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CRIMINAL PROCESS OUTLINE; Hammer Spring 2013

I. OVERVIEW:
- Intro:
o Felony: incarceration over 1 year
o Misdemeanor: Low-level: 90 days or less; High level: 90-1 year
o Highly balkanized
o Accusatorial burdens:
 Presumption of innocence.
 Exculpatory evidence: duty to disclose exculpatory evidence (evidence that will help the D)
o Minimizing the burdens of accusation and trial
 Bail: designed to minimize the impact of burden on accused
 Speedy trial: 6th amendment, D has right to fast trial
 Venue: Must bring the case where the crime happened
 Right to jury trial
- Process:
o Review by Prosecutors office
 After crime is reported & police investigate
 Prosecutor decides to go forward with case, reviews evidence and determines whether it is
prosecutable/provable.
o Criminal complaint issued
 Complaint is charging document—sworn document that lays out charges
 Charge + facts + police swear + prosecutor signature & victim/cop signature
 Gerstein/Riverside Review: look for probable cause w/in 48 hours of warrantless arrest.
 Prosecutor issues an arrest warrant or summons when the defendant is not in custody.
 After complaint is issued prosecutor can only dismiss charges on a motion for nolle Prosequi (must be
approved by the Ct)
o Initial Appearance
 Judge reads over complaint for PC, sets bail, inquires/informs about right to counsel, appointment of
counsel occurs here if necessary,
 Preliminary hearing is scheduled
o Evidentiary/Preliminary Hearing
 Evidentiary hearing w/in 10 days (Adversarial)
 Some states have a Grand Jury Review instead.
 Right to preliminary hearing is limited to felony offenses
 D enjoys the right to counsel during the Preliminary hearing
 State calls witness to show that D committed crime within the JX of the Ct.
 State must only prove Probable Cause at preliminary hearing
 Hearsay is allowed at Preliminary hearings
 Purpose: prosecutor to demonstrate to judge (neutral) that PC exists
 Leads to information (charging document used by prosecutor)
 D has right to waive this hearing, NO preliminary hearing for Misdemeanors
 Some jurisdictions utilize a Grand jury indictment
 Dismissal without jeopardy: Leaves open the possibility to retry the D for the same offense after further
investigation.
o Information is Filed
 Takes place of the Complaint, can be the same but usually additional information is added.
 D enters his plea at arraignment to the information.
o Arraignment
 D enters plea, quick proceeding
 3 events can cancel trial
 Guilty plea
 Dismissed on motion of Defense
 Change circumstances and new information
o Pretrial phase
 Discovery
 Trade information
 Pre-trial motions
 Plea Negotiations
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 Plea-bargaining: Prosecutor offers certain concessions in return for a guilty plea.

 Guilty Plea:
 If plea of guilty is returned there will be a pre-sentence investigation, where the prosecutor
proves to the Ct that it is a fair deal.
 Not guilty:
 D can waive right to trial
 Not guilty finding
 Guilty: pre-sentence investigation
 Hung-jury
o Pre-sentence investigation
 Background of the Defendant, impact of crime on the Victim
o Sentencing
o Post-conviction Motions
o Appeal

THE INSTITUTION OF JUSTICE

- Structure
o Federal
 District Judges: Appointed by President, confirmed by Senate for life term
 US Magistrate Judges:
 Appointed by district judges for an 8 year term
o Arrest warrants, Search warrants,
 Can’t try felony cases
o Assist grand juries & initial appearances
o Bail hearings, issue search/arrest warrants, motions
 Prosecution Services
 US attorney: for each of 94 federal Districts: apt by President

o State
 WI: Circuit Ct handles all criminal
 Judges
 Judicial Court Commissioners
 Help with initial appearances, misdemeanors, pre-trial, bail hearing.
 Prosecution Services
 Prosecutors: elected Usually called District attorneys or State Attorney
 Attorney General:
o WI: Chief law enforcement executive
- Defense Services:
o Victims
 Traditionally treated as witnesses (poorly)
 WI Constitutional amendment 1993:
 Changed the way the system was to treat victims. With fairness, dignity and respect for their
privacy, victims shall have the following privileges:
o Timely disposition of the case, opportunity to attend proceeding, reasonable
protection from D, notification, restitution, compensation, and info about the outcome
of the case.
 §950.04: Rights of Victims and Witness
 §971.095: consultation and notice to victim
o Each V in a case shall have the right to confer with the district attorney
 §972.14: Statements before Sentencing
o Each V will have the right to say something in Ct at sentencing.
 §972.15(2m): Pre-sentence investigation
o in preparation of pre-sentence investigation report, there should be a reasonable
attempt made to get in touch with V to determine effect.

II. SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL

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- Basic 6th Amendment Rights:

o Rights of the Accused
 Speedy and public trial, impartial jury from where crime occurred, ability to confront Witnesses,
Assistance of Counsel, informed of nature and cause of the accusation.
o Application of 6th amendment to States:
 “States have a Due Process obligation to allow Ds to be represented by an attorney when counsel’s
assistance is necessary for a fair hearing and accurate determination of guilt” (Powell v. Alabama)
 Selective incorporation: Through the 14th amendment the 6th amendment (bill of Rights) right to counsel
is a fundamental right. (Gideon v. Wainwright)
 Indigent defendants have a constitutional right to counsel, in Felony Cases
 States must give D reasonable time and opportunity to secure counsel
 Counsel must be furnished to poor D’s in Fed prosecution Johnson v. Zerst
o 6th Amendment provides counsel for all criminal cases where prison time is possible not just capital cases,
whereas the Due Process clause only required counsel in special circumstances.
o Felony:
 D has right to counsel, and if indigent, appointed counsel
o Misdemeanors
 6th Amendment states that a Person cannot be imprisoned for a crime unless he had the benefit of
counsel. Prosecutor will be asked at initial appearance whether the state seeks jail time. If NONo
Counsel)
 Incarceration standard applies to the immediate sentence but also to subsequent sentences.
o If imprisonment is part of the sentence (immediate or potential) there must be counsel
provided for indigent s
o Unclear whether whole package (probation 1st, then if violated jail) is invalid, or just
the sentence part (b/c then there is no incentive for  to abide by probation b/c knows
that the jail time is unconstitutional w/out atty.
 WI offers counsel to anyone charged w/ felony or misdemeanor if indigent.

o Right to Counsel Begins:

 With the initiation of adversary judicial proceedings, if arrested w/ a warrant this constitutes the
adversarial proceedings.
o Right to counsel for every “critical stage of the proceeding”
 Determining Critical Stage:
o Ct looks whether there is a reasonable likelihood that the absence of counsel could
prejudice the Defendant.
o Or if irretrievable defenses could be lost if not stated at the time.
 S. Ct ruled that Preliminary hearings are a critical Stage.
 In, WI it is the representing attorney’s responsibility to assist the D through the sentencing process.

