Criminal Process Outline

Hammer Spring 2018

Introduction
I. Felonies
A. Over 1 year of incarceration
II. Misdemeanors
III. Constitutional Protections
A. 4th – unreasonable searches and seizures
B. 5th – grand jury for felonies, double jeopardy, testify against yourself, due process
1. Not applicable to the states
C. 6 – speedy, public, jury trial informed of nature and cause of accusation, confront
th

witnesses, assistance of counsel

D. 8th – no excessive bail
E. 14th due process and equal protection applicable to the sates
IV. Attributes of Criminal System
A. Human operation – judgment, discretion, compassion, mistakes
B. Discretionary
C. Balkanized – no individual directing
D. Overworked
E. Expensive
F. Takes what is put in
G. Under scrutiny
V. Ways to “Get the Body”
A. Warrantless arrest
B. Arrest warrant
1. If judge finds PC, judge issues summons and complaint.
2. John Doe warrant
3. Benefits
a. Enforced nationwide
b. Authority to enter home if defendant is believed to be there
c. Judge gives deference to warrant if PC is close call
4. Warrant can be issued for misdemeanor if max penalty is more than 6 months in
jail. If less serious, DA has to issue summons without judicial approval, which
doesn’t result in arrest.
C. Summons
D. Misdemeanor citation
E. Voluntary appearance
VI. Accusatorial burdens
A. Presumption of innocence
B. Exculpatory evidence must be disclosed
VII. Victims’ rights
A. Timely disposition of case, opportunity to attend proceeding, reasonable protection,
notification, restitution, compensation, and information about the outcome
B. Each victim shall have the right to confer with the district attorney and say something at
sentencing
VIII. Types of Investigations
A. Police investigations
B. Prosecutor coordinated investigations
C. Grand jury investigations
D. Medical inquests
E. John Doe

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Stages of a Criminal Proceeding
I. Review by Prosecutor’s Office
A. Crime reported and police investigate
II. Criminal Complaint Issued/Arrest Warrant/Criminal Summons
A. Complaint – sworn statement that lays out the charges
1. Charge, facts, police swear, prosecutor’s signature, victim/cop signature
B. Arrest Warrant/Criminal Summons – court reviews for PC before issuing
III. Initial Appearance
A. Warrantless arrest – do PC finding. If done within 48 hours, do Riverside review
1. Not adversarial. Matches warrant procedure
B. Bail, qualify for public defender, schedule preliminary hearing
IV. Preliminary Hearing – only for FELONIES
A. Within 10 days
B. Some states have grand jury instead
C. Evidentiary hearing to see if there is probable cause
D. Defendant has right to counsel
E. Standard: establish probable cause that a felony has been committed and that the
defendant probably did it
1. Hearsay permitted
F. Judge can rule
1. Enough probable cause, prosecutor file information
2. Only enough evidence for a misdemeanor
3. No probable cause – dismiss
G. Defendant can waive
V. Charging Document
A. Information (preliminary hearing) or indictment (grand jury) that contained charges for
which the defendant will enter plea and stand trial
VI. Arraignment
A. First plea
VII. Pretrial Phase
A. Discovery
B. Pretrial motions
C. Plea negotiations
VIII. Trial
IX. Sentencing
A. Probation
1. Impose sentence then stay execution and put on probation. Slip up and go
directly to jail
2. Withhold sentence and put on probation
Right to Counsel
I. 6th Amendment Rights
A. Speedy and public trial, impartial jury, ability to confront witnesses, assistance of
counsel, informed of nature and cause of the accusation.
1. Right to appointed counsel is narrower than right to retained counsel
B. Incorporated to the states via the 14th Amendment
II. Appointed Counsel
A. Felonies – right at any critical stage
1. Gideon v. Wainwright – right to counsel in felony cases is applicable to states
2. Triggered when government initiates adversary judicial proceedings against
individual (charge)

