crime.
-WI courts says there has to be some Nexus between the weapon and the
commission of the crime, ie. Must facilitate the commission of the underlying
crime. (ex. You sit down and start writing forged checked, and you have a firearm
in your pocket while you are writing the checks; you could not justify the weapon
enhancer in that situation, in contrast if a drug dealer has a gun in his pocket
while he is dealing drugs, that would prove enough the nexus (final critical)
requirement.

-939.63: 939.63 Penalties; use of a dangerous weapon.

(1) If a person commits a crime while possessing, using or threatening to use a
dangerous weapon, the maximum term of imprisonment prescribed by law for
that crime may be increased as follows:
(a) The maximum term of imprisonment for a misdemeanor may be increased by
not more than 6 months.
(b) If the maximum term of imprisonment for a felony is more than 5 years or is a
life term, the maximum term of imprisonment for the felony may be increased by
not more than 5 years.
(c) If the maximum term of imprisonment for a felony is more than 2 years, but not
more than 5 years, the maximum term of imprisonment for the felony may be
increased by not more than 4 years.
(d) The maximum term of imprisonment for a felony not specified in
par. (b) or (c) may be increased by not more than 3 years.
(2) The increased penalty provided in this section does not apply if possessing,
using or threatening to use a dangerous weapon is an essential element of the
crime charged.
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(3) This section applies only to crimes specified under chs. 939 to 951 and 961.

-Cannot be used if possessing a, using or threatening to use a dangerous weapon is an

element of underlying crime (ex. Armed robbery, you couldn’t add the penalty
enhancer.)

-Party Liability possible if actually or constrictive knowledge that principal was armed.
This has nothing to do with the natural probable outgrowth of the crime.

-Often used as a plea-bargaining tool- “We would get rid of the penalty enhancer if you
aid in the investigation.

3) Habitual Offender Laws

939.62: Increased penalty for habitual criminality 1) If the actor is a repeater, as that
term is defined in sub. (2), and the present conviction is for any crime for which
imprisonment may be imposed, except for an escape under s. 946.42 or a failure to
report under s. 946.425, the maximum term of imprisonment prescribed by law for that
crime may be increased as follows:
(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period
immediately preceding the commission of the crime for which the actor presently is
being sentenced, or if the actor was convicted of a misdemeanor on 3 separate
occasions during that same period, which convictions remain of record and unreversed.
It is immaterial that sentence was stayed, withheld or suspended, or that the actor was
pardoned, unless such pardon was granted on the ground of innocence. In computing
the preceding 5-year period, time which the actor spend in actual confinement serving a
criminal sentence shall be excluded.

-Only specific to the individual and not applicable to other members that are
PTAC.

-Look at the date of commission of new crime…..We look back 5 years to

see if the D was actually convicted of a Felony, if he has a conviction date for a
felony within the 5 year look back, he is a repeater and will face these enhanced
penalties. The same will be true if the D is guilty of 3-misdimenors on separate
occasions during the 5 year look back (Final Critical).

Purpose of the Statue: “To increase the punishment of persons who failed to
learn to respect their lesson on the first time around in the criminal justice
process.
-Not a typical penalty enhancer
-Does not add to element structure of underlying crime.
-Not an issue for the jury
-Jury shouldn’t even learn that Prosecutor charged D with the habitual
offender crime.
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-This is a sentencing issue only 1) we give the D notice right away 2) put in the
back of the ‘refrigerator’ until sentencing.
-Must be alleged in complaint or, at the latest, in the information before D enters a
plea
-If D enters a plea even if it is not guilty, it is too late for the prosecutor to
add the habitual criminality, it must be done in the criminal complaint, however in
a felony case it can be snuck into the charging document.
-It could be added later pursuant to a plea negotiation.
-Can be added later pursuant to a plea negotiation.
-Individual by individual defendant determination (my bad-record is mine)-Party
liability is not possible.
-Impact on Defendant: Maximum term of imprisonment for underlying offense
increased.
-Can be applied to multiple charges in the same case. (If D commits 3 new
robberies, the prosecutor can attach the repeat offender to each one of the
robberies.

a) Habitual Criminality; Persistent Repeaters (Final Critical)

Increases the maximum penalty the D-faces.

Three Strikes and your out Law-Person will be a repeat offender under the 3-strikes
law if his record looks like this: The D commits serious felony #1, then the D gets
convicted of serious felony #1, after being convicted of serious Felony #1, he Commits
Serious Felony #2, then D gets convicted of serious felony #2, Then D commits serious
felony #3 (THIS IS STRIKE 3!) **The record must look just like this!
Punishment: Life in prison without any chance of being paroled. (no possibility
of release) This is a ‘shall’ so no discretion by the judge regarding the sentencing.

Two Strikes and your out Law- Person will be a repeat offender under the 2-strikes
law if his record looks like this: The D commits serious child sex offense #1, then the D
gets convicted of serious child sex offense #1, after being convicted of serious child sex
offense #1, he Commits serious child sex offense #2
Punishment: Life in prison without any chance of being paroled. (no possibility of
release) This is a ‘shall’ so no discretion by the judge regarding the sentencing.

Wis. Stat. Sec. 939.63 (dangerous weapons)

Apprendi v. New Jersey-Apprendi took some shots into the home of an African
American family. When he was arrested he stated that he did not want the occupants of
the home in the neighborhood because of their race.-Apprendi was indicted by a grand
jury on 21 counts, none of which referenced the ‘hate-crime’-After a plea negotiation
Apprendi entered pleas of guilty to Counts 3 and 18 which were two charges of
possession of a firearm for an unlawful purpose punishable by imprisonment for
between 5 and 10 years. He also pled guilty to a third crime. The remaining counts were
dismissed, and part of the plea agreement allowed the state to reserve the right to
request the court to impose a higher “enhanced” sentence on Count 18 on the ground
that the offense was committed with a biased purpose. -After an evidentiary hearing
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Summer 2018
regarding the D’s purpose for shooting, it was determined that enough evidenced
supported a finding that the crime was racially motivated. -D was sentenced on Count
18 to 12 years in prison. -The ‘Hate Crime’ Penalty Enhancer, was only decided by the
judge determining that the elements of this enhancer were present by a preponderance
of the evidence.-Apprendi argues that any charges that increase his sentence should be
judge my a jury beyond a reasonable doubt/ not a preponderance, by just the judge.-“It
is unconstitutional for a legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal defendant is exposed. It
is equally clear that such facts must be established by proof beyond a reasonable
doubt.

-In WI we also included the penalty enhancer with the underlying crime when it is
presented to the jury, but since the Apprendi case a number of states faced serious
challenges, as they followed the NJ rule of law.

-Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt. (FINAL CRITICAL)
Occasionally you will see the legislature write a crime and one of the
elements of the crime itself is a prior conviction (ex. One of our stalking laws
provides if a person stalks another, and that person has a prior violent crime
conviction, it is a crime. Therefore, the prior conviction is an element of the crime.
Unless we are in one of these are occasions where a prior conviction is part of
the new crime as an element of the crime. (final critical).

Issue: May a factual determination authorizing an increase in the maximum prison

sentence be made by a judge based on a preponderance of the evidence? NO

Rule: Any fact, other than a prior conviction, that increases the maximum penalty for a
crime must be submitted to a jury and proven beyond a reasonable doubt by the
prosecution.

Wis. Stat. sec. 939.62

An Intro to Greater Inclusive/Lesser Included Crime Relationships
Wis. Stat. sec. 939.65-

Wis. Stat. sec. 939.66-Conviction of Included crime permitted.-Upon prosecution for

a crime, the actor may be convicted of either the crime charged or an included crime,
but not both. An included crime may be any of the following: Pg. 17

(1) A crime which does no require proof of any fact in addition to those which must be
proved for the crime charged
(2) A crime which is a less serious type of criminal homicide under such. I of ch.
940than the one charged.
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(2m) A crime which is less serious or equally serious type of violation under s. 948.02
than the one charged.
(2p) A crime which is a less serious or equally serious type of violation under s. 948.02
than the one charged
(2r) A crime which is a less serious type of violation under s. 943.23 than the one
charged.
(3): A crime which is the same as the crime charged except that it requires recklessness
or negligence while the crime charged requires criminal intent (Mens rea).
(4): An attempt in violation of s. 939.32 to commit the crime charged.
(4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime
charged I failure to pay child support for more than 120 days under s. 948.22(2).
(5) The crime of attempted battery when the crime charged is sexual assault, sexual
assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any
of them.
(6) A crime specified in s. 940.285 (2) (b) 4. Or 5. When the crime charged is specified
in s 940.19 (2) to (6), 940.225 (1), (2), or (3) or 940.30.
(6c) A crime that is a less serious type of violation under s. 940.285 than the one
charged.
(6e) A crime that is a less serious type of violation under s. 940.295 than the one
charged
(7) The crime specified in s. 940.11 (2) when the crime charged is specified in s.
940.11.

Ex. We have D charged with Crime #1 and we want to know if crime #2 is a lesser
included offense.

Elements include test to figure out if Crime #2 is a lesser included offense of

Crime #1

#1 #2
Elements Elements. (Yes, #2 is a lesser included.)
A
B B
C C
D D

#1 #2
Elements Elements (No, #2 is not a lesser included.
A
B B
C C
D D
E
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**In WI we reject the fact element approach however, sometimes we have to use
the elements approach.

Pure Facts approach=What Wisconsin uses

Pure Elements approach=What the Federal Approach.
-The Case US v. Shmuck is what led the Federal Government to use the
pure element approach-Schmuck ran a used car dealership and ran back the
odometer on used cars.

Wis. Stat. sec. 939.71

Problem: Identification of Greater Inclusive/Lesser Included Offenses

1. Auto Theft. 1. Joy Riding (is a lesser included Offense)
A-Intention to permanently deprive the owner of the car B
B C
C D
D
***Defendant will claim that this is a multiplicities’-You will not charge the greater crime
and the lesser included for the same behavior.

Jury Instructions Conference: This is where the judge makes the decision on what
law is to be followed and what instructions are to be given to the jury. The Prosecutor
and the D counsel can ask for a lesser included offense. If either side asks for a lesser
includes the judge must consider the following two issues:

*This would be a question where the Defense attorney would yield to the decision of the
client.