- Waiving right to Counsel

 D has the right to waive counsel
 Hybrid Representation: WI S.C. found that a D does not have a right to hybrid counsel, but sometimes
allowed by judge.
o Appointment of counsel
 Federal (3 ways)
 Appointment by Judge: judge appoints member of the bar
 Public Defender Office (WI): organization set up to take many of these cases
 Community Defender Org (WI): Non-profit entity acts like a PD Office.
 States
 Statewide public defender organization or judge Apt.
 WI uses a state funded PD system, & appointment list for overflow. We also do “fixed fee”
contracts w/ private firms for misdemeanor offenses (bid out).

o The Right to Proceed Pro Se

 Protected by statute since 1789—Judiciary Act
 Implied by 6th Amend. “Right to counsel”
 D must waive: knowingly, intelligently, and voluntarily

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 Waiver can’t be inferred from silence, Waiver can occur at any stage of the trial, and a single
waiver does not constitute a waiver for every stage.
 Faretta v. Farretta: D wanted to rep himself during trial. Ct held that in order to rep himself, the D must
knowingly and intelligently waive the benefit of counsel so the record would reflect his desire.
 If the D is abusing right in an attempt to impede justice the Judge can appoint counsel and
force it upon him.
o Ct will look to: time made, misconduct, unknowing/unintelligent
 Farretta & 6th does not apply to the appeals, no right to waive.

 Competency Requirement.
o Must have ability to understand charges against him & assist in defense
o Federal rule is that competent to be tried is competent to proceed pro se.
 WI: Higher Standard of competency: State v. Klessig
 Factors used to determine proper waiver:
o Ds education
o Nature of charge
o Stage of proceeding
 Judge must:
o State the purpose of an attorney, warn D of dangers, not as extensive for a guilty plea.
 D cannot argue that he was improperly represented if pro se, but can argue
that he did not, intelligently, voluntarily, or knowingly waive right to
counsel.
o Ct must relay options, right and range of penalties; individual states can require more.

 Standby Counsel:
 If D exercise right to proceed pro se, ct can still appoint standby
 Wiggins: Protects two rights of D’s who pro se,
o 1. Did standby counsel allow D to control the case
o 2. Did standby maintain appearance before jury of going it alone.
o Forfeiting Right to Counsel
 Forfeiture can occur when D fails to retain counsel when he is financially able.
 Or when conduct was so extreme that he forfeited right

Provision of Counsel for the Accused

o Defendants Discretion In Selecting appointed Attorney:
 D has 6th amendment constitutional right to choose appointed attorney
 Gonzalez-Lopez: If D is erroneously denied the right to paid counsel of choice this is considered a
structural error and must result in reversal of conviction. (impossible to quantify, damage of
erroneously denying counsel)
 Structural Error: Error that affects the framework within which the trial proceeds rather than
the trial itself
o Ex: complete denial of counsel, denial of self-rep, defect of beyond a reasonable
doubt jury instruction.
 Dean Hearing:
 Hearing to determine whether a D is indigent or if he is not poor enough to meet indigence
standard but too poor to afford counsel, judge will apt.
 Counsel Exiting Case:
 Retained Counsel: D can change attorney with permission of Ct, not absolute right
o Case by case evaluation judge looks to
 1) timing,
 2) inconvenience to state,
 3) How much will have to be recreated. (Reject in 11th hour)
 Appointed Counsel Exit:
 NO RIGHT: but can if GOOD CAUSE
o Good Cause:
 Conflict of interest
 Complete breakdown in attry/client communication
 Irreconcilable differences

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o Not Good cause

 Loss of confidence, Cts weigh interest of D and publics’ interest of prompt
and efficient admin of justice.

- Effective Assistance of Counsel

 Purpose of the Sixth Amendment is to protect the adversarial nature of trial.
 Adversarial system intends to provide partisan advocacy on both sides to promote justice and fairness.
o In 1972, standard that WI used was whether the D’s representation was so inadequate and of such a low
competency to amount to no counsel at all! A little better than this was OK.
 State v. Harper:
 Raised standard to one of reasonableness representation must be to level of reasonable lawyer
skilled in criminal law.
 Strickland v Washington
 Changed this, right to counsel is the right to effective assistance of counsel.

o PROVING INNEFECTIVE COUNSEL TWO FACTOR TEST:

 Ct looks to facts of the case and decides whether or not attrys performance was competent. Judge can
look to things like the ABA.
 The error or ineffective assistance must have had an effect on the judgment and resulted in prejudice to
the D. Ct is to determine if there is a reasonable probability that, absent the errors, the sentence would
have been different.

 FIRST: PERFORMANCE PRONG: look to performance of attorney (Judicial scrutiny must

strongly favor the presumption that the attorney as reasonable)
 The D must demonstrate that the counsels representation fell below an “objective
reasonableness standard”
o ABA Standards: stay in touch w/ client, prompt investigation, way that attry
investigates case is influenced by the D, advising the accused, covey plea offers even
if D doesn’t like.
 SECOND: PREDJUDICE PRONG:
 Standard: Reasonable Probability of different result
o Something substantially and unfairly alters the outcome of the case.
 Strickland: D must show a reasonable probability that “BUT FOR” counsel’s unprofessional
errors, the result of the proceeding would have been different.
 D must prove BOTH prongs.
o State v. Pitch:
 Ct found that when attorney failed to obtain a previous criminal record and
client was allowed to be impeached on misstatement of # of previous
convictions this constituted ineffective counsel.
 Remedy for ineffective counsel, bring D back to the point of error.
o Lockhart:
 Ds attorney failed to advise him of plea deal. Ct found ineffective assistance
of counsel
o Fry:
 D’s attorney failed to advise client of offered plea deal, Ct found that 2-
factor test applies to plea deals. To obtain relief the D must prove that w/o
ineffective counsel he would have 1. Accepted plea deal, 2. Ct would have
accepted, 3. Plea deal would have lessened charges. Here the CT was
uncertain whether plea deal would have been accepted by Ct.
o Pedia:
 Ineffective counsel for collateral consequences, D’s attorney failed to advise
him that he would be deported if plea deal was accepted. Ct carved out
exception for deportation cases because result was so involved with the
consequence that a failure to advise was rise to level identified under
Strickland.
 Chada: Held that Pedia was not retroactive.

- Loyal Assistance of Counsel

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o Conflicts of Interest:
 In WI, the representing attorney must make an inquiry on the record stating that the Defendants
understand the issues surrounding multiple representation/conflict of interest.
o Court has discretion to refuse Δ’s choice of counsel for 1) actual conflict or 2) substantial potential conflict.
 Trial judge does not have to acquiesce to the defense attorney’s request to waive conflict of
interest claim. D can’t claim conflict of interest after trial if waiver was granted.
o Post conviction review
 After D’s conviction, burden is on D to show that atty had a conflict.
 Does not need to show prejudice
 Need to show that conflict adversely effected performance of atty
o Ex: atty didn’t pursue a W, or a particular defense

III. CRIMINAL INVESTIGATION AND ARREST

- Types of investigations
o Police investigations
 Standard
o Prosecutor Coordinated Investigations
 Handled by prosecutors office.
o Grand Jury Investigations
 DA ComplaintIntake Preliminary hearing OR Grand Jury.
 WI doesn’t use, screen solely with preliminary hearing.
o Medical Inquests:
 Inquest into homicides, public inquiry into a death and is typically ordered by the DA.
o John Doe Investigation:
 If DA requests a judge to convene a John Doe proceeding the judge shall convene as described
under 968.26.
 1st step: DA request judge to allow the investigation, it is up to the DA to conduct
investigation. Judge has authority to subpoena attorneys, W’s, etc
o Not used for routine criminal activity more, for gangs.
o Usually conducted in secrecy, but if immunity is granted to any W that must be
done publicly.