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 a. After arrest, entitled when subject to investigative procedures that are
critical stages (interrogation, lineup)
b. Wisconsin – once complaint is issued
3. Critical stages
a. Look to whether there is a reasonable likelihood that the absence of
counsel could prejudice defendant or irretrievable defenses could be lost.
b. Preliminary hearing
c. NOT initial appearance
B. Misdemeanors
1. Wisconsin standard – imprisonment in law standard
a. Charged with a crime that carries a jail penalty, you get an attorney. If
indigent, you get appointed attorney.
C. Right stays with the defndant until convicted and sentenced, maybe through post-trial
motions.
D. Defendant who is indigent has right to assistance of counsel on first appeal.
1. Due process and equal protection right.
E. Means of appointment
1. Public defender agency
2. Contract attorney system
3. Individual appointment of private attorneys
4. Dean appointment – not a free lawyer. For those that don’t qualify for public
defender but also can’t afford an attorney. Judge will draft order at the end of the
trial directing county to pay the lawyer and defendant to pay the county.
III. Retained counsel
A. 6th amendment right to counsel of choice only applies to retained counsel
B. Violation
1. Deprivation is complete when defendant erroneously prevented from being
represented by lawyer he wants, regardless of the quality received.
a. Gonzalez-Lopez – refusal to allow pro hac attorney
2. Automatic reversal of a subsequent conviction
C. Permitted restrictions
1. Right may be circumscribed by precluding representation by a particular
individual or category of individuals
a. Example: conflicts, not admitted
2. Right may be restricted by judicial action not directed at a particular attorney
a. Obstruct orderly procedure of court
IV. Waiver
A. Intentional Waiver – Self-Representation – Faretta
1. Knowingly, intelligently, and voluntarily waives
a. Deliberate choice
b. Aware of disadvantages
c. Nature of charge and range of penalties
d. Education
e. Competent – understand charges and assist in defense
a. WI - Higher standard of competency than that to stand trial
2. Court requires extensive inquiry and warns defendant of dangers
a. Consider education, nature of the charge, stage of the proceeding
b. Technical legal knowledge is not relevant to assessment
3. Warnings (suggested)
a. Presenting defense ≠ telling one’s story
b. Lawyer has training in trail procedure

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 c. May inadvertently help the prosecutor
d. May be defenses or other rights a lawyer would know but may be
permanently lost
e. No ineffective assistance claim
f. Effectiveness of defense may be diminished
4. Single waiver doesn’t constitute a waiver for every stage
5. If the defendant is abusing right to attempt to impede justice, Judge can appoint
counsel and force it upon him
6. Presumption against waiver
7. Wisconsin – absent a mental illness component, follow Faretta. If defendant has
ability to understand what’s going on and what he’s giving up, let him defend
himself.
8. Stand-by Counsel
a. To determine if appointment would undermine Faretta right:
 Did standby counsel allow defendant to control the case?
 Did standby counsel maintain appearance that defendant was
going it alone?
B. Forfeiture of Right to Counsel
1. Manipulative and disruptive behavior
2. Previous withdrawals due to noncooperation
3. Defiant attitude resulting in delay
4. Abuse directed at counsel
5. Failure to obtain despite financial ability
V. Withdrawal
A. Rule: if retained counsel, judge should approve.
1. If last minute request, look at:
a. Timing of request
b. Inconvenience to state
c. Number of previous requests
d. Legitimate reasons for delay
e. How much delay it will cause
B. Rule: if appointed, no right to counsel of choice.
1. However, you usually get one switch. A judge can look to:
a. Whether there is good cause for change
b. Complete breakdown in communication
c. How much delay is requested
d. Have there been other continuances
VI. Ineffective Assistance
A. Strickland Two-Prong Test (followed by Wisconsin – Pitsch)
1. Was performance deficient (factual determination of what was done/not done and
legal determination about reasonableness)
a. ABA standards are guides
b. Presumption that attorney was reasonable
2. Was defendant prejudiced (Result of proceeding would have been different)
a. Presume prejudice when:
a. Counsel absent/prevented from assisting the accused during a
critical phase
b. Counsel is present at critical stage but lacking in effort
c. Counsel available to assist but realistically isn’t able
b. Prejudice in a plea action
a. He would have taken the plea