1) The judge must determine if as a matter of law is crime x a lesser included of crime
z?
2)The judge must determine whether under the facts of this case to give this option to
the jury. (This question is concerned w/ evidence coming in.)
The Unit of Prosecution and the Problem of Multiplicity; Duplicitous Charger

Multiplicity: Taking what for example should be one count against the D (one charge)
and multiplying it into multiple counts. (Multiplying what should be 1 count for the D,
lodging multiple counts/charges against the D.)

Multiplicity Rule of Law: Multiplicity claims are reviewed according to a well-

established two-pronged methodology. The court first examines whether the charged
offenses are identical in law AND fact. IF it concludes that the offenses are not identical
in law and fact, the court presumes that the legislature authorized multiple punishments.
This presumption, however may be rebutted by clear evidence of contrary legislative
intent.

Legislative intent in multiplicity cases is discerned through study of:

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Summer 2018
1) all applicable statutory language;
2) the legislative history and context of the statutes;
3) the nature of the proscribed conduct; and
4) the appropriateness of multiple punishments for the conduct. If the presumption is
rebutted and the count concludes that the legislature did not authorize multiple
punishments, then the defendant has a legitimate due process claim.

**D is drunk, plows into a stop-sign and then kills the four 4 people in car, is that
1-count? Or 4 counts? To determine this, it is a statute by statute analysis. In
State v. Pal (see below) The court concluded that the two offenses for which Pal
was sentenced was sentenced were not identical in fact, but the court determined
that two offenses were identical in law, so no issue of multiplicity.

Example of Identical in law and identical in fact where an issue of multiplicity!

You DON’T WANT THIS.

Auto Theft Joy Riding

ELEMENTS ELEMENTS
A B
B C
C D
D

**if you have proof of auto theft and joy riding, just try auto theft because it’s the
greatest charged, otherwise the D/c

Duplicity: Old rich man angry because kids play by his lake front property. He sees a
kid and goes down with a large stick and hits the kid once and then stops, and then
comes back and hits the kid again. There are two batteries technically here. The
prosecutor brings forth one charge of battery, and suppose the jury finds the Defendant
Guilty or Not Guilty, can you see the negative impact and double jeopardy issues.
One way to combat this issue is to tailor the jury instructions to specifically define
that the jury must find the D-guilty unanimously

Text §11.2(c)-(add notes)

State v. Pal- On April 20 2014 D Pal was involved in a traffic accident when his sport
utility vehicle collided with a group of motorcyclists on a high way; two of the
motorcyclists died from the injuries. Pal fled the scene but was apprehended by the
police a few days later. LC: Pal pleaded guilty to two counts of hit and run resulting in
death. The circuit court sentenced Pal to ten years of initial confinement and ten years
of extended supervision for each count, with a the term of imprisonment for the first
count to be served consecutive to the term of imprisonment for the second count.—
Appeal: Before the supreme court he raised a multiplicity challenge arguing that he was
punished twice for a hit and run resulting in death even though he only committed a
single offense of fleeing the scene of an accident, also he contended that the circuit
court imposed and unduly harsh sentence.-HOLDINGS: [1]-It was not
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Summer 2018
unconstitutional for the court to accept two guilty pleas and sentence defendant
for both counts of hit and run resulting in death in violation of Wis. Stat. §
346.67(1) (2013-14), because defendant abandoned two dead or dying
motorcyclists on the road following his vehicle accident, and defendant
committed two offenses, not one, when he fled from the scene of his accident and
the legislature authorized punishment for each offense.

1. (Final Critical) Multiplicity claims: are reviewed according to t a well-established

two-pronged methodology. 1) The court first examines whether the charged offenses
are identical in law and fact. (If the court concludes that the offenses are not identical in
law and fact, the court presumes that the legislature authorized multiple punishments.
This presumption, however, may be rebutted by clear evidence of contrary legislative
intent.

a. Legislative intent in multiplicity cases is discerned through study of 1) all

applicable statutory language, 2) the legislative history and context of the statues, 3) the
nature of the proscribed conduct, and 4) the appropriateness of multiple punishments
for the conduct.

b. If the presumption is rebutted and the court concludes that the legislature did not
authorize multiple punishments, then the defendant has a legitimate due process claim.

3. Joinder of Crimes and Defendants; Severance of Crimes and Defendants

(Final Critical)

Wis. Stat. sec. 971.12(1) identifies the circumstances under which joinder of offenses in
the same complaint is permissible- “971.12 Joinder of crimes and of defendants. (1)
JOINDER OF CRIMES. Two or more crimes may be charged in the same complaint,
information or indictment in a separate count for each crime if the crimes charged,
whether felonies or misdemeanors, or both, are of the same or similar character or are
based don the same act or transaction or on 2 or more acts or transactions connected
together or constituting parts of a common scheme or plan. When a misdemeanor is
joined with a felony, the trial shall be in the court with jurisdiction to try the felony.”
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A: Joinder of Crimes Wis. Stat. sec. 971.12(1)
Only when we are dealing with charging with one Defendant in the case.
B: Joinder of Defendants Wis. Stat. sec. 971.12 (2)
Only when we are charging 2 or more (multiple) defendants
*If prosecutor erroneously puts multiple charges or multiple defendants, the Defendant
can make a Motion to sever: Misjoinder. If the judge agrees then he will order the
prosecutor to severe the defendants or the charges. Another form is Motion to sever:
Prejudice: If it appears that a D or the state is prejudiced by a joinder of crimes or of
D’s in a complaint, information or indictment or by such joinder for trial together, the
court may order separate trials of counts, grant a severance of D’s or provide whatever
other relief justice requires. (Final Critical)

Text § 9.1 and 9.2-(add notes)

State v. Hoffman-Barbra was a ‘masseuse’ in the 1970(s), which was a commercial

front for prostitution, drugs, ect. She struck up a relationship with two guys, late in
December of 1977, Barbra invited him to stay over at her apartment. In the middle of the
night she woke up the man and told the man when she came home the previous night
she came home and found a dead body. Barbra said the dead body was back behind
the apartment but was too close. They both went and moved the body and dumped the
body. The man went to the police and led the police to the body. The key witness who
took the police to the body was to testify at the preliminary hearing. Two months later he
showed up dead due to cyanide poisoning. The DA did a further investigation on the
previous victim and it was found that he too died of cyanide poisoning. Barbra was
charged with both counts under joinder. Barbra contested the Joinder, and she was
convicted, and Barbra subsequently appealed, which held that it was not enough to hold
that the crimes violated the same statute. The crimes must be the same types of
offenses and character that occurred in a relatively short period of time, and the
evidence of the crimes overlap.

It was later discovered that Barbra murdered the first man get the proceeds from
his life insurance policy, in order to pay the premium on the second man who had a
much larger policy, in order to cash out that policy after she killed him, so she could
move away.

Wisconsin notes that the overlap does not seem to be adopted by all the federal
courts. We will hold this to be the rule of law in the Hoffman case, but not for future
cases.

State v. Hamm-Hamm appeals from a judgement of conviction on eleven felony counts

including sexual assaults, attempted sexual assaults, and burglaries, and from an order
denying his motion for a new trial.-The D raises several issues 1) the counts regarding
1983 incidents should have been separately tried from those arising out of the 1985
incident 2) the trial court abused its discretion by refusing to admit expert testimony on
eyewitness identification 3) the court should have excluded certain evidence 4) Hamm’s
trial counsel was ineffective, and 5) the court abused its discretion by imposing
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sentences totaling 105 years.-The crimes charged relating to the 1985 and 1983
incidents were the same type of offenses, since each incident gave rise to armed
burglary and first-degree sexual assault charges.- The evidence overlaps. The
similarities between the acts in each incident tended to establish the identity of the
criminal. In each incident, the perpetrator entered a home in the small hours of the
morning armed with a knife, disguised and committed a sexual assault. Each occurred
in apartments on the same street within a few hundred feet of each other, two of the
three assaults occurring the adjoining apartments, and in each case entry and exit were
through windows facing the same wooded area. In each case the perpetrator entered
unarmed but armed himself with a knife taken from the premises, concealed his face
with a towel taken from the premises and entered to commit a sexual assault.

Rule Of Law: Two or more crimes may be charged in the same complaint in a
separate count for each crime if the crimes charged are of the same or similar character
or are based on the same act or transaction or on 2 or more acts or transactions
connected together or constitution parts of a common scheme or plan.

To be of the “same or similar character” under sec. 971.12 (1), Stats. Crimes
must be the same type of offenses occurring over a relatively short period of time and
the evidence as to each must over lap State v. Hoffman. It is not sufficient that the
offenses involve merely the same type of criminal charge. Whether charges are properly
joined in the criminal complaint is question of law.

971.12(3) RELIEF FROM PREJUDICIAL JOINDER.-If it appears that a defendant or

the state is prejudiced by a joinder of crimes or of defendants in a complaint, information
or indictment or by such joinder for trial together, the court may order separate trials of
counts, grant a severance of defendants or provide whatever other relief justice
requires. The district attorney shall advise the court prior to trial if he intends to use the
statement of a codefendant which implicates another defendant in the crime charged.
Thereupon the judge shall grant a severance to any such defendant. (Final Critical)

Severance: Conflicting Defense And Strategies: It is a common doctrine that a

severance is necessary only if the defenses are mutually exclusive (i.e., that belief of
one compels disbelief of the other), and that the mere fact that there is hostility between
defendants or that one may try to save himself at the expense of another is in itself
alone not sufficient grounds to require separate trials. “Defendants are not entitled to
severance merely because they may have a better chance of acquittal in separate trials,
Rather the court should grant a severance only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants or prevent the jury from
making a reliable judgment about guilty or innocence, even if a defendant makes a
showing of “some risk of prejudice” the remedy of severance is unnecessary if that
prejudices is of the type that can be cured with proper instructions.

