Appellate sentence review. 1976 WLR 655.
I,7 Rights of accused. Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
CONFRONTATION AND COMPULSORY PROCESS
The right to have compulsory process to obtain witnesses in his behalf does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good faith attempt be made by the officer to secure service of the process. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse. Elam v. State, 50 W (2d) 383, 184 NW (2d) 176.
An accused should be allowed to cross-examine to discover why an accomplice has pleaded guilty and has testified against him. Champlain v. State, 53 W (2d) 751, 193 NW (2d) 868.
When a witness is not available for trial and when the defendant has had a prior opportunity to cross-examine that witness, former testimony, including that given at a preliminary examination, may be introduced without violating either the constitutional mandates or the hearsay rule of evidence. State v. Lindsey, 53 W (2d) 759, 193 NW (2d) 699.
Because there was no showing that the witness was permanently ill, the defendant was denied his constitutional right to confrontation by the court allowing the use of Woods' deposition. Sheehan v. State, 65 W (2d) 757, 223 NW (2d) 600.
Whether a witness' refusal on 5th amendment grounds to answer otherwise permissible questions violates defendant's right to confrontation must be determined from the whole record. West v. State, 74 W (2d) 390, 246 NW (2d) 675.
Admission of double hearsay did not violate defendant's right to confront witnesses. State v. Lenarchick, 74 W (2d) 425, 247 NW (2d) 80.
Introduction into evidence of victim's hospital records unsupported by testimony of the treating physician did not violate defendant's right of confrontation and cross-examination. State v. Olson, 75 W (2d) 575, 250 NW (2d) 12.
Trial court did not deny defendant's right to confront accusers by forbidding cross-examination of sole prosecution witness as to the witness' history of mental illness, since no showing was made that the history was relevant to the witness' credibility. The right of confrontation is also limited by 904.03 where probative value of desired cross-examination is outweighed by possibility of unfair or undue prejudice. Chapin v. State, 78 W (2d) 346, 254 NW (2d) 286.
Defendant's right of confrontation was not violated where preliminary examination testimony of deceased witness was admitted at trial, since defendant had unlimited opportunity to cross-examine the witness and the testimony involved same issues and parties as at trial. Nabbefeld v. State, 83 W (2d) 515, 266 NW (2d) 292 (1978).
Defendant's right to compulsory process does not require admission of unstipulated polygraph exam. Lhost v. State, 85 W (2d) 620, 271 NW (2d) 121 (1978).
Trial court did not err in favoring incrimination right of witness over compulsory process right of defendant. State v. Harris, 92 W (2d) 836, 285 NW (2d) 917 (Ct. App. 1979).
State's failure to use Uniform Extradition Act to compel presence of doctor whose hearsay testimony was introduced denied accused's right to confront witness and violated hearsay rule, but error was harmless. State v. Zellmer, 100 W (2d) 136, 301 NW (2d) 209 (1981).
Medical records as explained to jury by medical student were sufficient to support conviction; confrontation right was not denied. Hagenkord v. State, 100 W (2d) 452, 302 NW (2d) 421 (1981).
Court properly denied request to present defense witness who refused to answer relevant questions during offer of proof cross examination. State v. Wedgeworth, 100 W (2d) 514, 302 NW (2d) 810 (1981).
Admission of statement by co-conspirator did not violate right of confrontation. State v. Dorcey, 103 W (2d) 152, 307 NW (2d) 612 (1981).
Where witness died after testifying at preliminary examination, admission of transcript of testimony did not deny confrontation right. Constitutional standards for admission of hearsay evidence discussed. State v. Bauer, 109 W (2d) 204, 325 NW (2d) 857 (1982).
Cross-examination, not exclusion, is proper tool for challenging weight and credibility of accomplice testimony. State v. Nerison, 136 W (2d) 37, 401 NW (2d) 1 (1987).
Defendant waives confrontation right by failing to object to trial court's finding of witness unavailability. State v. Gove, 148 W (2d) 936, 437 NW (2d) 218 (1989).
Prosecutor who obtained incriminating statement from defendant is obliged to honor subpoena and testify at suppression hearing if there is reasonable probability testimony will lead to relevant evidence. State v. Wallis, 149 W (2d) 534, 439 NW (2d) 590 (Ct. App. 1989).