- Ways To Get Body Into System:

o 1. Warrantless arrest:
 Police investigate crime to point where they believe they have PC to arrest.
o 2. Arrest Warrant 968.04
 Used when case is solved but don’t have a body
 Warrant Requirements: 1) in writing, 2) signed by judge, 3) statute number of crime, 4) attached
complaint, 5) name of person if known (or ID w/ reasonable specificity, e.g., DNA profile), name of
judge.
 John Doe warrant, no name: state-defining features.
o WI form:
 Box A: can only be issued upon finding of probable cause
 1st go to DA to get a complaint
 2nd go to judge to get an arrest warrant
 Box B: Bench warrant
 When  has already been in court but needs to come back, and
has failed to make the 2nd appearance
 Box C: Capias
 To enforce orders of the court
 For violations of paying financial obligations, supervision.
 Felony offense: Arrest warrants can be used w/out justification as to why its appropriate
instead of summons.
 Misdemeanor:

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o Used when punishable by more than 6 months in jail = no justification

o Punishable by >6 months in jail, then need to justify why summons was sufficient
o 3. Summons
 Used for misdemeanors punishable by >6 months
 Used when you don’t want the person in custody, just want them in court for Q’s
 Issued by Judge or D.A. (Judge can only issue warrant)
o 4. Bench Warrant:
 Used if D shows for initial appearance, and then does not show for Preliminary hearing.
o 5. Capias:
 Order of Judge to take someone into custody, used if someone doesn’t show up after subpoena, or
pay fine.
o 6. Citation:
 Not to the level of summons, just a directive to show up in Ct, used for traffic,
 Used by police to limit petty arrests.
o 7. Voluntary Appearance
 DA just tells Ds to show up in court on certain day, relies on trust.

- Prompt Judicial Review

o Intro
 Riverside (1991): Review by Judge or a court commission w/in 48 after warrantless arrest.
 4th amendment requires prompt judicial review as a pre-requisite to an extended pre-trial
detention.
 Prompt = within 48 hours, can be less if D can prove unreasonable delay
 > 48 Government has burden of proving extraordinary circumstances.
o Not necessary if used a grand jury indictment before arrest.
o In WI there is no remedy for a breach of Riverside review.
 Gerstien v Pugh:
 States must adopt a procedure that provides a fair & reliable determination of PC as a
condition for any pre-trial restraint on liberty/freedom.
o Determination must be made by a neutral judicial officer, not an adversarial
proceeding.
 Johnson v. US: (1948)
 PC must be determined from neutral judge using his own inferences from the evidence, not
the police officers competitive style.
o State v. Koch:
 Wisconsin combines PC with Initial appearance, if it can be done w/in 48 hrs.

THE CHARGING DECISION

- The Decision to Charge:

o Role of the Prosecutor
 O’Neil v. State
 DA is quasi judicial officer
 Duty of DA: See that no innocent man suffers and no guilty man escapes
o See that cases are handle honestly and impartially.
o ABA Standards for Criminal Justice—Prosecutorial Discretion
 Function of prosecutor:
 Duty: seek justice, not merely to convict
 Must exercise sound discretion
 Know and be guided by standards of professional conduct as defined by tradition codes,
and law.
 Office policy
 Each prosecutor’s office should develop statement of general policies to guide discretion
and procedures of the office and make it available to the public.
 Consideration of non-criminal alternatives:
 Be aware of social service agencies
 Diversion: intermediate course between prosecution and NO prosecution
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o Ex: counseling, education, etc

 If D responds appropriately = NO charges
 Prosecutor is only to file charges when there is PC.

- Prosecutorial Discretion:
 Should be: Confined, structured and checked
 Discretion points
 1. Filing of charges in a criminal complaint
o 1. Number of charges
o 2. Severity of charges
o 3. Penalty enhancements
 2. Bail recommendation
 3. Selection of charges for the information
o The information may look the same as the criminal complaint however it doesn't
have to.
 4. Plea Negotiations
 5. Discretion at trial
 6. Sentencing recommendation
o Why Discretion
 Legislative over-criminalization: the tendency for legislature to overlap crimes.
 Limits on resources
 Need to individualize justice
 Factors affecting exercise of discretion
o Gravity of offense
o Impact on victim
o Circumstances of offense
o Strength of evidence
 Defendant specific factors
o Age and other personal factors
o Prior record
o D’s role in crime, and need for testimony
o Ds explanation of conduct
 Other factors affecting exercise of discretion:
 Cooperative arrangements w/federal and municipal prosecutors
 Victim consultation: final decision maker on behalf of state case is prosecutor but victim
does get a say, if he/she wants.
 Office resources
 “Alternatives to prosecution” and “Deferred prosecution” (CCP)
 Community conscious and system pressures
- Controls on Discretion:
o Constitutional Controls
 Double Jeopardy Protections:
 1. No Retrial for same offense after acquittal.
o If it is absolutely clear that jury found innocent because it was the wrong guy,
Prosecutor may be able to charge again w/ more evidence on theory of estoppel.
 2. No Retrial for same offense after conviction:
 3. No Multiple punishments for the same offense.
o In determining whether one offense is the same offense, you look to the elements
of the crime.
o Dual Sovereignty Doctrine:
 When D commits a crime of multiple sovereigns, each sovereign (fed and
State) can enforce its laws, no problem with Double Jeopardy.
o Federal “Petite Policy”:
 If there has first been a state prosecution, the feds will not do a
duplicative fed prosecution unless, in the judgment of the feds, their
interests have not been properly vindicated in the states proceedings.
o Analysis: First check for constitutional DJ, then check for statutory DJ.
o Wis §939.71:
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 Limitation on the number of convictions

 If Fed crime has elements A,B,V but state crime has B, C Since the Fed
has an extra element but all of the state elemnents were there, they could
not bring charges.
 But, if the State has one extra element (ABC) and fed has only (AB) then
the state could still pursue, as well as Feds.
o Equal Protection
 Motion to dismiss on basis of selective prosecution:
 There is a presumption that prosecutors are acting in good faith and in the furtherance of
justice.
 When D brings equal protection, selective prosecutions claim he bears the burden of
overcoming this presumption. MUST PROVE:
o FIRST:
 That other violator’s similarly situated are generally not prosecuted.
o SECOND:
 That the selection of the claimant was “intentional or purposeful” AND
o THIRD:
 That the selection was pursuant to an “arbitrary classification”
 Litigation points on Selective prosecution claim
o 1. Discovery
o 2. Obtaining hearing
o 3. Hearing:
 in order to get a hearing D must fill out an affidavit including Prima facia
evidence. If the D gets the hearing there is a burden shift to the State to
show that it is a valid exercise of prosecutorial discretion.
o D must make more than just a bald assertion, prima fascia case.
o Due Process
 Motion: Challenges exercise of discretion on basis of Vindictiveness
 Post-trial Vindictiveness
 Ct held that if a D receives a higher sentence the second time around (after an appeal) that
the Ct will presume that it was vindictive.
 This is only a presumption and can be overcome if Prosecutor is able to argue valid reasons
for increased penalty.
 Pre-Trial Vindictiveness:
 No presumption of vindictiveness in pre-trial setting
 D must show intent, and actual vindictiveness (Extremely difficult)