Bruton Problem: D-A who confesses to police admitting his own involvement and
implicates D-B in the crime. D-B doesn’t say anything (no confession or statement). At
trial D-A never takes the stand in this joint trial where A and B are together. But the
 Criminal Process
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prosecutor calls the detective who interrogated D-A, and gained the confession which
implicated D-B, thus D-A’s testimony is presented before the jury. The trial judge
determined it would give a jury instruction that stated that respect to D-A you can use all
the evidence you heard including D-A’s confession, but with respect to D-B, you cannot
use D-A’s confession including D-B. Both are convicted and makes it way to the
Supreme Court. (the assumption is that if the judge gives a jury instruction they will
follow it) The Supreme Court determined this request was too tall of an order and
unrealistic and denies D-B to confront his accuser (who was D-A).

When confronted with a problem like this the prosecutor has to determine if he
will, use D-A’s confession at trial, he could ask the judge for separate trials, so at D-A’s
trial D-A’s confession would come in, but would not then come in at D-B’s separate trial.
The other thing that could be done is have D-A’s confession redacted that refer to D-B’s
involvement (would only work if the statement was reasonably redactable). Another
option is to try A and B together and just not use the confession.

Cross implicating Confession: A Confesses and implicates B, and B confesses and

implicates A. Supreme court says no because both D’s are now fending off the
government and the co-defendant. (You could have 3 separate trials but could be tried
together and not use the confessions of the Ds.)

***A D can give testimony to one count and not others if they so choose.

If attorney A is representing client 1, but the prosecution’s evidence leans more

toward client 2 as a PTAC, would be worried there would be spillover.

(Final Critical) Use the word ‘Spillover’ when discussing issues of ‘Other Acts evidence’
or multiple charges or multiple defendants in relation to Joinder. **remember jury
instructions can sometime cure these types of issues. *One Co-Defendant cannot call
another Co-Defendant against their will, but if D needs to call the Co-D in their cases
thus requiring Severance., the D has to show the judge that he would indeed call his co-
defendant, and the Co-D would infact testify, and what would that testimony be (how
would it be favorable or helpful to the party seeking the severance). Sometimes D’s will
seek severance because Co-parties have antagonistic defenses between the parties.

Francis v. State-D approached two separate women within 35 days, within two blocked
in the same neighborhood, watched for woman to get into their car, and then jump into
car and cover the victims head and sit on her hands with her head in his lap. Victim #1
was sexually assaulted. Victim #2 escaped when D stopped at a traffic light.-They went
to the D’s apartment and found items belonging to the victim.-D signed a statement
confessing the robbery, also orally confessed the acts of rape and sexual perversion
and I.d’d the two women victims.

Rule of Law: “(add notes page 1 State v. Salinas Rule from Francis0
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State v. Salinas-When assessing whether separate crimes are sufficiently “connected

together” for purposes of initial joinder, we look to a variety (add notes)

State v. King-King and Yancy appeal their convictions for robbery, and armed robbery,
with Yancy appealing from the denial of his postconviction motion. -King (prostitute)
brought ward home, when King asked for $20 and Ward said no, King called for Yancy
(pimp) who hit ward in the face and took wards wallet-Ward reported the matter to the
police.-These allegations resulted in King and Yancey being charged in separate
complaints with robbery, party to the crime.-On November 24, 1982 King met Gregory
McDonald outside a liquor store, king got into McDonald’s car, and they drove to an
apartment, and King asked McDonald if he had any money.-Yancy then came out of the
bathroom with a machete-like, and demanded money taking over 140.00.

Problems: Joinder of Crimes and Defendants (See Text Book)

4. Timeliness of Prosecution
Criminal Statute of Limitations: The criminal statues of limitations serve a number of
functions but the primary purpose is to protect the accused from having to defend
himself against charges of remote misconduct. A corollary purpose is to ensure that
criminal prosecutions will be based on evidence that is of recent origin. It also assures
that law enforcement officials will act promptly to investigate and prosecute criminal
activity. This helps to preserve the integrity of the decision-making process in the trial of
criminal cases.

Preaccusation delay: Period of time between Commission of a crime and the

commencement of a adversarial proceedings. **The -------Lines.

Time Limitations on Prosecutions

Commission Date (Day everything happened)---------------------------Felony-------------6

years. Must Commence one of the following before 6 year statute of limitations: A/W,
Summons, Grand Jury Indictment, information (document that comes after preliminary
hearing)

Commission Date-------Misdemeanor-------3 years. Must Commence one of the

following: A/W, Summons, Grand Jury Indictment, information (document that comes
after preliminary hearing)

Avoiding any problems involving the statute of limitations

***Embezzlement as a felony has a 6-year felony statute of limitations but has a
separate statute of limitations.
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‘Jennings’: When D is already is in custody the filing of a criminal complaint is
sufficient for filing a criminal complaint.
Text §10.5(a) (add to notes)
Wis. Stat. sec. 939.74-Statute of Limitations
John v. State-Barbra John was found guilty at trial for welfare fraud.-John received
page 185 public assistance benefits while intentionally failing to report a change of
circumstances affecting her eligibility for those benefits-The Court of appeals held that
the violation of sec 49.12(9), was a continuing offense and the offense continued each
day Barbra failed to report changed circumstances and continue to accept aid based
upon her prior circumstances.- The question before the court is whether the statute of
limitations for the crime of failing to report a change in circumstances affecting a welfare
recipients eligibility for benefits begins to run upon the expiration of the grace period
allowed for reporting such a change or does it commence only upon cessation (to end
or brought to an end) of either the fraudulent conduct or the receipt of benefits.-
Defendant sought review, and the court affirmed.-The court held that the statute of
limitations requiring felony prosecutions to be commenced within six years after the
commission of the offense, § 939.74(1), did not bar defendant's conviction.-John did not
commit an offense until she failed to report the change in circumstances after seven
days from the occurrence of the change. Any benefits received thereafter were the
result of defendant's fraud and were to be computed in the determination of the
penalty.-All benefits received after the seven-day period constituted part of the fraud,
which occurred through years at least until a year before defendant's prosecution.

Time-Line:
-March 7th 1969 D applied to AFDC-reporting she had 4 children living with her
-Review forms were calculated every 6 months to calculate benefits to be received, and
the forms were on file for the years of 1970-1977.
-The initial application for aid and each review form filled out thereafter listed the D’s
only daughter as a member of the household, as well as D’s 3 sons.
-The complaint and information alleged that the D’s daughter began living with her
grandmother sometime in 1970 which both parties agree.
-Criminal Prosecution was not instituted until March 1978
-The complaint and information covered the period of April 1 1972 through June 30
1977
-D was alleged to have received $22,631.97 with only 3 children in which she should
have only been entitled to $18,977.97 with an overpayment of $3,654 fraudulently
obtained.
-D was placed on 3 years of probation and ordered to pay restitution.

- No crime can occur until the seven days have elapsed without reporting a change of
circumstances. Only the funds received thereafter would be the result of fraud and
computed in the determination of the penalty. Under the circumstances here, the total
amount of the aid received after the seven-day period of grace would be computed in
determining the penalty
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- Ex Post Facto: (After the Fact) The prohibition on the legislative branch from passing
a criminal statute, and retroactively applying it to a defendant who violated the law
before it was made a crime. Doing so would violate the Ex Post Facto Clause. Nor could
we increase the penalty on the D, rather we use the punishment at bar when the crime
was committed. Nor can we retro-actively the law that would strip the Defendant of a
defense they had. (Final Critical)

(Final Critical) Ex. D commits crime with current felony standard of statute of
limitations for a felony at 6 years. Suppose the statute had been 6 years and the
legislature decides that they want to expand the statute of limitations to 30 years, and
now we have a new statute in acted, which expands the statute well beyond the 6 year
limit and now it is a 30 year limit. If someone comes forward after the 6 year period with
allegations against the D, the statute expired, and the Defendants defense under that
was fully matured at that point and the matter is dead. However, if the D is only at the 5
year mark of the 6 year statute of limitations when the legislature extends the statute of
limitations to 30 years, the D can be tried for the crime up to the 30 year period. **If the
original statute of limitations runs out, the defendant is free. If he doesn’t reach
the original statute of limitations when charges are brought then the Defendant is
applicable to the new statute of limitations.

Continuing Offense: Add Notes from John v. State.

A continuing offense should not be found unless the legislature speaks clearly. -Which
undoubtedly occurred here.

State v. Pohlhammer- (Final Critical Case Remember for statute of limitations

questions). Defendant was charged with theft by fraud. Because more than six years
had passed since the offense was committed, the action was time-barred. The State
contended that, because a prosecution that had been brought against defendant for
arson with intent to defraud encompassed the theft by fraud charge, the statute of
limitations was tolled during the time that the former prosecution was pending. The court
disagreed with the State's contention on the ground that the two acts were not the
same. The court reversed. The court found that because defendant was not informed at
the time that he pleaded guilty to the theft by fraud charge that the action was time-
barred, defendant had not waived the statute of limitations defense. The court
concluded that defendant should be allowed to withdraw his guilty plea. -Holding: The
order is reversed. The judgment of conviction is set aside. Leave is granted to the
defendant to withdraw his guilty plea and to the state to withdraw the amended
information. The cause is remanded for further proceedings.

Arson’s Committed By Pohlhammer:

First Fire July 1968
Second Fire Aug 1969
Third Fire Feb 1970
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April 1974-An arrest warrant is issues. **The prosecution was commenced by issuance
of the Arrest Warrant in this case. This has to occur before the statute of limitations runs
out.

939.74(3)-In computing the time limited by this section, the time during which the actor
was not public a resident within this state or during which a prosecution against the
actor for the same act was pending shall not be included.

939.71- If an act forms the basis for a crime punishable under more than one statutory
provision of this state or under a statutory provision of this state and the laws of another
jurisdiction, a conviction or acquittal on the merits under one provision bars a
subsequent prosecution under the other provision unless each provision requires proof
of a fact for conviction which the other does not require.

September 1975-Trial Date-Prosecutor shows up with an amended information as part

of a plea negotiation.-This amended information charged theft by fraud (occurring in
August 1979**Changing the Second Fire) Also, the First and Third fires would be
dismissed, but would be read-in

Read-in Practice: Developed here in Milwaukee county by practice. The charges

dismissed have no conviction, but the defendant consents to the court (judge) to
consider the charges when the court sentences the defendant on the count charged.

