March 5, 2014 – Hearsay evidence, the right to counsel, the exclusionary rule, due process. Fundamental principles, all familiar to criminal defense attorneys – yet always subject to refinement. As the Wisconsin Court of Appeals noted in one case, “the distinction is one of degree.” Are you sure you know the latest distinctions? Look at these recent cases, all found in the latest supplement to The Wisconsin Criminal Defense Manual.

Newly enacted section 970.038 makes hearsay evidence admissible at a criminal defendant’s preliminary examination, and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. Does that mean the state can successfully rely on hearsay at every probable cause hearing?

Probably not. In a 2013 decision (currently under review), the Wisconsin Court of Appeals affirmed a circuit court’s finding of probable cause based solely on hearsay evidence. But the court of appeals went on to note that “[t]he defendant remains free to challenge the plausibility of the hearsay evidence and the tenability of the State’s case at the preliminary examination, via cross-examination, presentation of evidence, and argument to the court.” See L. Michael Tobin, Wisconsin Criminal Defense Manual § 1.17 (5th ed. 2011 & Supp. 2013-14).

It’s undisputed that a criminal defendant has a right to counsel, and that the right can be waived. But can a defendant rescind a waiver if he later learns that the police didn’t tell him that his lawyer is trying to see him?

No. In a 2012 case, a defendant was being questioned without counsel present and invoked his right to counsel. Unbeknownst to him, the attorney he had retained to represent him on the earlier charges was attempting to see him during interrogation on the new charges. The attorney was kept away from the defendant, who ultimately waived his right to counsel on the new charges, and made an incriminating statement.

At trial the defendant tried to suppress that statement, claiming that had he known his counsel was trying to see him, he would not have waived his right to counsel. The circuit court granted the motion, but the court of appeals reversed.

The Wisconsin Supreme Court affirmed the court of appeals, noting that “we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” See Wisconsin Criminal Defense Manual, supra, § 3.116.

The exclusionary rule serves a laudable and unassailable purpose – to protect judicial integrity by ensuring that police tactics stay within the law. But where lies the line between deterring police misconduct and the social cost of excluding reliable evidence?

It’s a balancing act, as exemplified by a 2012 Wisconsin Supreme Court case in which police conducted a concededly wrongful warrantless search of a defendant’s home, and that defendant was later convicted on evidence obtained outside the defendant’s home. The circuit court refused to suppress that evidence, and the Wisconsin Supreme Court affirmed. Noting that the violated exclusionary rule was intended to protect the physical integrity of the home and that the evidence at issue was seized outside the home, the supreme court noted that “[t]he penalties visited upon the Government must bear some relation to the purposes which the law is to serve.” See Wisconsin Criminal Defense Manual, supra, § 5.444.

Does due process require a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police?

No. According to the U.S. Supreme Court, “The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.” See Wisconsin Criminal Defense Manual, supra, § 5.46.

Analyses of these cases … and much much more … can be found in PINNACLE’s Wisconsin Criminal Defense Manual, now with a 2013-14 supplement.

Besides the latest in relevant case law, the 2013-14 supplement contains a legislative alert, including analysis by the Legislative Reference Bureau, regarding pending revision of the Criminal Procedure Code. The appendices have also been updated, now providing updated Chapters PD 3 and PD 6 of the Wisconsin Administrative Code, as well as tables containing Wisconsin Circuit Court fees, forfeitures, fines, and surcharges.

To Order

The Wisconsin Criminal Defense Manual is available both in print and online (via Books UnBound^®, the State Bar’s interactive online library). The print book costs $179 for members and $229 for nonmembers. Subscriptions to Books UnBound begin at $149 for members and $189 for nonmembers. For more information or to place an order, visit the State Bar of Wisconsin’s Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.