- Factual And Legal Issues Related To Charging

o Factual assessment of case:
 Screen the case for everything regarding police involvement (Miranda), based on understanding of
criminal law, evidence; is there enough to charge D?
 Keep in mind prosecutorial function and goal
 ABA standard 3-3.9: Discretion: Prosecutor should not institute or permit the continued pendency of
charges when he knows that the charges are not supported by PC.
 Must have evidence beyond a reasonable doubt to charge.
 WI Standard: a prosecutor in a criminal case or proceeding that could result in deprivation of liberty
shall not prosecute a charge that the prosecutor knows is not supported by probable cause.

o Legal Assessment of Case:

 Identify the base substantive law violations
 Address issues of group criminality
 §939.05: Defines how to cast the net when multiple Ds are involved.
o Liability: Directly commits crime, aider or abettor, part of conspiracy, anyone
who advised higher counsel or solicited help to commit crime.
 Wis JI Crim 402: Party to a crime: Whoever is convened in the commission of a crime is
party to that crime and may be convicted of the crime even if that person didn’t directly
commit.
 Three ways to be party to Crime:

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o 1. By directly committing, it
o 2. By intentionally aiding and abetting a person who directly committed it.
o 3. By being a member of a conspiracy to commit the crime.
 WI is a unanimous jury state but not all 12 jurors have to agree whether the D directly
committed, intentionally aided and abetted, or was a member of a conspiracy to commit the
crime.
o Each juror must be convinced beyond a reasonable doubt that the D was
concerned in the commission of the crime in one of those three ways.
o Role of Penalty Enhancers
 Statutes can allow prosecutors to enhance the penalty given the facts of the case.
 Types of enhancements:
 1. Sentence aggravators: Don’t increase underlying maximum penalty for an offense but
do influence the judge to impose a heavier sentence for the offense.
o Many Penalty enhancers were switched to sentence aggravators
 2. Statutes that are themselves enhanced version of the criminal code
o Ex. Battery to judge
 3. Penalty enhancers codified in criminal code
o Dangerous weapon enhancer, hate-crime enhancer
o Not considered an extra element to prove, don’t have to be in pleading.
 4. Penalty Enhancers:
o Not a crime, rather an added elemental structure to the underlying offense.
o Must be pleaded and proved beyond a reasonable doubt.
 Apprendi: Demonstrated that under the 5th and 14th amendment and the
notice and jury trial guarantees of the 6th Amendment conclude that any
fact (other than prior convictions) which act to increase the maximum
penalty must be either plead guilty to or charged in an indictment to a
jury and proved beyond a reasonable doubt.
o Exceptions:
 Prior convictions don’t have to be re-tried and found. Allows for
“habitual offenders law”
 Exception to Exception: If a prior conviction is part of the crime that is
being charged it will have to be P/B/R/D.
 Ex. Stalking where a person faces higher maximum penalties for
the tried offense if proven guilty.
 In WI, D must be put on notice of penalty enhancer in the complaint.
 Winship Doctrine: States that beyond a reasonable doubt is the burden of persuasion
which prosecution has to prove for every essential element of guilt.

o Habitual Criminality 939.62

 Purpose: to increase punishment of persons who fail to learn to respect the law after suffering
previous penalties.
 Does not add element to underlying crime.
 Not an issue for Jury, sentence issue only.
 Must be alleged in complaint or at the latest in the information before D enters plea
 Who Is A Habitual Offender
 5 year look back period:
o Not 5 calendar years, time offender spent in confinement tolls the clock
 Compare to date of prior conviction to commission date of new crime.
 One prior felony conviction, or 3 prior misdemeanors during 5 year look back period.
 NO party liability for habitual offenders
 Impact is that the maximum term for of imprisonment is increased for underlying offense.
 3 Misdemeanors for purpose of look back can arise from ONE instance.

o Persistent Repeater:
 Three Strikes Law
 Can invoke Three-strike law after being CONVICTED of serious felony #3.
 If alleged and found guilty sentence is mandatory life sentence.

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- INTRODUCTION TO GREATER INCLUSIVE/ LESSER INCLUDED CRIMES

o Some jurisdictions clearly spell out which crimes are considered greater and lesser included crimes.
o WI Statute: 939.65: If what the D did violates multiple statutes DA can charge multiple different statutes
o Wi Stat 939.66: Makes clear that a D cannot be convicted of both the greater and lesser included.
 D’s attorney should make objection of multiplicity.
 1. Elements only Approach:
 Crime that does not require proof an any element additional to those which must be proved
for crime charged.
 Sketch out element of the charged crime and then look to see if another crime is a lesser
included crime of the charged crime.
 Ex: Crime 1: A B C D Crime 2: B C D
o Here, Crime 2 is a lesser-included crime of crime 1.
o Elements only test: used in WI and Federally, (US v. Shmuck)
 2. Cognate or Fact Approach:
 Looks at pleading/criminal complaint in the case to determine what is alleged and
determine whether or not a crime is a lesser included.

o Three stages to determining lesser included for Jury instructions

 1. Judge determines, as a matter of law, whether the requested lesser included, is included in the
charged offense.
 2. If judge concludes that the lesser included is in law included, the court proceeds to determine
whether, under the facts of the case, there is justification to give the jury the option
 WI SC has said that circuit court need not instruct on a lesser-included offense unless the
prosecutor or defense asks for it.

- Unit of Prosecution and the Problem of Multiplicity:

o Multiplicity: Charging of a single offense in several counts (4 rapes over 4 hours with same victim)
 Attempting to impose a penalty on someone in excess of what legislature intended.
 Need to determine whether multiple charges are the same in law and fact.
 LOOK TO:
 The language of the statute
 The legislative history and context of
 The nature and proscribed conduct
 The appropriateness of multiple convictions for the conduct.
 Multiplicity violates 5th amendment Double Jeopardy
o Method for reviewing multiplicity claims:
 1. Court determines whether the charged offenses are identical in law and fact.
 2. Does each provision require proof of an additional fact or element of law, which the other does
not?
 No- double jeopardy presumption. State can overcome presumption by a clear indication
of contrary legitimate intent.
 3. Yes (diff fact or law): no double jeopardy.

o Duplicity:
 Charging of separate offenses in a single account
 Unacceptable because it disallows the jury to decide whether the D is guilty on each count.
 A valid duplicity objection raised before trial will force the gov’t to elect the offense upon
which it will proceed, but will not require the dismissal of the indictment.

- JOINDER OF CRIMES AND DEFENDANTS

o §971.12(1): Joining multiple crimes against single D.
 1) Offenses are Same or Similar Character, or
 2) Offenses are Based on Same Act or Transaction
 3) Offenses are based on two or more acts or transaction connected together or constituting parts of
a common scheme or plan.
o §971.12(2): Joinder of Multiple D’s
 1) XXXX
 2) Ds are alleged to have Participated in the same act or transaction

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 3) Ds are alleged to have participated in the same series of acts or transaction constituting one or
more crimes.
o Francis Test: common important factors (time, place, MO so that evidence of each
crime is relevant to establish common scheme or plan that identifies perpetrator).