November 1975-Judge Sentences Pohlhammer, who was an older-man (72 years old)
to 10 years in prison, but decides to impose the sentence, but stays the sentence and
puts the D on probation, with the first 6-months incarcerated in the local jail.

November 1975-Pohlhammer didn’t like the sentence, and fired his D/c, and hired a
high level defense attorney. The new attorney wanted to raise a statute of limitations
problem. In the view of the Supreme court

*****(final critical)When the warrant went out for the arson, it did not stop the clock on
the theft by fraud therefore the theft by fraud ran it’s statute of limitations. It would have
stopped the clock for other-lesser included offenses of arson, because the theft by fraud
has different elements, thus the clock was stopped for arson, but the time expired for
‘theft by fraud’..

Statute of limitations: (Final Critical) effects the personal jurisdiction of the court. A
guilty plea does not wave the problem in regard to the statute of limitations problem, but
it can be waived if the D knowingly and voluntarily waives it. **It must have been
specifically addressed. (Final Critical)
If the prosecutor wants to amend a charge as part of a plea negotiation and the
new charge will be barred by the statute of limitations is if the judge addresses the
Defendant and discusses the matter of waiving the bar of statute of limitations, and D
must agree.
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(Remember for final) Mechanism for stopping statute of limitations, and what
those mechanisms are.

Question 5 of Statute of Limitations Discussion Problem (final critical)

Purpose of the statute of limitations is the principal device reated by the people of
a state through their legislature to protect against prejudice arising form a lapse of time
between the date of an alleged offense an arrest.

Auto Theft (felony)

ABCD

Joy Riding (Felony (hypothetically) lesser included)

BCD

If summons goes out before the 6 year statute of limitations expiration, then it can be
changed because in this case they are both felony.

Alternative Hypo
Auto Theft
ABCD

Joy Riding
BCDE

We would have a statute of limitations problems because auto theft does not stop the
clock for joy riding because it is not a lesser included because they both have elements
that the others do not.

Text §10.5(b)-(add notes)

State v. Wilson- 1) Actual prejudice 2)Improper motive on the part of the prosecution
in their delay to deliberately delay to gain a tactical advantage over the defendant.)

Preacquisition Delay: The time we are looking at is between the commission of

the crime and the commencement of adversarial proceedings against the defendant
(When the prosecutor decides to issue a criminal complaint against D, and when the
right to counsel begin).-Due Process analysis (final critical)

Problems: “Statute of Limitations” (See supplement in book).

5. Place of the Prosecution (Venue)
Where are we going to file the charges?
Wis. Stat. sec. 971.19-Place of Trial (VENUE) (Final Critical)
1) Criminal actions shall be tried in the county where the crime was committed, except
as otherwise provided. (A County based system)
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In the Federal system: Criminal actions shall be tried in the district where the
crime was committed.

**Venue is not an element of the crime but must be proven to be correct

“Beyond a Reasonable Doubt” by the prosecution, even though it is not an
element.

You will hear the prosecution repeatedly ask the D if the crime or event
occurred in the State and county because they have to prove Venue beyond a
reasonable doubt.

2) Where 2 or more acts are requisite to the commission of any offense, the trial may be
in any county in which any of such acts occurred.

3) Where an offense is committed on or within one-fourth of a mile of the boundary of 2

or more counties, the defendant may be tried in any such counties.

4) If a crime is committed in, on or against any vehicle passing through or within this
state, and it cannot readily be determined in which county the crime was committed, the
defendant may be tried in any county through which such vehicle has passed or in the
county where the defendant’s travel commenced or terminated.
*Victim is blindfolded and put in trunk, D traveled and at some point pulls victim
out and assaults them. The D can be charged in any county.

5) If the act causing death is in one county and the death ensues in another, the
defendant may be tried in either county. If neither location can be determined, the
defendant may be tried in the county where the body is found.
*If person is shot in one county and person dies in route or at a hospital in a
nearby county, the D can be tried in any county.

6) If an offense is commenced outside the state and is consummated within the state,
the defendant may be tried in the county where the offense was consummated.
*If we can’t determine where the death occurred, then proper venue is wherever
the body is found.

11) (identity theft) In an action under 943.201, the defendant may be tried in the county
where the victim or intended victim resides at the time of the offense or in any other
county designated under this section. In an action under 943.203, the defendant may be
tried in the county where the victim or intended victim was located at the time of the
offense or in any other county designated under this section.

Wis. Stat. sec. 971.22-Change of place of trial (Change of Venue)-The defendant

may move for a change of the place of trial on the ground that an impartial trial cannot
be had in the county. The motion shall be made at arraignment, but it may be made
thereafter for cause.
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Can only happen if D asks for change of venue, neither the prosecutor nor judge
can request a change of venue.
Typically brought because of inflammatory pre-trial publicity, The court will ask: to
what degree did it infiltrate the county? what is the timing of the publicity? what was the
nature of the publicity? was it pure reporting or attempting to rabblerousing? are we able
to select a jury that is untainted by the publicity?

Judge has two options if D brings forth change of venue concerns and is granted:

1) Traditional-Pick up whole trial and go somewhere else with it. Ex. Move Case from
Milwaukee to Greenbay

2) Wis. Stat. sec. 971.225-Jury from another county- Statute allows the judge to take
a group of individuals from a different county and bus them in and house them for the
duration of the trial.
Judge may wait and analyze a jury pool in the county to determine first if they
can get an impartial panel.

D is not entitled to an ignorant panel of jurors, what we are looking for is jurors
that will take an oath to render a verdict based on the evidence received in the court
room, even though they may know something about the case. (Final Critical)

Wis. Stat. sec. 971.09-Plea of guilty to offenses committed in several counties. -

Known as the ‘consolidation statute’ Allows D with charges from multiple counties to
ask if they can be put together in one county, in front of one judge for purposes of
pleading guilty or no-contest. We don’t consolidate for the purpose of having a trial-
Only D can initiate this and must give up his venue right for the other counties, and the
prosecutor has to agree to this, and then the case is transferred to one county where D
enters guilty pleas. (Final Critical)

D. Criminal Pleading
1. Introduction
Wis. Stat. secs. 967.05, 968.01, and 968.02
Wis. Stat. secs. 967.05-Methods of prosecution (Final Critical)
1) A prosecution may be commenced by the filing of:
a. A complaint
i. 99.99% of all criminal cases start with a complaint.
ii. Complaint ( Preliminary Hearing Information
iii. (Final Critical) Parts of a complaint: 1) Caption: (Plaintiff-State of
Wisconsin identified, Defendant identified, Case Number, Crime identified, Statute,
Complainant: Person who signs the complaint; This person will swear that 1)
Personally knows the facts 2) Knows facts to be true on the basis of information given to
me. 2) Charging Paragraph-Prosecution lays out elements of crime D is being charged
with. 3) Penalty Paragraph-The maximum fine and or term of imprisonment D faces. 4)
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Summer 2018
Probable Cause Section-Prosecution lays out facts leaning toward D probably being
guilty of the crime. 5) Signature Page.
b. In the case of a corporation or limited liability company, an information;
i. Can start the case with the Information because a company does not
have a right to a preliminary hearing. All people who are charged with a felony do.

c. An indictment
2) The trial of a misdemeanor action shall be upon a complaint: (Final Critical)
a. Felony case: Complaint Initial Appearance Preliminary Hearing
Information
b. It is the information in the felony cases that is the critical document. The
complaint is what is used to hold the D at preliminary hearing.

c. D does not plead to the complaint, he pleads only the Information that he
pleads (Final Critical)

3) The trial of a felony action shall be upon an information. (Final Critical)

a. Misdemeanor Case: Complaint.
b. D pleads to the complaint.

Wis. Stat. secs. 968.01-Complaint- The complaint is a written statement of essential

facts constitution the offense charged.
Wis. Stat. secs. 968.02-Issuance and filing of complaints

Sample Criminal Complaints-(See Text Supplement)

-Police do not have to justify the stop in the complaint.
Probable Cause: 1) This crime was completed 2) Probably completed by
defendant

State ex rel. Evanow v. Seraphim:

Procedural Posture

Defendant challenged an order of the Circuit Court for Milwaukee County (Wisconsin).
Defendant sought to dismiss the complaint charging him with the crime of burglary
pursuant to Wis. Stat. § 943.10(1)(a).

The sole question before the court was whether it appeared from the written complaint
that there was probable cause to believe that defendant was guilty of burglary. Wis.
Stat. § 954.02 required that the complaint itself set forth the grounds for probable cause.
Defendant first argued that the name of the complainant was given, but he was not
identified as a police officer. The court determined that the fact, known to defendant,
that complainant was a police officer was not an "essential fact" necessarily set forth in
the complaint. Similarly, the objection that there was no allegation by the complainant
that he made any investigation was rejected. A police investigation was not a
requirement for issuance of a warrant in every case. Affirming, the court determined that
the words used in the complaint were a clear and complete description of exactly what
 Criminal Process
Summer 2018
defendant was alleged to have done. He was informed of the exact nature of the charge
against him, which was a primary purpose of the written complaint in criminal cases.
The court held that the essential facts were properly set forth in the complaint.-
Outcome-The court affirmed the order of the trial court.

The 6 W’s for a proper complaint:

In the complaint theses W’s must be present.
1) Who was charged?
a) Name of defendant
2) What is the charge?
a) Contained in the Charging paragraph: The prosecution lays out the elements of
crime D is being charged.
b) Charging Offenses Known to Law (Subjects Matter Considerations)-Ensuring we
are charging under the correct statute on the date the defendant allegedly completed
the crime.
c) Prosecution puts down the precise statutory number to save themselves if they
accidently error in writing the elements.
d) You want to avoid duplicity in the charging decisions. You need to research what
the statute actually says.
i) State has software now that can rescue from making charging mistakes.
e) If party liability is involved, the prosecution MUST note if there exists party to the
crime charge (which is included in the charging paragraph.

