On Point: A. Review Grants

State v. Jeffrey P. Lepsch, 2015AP2813-CR, petition for review granted 5/11/16; case activity (including briefs)

Issues (composed by On Point)

Were one or more jurors at Lepsch’s trial objectively or subjectively biased because they did not provide “unequivocal assurances” that they could set aside prior beliefs (about, e.g., the guilt of the defendant and the greater credibility of police) and decide the case solely on the evidence?

Did the prior beliefs of some jurors, and the lack of sufficient inquiry into their ability to set them aside, create an appearance of bias sufficient to deny Lepsch’s due process right to an impartial jury?

Were Lepsch’s rights to be present and to a public trial violated when the prospective jurors were sworn in the jury assembly room, outside the presence of the court and counsel?

Was Lepsch denied due process or the effective assistance of counsel by the trial court’s failure to give him the 7th peremptory strike to which he was entitled and by failing to strike 5 jurors for cause, forcing him to use 5 of his 6 strikes to remove them?

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification)

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification):

Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

Review of a published court of appeals decision; case activity (including briefs)

Issues:

In State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, this Court held that circuit courts may not consider an expunged record of conviction, but may consider the facts underlying an expunged record of conviction at sentencing. Did the circuit court violate Leitner when it considered at sentencing that Mr. Allen had an expunged conviction and served a term of probation?

Was trial counsel ineffective for failing to object to the references to Mr. Allen’s expunged conviction in the pre-sentence investigation and at sentencing?

Question Presented:

Most states and the federal government have a rule of evidence generally prohibiting the introduction of juror testimony regarding statements made during deliberations when offered to challenge the jury’s verdict. Known colloquially as “no impeachment” rules, they are typically codified as Rule 606(b); in some states, they are a matter of common law.

The question presented is whether a “no impeachment” rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

What is required to show that an evidentiary blood draw was conducted by a “person acting under the direction of a physician” for purposes of Wis. Stat. § 343.305(5)(b)?

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point):

Does the constitutional prohibition against ex post facto laws bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect?

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point):

Does the Confrontation Clause or Due Process Clause prohibit a circuit court from relying on hearsay evidence in deciding a suppression motion?

Review of a per curiam court of appeals decision; case activity (including briefs)

Issue (copied from the State’s petition for review):

No witness, expert or otherwise, may give an opinion at a trial that another mentally and physically competent witness is telling the truth. Here, the social worker who interviewed a child regarding her claim that she had been sexually assaulted  testified that there was no indication that the child had been coached and no indication that the child was not being honest during the interview. Did the social worker’s testimony constitute a prohibited opinion that, during this interview, the child was telling the truth?

Review of a per curiam court of appeals decision; case activity (including briefs).

Issue (composed by On Point):

Is hot pursuit of a suspect based upon probable cause for a jailable offense a stand-alone justification for a warrantless home entry and arrest or must law enforcement reasonably believe that a delay in obtaining a warrant would endanger life, risk destruction of evidence, or greatly enhance the likelihood of the person’s escape?