Statement of coconspirator under 908.01 (4) (b) 5 may be admitted without proof of declarant's unavailability or showing of particular indicia of reliability; court must determine whether circumstances exist warranting exclusion. State v. Webster, 156 W (2d) 510, 458 NW (2d) 373 (Ct. App 1990).
Defendant had no confrontation clause rights as to hearsay at pretrial motion hearing; trial court could rely on hearsay in making its decision. State v. Frambs, 157 W (2d) 700, 460 NW (2d) 811 (Ct. App. 1990).
Allegations of professional misconduct against prosecution's psychiatric expert initially referred to prosecutor's office but immediately transferred to special prosecutor for investigation and possible criminal proceeding were properly excluded as subject of cross examination of expert due to lack of logical connection between expert and prosecutor necessary to suggest bias. State v. Lindh, 161 W (2d) 324, 468 NW (2d) 168 (1991).
Ability of child witness to speak truth or communicate intelligently are matters of credibility for jury, not questions of competency to be determined by judge. State v. Hanna, 163 W (2d) 193, 471 NW (2d) 238 (Ct. App. 1991).
Where witness's "past-recollection recorded statement" was admitted after witness testified and was found "unavailable" as a result of having no current memory of murder in question, there was an opportunity for cross-examination and right to confrontation was not violated. State v. Jenkins, 168 W (2d) 175, 483 NW (2d) 262 (1992).
Defendant charged with trespass to a medical facility is entitled to compulsory process to determine if any patients present at time of the alleged incident had relevant evidence. State v. Migliorino, 170 W (2d) 576, 489 NW (2d) 715 (Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 W (2d) 600, 499 NW (2d) 719 (Ct. App. 1993). See also State v. Speese, 191 W (2d) 205, 528 NW (2d) 63 (Ct. App. 1995.)
Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception, the Confrontation Clause is satisfied. State v. Patino, 177 W (2d) 348, 502 NW (2d) 601 (Ct. App. 1993).
An indigent may be entitled to have a court compel the attendance of an expert witness. It may be error to deny a request for an expert to testify on the issue of suggestive interview techniques used with a young child witness if there is a "particularized need" for the expert. State v. Kirschbaum, 195 W (2d) 11, 535 NW (2d) 462 (Ct. App. 1995).
The right to confrontation is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate any reference to the defendant's existence. State v. Mayhall, 195 W (2d) 53, 535 NW (2d) 473 (Ct. App. 1995).
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 W (2d) 210, 546 NW (2d) 501 (Ct. App. 1996).
The right to confrontation is not violated when the court precludes a defendant from presenting evidence that is irrelevant or immaterial. State v. McCall, 202 W (2d) 29, 549 NW (2d) 418 (1996).
Once a witness is found to be unavailable his or her out-of-court statements are admissible if they bear adequate indicia of reliability. The confrontation clause right to cross-examination guarantees only the opportunity for effective cross-examination not cross-examination that is effective to the extent the defense may wish. State v. Kevin L.C. 216 W (2d) 166, 576 NW (2d) 62 (Ct. App. 1997).
When required by the right effectively to present a defense, the department of health and social services, having authority to do so, in the exercise of sound discretion must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
Admission into evidence of transcript of preliminary hearing testimony did not violate confrontation right where witness was, in effect, cross-examined at hearing. Ohio v. Roberts, 448 US 56 (1980).
Introduction of accomplice's confession for rebuttal purposes, not hearsay, didn't violate defendant's confrontation rights. Tennessee v. Street, 471 US 409 (1985).
Confrontation clause doesn't require showing of unavailability as condition of admission of out-of-court statements of non-testifying co-conspirator. United States v. Inadi, 475 US 387 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
Confrontation provision does not require defendant's access to confidential child abuse reports; due process requires that court undertake in camera inspection of file to determine whether it contains material exculpatory evidence. Pennsylvania v. Ritchie, 480 US 39 (1987).
Admission of nontestifying codefendant's confession violates confrontation rights, even though defendant's confession was also admitted. Cruz v. New York, 481 US 186 (1987).
Confrontation clause does not require that defendant be permitted to be present at competency hearing of child witnesses as long as defendant is provided opportunity for full and effective cross-examination at trial. Kentucky v. Stincer, 482 US 730 (1987).
Confrontation clause prohibits placement of screen between child witness and defendant; screen prevented witness from seeing defendant, but allowed defendant to dimly see witness. Coy v. Iowa, 487 US 1012 (1988).