3) When did this happen?

a) It is okay to charge something “on or about” a specific date.
b) Proving the precise date is not important unless the date is critical to the crime
(i.e. sex assaults in which the age of the minor is critical, or statute of limitations issues.)

i) If you deal with sexual abuse of children, the kids typically do not have a great
idea of a precise date. They may provide a time frame in which the crime occurred. This
will not be fatal to the prosecution’s case, the courts understand the limitations children
may have in identifying precise dates.
ii) Courts have not been sympathetic to defendants arguing against this

4) Where did this happen?

a) You must allege that the crime took place in the correct county (venue)
5) Who says it happened?
a) Who says so? This could be the officer noted as the complainant, or anyone else
who is a source of information, which includes co-actors, witnesses, ect.
b) It is important that all sources are credible.
i) If one of the sources requires specific credentials (ex. The Heroine was
examined by State crime lab chemist John Jones, and was determined to contain
Fentanyl.)
ii) For Juveniles and some adults, can be ‘named’ by initials.
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6) Why is the defendant to be believed to have committed the crime? (what
evidence exists to show this)
a) Why is this person being charged? Noting all elements in complaint and that the
crimes in the complaint were completed and the D was probably involved.

State v. Haugen-Haugen guilty of theft PTAC-Sentenced to 6 months of probation for a

period o 6 months. The conviction in the county court was affirmed on appeal to the
circuit court. -The witness (complainant) is a student president of the University of
Wisconsin, she observed one of the D break the door on a storage case containing
which was the property of UW-Milwaukee, and said the male took two 24 bar boxes of
candy and handed them to the defendant; the defendant consumed one candy bar and
gave the balance to other persons who had congregated in said Union.

Evidence adduced at a subsequent trial cannot be used to supply the factual

deficiencies of a complaint, a complaint, including documents that are made a part of it
by reference, is a self-contained charge, and it alone may be considered in determining
probable cause.
Within the four corners of the document must appear facts that would lead
a reasonable man to conclude that probably a crime had been committed and that the D
named in the complaint was probably the culpable party.
Court argues that the it is immaterial that the person who took the candy
from the case is unidentified or that his identity is not alleged to be known to the
defendant, for mutuality of agreement may be secured without the conspirators knowing
each other and without distinct statement of plan.

Issue: Question raised whether a reasonable person, from a reading of the complaint,
could conclude that Haugen saw the identical incident, had the same background as to
the authority of the person behind the counter, and therefore oucld conclude that a theft
had been committed. In short, it is necessary to reasonably conclude from the four
corners of the complaint that Haugen knew a criminal act had been performed and
intentionally undertook conduct to further the accomplishment of the act. (Kent state
university protest, requiring the national guard to be sent in, which resulted in the
deaths of 4 students being shot and killed and 9 wounded, which sparked
massive protests on college campuses, thus the aggressive approach by the ADA
in charging.)

Two Elements required to make one a party to a crime: (Final Critical)

1) The commission of the crime
2) The Party’s awareness of its commission.

E. Lecture: Permissible Uses of Hearsay and the Impact of Illinois v. Gates

Hearsay: Person-A reciting what somebody else told them. (Final Critical)
Can we use hearsay in a complaint? (Yes, but..) (Final Critical)
1) We must be concerned with the quality of hearsay.

2) How good does the hearsay have to be?

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a. Two critical cases set forth the standard:
1. Aguliar v. Texas (1964)
2. Spinelli v. US. (1969
i. In both cases judges when giving search warrants judges can rely
on hearsay, but the hearsay must depend on reliable information.
ii. Basis of knowledge and Veracity is where the courts first
look for warrants.
a. Reliability two considerations that comprise the two
prong Aguliar/Spinelli Test: (Final Critical)
1) Is our hearsay source reliable (is this a reliable person?)
a. Veracity Prong (You need to get a source of information into one of these
general categories.
b. Credibility Spur of Veracity Prong:
i. Citizen Informers
ii. Fellow Police Officer
iii. Police Informants:

c. Reliability Spur of Veracity Prong:

i. Police corroboration
ii. Statement made that is against an individual’s personal penal
interest.
a. Can use information if they have a track record of giving
credible/reliable information. They do not have the same level of credibility that a Citizen
informer, or Fellow Police officer has.

2) Is the information reliable? (how did the source get the information?)
a. Basis of Knowledge Prong: Courts want to inquire of information basis of
knowledge. (how does he know that there are drugs in that house.)
i. Personal Observation: The informant’s basis of knowledge is on
his/her personal observation.
ii. Self-Verifying Detail: A person knows so much information regarding
the nature of the crime. If the detail has any predicative value, then the information has
increased valid.
iii. Police-Corroboration:

Can we use hearsay to obtain a search warrant?

1) You have to give facts to the level of the probable cause

2) It is common for the officer to give the judge Hearsay to support

obtaining a search warrant, laying out the facts in support of the warrant is often
done in an affidavit (most common), or directly to the judge.

Role of the Judge in issuing the warrant: The task of the judge is to make a
practical/common sense decision in issuing the warrant, weighing if the facts in the
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affidavit, and the veracity of person supplying the knowledge there is a fair, practical
common sense decision, that there is a fair probability of the crime ‘drugs in the home’
is being committed.

Illinois v. Gates: Procedural Posture

Petitioner state appealed a judgment from the Illinois Supreme Court, which affirmed
the decisions of lower state courts granting a motion to suppress evidence against
respondents, a husband and wife, as having been obtained pursuant to a search
warrant improperly issued on the basis of a confidential informant's tip in violation of
the Fourth Amendment.

Overview

A state supreme court ruled to suppress evidence against respondents, a husband and
wife, reasoning that the search warrant was based on a confidential informant's tip that
did not satisfy the purported "veracity" and "basis of knowledge" prongs for probable
cause. Holding instead that probable cause was determined by a traditional totality-of-
the-circumstances analysis, the Court reversed. The Court held that probable cause
determinations were not susceptible to the rigid, technical methodology that had been
read into Fourth Amendment jurisprudence. The Court held that the elements of an
informant's veracity and knowledge should be understood simply as issues that could
illuminate the commonsense inquiry of whether there was probable cause to issue a
search warrant. The Court held that this approach comported with the standard of proof
for a warrant, which required only the "probability," and not a prima facie showing, of
criminal activity. The Court held that the informant's recitation of detailed facts, though
relating to innocent activities, when corroborated by observation by police officers,
afforded probable cause to believe that respondents had drugs in their possession.

Outcome

The Court reversed the judgment that suppressed evidence against respondents, a
husband and wife, because the suppression was based on an erroneous application of
an overly rigid and technical standard for determining whether a confidential informant's
tip established probable cause; under the proper, commonsense approach, the
corroboration by police of the facts of the tip established probable cause to believe that
respondents possessed drugs.

1. Common Attacks on the Allegations of Essential Facts

a) Insufficiency of Alleged Facts
Wis. Stat. sec. 971.31(5)(c):
Sample Defense Motions Forms (add notes from Motion to Dismiss: Defective
Complaint.
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b) Challenge Based upon Misstatements or Omissions
Franks v. Delaware Attack (add notes based on lexis look up) says officer lied
therefore the judge should stricken the information from the warrant and if probable
cause is no longer present, then the warrant should be thrown out.
To get warrant tossed and have evidence suppressed. **Only applicable if the officer
who was named as complainant and swears for the warrant is the individual who lied or
misrepresented facts that are material to probable cause (critical to probable cause, not
fluff).
Elements required:
1) Officer misrepresented facts material to probable cause, without which the
2) Officer did so intentionally or in reckless disregard to the truth.
If Prosecutor does the following the complaint can be thrown out: (Add notes)
1) omitted facts left out undisputed
2) capable of single meanings
3) If putting in these facts would eliminate the probable cause
State v. Mann-(Add notes)
F. Role of Defense Counsel in the Charging Decision
JURISDICTION
VIII. Jurisdiction
A. Subject Matter Jurisdiction and Circuit Court Competency
Subject Matter Jurisdiction: Conferred by law by constitution or statute, never waived,
can be challenged at any time. The authority of the court to inquire into the charge to
apply the law and to declare judgement and sentence.
Wisconsin is general subject matter jurisdiction, meaning the prosecutor charges
a crime known to law (in full force and effect on the Date the D did it), and notes the
elements of the crime known to law or saved via statutory citation.
If what the prosecutor alleges is not a crime known to law, it will fail.
Wis. Const. art VII sec. 8
B. Personal Jurisdiction
Personal Jurisdiction: is the courts authority to exercise it’s power of this specific
defendant.
a. For some time WI was alone in the US in this jurisdiction, a problem with the
illegality of an arrest, affected the personal jurisdiction of the court.
i. If you had an illegal arrest (arrest without probable cause) one
ramifaction of that was that the D could challenge the personal jurisdiction of the court
(bad arrest affected personal jurisdiction).
ii. If you had an illegal arrest if it leads to evidence could be the basis of a
defense motion to suppress evidence under the exclusionary rule under the 4th
amendment. (Conviction.

State v. Smith-An illegal arrest still affects the admissibility of arrest, but the impact on
personal jurisdiction is gone. We must ensure the complaint which is the vehicle for
securing the conviction, that it alleges the sufficient probable cause down (notice),
penalties the D faces, and a sufficient relationship between whatever the D did and the
State of Wisconsin.
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As long as we show in a criminal complaint that there is probable cause the D
committed the crime, and we show the D’s activities were in the claim of jurisdiction in
the state of Wisconsin within the sufficient relationship is satisfied by sec. 939.03 there
will be Personal Jurisdiction. (final Critical).

C. Territorial Jurisdiction
Wis. Stat. sec. 939.03-Jurisdiction of state over crime. 1) A person is subject to
prosecution and punishment under the law of this state if any of the following
applies:
a. The person commits a crime, any of the constituent elements of which
takes place in this state.
b. While out of this state, the person aids and abets, conspires with, or
advises, incites, commands, or solicits another to commit a crime in this state.
c. While out of this state, the person does an act with intent that it cause in
this state a consequence set for in a section defining a crime.
d. While out of this state, the person steals and subsequently brings any of
the stolen property into this state.
e. The person violates s. 943.201 or 943.203 and the victim, at the time of
violation, is an individual who resides in this state, a deceased individual who
reside in this state immediately before his or her death, or an entitiy, as defined in
s. 943.203 (1) (a), that is located in this state.
f. The person violates s. 943.89 and the matter or thing is deposited for
delivery within this state or is received or taken within this state.
g. (add notes pg. 2)

INITIAL APPEARANCE AND PRE-TRIAL RELEASE

IX. Initial Appearance

Wis. Stat. secs. 970.01 and 970.02

Wis. Stat. Secs. 970.01: Initial Appearance before a judge:

(1) Any person who is arrested shall be taken within a reasonable time before a judge
in the county in which the offense was alleged to have been committed. The initial
appearance may be conducted on the record by telephone or live audiovisual means
under s. 967.08. If the initial appearance is conducted by telephone or live audiovisual
means, the person may waive physical appearance.
Waiver of physical appearance shall be placed on the record of the initial
appearance and does not waive other grounds for challenging the court's personal
jurisdiction. If the person does not waive physical appearance, conducting the initial
appearance by telephone or live audiovisual means under s. 967.08 does not waive any
grounds that the person has for challenging the court's personal jurisdiction.