- Defendants Rights to react against Joinder of Crimes/Defendants

o Motion to Sever for Misjoinder
 Prosecutor violated the statute/rules of joinder.
 D Doesn’t have to show harm caused by misjoinder
 Prejudice is immaterial, only look at whether joinder is statutorily correct.
o Motion to Sever for Prejudicial Joinder 971.12(3)
 Prosecutor did NOT violate the rules of joinder but the way the rules operate in this case is
prejudicial therefore, the judge should allow severance.
 The DA shall advise the Ct prior to trial if he intends to use the statement of a co-D that implicates
another D in the crime charged. Thereupon the judge shall order a severance.
 Judge will balance the prejudice to the D and the Ds right to a fair trial with the
communities right to an efficient process.
o Judge will consider; even if severance is granted will the jury still hear the
prejudicial information?
 If yes, then NO joinder
 What is prejudicial? Standard of review for severance is “abuse of discretion”
 Multiple charges:
o Uneven evidence on charges
o Creates bad impression to Jury
o Evidence which support 1 offense could cloud the guilt of another
o D wants to testify to 1 crime but not the other
 Multiple D’s:
o Bad to be associated with worse criminals
o Conflicting defense strategies b/c multiple attrys
 Sever only if Defenses are mutually exclusive (if one defense is true,
others must be false)
o D1 would like to call D2 as W
 Cts require moving D to show that:
 1. D1 would in-fact call D2 to testify
 2. Other D would testify, and
 3. Testimony would be helpful to D1.
o Bruton Problem: Co-D’s confession incriminates other D
 Prosecutorial options:
 Sever s cases
 Forego use of evidence
 Empanel 2 juries to hear 1 case
o Severance in the Federal System:
 Can sever offenses joined for trial if the joinder appears to prejudice  or gov.
 Burden is on D to show that joint trial will prejudice

- State v. Hoffman (Joinder of Crimes)

o Masseuse, led 2 men to believe they had relationship in order to steal life insurance
o Crimes were of same or similar character.
- State v. Hamm (Joinder of crimes, same character)
o Separate events of rape were 18 months apart but conducted in a very similar way
o The greater the similarity the longer the time can be between offenses.

- State v. King
o P met D at bar agreed to have sex, went back to Ds place where the Co-defendant beat him up.
o This happened to a second malel
o Ct found that joinder of Ds was proper, close in time, close in proximity, similar manner.

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- TIMELINESS
o Statute of limitations 939.74
 Prosecution for a felony must be commenced within 6 years after commission.
 Prosecution for a Misdemeanor must be commenced w/in 3 years after the commission of the
crime.
o Commencement of Prosecution
 a prosecution has commenced when a
 Warrant
 Summons
 Indictment
 Information filed
o Criminal complaint when D is already in custody

 NO SOL for:
 1st degree intentional or reckless homicide
 felony murder
 2nd degree intentional homicide
 Intentional or reckless sexual assault of a minor
 15 year limit for
 2nd degree reckless homicide
 Few § dealing w/ children
 DNA exception
 In a limited class of cases of most serious sexual assault, if the state collects DNA &
identifies a profile within the statute of limitations, but can’t ID a particular person, then
the state may commence prosecution against the match of DNA at any time.

o Tolling the Clock:

 Outside WI exception
 If a person is living out of the state, that time does not count toward the statute of
limitations
 The SOL clock will be tolled for a prosecution if it is a greater/lesser-included crime. Not tolled for
unrelated crimes. Polhammer
 Special theft rule
 A prosecution for theft may be commenced 1 year after the discovery of the lost item, but
in no case shall the provision extend the time limit by more than 5 years.

o Continuing offense
 A violation is a continuing offense when the offense continues each day.
 Like Fraud: It is a continuing offense each day the  fails to report the changed
circumstances and continues to accept amount of money based on the prior circumstances.
o Look to statute and legislative intent to determine continuing

o Effect of SOL:
 Encourages law enforcement officials to promptly investigate suspected criminal activities.
 Once time has run, 3 ways courts handle:
 1. Court has no jurisdiction to try the offense
o  need not raise the issue in a motion
o  is entitled to relief notwithstanding his/her otherwise valid guilty plea or raising
the issue for the 1st time on appeal
 2. Becomes an affirmative defense that may by waived by either
o ’s failure to raise it in a pretrial motion
o ’s entry of guilty plea
 3. Becomes waivable – but only an intentional relinquishment of the right will suffice.
o WI Rule
 Guilty plea does not raise the issue of statute of limitations
 Correct manner of raising statute of limitations: make a motion to
dismiss on the ground of violation of the statute of limitations.

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 If this motion is denied, a guilty plea does not waive the objection to a
statute of violations error, absent an express waiver
 Must expressly waive, WI doesn’t infer waivers.
 Ex Post Facto
 A law that punishes an act as a crime or makes it a crime after the offense occurred.
o Legal if Legislature changes the Statute of limitations on an offense if it is done
during the time period allotted. 3 years for misd. Or 6 years for felony

- Unconstitutional pre-accusation Delay: Due Process Violation

o If the time period between commission of the crime and commencement of adversarial proceedings is
too long, D can file a due process violation for pre-accusation delay.
 To be successful on this motion, proof of prejudice is required and SCOTUS said that the state
has the burden to prove the reason for the delay.
o Due Process Clause requires dismissal of the indictment if it were shown at trial that the pre-indictment
delay caused substantial prejudice to ’s right to a fair trial and that the delay was an intentional device
to gain tactical advantage over the .

o For a successful pre-accusation delay motion, D must prove:

 1) D suffered actual prejudice as a result of the delay; and
 2) That the delay arose from an improper motive or purposes by the state such as to gain a
tactical advantage over the D.
 Very difficult for D to win Due process motion
 Prejudicial delay after adversarial proceedings is governed by the speedy trial clause of
the 6th amendment.

- VENUE
o 971.19: Place of trial: general rule: You file the case based on the county where the crime happened,
 Venue is not an element of the crime but, prosecutor must prove BARD. If there is an issue w/
venue, jury should be provided instruction.
 If in Federal criminal ct, they call for venueing within the federal district where the crime occurred.
 Jurors come from the county/district the case is venued in.
 Where two or more acts are requisite to the commission of any offense, the trial may be in any
county where the acts occurred.
 If the act causing death is in 1 county and the death ensues in another, the  may be trued in either
county. If neither location may be determined, the  may be tried in the county where the body was
found.
 If an offense is commenced outside of this state, and consummated within the state, the  may be
tried in the county where the offense was consummated
 Where an offense is committed w/in ¼ mile of any county border, the D may be tried in either
county.
 Venue is not an element of the crime but, prosecutor must prove BARD. If there is an issue w/
venue, jury should be provided instruction.
o 971.22: Change of place of trial
 D may move for change of venue, when he doesn't think he can get a fair trial in front of jurors in
the county, must be in writing supported by affidavit stating evidentiary facts showing nature of
prejudice.
o Only the D can ask for a change of venue.
 Motion to be made at arraignment.
 Judge will Grant or dismiss based on:
 1. Is the request inflammatory in nature?
 2. The difficulty in selecting an impartial jury
 3. Timing and specificity of publicity
 If Judge decides that impartial trial is impossible at this location he can:
 1. Pick up whole trial and move it to new jury
 2. Get a jury from another county.
o 971.225: Jury from other county if:
 Ct has decided to sequester jurors
 There are proper grounds for changing place of trial
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 The cost to county is less this way.

o 971.09: Plea of guilty to offenses in several counties:
 Consolidation statute:
 Any D who pleads guilty to crimes in the county she is under arrest in as well as other
counties can apply to the DA of the other county and plead guilty in the county where she
currently resides.
 Application shall contain a description of all admitted crimes by county.