If state makes adequate showing of necessity, it may use special procedure, such as one-way closed-circuit television to transmit child witness's testimony to court without face-to-face confrontation with defendant. Maryland v. Craig, 497 US 836, 111 LEd 2d 666 (1990).
In a joint trial, the confession of one defendant naming the other defendant which was read with the word "deleted" replacing the second defendant's name violated the second defendant's right of confrontation. Gray v. Maryland, 523 US ___, 140 L Ed 2d 294 (1998).
Finding of unavailability of witness due to mental illness, made on basis of confused and stale record, deprived defendant of right to confront witness. Error was harmless. Burns v. Clusen, 599 F Supp. 1438 (1984).
Use of child victim's statements to psychologist under 908.03 (4) violated accused sexual assaulter's confrontation rights. Nelson v. Ferrey, 688 F Supp. 1304 (E. D. Wis. 1988).
State v. Thomas: Face to Face With Coy and Craig — Constitutional Invocation of Wisconsin's Child-Witness Protection Statute. 1990 WLR 1613.
COUNSEL
Note: See also the notes to Article I, Section 8—Self-incrimination.
A defendant is entitled to the presence of counsel at a post-warrant lineup but the attorney need not participate or object, and need not be the ultimate trial counsel. Wright v. State, 46 W (2d) 75, 175 NW (2d) 646.
A city attorney should not be appointed defense counsel in a state case where city police are involved unless the defendant, being fully informed, requests the appointment. Karlin v. State, 47 W (2d) 452, 177 NW (2d) 318.
Conference in chambers between defendant's counsel and the prosecutor in regard to the plea agreement without defendant's presence was not violative of his constitutional rights, thereby constituting a manifest injustice, since defendant had the benefit of counsel both during the entry of his plea and at the sentencing, and on the record expressly acquiesced in the plea agreement. Kruse v. State, 47 W (2d) 460, 177 NW (2d) 322.
A disciplinary action against an attorney is a civil proceeding and he is not entitled to the appointment of an attorney if he is indigent. State v. Hildebrand, 48 W (2d) 73, 179 NW (2d) 892.
An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State, 50 W (2d) 682, 184 NW (2d) 826.
ABA Standards relating to the duty of defense counsel approved, but their violation does not automatically prove incompetency or ineffectiveness. State v. Harper, 57 W (2d) 543, 205 NW (2d) 1.
An arrested man has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
Defendant has no right to counsel or to be present when photographs are shown to a witness. His right to counsel exists only at or after the initiation of criminal proceedings against him. Holmes v. State, 59 W (2d) 488, 208 NW (2d) 815.
It is not desirable, but is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor, 60 W (2d) 506, 210 NW (2d) 873.
Challenge to conviction because of absence of counsel at an informal confrontation when he was identified by the victim, is not sustained. Jones v. State, 63 W (2d) 97, 216 NW (2d) 224.
When conflict arises in dual representation, a defendant must be granted a vacation of sentence and a new hearing, because such a conflict at sentencing per se renders counsel representation ineffective and hence actual prejudice need not be shown. Hall v. State, 63 W (2d) 304, 217 NW (2d) 352.
Defense counsel's omission to cross-examine the state's principal witness at trial did not constitute ineffective representation, since such cross-examination had proved fruitless at the preliminary. Krebs v. State, 64 W (2d) 407, 219 NW (2d) 355.
The legal duty to appoint counsel is upon the judicial system as a matter of the superintending power of the judicial system; where the problem of appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, such power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milw. County, 65 W (2d) 130, 221 NW (2d) 902.
Trial judge must unconditionally and unequivocably demonstrate in the record that defendant intelligently, voluntarily and understandingly waived the constitutional right to counsel, whether or not defendant is indigent. Keller v. State, 75 W (2d) 502, 249 NW (2d) 773.
When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass, 75 W (2d) 542, 249 NW (2d) 789.
One charged with a crime carrying a penalty of incarceration has full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris, 75 W (2d) 547, 249 NW (2d) 791.
Mere fact that attorney represents 2 defendants charged in same crime is not sufficient evidence of inadequate representation. Defendant has burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State, 78 W (2d) 189, 254 NW (2d) 220.