(2) When a person is arrested without a warrant and brought before a judge, a
complaint shall be filed forthwith.
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Wis. Stat. Secs. 970.02: Duty of a judge at the initial appearance:

(1) At the initial appearance the judge shall inform the defendant:
(a) Of the charge against the defendant and shall furnish the defendant with a copy of
the complaint which shall contain the possible penalties for the offenses set forth
therein. In the case of a felony, the judge shall also inform the defendant of the
penalties for the felony with which the defendant is charged.
(b) Of his or her right to counsel and, in any case required by the U.S. or Wisconsin
constitution, that an attorney will be appointed to represent him or her if he or she is
financially unable to employ counsel.
(c) That the defendant is entitled to a preliminary examination if charged with a felony in
any complaint, including a complaint issued under s. 968.26, or when the defendant has
been returned to this state for prosecution through extradition proceedings under
ch. 976, or any indictment, unless waived in writing or in open court, or unless the
defendant is a corporation or limited liability company.
(2) The judge shall admit the defendant to bail in accordance with ch. 969.
(3) Upon request of a defendant charged with a misdemeanor, the judge shall
immediately set a date for the trial.
(4) A defendant charged with a felony may waive preliminary examination, and upon
the waiver, the judge shall bind the defendant over for trial.
(5) If the defendant does not waive preliminary examination, the judge shall forthwith
set the action for a preliminary examination under s. 970.03.
(6) In all cases in which the defendant is entitled to legal representation under the
constitution or laws of the United States or this state, the judge or magistrate shall
inform the defendant of his or her right to counsel and, if the defendant claims or
appears to be indigent, shall refer the person to the authority for indigency
determinations specified under s. 977.07 (1).
(7) If the offense charged is one specified under s. 165.83 (2) (a), the judge shall
determine if the defendant's fingerprints, photographs and other identifying data have
been taken and, if not, the judge shall direct that this information be obtained.
(8) If the offense charged is a violent crime, as defined in s. 165.84 (7) (ab), the judge
shall determine if a biological specimen has been obtained from the defendant under
s. 165.84 (7), and, if not, the judge shall direct that a law enforcement agency or tribal
law enforcement agency obtain a biological specimen from the defendant and submit it
to the state crime laboratories as specified in rules promulgated by the department of
justice under s. 165.76 (4). If the judge requires the defendant to provide a specimen
under this subsection or if a biological specimen has already been obtained from the
defendant, the judge shall inform the defendant that he or she may request
expungement under s. 165.77 (4).

Preliminary examination/hearing: (add Lakiesha’s Final Critical notes.)

X. Bail (Pre-Trial Release)

Text §§ 4.1, 4.2 and 4.3
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§ 4.1 Pretrial Release Procedures
a. The Federal Bail Reform Act
b. State Practice Generally
c. Counsel at Bail Hearing
d. Proof at Bail Hearing
e. Defendant’s Statements
f. Victim’s Right to Be Heard

§ 4.2 Constitutionality of Limits on Pretrial Freedom

a. Amount of Money Bail
b. Poverty and Pretrial Release
c. Opportunity to Prepare a Defense

§ 4.3 Constitutionality of Mandating Pretrial Detention

a. Preventive Detention in the Federal System
b. Preventive Detention in and the State Constitutions
c. The Eighth Amendment Ambiguity
d. Other Constitutional Objections
e. Detention Where Serious Offense Charged
f. Detention Upon Individual Finding of Dangerousness
g. Detention for Misconduct During Release

Wis. Const. art. I sec. 6-Execessive bail; cruel punishments

Excessive bail shall not be required, nor shall excessive fines be imposed, nor
cruel and unusual punishments inflicted.

Wis. Const. art. I sec. 8(2)-(3): Prosecutions; double jeopardy, self-incrimination;

bail; habeas corpus:

2) All persons, before conviction, shall be eligible for release under reasonable
conditions designed to assure their appearance in court, protect members of the
community from serious bodily harm or prevent the intimidation of witnesses. Monetary
conditions of release may be imposed at or after the initial appearance only upon a
finding that there is a reasonable basis to believe that the conditions are necessary to
assure appearance in court. The legislature may authorize, by law, courts to revoke a
person's release for a violation of a condition of release.

(3) The legislature may by law authorize, but may not require, circuit courts to deny
release for a period not to exceed 10 days prior to the hearing required under this
subsection to a person who is accused of committing a murder punishable by life
imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years,
or who is accused of committing or attempting to commit a felony involving serious
bodily harm to another or the threat of serious bodily harm to another and who has a
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previous conviction for committing or attempting to commit a felony involving serious
bodily harm to another or the threat of serious bodily harm to another. The legislature
may authorize by law, but may not require, circuit courts to continue to deny release to
those accused persons for an additional period not to exceed 60 days following the
hearing required under this subsection, if there is a requirement that there be a finding
by the court based on clear and convincing evidence presented at a hearing that the
accused committed the felony and a requirement that there be a finding by the court
that available conditions of release will not adequately protect members of the
community from serious bodily harm or prevent intimidation of witnesses. Any law
enacted under this subsection shall be specific, limited and reasonable. In determining
the 10-day and 60-day periods, the court shall omit any period of time found by the
court to result from a delay caused by the defendant or a continuance granted which
was initiated by the defendant.

Wis. Stat. chapter 969: Bail and Other Conditions of Release

1) Bail means monetary conditions of release.

Circuit Court Form: Bail/Bond (Supplement)

Problems: “Study Guide: Bail and Conditions of Release” (Supplement)

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1. Bail is the monetary conditions of release while conditions of release mean the
conditions designed to assure his or her appearance in court (ONLY). Conditions of
release are intended to protect members of the community from serious bodily harm or
prevent the intimidation of witnesses. Even if a monetary condition is met, the judge can
determine additional conditions of release to ensure defendant will appear back before
the court.

2. (see above)

3. (see above)

4. There is no financial cap for a felony, it would be whatever the judge determines to
reasonably secure the ‘D’s’ presence in court.

5. For misdemeanors bail cannot exceed the monetary fine provided for the offense.

6. Yes, that’s the risk taken by the friend in setting forth the bond.

7. Yes, any bail on deposit shall be used to satisfy any restitution orders.

8. Ever since the constitution was amended in 1980 we have had a provision which
allows a judge to deny release 969.039.
i. Prosecutor must demonstrate that the accused is under 969.039 and no
condition of release is adequate to protected members of the community or prevent the
intimidation of witnesses.
a. D is entitled to an evidentiary hearing (clear and convincing evidence)
whether the D has committed one of the crimes under 969.039, and no protection of
conditions exist.
b. The trial must get rolling in 60 days or the D is eligible to release on bail
or conditions.

9. The decision of whether or not to remand to custody pending sentencing is to the

court’s discretion. This type of release while a D appeals, is again at the court’s
discretion.
i. not likely to happen in issues involving an appeal of a DV case.

10. ‘Recompense’(final critical) is a compensation to make amends for loss or harm

suffered. It allows the court to take the bail money that has been forfeited to pay
restitution. You cannot collect double as a victim. It is a payment of restitution to the
victim before any sentence has been imposed.

State Of Wisconsin; bail/bond Sample Doc: (see supplement in text)

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A. Monetary Conditions of Release:
i. Cash Bail (Wisconsin eliminated the 10% provision, because if 50K bail, D only
pays 5K, but there still remains a 45K in debt owed if D jumps bail.
a. If judge wants 5K bail just ask for it, don’t play around with $50K cash bail, no
criminal will have this cash laying around, and impossible to collect on other 90%
ii. Property bond.
a. D puts up property (at the discretion of the court) the property has to have a
free and clear interest in the property in which it can be foreclosed upon.
iii. Signature Bond/Personal Recognizant
a. The real price for freedom in this instance is zero, however if this bond is
forfeited, or violate the conditions of the release; you owe whatever the amount of that
bond is.

Surety: Someone who puts up Cash bail/property bond, but WI do not allow bail
bondsman (corporate surety). They were worried about crooked judges feeding
criminals to bail bondsman, and the WI legislature didn’t like the idea of bondsman
taking advantage of those down on their luck.
If you ever want to know if they allow bailbondsman, find the court house they will
be located across the street. **Joke, but not a joke.

Monetary bonds are criticized across the country because it puts the poor, especially
those in a misdemeanor conviction situations in an averse position. Is there another way
to assure ‘D’ will PSA-done before D makes the initial appearance, which looks at a grid
of risk factors, to determine if the D is a good risk or a bad risk (employment, no history
of absconding, basically a public safety assessment, threat to commit more crime while
out on while awaiting trial.

PRELIMINARY HEARING
XI. The Preliminary Examination and Filing of the Information
Text Chapter 6:
6.1 Multiple Functions
a. Multiple functions
b. Screening
c. Discovery
d. Future Impeachment
e. The Perpetuation of Testimony
f. Other Functions
6.2 Defendant’s Right to a Preliminary Hearing
a. The Federal Constitution
b. The Federal Practice
c. Indictment States
d. Information States
e. Waiver and Demand
6.3 The Bind over Determinization
a. The Applicable Standard
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b. Assessment of Credibility
c. Consequences of a Dismissal
d. Consequences of a Bind over
6.4 Preliminary Hearing Procedures
a. Right to Counsel
b. Application of the Rules of Evidence
c. The Defendant’s Right of Cross-Examination
d. The Right to Present Defense Witnesses
e. Challenging Procedural Rulings.