CRIMINAL PLEADING:
- Introduction:
o Commencing a Criminal Proceeding
 1. File Criminal complaint,
 Misdemeanor begins upon a complaint, no prelim, or information
 Criminal complaint commences prosecution and gives Ct personal jurisdiction over the D.
 2. Information if LLC or Corp,
 No Constitutional right to preliminary hearing
 3. Grand jury Indictment
 Investigative Function:
o Investigate criminal activity and return an indictment
o Directed by a judge. Like a JDI but w/ a jury. (cumbersome)
o Rarely used in WI b/c JDI is cheaper. Used just if we need to subpoena from out
of state..
 Screening Function: (not used in WI)
o Case charged by prosecutor reviewed by GJ for sufficient evidence to indict (PC)
o Strength of this screening depends on jurisdictional rules. Rules vary on number
of jurors, votes needed to indict, hearsay rules, use of unconstitutionally obtained
evidence, disclosure of exculpatory evidence, standard of proof, Δ’s ability to
attack on insufficiency of evidence.
- Complaint Format
o Header
 Lists: WI, Circuit Court, County
o Caption:
 State of WI v. D’s name
 D’s Address
 D’s date of birth (will show if juvenile)
 Complainants name
 Case #
o Charging Paragraph
 Prosecution lays out the elements of the crime that D is charged w/.
 Citation to statute—for prosecutors protection
 Venue
 Party liability is encouraged to be here
 Need Penalty enhancers (if applicable)
 Also put in penalty paragraph and PC section
o Penalty Paragraph
 Puts D on notice of Max Penalty
 Max penalty = imprisonment + Community supervision
 Minimum penalty
 Short and simple—1 sentence
o Probable Cause Section:
 Prosecutor lays out facts against D, Scrutinized to demonstrate probable cause
 Need certain components:
 Abbreviated description of facts
 Argument for PC
 Not necessary to talk about constitutionality of evidence
 Penalty Enhancer
 Need penalty enhancer allegation here.

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o If forgot, may be able to amend to put in information, but can’t after information
is filed, possibly thru plea negotiations.
o Oath
 Signed by DA and Complainant
- WI §968.01: Complaint
o Complaint is a written statement of the essential facts constituting the offense charged. A person may make a
complaint on information & belief. Generally, the complaint shall be made upon oath before the DA or
judge
 Do not need personal knowledge; info and belief is enough
 Facts and allegations of facts to persuade neutral & detached magistrate that the crime charged was
probably committed by 
Substance of Complaint:
o Complaint must charge crime under law, describe the conduct alleged to charge, and provide sufficient facts
to persuade a neutral detached magistrate that the charged crime has been committed and probably by the D.
- Seraphins 6 W’s
o Who is Charged
 Identify by name and address, if name unknown mark as John Doe
o What is Charged: (charging pargagraph)
 Must be a charge known to law. Verify that charge existed at time crime was commited.
 List elements of statute: be weary that you cant always just copy statute because statues sometimes
list multiple offenses w/in a single statue, could run into issue of duplicity.
 Wrap up with reference to statute
o When did this happen:
 If not sure, say “on or about” or use time parameters
 An extremely loose timeline could result in a motion by D that he can’t effectively prepare.
o Where did this happen?
 Complaint has to show that the crime happened within the jx of the county where the charge is
being filed beyond a reasonable doubt.
o Who says so?
 Statements from witnesses or complainant’s personal observations. Is he informant, undercover
agent, statement against own interests? Expert credentials?
o Why is the D believed to have committed the crime?
 Complaint has to allege essential facts that support each and every element of the crime that would
show that D is the person who committed the crime to the level of PC.
 Probable Cause Test: do allegations contained in the complaint and any incorporated
documents to the complaint lead a neutral and detached magistrate judge to conclude that
the D probably committed the crime?
 Was crime probably committed and probably committed by the defendant.
 Haugen: Not essential that prosecutor include every fact known to the state but cannot
leave out material facts that would defeat probable cause.
o Judge can draw inferences from what is in complaints and attachments

- Attacks on a Criminal Complaint: MOTIONS

o Complaint must charge a crime known to law
 Motion to dismiss due to lack of subject matter jurisdiction
o Joinder rules are violated
o Frank Mann Attack: Motion on misstatements or omissions
o Complaint on its face barred by SOL
o On its face, improper venue
o Motion attacking complaint due to multiplicities
o Complaint does not allege sufficient facts
 If D believes there are insufficient facts he must act quickly, must be made prior to Preliminary
hearing (7-10 days after initial appearance)
 Misdemeanor has no preliminary hearing so it must be made w/in 10 days after initial
hearing.
 If there are not enough facts listed by the complaint the case is dismissed without
prejudice. The state can even ask that the D be held.

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 State can also appeal the decision, however this is rare because the complaint can just be
amended.

- Permissible Uses of Hearsay:

 Two Prong Test for Reliability of sources in determining PC (base complaint on these test)
 Basis of Knowledge Prong: (must be a good story, satisfied in 3 ways)
o 1) Personal knowledge, 2) self-verifying (he knows so much), 3) police
corroboration
 Veracity Prong: (trustworthiness of source, 2 spurs)
o Credibility Spur: (is it one of these types of trustworthy sources?)
 Statements made by victim or witness.
 Police: often one officer restating what an undercover officer said. Can
show trustworthiness by pointing to his prior track record of being
accurate.
o Reliability Spur: (is the information reliable?)
 Person giving statement against his own penal interest
 Police corroboration (police verified part of his story)
o Illinois v. Gates: Current test utilizes both the reliability/veracity prong and the basis of knowledge
prong under a totality of the circumstances approach.
 A strong finding in one of the areas will compensate for a weak finding in the others.

- ATTACKS ON COMPLAINTS
o 1. Insufficiency of Alleged Facts:
 Most common problem with criminal complaints = Insufficient Facts to Support PC
 Motion for insufficient facts must be made very early, must be done b/f preliminary hearing
 W/in 10 days of IA for MisD.
 Motion must also be clear about what the D wants; including the statute with the basis for the relief
requested.
 Should preserve the objection for personal jx so you don’t automatically waive it.
 If D brings motion on grounds that offense fails to state enough facts to find probable cause and the
judge agrees, it will be dismissed w/o prejudice Court can hold D to bail for up to 72 hours while
case is being worked out.
o 2. Challenge based upon Misstatements or Omissions
 State v. Mann (Mann Attack) prosecutor left out critical fact that D left his name and number
 Basis for a Mann Attack is either that the complainant who signed the complaint
misrepresented material facts or the prosecutor omitted material facts that would have
established probable cause.
 Omission: Prosecutor does not have to put in every piece of information, just enough to
establish PC.
 If D has evidence to support that complainant lied he can bring motion to allege what the
misrepresentations are, and will have to demonstrate that the omitted facts are material to
probable cause.
o If missing facts are not crucial to PC, it doesn't matter that they were omitted.
 Can only bring a Mann attack against the person(s) who swore to the complaint.
o FRANKS RULE (May only challenge about facts that are:
 1. Undisputed
 2. Capable of a single meaning
 3. Critical to a PC determination
 Disputed, ambiguous, and evidentiary facts get resolved in trial
- JURISDICTION
o Subject Matter Jurisdiction:
 Authority of the Ct to inquire into the charge and to apply the law and to declare judgment and
sentence.
 Subject matter Jx is never waived and can be raised at any time.
 In WI, as long as the state is alleging a crime that is known to law NO SMJ problem
o Personal Jurisdiction:
 Power of the Court to exercise its authority over the particular Defendant.