Defendant has no right to be actively represented in courtroom both by self and by counsel. Moore v. State, 83 W (2d) 285, 265 NW (2d) 540 (1978).
Test to determine if denial of continuance acted to deny defendant either due process or effective right of counsel discussed. State v. Wollman, 86 W (2d) 459, 273 NW (2d) 225 (1979).
Right to counsel does not extend to non-lawyer representatives. State v. Kasuboski, 87 W (2d) 407, 275 NW (2d) 101 (Ct. App. 1978).
Withdrawal of guilty plea on grounds of ineffective representation by trial counsel discussed. State v. Rock, 92 W (2d) 554, 285 NW (2d) 739 (1979).
Defendant's request on morning of trial to represent self was properly denied as untimely. Hamiel v. State, 92 W (2d) 656, 285 NW (2d) 639 (1979).
Where suspect undergoing custodial interrogation requests counsel, prior to reinterrogation, the 5 factors under Michigan v. Mosley, 423 US 96 (1975) must be present and 1) suspect must be given chance to obtain counsel, or 2) police must take reasonable steps to obtain counsel and inform suspect as to steps taken. Wentela v. State, 95 W (2d) 283, 290 NW (2d) 312 (1980).
Trial court did not err in refusing defendant's request on 2nd day of trial to withdraw waiver of right to counsel. Self-representation discussed. Pickens v. State, 96 W (2d) 549, 292 NW (2d) 601 (1980).
Right to counsel did not preclude incarceration for second conviction for operating while intoxicated, although accused was not represented by counsel in proceedings leading to first conviction, since first offense was mere civil forfeiture case. State v. Novak, 107 W (2d) 31, 318 NW (2d) 364 (1982).
Counsel was ineffective for failure to raise heat-of-passion defense in murder case where wife who had been maltreated during 23-year marriage intentionally killed husband while he lay sleeping. State v. Felton, 110 W (2d) 485, 329 NW (2d) 161 (1983).
Defendant's uncorroborated allegations will not support claim of ineffective representation where counsel is unavailable to rebut claim of ineffectiveness. State v. Lukasik, 115 W (2d) 134, 340 NW (2d) 62 (Ct. App. 1983).
Effective assistance of counsel was denied where defense attorney did not properly inform client of personal right to accept plea offer. State v. Ludwig, 124 W (2d) 600, 369 NW (2d) 722 (1985).
When trial court fails to make adequate inquiry into defendant's last-minute request to replace attorney, right to counsel is adequately protected by retrospective hearing at which defendant may present own testimony. State v. Lomax, 146 W (2d) 356, 432 NW (2d) 89 (1988).
Discussion of fifth and sixth amendment right to counsel and Edwards v. Arizona. State v. McNeil, 155 W (2d) 24, 454 NW (2d) 742 (1990). See also note hereunder citing McNeil v. Wisconsin, 501 US 171, 115 LEd 2d 158 (1991).
Defense counsel's absence at return of jury verdict without defendant's consent and failure to poll jury are grounds for automatic reversal. State v. Behnke, 155 W (2d) 796, 456 NW (2d) 610 (1990).
Paternity respondent does not have constitutional right to effective assistance of counsel; paternity action is not a criminal prosecution. In re Paternity of P.L.S. 158 W (2d) 712, 463 NW (2d) 403 (Ct. App. 1990).
When defendant accepts counsel, decision to assert or waive constitutional right is delegated to attorney. Failure of defendant to object to attorney's waiver, is waiver. State v. Wilkens, 159 W (2d) 618, 465 NW (2d) 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: That trial counsel was ineffective and that the defense was prejudiced such that absent error result would have been different. State v. Wilkens, 159 W (2d) 618, 465 NW (2d) 206 (Ct. App. 1990).
Court may disqualify defendant's chosen counsel over defendant's objection and waiver of right to conflict-free representation when actual or serious potential for conflict of interest exists. State v. Miller, 160 W (2d) 646, 467 NW (2d) 118 (1991).
Determination of indigency by public defender under 977.07 is not end of court inquiry of right to counsel. State v. Dean, 163 W (2d) 503, 471 NW (2d) 310 (Ct. App. 1991).
To bring claim of ineffective appellate counsel, defendant should petition appellate court that heard appeal for writ of habeas corpus. State v. Knight, 168 W(2d) 509, 484 NW(2d) 540 (1992).