Wis. Stat. secs. 970.03: Preliminary examination

Wis. Stat. secs 970.032: Preliminary examination; juvenile under original adult
court jurisdiction
Wis. Stat. secs 970.035: Preliminary examination; juvenile younger than 15 years
old
Wis. Stat. secs 970.038: Preliminary examination; hearsay exception
Wis. Stat. secs 970.04: Second examination
Wis. Stat. secs 970.05: Testimony at preliminary examination; payment for
transcript of testimony
Wis. Stat. secs 971.01: Filing of the information
Wis. Stat. secs 971.03: Form of information (how the information should be formatted
and what to include.)

State v. O’Brien: Overview ISSUE: Whether Wis. Stat. § 970.038 (2011-12) violated a
criminal defendant's constitutional rights to confront adversary witnesses, compel
testimony by favorable witnesses, and have the effective assistance of counsel.
HOLDINGS: [1]-Wis. Stat. § 970.038 did not violate a criminal defendant's constitutional
rights since the purpose of a preliminary examination was to test the plausibility of the
State's case against the defendant, not to measure the strength of that case nor provide
for pretrial discovery.

State v. Dunn- Procedural Posture-Defendant sought review after the Court of Appeals
(Wisconsin) reversed the trial court order that, following a preliminary examination under
Wis. Stat. § 970.03, dismissed the arson charge against him for lack of probable cause
to support a bindover. Overview-The police arrested defendant for arson to a building.
Pursuant to § 970.03, a preliminary hearing was held. The State's two witnesses
included a fire inspector and a police detective. The trial court denied the State's motion
for a bindover. The appellate court reversed. The court affirmed. Defendant was angry
with his roommate, he threw lighted matches into his roommate's closet area, and he
left the room. To prove the crime of arson, the State had to show that defendant
intentionally caused damage to a building by means of a fire, Wis. Stat. § 943.02 (1)(a).
Defendant left the building after he threw the matches into the closet, which eliminated
any opportunity for him to stop a fire from spreading into the bedroom. It was
reasonable to conclude that defendant intended to damage his roommate's bedroom
and his roommate's personal belongings. There existed a believable or plausible
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account of defendant's commission of arson; thus, probable cause for purposes of the
preliminary hearing was satisfied, despite any existence of inferences to the contrary.
There was a substantial basis for subjecting defendant to a trial at which a trier of fact
could determine his guilt or innocence. Outcome-The court affirmed the decision of the
court of appeals and remanded to the trial court.

State v. Williams- Procedural Posture-The defendants were committed to institutional

care in the Circuit Court for Milwaukee County (Wisconsin) under petitions alleging that
they were sexually violent predators. The defendants appealed.-Overview-Both
defendants contended that two changes made to Wis. Stat. ch. 980 (1999-2000)
violated their constitutional rights to equal protection and to substantive due process.
They also claimed that the changes should not be applied to them because the petitions
alleging that they were sexually violent persons subject to ch. 980 commitments were
filed before the effective date of the changes. They argued, inter alia, that the automatic
commitment provision in Wis. Stat. § 980.06 (1999-2000), and the 18-month waiting
period in Wis. Stat. § 980.08(1) (1999-2000) violated their rights to equal protection
because they were treated more harshly than were similarly situated persons committed
under Wis. Stat. ch. 51 (1999-2000). The court of appeals disagreed. Although Wis.
Stat. ch. 51 (1999-2000) was more "lenient" than was Wis. Stat. ch. 980 (1999-2000)
the differences between the degree of danger posed by each of the two classes of
persons, as well as the differences in what must be proven in order to commit under the
two chapters, justified on a strict-scrutiny analysis the disparate, but narrowly tailored,
procedures about which the defendants complained.-Outcome-The judgment was
affirmed.

**We suggest the following procedure be employed at preliminary examinations on

multi-count complaints:

1) The examining judge shall examine the counts in the criminal complaint and the
factual basses state therein to determine which counts are transactional related in that
they arose from a common nucleus of facts or, in other words, which counts are “related
in terms of parties involved, witnesses involved, geographical proximity, time, physical
evidence, motive and intent.

2) IN a review of transactionaly related counts, after presentation of all of the evidence

at the preliminary hearing, if the examining judge finds there is probable cause to
believe that a felony was committed, there is necessarily probable cause as to all
counts that are transactional related and the defendant shall be bound over on all those
counts;

3) Conversely, if no probable cause is found that a felony was committed in conjunction

with review of counts that are transactionally related, the examining judge shall dismiss
all those counts, and district attorney may not include in the information those counts or
any additional counts arising from that common nucleus of facts.

“Motion to Dismiss: Insufficient Preliminary Examination”

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State v. Cotton-Originally charged with 1 count of intimidating a witness.-State

changed charges in the information.

Problems: “Discussion Problems: Bind over Following Preliminary Hearing and

Selection of Charges for the Information”

Sample “Information”
“Motion to Dismiss: Insufficient Evidence to Support Information”
GRAND JURY REVIEW
XII. Grand Jury Review
Text §§ 7.1 and 7.2

ARRAIGNMENT
Felony -> initial appearance -> Prelim -> Arraignment

Arraignment: If D speaks typically they will enter a ‘not guilty plea’

can/often does turn into ‘guilty plea’, also D could enter ‘no contest plea’ (D not
contesting the charge, and the result will be that the D will be found guilty.)
**Difference between no contest plea v. guilty, if there is subsequent
civil litigation by the victim, a ‘no contest plea’ cannot be used as proof of guilt
against the D, while a guilty plea can.

Alford Plea: Prosecutor offered a deal to reduce crime from a capital crime to a non
capital crime if Alford plead guilty. Alford feared he would be found guilty, even though
he believed he was innocent, so he took the deal. Judge asks “Why do you want to
make this Alford Plea?” D: says because I want to take the deal. @ the discretion of the
judge. ***The supreme court has says that the trial judges if they accept the Alford plea,
the state must have strong proof before the judge convicts on the Alford plea.

Not guilty by reason of mental disease or defect (NGI): Looks back to the time in
which the crime was committed, and at the time the mental disease or defect was the
reason the crime was committed.
This plea may be joined with a plea of not guilty. If it is not so joined, this plea
admits that but for lack of mental capacity the defendant committed all the essential
elements of the offense charged in the indictment, information or complaint.
If D says they are both Not guilty and Not Guilty Insanity- The first trial is
the Not Guilty Trial which is held as any ordinary trial. Then if found guilty  The
second trial then is the NGI, which is a burden on the ‘D’ to prove by the greater weight
of the evidence.
If found NGI, the D could be sent to a hospital.
1) Did the D have the mental disease or defect
2) Did the disease cause an inability for D to know right from
wrong to conform to social norms.
If found NOT NGI, the judge will sentence the D as a normal D
based on the previous conviction.
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NGI-Dahmer-entered a guilty plea, and then they held a trial on NGI.

Misd.  initial appearance-> Arraignment

XIII. Arraignment
Text § 12.4(a)
Wis. Stat. sec. 971.04, 971.05, 971.06, and 971.07

Course Outline and Syllabus

Part II
Pretrial Proceedings
Guilty Plea Proceedings
The Defendant’s Criminal Trial Rights

Lecture: PRE-TRIAL MOTION PRACTICE

‘Pretrial Motions & Other Filings in Criminal Cases”-Supplement’

Defendant Brings Motion: They are typically in writing, and brought in a timely manner. Ex. If
the claim of D is the way a warrant violated the 4th amendment, the court will require facts
‘underoath’ in which the judge will have to weigh, thus in this case we would have a hearing, but
that is not always a case. Sometimes we do have evidence and some sometimes we don’t, it
depends if the judge needs the evidence to make his/her decision on the motion.

Constitutional Right to a speedy trial:

Questions before the Court when Defendant raises issue of not receiving speedy trial:
1. The length of the delay (Rarely successful on less than a year of delay)
2. Reasons for the delay
Why were their adjournments? Who asked for adjournments? Did the D abscond?
3. Did the defendant ask for a speedy trial?
4. Was the defendant prejudice by the delay
Courts consider certain interests that the speedy trial rule is intended to protect, pre-trial
incarceration, anxiety of the defendant, and concern defendant will be prejudiced to set forth a
defense.

WI Right to a speedy trial:

971.10 Speedy trial: (Final Critical)

1. In misdemeanor actions trial shall commence within 60-days from the date of the
defendant’s initial appearance in court.
2. The trial of the defendant charged with a felony shall commence within 90 days from
the date trial is demanded by any party.
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Commission of Crime __________Commencement of Adv. Proceedings_______________Trial

Due process Speedy Trial Clause

DISCOVERY AND DISCLOSURE IN CRIMINAL CASES

Discovery Practice and Procedure

ABA Discovery Standard 11-1.1-Supplement

Wis. Stat. Sec. 971.23

Disclosure of Exculpatory Evidence

Exculpatory Evidence= Brady Material

Exculpatory Evidence: Evidence that the prosecutor has that is favorable to the Defendant,
which could include evidence of:
1) guilt
2) Punishment defendant should face if convicted
3) Evidence the defendant could use to impeach a state witness(s)

The goal of minimizing the risk of erroneous conviction is served by various legal
standards that stand apart from ensuring factfinding accuracy on both sides. Included here are
standards that relate to factfinding accuracy but are aimed specifically at protecting the innocent
accused. Thus, the adversarial system is modified to impose an obligation upon the prosecution
to disclose to the defense material exculpatory evidence that is within its possession or control.

United States v. Bagley-For a Defendant to get relief, it doesn’t matter if D asks for exculpatory
evidence or when they asked. There is only one test to determine if defendant gets relief, and that
is the Bagley Test.

Test in Bagley: (used when d brings forth an accusation that the State sat on evidence.
Same test as prejudice prong in Strictland..Due Process Concern). “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. (Final Critical).

