On Point: 13. Due Process

Racine County v. Renee D., 2012AP1974, District 2, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity

Wis. Stat. § 48.415(5) is not unconstitutionally vague and does not violate due process

As applied to Renee D., the two elements for the “child abuse” ground under § 48.415(5) are: 1) the parent has shown a pattern of physical or sexual abuse that is a substantial threat to the health of the child who is the subject of the petition;

Question presented:

Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Lower court opinion (Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012))

Docket

Scotusblog page

This case could have a significant impact on Wisconsin law.

State v. Alexander Jerome Wiley, 2012AP71-CR, District 1, 12/11/12

court of appeals decision (3 judge; not recommended for publication); case activity

Wiley, a co-defendant in a reckless homicide case, moved the circuit court to exclude the in-court identification testimony of an eyewitness to the crime who had picked Wiley out of a photo array. He argued that the in-court identification was tainted because the photo array was unduly suggestive. 

Robert Dietrich v. Smith, 7th Cir No. 12-1672, 12/4/12

seventh circuit decision, on habeas review, affirming 2011C117 (E.D. Wis 2/23/12); prior history: State v. Dietrich, Wis. App. 2008AP1697-CR

After the trial court denied his request for an in camera inspection of the sexual assault victim’s mental health records, State v. Green, 2002 WI 68,

State v. Darryl J. Badzinski, 2011AP2905-CR, District 1, 11/27/12; court of appeals decision (not recommended for publication), petition for review granted 4/18/13; reversed, 2014 WI 6; case activity

Complaint – Adequate Notice (Child Sexual Assault) – Waived Objection 

Badzinski waived his objection to the complaint – counsel conceded, at a motion to dismiss because of vagueness,

State v. Bradley S. Johnson, Outagamie Co. Circ. Ct. No. 12CM495

circuit court decision; case activity

Panhandling prosecution under § 947.02(4) is dismissed with prejudice because the vagrancy statute is unconstitutional under first amendment analysis: panhandling (“begging”) is a form of protected speech and its criminalization under § 947.02(4) is fatally vague and overbroad. State v. Starks, 51 Wis.2d 256, 186 N.W.2d 245 (1971) (loitering statute unconstitutional as providing insufficient notice of prohibited conduct,

on review of unpublished decision; case activity

Issues (composed by On Point) 

1. Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records.

2. Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony.

The implications for the administration of State v.

on review of unpublished decision; case activity

Issues (composed by On Point) 

1. Whether the non-waivable nature of the defendant’s right to personal presence at voir dire, citing, § 971.04(1)(c); State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999), extends to examination of a juror for possible dismissal following selection and swearing-in.

2. Whether the trial court properly dismissed two jurors,

on review of unpublished decision; case activity

Issue (composed by On Point) 

Whether Sahs’ statements to his probation agent, along with evidence derived from those statements, were suppressible under the “Evans-Thompson” rule, which holds that a probationer’s statements which are compelled by the terms of probation – provide information to an agent when requested or face revocation – are covered by use- and derivative-immunity.

Sahs,

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.