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 b. Terms would have been presented to the court
c. The court would have accepted the plea
d. Conviction/sentence would have been less than imposed
B. Ineffectiveness re: pleas
1. Court can decide to vacate conviction and resentence pursuant to plea, vacate
some of the convictions, or leave conviction and sentence undisturbed
C. Highly deferential to competence
D. Criminal malpractice – defendant must also establish actual innocence
E. Wisconsin – Machner hearing – attorney can divulge items given in confidence by client
F. Where the law is succinct and clear about deportation consequences, lawyer has to
advise. Can insulate from ineffectiveness by advising the defendant that he MAY face
adverse consequences.
G. Joint Representation
1. Ordinarily, counsel should only represent one co-defendant. All defendants must
consent and consent must be made on the record
2. Presumption in favor of counsel of choice, but presumption may be overcome by
demonstration of actual conflict or showing of serious potential for conflict
3. Where a court finds an actual conflict of interest, it can decline a waiver and
insist the defendant be separately represented
a. Court has latitude to refuse conflict waiver
Probable Cause Review
I. Grand Jury
A. In WI – grand jury is 17 people. Must have 14 to operate. 12 must agree before
indictment is issued. Not used as often as John Doe investigation (judge is the jury)
B. In Federal System – 5th amendment right to have felony charges screened by grand jury
in short order
1. In WI – we screen at preliminary hearing (7-10 days after arrest)
II. Judicial review – Riverside Review
A. 4th amendment – charges following warrantless arrest must be timely reviewed by neutral
magistrate
1. 48 hours will comply with promptness. If more than 48 hours, the government
has the burden to demonstrate bona fide emergency or extraordinary
circumstance
2. Leeway given because booking takes time, transportation, etc.
B. Not adversarial
Charging
I. Controls on Discretion
A. Double Jeopardy
B. Equal Protection
1. Others similarly situated are generally not prosecuted
2. Selection of the defendant was intentional or purposeful
3. Selection was pursuant to an arbitrary classification
C. Due Process
1. Vindictiveness (harsher sentence after appeal)
II. Enhancements
A. Types
1. Statutory (battery to a judge)
2. Penalty enhancers
a. Sentencing aggravators don’t increase maximum penalty for underlying
offense, but may influence the judge to impose a heavier sentence for the
underlying offense

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 b. Add an element to the structure of the underlying defense. If jury can’t
find on the enhancer, enhancer is taken away and the base crime remains
intact
c. Must be pleaded and proven beyond a reasonable doubt
d. Cannot be used if enhancer is an element of the underlying offense
e. Often used in bargaining
3. Habitual offender laws
a. Must be alleged/in information before plea entered
b. 5 year look back period, not including time of incarceration
a. Compare date of prior conviction to commission date of new
crime
c. One prior felony or 3 prior misdemeanors during 5 years
d. Impact is that the maximum term for imprisonment is increased for
underlying offense
4. Three Strikes Law
a. After convicted of serious felony #3
b. If alleged and found guilty, sentence is mandatory life sentence
III. Greater/Lesser Included
A. Can be convicted of either the crime charged or an included crime, but not both
B. 2 prong test to see if lesser included will reach the jury
1. Whether, in law, what is asked for is actually a lesser included
2. Whether a reasonable jury could find more serious crime or reject and convict on
lower offense
C. Federal courts and WI follow elements only approach
IV. Duplicity/Multiplicity
A. Multiplicity – Test
1. Whether charged offenses are identical in law
2. Whether charged offenses are identical in fact
a. Not identical – presumption that legislature presumed multiple charges.
Presumption can be overcome by looking to legislative intent
a. Statutory language
b. Legislative history and context
c. Nature of the proscribed conduct
d. Appropriateness of multiple punishments for the conduct
B. Duplicity
1. Taking multiple charges and compacting them into lesser amount of charges
V. Joinder
A. Joinder of Crimes
1. Same or similar character
a. same type of offenses occurring over a relatively short period of time and
the evidence to each overlaps
a. Same modus operandi, close in time, occurred within same area,
acts connected/parts of a common scheme or plan
b. Time is a case-by-case approach. Relative to similarity of
offenses
c. Sliding scale – greater similarity, greater amount of time okay
2. Based on same act or transaction
3. Based on 2 or more acts or transactions that are connected together or constitute
parts of a common scheme or plan
B. Joinder of Defendants
1. Defendants are alleged to have participated in the same act or transaction