Advice for defense counsel: Demand any and all exculpatory evidence, and be as
specific as you can in what you want. Prosecutor could not appreciate the importance of specific
exculpatory evidence, and include the phrase ‘any and all exculpatory evidence’ because if D is
convicted you can argue that the defendant was prejudice because had they known (had the
exculpatory evidence) they would have formed their case differently**Also, remember in your
discovery demand, you always make a demand for exculpatory as a statutory right, and file
another for any and all exculpatory evidence via brady via Maryland (list specific demands that
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might be present in the case). Make your constitutionally based demand, and in your state
statutory demand (MAKE BOTH!)

ABA Standards for Criminal Justice-Prosecution Function

Standard 3-5.4

PLEA NEGOTIATIONS, GUILTY PLEAS AND SENTENCING

Understanding Criminal Sentencing

In order to be an effective advocated you need to understand:

1) What are the possibilities for this crime? What the Defendant Faces Unless you understand
what all the defendant faces if they are convicted of the crime by way of incarceration, a fine,
various monetary assessments they will have to pay, is probation an option here? and of course,
although this will not be addressed with a guilty plea of the defendant you consider the collateral
consequence.

2) What does that sentence actually mean? Does 10 years actually mean 10 years’ incarceration?

3) You need to understand the system in which the judge will use to calculate the sentence. Are
there systems in place that mandate what the judge must follow (using a grid and identifying the
factors, the sentence is determined, and must give that sentence based upon that calculation.)

i. Judges now have this calculation but is not forced to mandate the sentence.

ii. In WI sentencing is up to the judge’s discretion and it’s a general matter for the judge.

Text 658-664, 669-674

Sentencing Factors: (supplement)

Three primary factors that a trial court should consider in imposing sentence are:
1) The gravity of the offense
2) The rehabilitative need of the defendant
3) The protection of the public.

State v. Gallion-The Supreme Court in McCleary v. State said: “ In order for a sentence to be
valid, there must be a “statement by the trial judge detailing his reasons for selecting the
particular sentence imposed.” Courts are to identify the general objective of the greatest
importance, including the protection of the community, punishment of the D, rehabilitation of the
D, and deterrence to others. The court is to also describe the facts relevant to theses objectives or
why the particular component parts of the sentence imposed advance the specified objectives.
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‘Gallion Factors’: ‘Circuit courts are required to specific the objectives of the sentence on the
record. Courts are to identify the general objectives of greatest importance. Courts are to describe
the facts relevant to these objectives.
(Final Critical): “In each case, the sentence imposed shall ‘call for the minimum
amount of custody or confinement which is consistent with the protection of the public, the
gravity of the offense and the rehabilitative needs of the defendant.’ Accordingly, the circuit
courts should consider probation as the first alternative. Probation should be the disposition
unless: confinement is necessary to protect the public, the offender needs correctional

treatment available only in confinement, or it would unduly depreciate the seriousness of the
offense.
“If a circuit court imposes probation, it shall explain why the conditions of probation
should be expected to advance the objectives it has specified. Likewise, if a circuit court
imposes jail or prison it shall explain why the duration of incarceration should be expected to
advance the objectives it has specified. Finally, if a circuit court imposes a bifurcated sentence
for a crime committed after December 31, 1999, it shall explain why its duration and terms of
extended supervision should be expected to advance the objectives.

“By stating this linkage on the record, courts will produce sentences that can be more
easily reviewed for a proper exercise of discretion.
Special Wisconsin Truth-In Sentencing Materials

Indeterminate Sentencing (old law)

1997 Wisconsin Act 283: Decided that the law wouldn’t come to be until 1999. The large
committee was established to figure out how to implement the ‘truth in sentencing’ and to come
up with a penalty system that was realistic. This committee produced a report that included a
complete set of composed of imposed statutes for the ‘truth in sentencing’. The proposal was put
into a bill, and was passed by the assembly, then was clogged in the senate due to a shift in party
control from republican to democrat. The senator (democrat) didn’t like ‘truth in sentencing’
which clogged up the process. Which meant that the bad law of ’10 years is 10 years law’ that
we didn’t want, went into law because of this senator, for 2 years, (he wanted an early out for
some prisoners).

2001 Wisconsin Act 109: Package of criminal penalties put together by the commission with a
few tweeks made.
Between the time Act 109 was passed and Act 28. There was another shift where
democrats were in control.
2009 Wisconsin Act 28: Mechanisms for early release were put in, but did not last long because
after Act 28 was passed, the republicans took control, and one of the first things they did in Act
38 is to get rid of everything that was in Act 28.
2011 Wisconsin Act 38: Everything essentially went back to what was proposed in the ‘truth in
sentencing’.
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Life Sentences: Includes Class-A Felonies only. Court must sentence the defendant to life. With
a possibility of extended supervision (parole) at the court’s discretion at 20 years , more than 20
years, or never extended supervision eligible.

Crime Classification System: 9 total categories. (Final Absolutely Critical)

Wis. Stat. Secs. 973.01

Wis. Stat. Secs. 973.017

Wis. Stat. Secs. 973.195

Party To A Crime Study Sheet:

In order to be held liable under WI PTAC for an offense, the defendant must be one of the
following:

1. Direct actor: Person who has physically carried out the commission of the crime
2. Aider and abettor; or
3. Co-conspirator.

***Wisconsin law does not require the jury to determine who in a PTAC group is the
direct actor, aider and abettor, or co-conspirator.

Aiding and Abetting Wisconsin Law Elements:

1. Know that another is committing [A] crime

2. Provides actual assistance, [OR]
3. Stands by, ready and willing to assist, [AND]
4. The Direct Actor is aware of the defendant’s willingness
5. With purpose of facilitating the target offense [OR] another crime that is the natural
probable outgrowth of the offense.

Conspiracy Wisconsin Law Elements:

1. Intent to commit [A] crime

2. Members agree [tacit or implicit] or joints to commit [THE] crime
3. Any act in furtherance
4. With purpose of facilitating the target offense [OR]
5. another crime that is the natural probable outgrowth of the offense.

These Statutes Are Critical To Know:

939.05:
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939.62: (Habitual Criminality Statute) Increased penalty for habitual criminality: If the
actor is a repeater, as that

A. A maximum term of imprisonment of one year or less may be increased to not more
than 2 years.

B. A maximum term of imprisonment of more than one year but not more than 10 years
may be increased by not more than 2 years if the prior convictions were for misdemeanors
and by not more than 4 years if the prior conviction was for a felony. (***Remember the
look back period for Felonies and Misdemenors)

C. A maximum term of imprisonment of more than 10 years may be increased by not more
than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if
the prior conviction was for a felony.

939.63: Penalties; use of a dangerous weapon Pg. 15 1. The maximum term of a

misdemeanor may be increased by not more than 6 months. If the maximum term of a
felony is more than 5 years or is a life term, the maximum term of imprisonment for the
felony may not be increased by more than 5 years. If the maximum term of imprisonment
is more than 2 years but not more than 5, then the increase is 4 years, and for any other
felony the increase is 3 years.

Act 109: The New A-I Felony Classification System (Final Critical)

Bifurcated Sentences: When a defendant is sent to prison, Judge Must split or bifurcate the
sentence into two components.

Penalty Enhancers and Habitual Criminality

(add notes from power point with examples) Final Critical

Extended Supervision:

(add notes from power point with examples) Final Critical

Concurrent: Ex. Judge sentences D to:

Crime #1 6 years incarceration and 5 Years ES =11 Years
Crime #2 6 years incarceration and 5 Years ES= 11 Years
Defendant serves a total of 11 Years

Both are served at the same time.

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Consecutive: Ex. Judge sentences D to:
Crime #1 6 years incarceration and 5 Years ES=11 Years
Crime #2 6 years incarceration and 5 Years ES=11 Years
Defendant serves a total of 22 Years.

Served one after another.

Plea negotiations

Charge Bargain: Prosecutor agrees to reduce the number of charges against D or the severity
of the charges in exchanged for the D’s guilty plea.
*Judge may allow a read-in of the offenses, and the judge considers them.

Sentencing Recommendation Bargain: Prosecutor says that if D pleas guilty they will either
give or not give a sentencing recommendation bargain.

Oral negotiations are acceptable in court, but sometimes things break down, you
should always have the bargain in writing.

You cannot force a defendant to plead guilty, the defendant can back out as can the
state.

Once the deal is done: Once the D enters his plea, unless there has been some fraud, there is
nothing that the state can do to un-do it. When the state offers the D a deal, and the D accepts
and pleads guilty (to his determent). You cannot get out of it, unless there was some form of
fraud, and the original bargain will be enforced.

There is an issue as to whether or not judges should be involved in the plea negotiation
process. (This is a jurisdictional question and varies from state to state, but judges do not
participate in the federal system.)
In the federal court system, the judges are banned from the proceedings.
Wisconsin follows this same rule, that judges should not be participants
in the plea negotiation process.
The theory is that the judge is a third-party neutral party, and
should not be involved in the nitty gritty of the negotiations.

(see Plea Questionnaire Waiver of Rights supplement)

This document memorializes certain information about the defendant, has various
understandings in which the defendant will give up or sacrifice by entering a plea of guilty and
what constitutional rights the defendant gives up in pleading guilty.
Both the D and his lawyer sign off on this form.
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The judge first asks if there is any plea negotiations.

Any dismissal of charges
Any amendment of the information (requires approval of judge)
Any type of sentence recommendation **Judge will tell D that it’s only a recommendation and
the court can give up to the maximum penalty.

Court talks to D about his background

Court talks to D about his constitutional rights (Colloquy with defendant), which includes
giving up:
Right to a trial
Right To remain silent and understand that silence could not be used against me at
trial.
Right to testify and present evidence at trial
Right to use subpoena to require witnesses to come to court and testify for me at trial
Right to confront in court the people who testify against me and cross-examine them
Right to make the State prove me guilty beyond a reasonable doubt.

Understandings:
Judge uses the jury instructions to go through the elements and discusses them with
the D and ensures that the D understands what he pleading guilty to. (Understands the crime
for which he is pleading.

Judge then asks what D’s Plea is.

State then has to put in a factual basis for the plea (Facts that support the guilty plea)
Might be done via the facts of the complaint.
State could call a witness to supply the facts.

If an Alford Plea, the state must put in ‘strong plea’

After this the court will accept the plea.

If felony, then judge may order presenting investigation.

This is up to the judge if he wants this or not.