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 Smith: essential element of PJ in a criminal action is the sufficiency of the complaint,

rather than the process by which the D’s presence in court is secured.
 The notice function is accomplished by requiring a complaint to include the essential facts
constituting the offense charged in section 939.03 (territorial statute).
 In order for there to be PJ the prosecutor has to file a complaint that sets out the essential facts of the
crime charged and its penalties to a level of Probable cause. Further, the complaint must show that
whatever crime is alleged is within the claim of territorial jurisdiction in order to provide proper
notice.
o Territorial Jurisdiction:
 939.03: Jx of State over Crime: statute represents the assertion over D by crime. Based on territorial
security and state interest.
 Complaint must state sufficient facts that support probable cause and show a nexus between the
conduct and the state of WI (did it happen entirely in WI or outside of WI).
 We assert jx over someone who aids in the commission of a crime that took place in WI but
was aided from another state.
o Problem is that there is no place to venue (971.19) State must prove venue beyond
a reasonable doubt.
 Even if only part of the crime happens here.

- INITIAL APPEARANCE
o WI 970.01 Initial appearance before a judge
 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. It may be conducted by phone or live
audiovisual means.
 Judge will need to calendar a preliminary hearing at the IA if charged w/ Felony.
 Take up matter of Bail and conditions of release.
 For misdemeanor WI has a bail schedule, so police can set bail w/out a judge.
o Police are to make an individualized assessment as to whether the D should even
have to post bail.
o Max bail for misD is max fine amount for offense.
o Police will look to ties to the community, past record, etc.
 Felony cases do not have a bail Schedule
o However often times bail can be set over the phone.
o BAIL (Pre-trial release)
i. When a person charged w/a crime appears before a judicial officer, the officer shall order the
pretrial release of the person on personal recognizance, or upon execution of an unsecured
appearance bond in an amount specified by the court appearance of the person as required or will
endanger the safety or any other person in the community
b. Conditions of release:
i. Purpose is to protect members of the community from bodily harm, protect witnesses from
intimidation.
ii. Factors used to determine which of the above, or other conditions to use:
1. Nature and circumstances of offense charged.
2. Weight of evidence against person
3. History and characteristics of a person
c. Bail:
i. Purpose: Must show that there is reasonable basis to believe that bail is necessary to assure
appearance in court.
ii. Bail may only be an amount necessary to ensure D returns.
iii. Court may choose to use cash bail and if D has no cash, will have to sit in jail.
1. Alternatives: post 10% (not anymore);
2. friends/family/3rd party;
3. PR bond (D signs and promises to show and if he doesn’t he will have to pay);
4. Corporate Surety: Bail bondsman, gets collateral to foreclose on in case the D doesn't
show.
iv. No constitutional right to counsel at preliminary hearing or bail hearing
v. WI Recompense: If Δ jumps bail judge may use bail to pay restitution to victim w/o a trial
(constitutional?)

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vi. Bail jumping: a separate offense: money that has been posted is forfeited, no matter whose $ it is.
vii. Constitutional limits to Bail:
1. 8th Amendment: no excessive bail. Wis Const Art 1, Sec 6 and 8
2. Setting bail amount requires an assessment of the facts of the particular case and state bail
statutes

- THE PRELIMINARY HEARING & Filing of Information

o WI is a preliminary hearing state.
o Preliminary hearing is before a Ct for the purpose of determining if there is PC to believe that a felony has
been committed and probably committed
 Purpose: protect D from improvident or malicious prosecution.
o Entitlements: prelim is a statutory right and is given to accused felons (whether charged by complaint or
indictment).
 Misdemeanors, corps and LLC D’s have no right to prelim.
o Right to Counsel:
 D has a right to counsel at the preliminary hearing because this is considered an adversarial
proceeding.
o Timing of Preliminary hearing
 Must be commenced w/in 10 days of Initial Appearance if D is in custody and bail has been set in
excess of $500.00
 Otherwise must be commenced w/in 20 days after IA
 Time limits can be extended on stipulation or upon motion and for cause.
 Untimely Preliminary Hearing: Motion to dismiss should be made (Or there will be a waiver of the
mistake)
 Ct will lose personal jurisdiction if Preliminary is not timely.
o Probable Cause at Prelim
 Probable Cause at prelim is less than proof BARD
 Probable Cause at prelim is more than bare suspicion
 Probable Cause at prelim is more than what is required for Warrant
o Presiding Judge
 Held before circuit judge or judicial court commissioner (Someone in Judicial branch)
o Substitution of Judge §971.20
 One sub per case w/no justification
 On appeal you can ask for another substitution judge
 If more than one D, all Ds must join in substitution.
o Hearsay Evidence at Preliminary Hearing
 Hearsay is admissible at preliminary hearing
o Miscellaneous Evidence Issues:
 Uncorroborated confession is sufficient to support a bindover
 (if D said enough to constitute PC)
 Evidence can be introduced w/o prior litigation
 (regarding whether means used to obtain evidence was constitutional)
 No constitutional right to confrontation
o In most cases the state will put on a minimal amount of evidence, just enough to secure bindover.
 Hearsay used extensively
o However, some cases the state will want a preliminary hearing however, can’t force D to not waive
 May want if they are worried about the disappearance of Witnesses.
o Findings of the Court:
 Single felony charged:
 PC to believe that D committed “a” felony: bind the D over for trial.
 PC to believe that the D committed only a misdemeanor: amend to misdemeanor.
 No PC for any crime found. Dismiss case.
 Multiple felonies charged:
 Judge must examine the complaint to determine how many transactions are alleged.
 State v. Williams: procedure at prelim exams w/r/t multi-count complaints:
o 1) Examining judge shall examine the counts in the criminal complaint and the
facts stated therein to determine which counts are transactional related in that
they arose from a common nucleus of facts or “related in terms of parties

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involved, witnesses involved, geographical proximity, time, physical evidence,

motive and intent.”
 If judge finds multiple transactions he must find PC for each
o 2) if judge finds PC that a felony was committed, there is PC as to all counts that
are transactionally related and the D shall be bound over on all those counts;
o 3) if no PC for any of the counts, judge should dismiss all those counts and DA
may not include them in the information.
o If charge is reduced to misdemeanor:
 State can accept the reduction
 Move to dismiss and re-file as felony
 Appeal decision (Rare, just refile)
o If charge is dismissed
 Accept dismissal
 Re-file if there is “new or additional evidence”
 State can ask to hold defendant to bail for 72 hours during re-filing
 Appeal

