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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — Reasonable Expectation of Privacy Embedded in Definition
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12). Holding: ¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition […]
§ 940.25(1)(a), Injury by Intoxicated Use — No Duty to Clarify Meaning of “Materially Impaired” Element Upon Jury Request
State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240 For Hubbard: Steven W. Zaleski Issue: Whether, upon jury request for clarification of “materially impaired” under the instructions for injury by intoxicated use of a vehicle, § 940.25(1)(a), the trial court properly responded that the should “give all words not otherwise defined […]
§§ 779.02(5), 943.20(1)(b), Theft by Contractor – Elements – Claims Against Money in Trust Fund Must Be Paid Proportionately
State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163 For both Keyes: Michael J. Devanie Issue/Holding1: ¶21 The Keyes were charged with theft by contractor under Wis. Stat. § 779.02(5), part of Wisconsin’s construction lien law. … The statute prohibits the […]
Arrest, Search Incident to – Timing
State v. Jordan A. Denk, 2008 WI 130, on certification For Denk: Lora B. Cerone, SPD, Madison Appellate Issue/Holding: ¶33 We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State […]
Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Search of Canister
State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174 For Sanders: Patrick M. Donnelly, SPD, Madison Appellate Issue/Holding: ¶35 Accepting for the moment the State’s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant’s bedroom who would pose […]
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right, Generally: Suppression Need not Be Expressly Provided
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16 For Popenhagen: James B. Connell Issue/Holding: ¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the […]
Plain Error, § 901.03(4) – Confrontation-Based Errors: Statements by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision For Jorgensen: Martha K. Askins, SPD, Madison Appellate Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled […]
Plea Bargains – Validity: Illusory Plea Agreement – Applicability to Dismissed Charge
State v. Jordan A. Denk, 2008 WI 130, on certification For Denk: Lora B. Cerone, SPD, Madison Appellate Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on […]
Privileges – Honesty Testing, § 905.065(1): Voice Stress Analysis Admissibility
State v. Keith A. Davis, 2008 WI 71, on Certification For Davis: Chris A. Gramstrup Issue/Holding: ¶20 Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka,Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, “at least […]
Procedure – Read-In — Defendant’s Awareness of Implications re: Admission
State v. David G. Straszkowski, 2008 WI 65, affirming summary order For Straszkowski Philip J. Brehm Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes. Holding: ¶3 We conclude that the record clearly demonstrates that neither the State, […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.