- FILING OF AN INFORMATION
o Must be done within 30 days following bindover/finding of PC. If not, D can move to dismiss.
 Wis. Stat. 971.01: duty of DA to “examine all facts and circumstances connected with any
preliminary hearing…and “file an information according to the evidence on such examination.”
o Options for prosecutor when filing Information:
 1. File same charges as were charge in criminal complaint
 2. Information may allege charges in addition to those in the criminal complaint provided that
they are transactionally related (not wholly unrelated) to the charges established at preliminary
hearing.
 True even if no evidence is introduced at prelim to support charges
 Wholly unrelated test
o Geographical and temporal proximity,
o affinity of parties and witnesses,
o physical evidence required for conviction, and
o Ds motive and intent
 3. Substitution of new charges in information
 May drop initial charges and substitute something for it completely new but only if there is
testimonial support during the preliminary hearing to reach level of PC for new charge.
o Williams: prosecutor must not include any new count in the information arising
from the same facts as a count specifically dismissed at the prelim hearing.
 4. If Preliminary hearing is waived
o 1. DA can filing information that alleges same charges that are in the complaint
o 2. DA can add new charges that are not wholly unrelated to the charges in the
complaint provided that information also contains charges in the criminal
complaint.
 DA cannot (if no prelim) drop criminal complaint charge and charge
wholly new charges. (Must then dismiss and re-file)
o Objection to Information:
 Motion to dismiss charges in the information claiming that DA abused his discretion in selecting
charges because it violates previously listed ways.

- ARRAIGNMENT
o Purpose: To take first plea of the Defendant
 Default plea is not guilty
o Open Ct, right to counsel, information is read to the D, D enters plea
 WI: Often combined with Preliminary hearing in essence of time.
o Pleas:
 Guilty
 Not Guilty
 No Contest:
 Not treated as guilty in subsequent civil cases

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 Judge has discretion whether or not to accept

 Alford Plea
 At judges discretion. Defendant may take plea deal, but still deny guilt
 State must put in strong proof of guilt to accept Alford plea.
 Mental Defect
 If I did it, I was not culpable.
 Bifurcated trial: First, a normal trial to determine guilt, then an NGI trial where Δ will try
to show insanity by “reasonable degree of certainty.” If he succeeds he’ll avoid jail & be
committed.

- PRE-TRIAL PHASE
o Motions
o Discovery
o Plea Negotiations

oPre-Trial Motions:
 Motions must state with particularity the grounds and the relief sought.
 Must be filed w/in 10 days of IA for misD or arraignment for felony
 See supplement of common motions.
 Demand for Speedy Trial (6th Amd)
 DPC covers pre-accusation delay.
 6th Amendment covers post accusation delays.
 Four Factors: 1) length of delay, 2) reason, 3) whether Δ asserted right to speedy trial, 4)
prejudice
o Presume prejudice after 1 year. Look to oppressiveness & hindrance to defense.
 Judge does not decide on this motion until AFTER trial. Federal remedy is dismissal.
 WI: Trial w/in 60 days of IA w/in 90 days of demand. WI remedy is discharge until trial.
o Discovery:
 By WI statute, upon demand, both sides turn over nearly everything. Also a duty under ABA.
 Bagley: DPC requires prosecutor to turn over all “exculpatory evidence.” This includes evidence
that:
 1) Negates guilt,
 2) Mitigates the offense,
 3) Can be used to impeach.
 Violations: look to whether failure to disclose undermines outcome of proceeding.
o Plea Negotiations
 Types of Bargains:
 Charge Bargain: DA drops some charges in exchange for plea
 Sentence Recommendation: DA makes recommendation in exchange for plea (no
promises)
 Combo: drop some charges & make recommendation
 Judicial Disclosure:
 WI & federal judges not permitted to participate in plea bargaining (jurisdictional)
 Guilty Plea: Judge will inform Δ of charges, right to counsel, range of punishments…
 Prosecutor Leverage:
 DA may threaten new charges if Δ won’t plea.. No different than charging everything
initially.
 Remember, there’s no presumption of vindictive prosecution in pre-trial.
 Broken Deals:
 Δ can back out anytime prior to plea. So can state unless Δ has relied on the agreement.
- SENTENCING
o Court must consider 3 sentencing factors:
 1) Gravity of offense,
 2) Rehabilitative needs
 3) Protection of public
 In order for a sentence to be valid, there must be a statement by the judge detailing his
reasons for selecting the particular sentence imposed.

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o Judges must consider probation as the first alternative to jail time.

o Maximum probation period is the same as the maximum confinement period.
 Class I felonies can be put on probation for up to 3 years.
o ACT 109
 Determinate approach
 Judge is central decision maker for determination of sentence.
 Bifurcated Sentence
 Components of bifurcated Sentences
 1. Term of confinement
 2. Term of extended supervision (ES)
o Minimum confinement is 1 year (reason for 1 year min, is that initial investment by system is high)
 Minimum for ES is 25% of confinement
 Maximum ES is the maximum term of confinement.

- Rule regarding Penalty Enhancers and Habitual Criminality

o Penalty Enhancers:
 Enhancer’s increase maximum possible confinement
 EX: Crime of False imprisonment
 Class H felony Max term of confinement = 3 years
 Max term of ES = 3 years
 Max term of imprisonment = 6 years
o Look to statute: “if the max term of imprisonment is more than 5 years than the
max term may be increased by not more than 5 years”
 Penalty Enhancer, could add 5 years to confinement term (Does not affect ES term)
 Now max term of confinement goes up to 8 years
o 25% rule also accounts for enhancer. So minimum ES is now 2 years
 Max term of ES stays the same
o Max term of imprisonment is now 11 years.
o Habitual Criminality
 Look to statute: (b) max term of more than 1 year but not more than 10 may not be increased by
more than 2 years if prior convictions were misd. And by not more than 4 if prior convictions were
felony.
 False imprisonment
o Rules say that we figure out all of the enhancers first and then habitually last.
 If both penalty enhancer for gun and a Habitual criminality
 You figure enhancers first so 11 years, so now we look to statute for Habitual Crim. And
see that his max term is now over 10 years so we add the additional 6 years if prior
conviction was a felony.
o Extended Supervision
 If offender violates ES, ES may be revoked and offender may be returned to prison to serve whole
ES term or portion thereof.
 If ES is revoked, no credit for street time already served on ES.

Ways to get out early:

- Challenge incarceration program “boot camp”
o Does not apply if convicted of Ch 940 crime or certain 948 crimes
o If D completes “boot camp” 30 days later you are released to ES.
 Whatever length of confinement you have left is added to your ES
 Judges can also stipulate a minimum length served before boot camp can be tried
- Substance Abuse Program
 Substance abuse program that is similar to boot camp
- Sentence Adjustment
 If serving bifurcated sentence for class C, D, or e felony after 85% of confinement term the D can
ask the judge to be released into ES.
 After 75% if F,G,H, or I felony
 A felons and Bs don’t get this.

- Concurrent vs Consecutive sentences

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o Concurrent means that you are working off both sentences at the same time.
o Consecutive means that time spent for the first is not counted for second count

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