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 2. Defendants are alleged to have participated in the same series of acts or
transactions constituting one or more crimes
C. Challenge
1. Motion to sever – misjoinder – violate joinder rules
2. Motion to sever – prejudice
a. One defendant
a. General prejudice – prejudicial to defend everything in one case.
b. Defendant wants to testify on one charge but not another
c. Whole lines of evidence go to one count but not another. Worry
that jury will not properly use evidence
b. Multiple defendants
a. Evidence implicates other defendants but not him. Worry that
jury will misuse
b. Call co-defendant as witness
i. Show that he would call, defendant would testify,
testimony would be favorable
c. Antagonistic defenses
d. Bruten problem
i. A confesses and implicates B. B doesn’t make a
statement. State calls detective who took A’s statement.
A doesn’t take the stand. Judge gives instruction that
jury can only use confession against A and not B.
Statute of Limitations
I. Limitations
A. Felony – 6 years
B. Misdemeanors – 3 years
C. No limit for
1. Felony murder, 1st degree intentional or reckless homicide, 2nd degree intentional
homicide, intentional or reckless assault of a minor
II. Commencing
A. Arrest warrant
B. Summons
C. Indictment
D. Information
1. If defendant is incarcerated, all you need is a complaint to commence.
III. Reasons for SOL
A. LEO will act promptly to investigate and prosecute
B. Prosecution based on recent evidence
C. Protect accused from defending against remote misconduct
IV. Once SOL passes, one cannot be prosecuted even if SOL later extended because the defendant
enjoys the protection of the fully matured defense
V. Tolling the clock
A. Do not count time defendant living outside WI
B. Tolled for a prosecution if it is a greater/lesser included. Not tolled if unrelated
C. Continuing offense – course of conduct enduring over an extended period of time. SOL
doesn’t begin to run until the last act is done
VI. In WI, guilty plea doesn’t raise SOL issue. Must be raised in motion to dismiss. No inference of
waiver.
VII. Delay between commission and commencement of case is analyzed under Due Process. Delay
between commencement and trial is analyzed under Speedy Trial.
Allegation of Essential Facts

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 I. Within the complaint, there must be facts that lead a reasonable person to conclude that probably
a crime had been committed and the defendant was probably the culpable party
II. Hearsay in a complaint
A. Two prong test
1. Basis of knowledge – how the source got the information
a. Personal observation
b. Self-verifying detail
c. Police corroboration
2. Veracity – who is this person and how can we trust them
a. Citizen informer
b. Police officer
c. Statement against personal interest
d. Police corroboration
B. Weakness in one prong can be shored up by strength in the other
Challenging the Complaint
I. Challenges
A. Omission/misstatement of critical facts
1. Misrepresentation – Franks.
a. Must show
a. Misrepresentation of material facts AND misrepresentation was
either intentionally or reckless disregard of the truth
b. Can get complaint dismissed if
a. Omitted facts are undisputed
b. Capable of single meanings
c. Omitted facts are essential to probable cause determination
2. Franks
a. Dismissal wouldn’t prohibit reissuance of complaint
B. Joinder rules violated
C. Improper venue
D. Multiplicity/duplicity
E. Complaint doesn’t allege sufficient facts
F. Jurisdiction
1. Subject matter jurisdiction (ability of court to inquire into a charge before it,
apply law, and declare judgment and sentence)
a. Can be raised at any time
b. Offense unknown to law at the time of commission
c. Failure to lay out all elements of a claim then failing to rectify with a
statute citation
2. Personal jurisdiction (power of court to exercise authority over defndant)
a. In WI – validity of arrest affects personal jurisdiction
a. Illegal arrest – move to suppress evidence
b. Complaint must notice the defendant to charges against him. Must have
sufficient connectedness with whatever defendant did and the State of
Wisconsin
c. Can lose if the defendant doesn’t get a preliminary hearing in time and
defendant hasn’t waived
3. Territorial jurisdiction
a. Can be waived
b. Nexus between WI and conduct
Bail and Conditions of Release
I. Bail – monetary condition

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 A. Made to assure appearance in court
B. Felonies - No maximum, but can only be an amount reasonable to secure appearance
C. Misdemeanor – cannot exceed maximum fine.
D. Types
1. Cash – 10% of bail with bond saying you will pay in full if you don’t show up
a. Not in WI. No bondsmen
2. Property – put up collateral. Discretionary
3. Personal Recognizance/Signature
E. Setting bail can be addressed as part of Riverside Review
II. Conditions of Release – restrictions imposed on defendant for release
A. Made to assure
1. Appearance in court
2. Protect members of community from harm
3. Prevent intimidation of witnesses
III. Preventative Detention Law – denial of release under certain circumstances
A. DA must:
1. Allege defendant is eligible for denial
2. Provide copy of complaint
3. Allege that conditions won’t protect the community or prevent intimation of
witnesses
B. Defendant gets hearing within 10 days
C. Mini trial showing conditions of release will not protect
IV. Recompense – amount awarded to compensate for injury pre-conviction.
V. Restitution – amount awarded post-conviction
Initial Appearance
I. Tasks
A. Defendant present with complaint. Informed of right to counsel, gravity of charges, and
arrangements for counsel
B. If felony, schedule preliminary hearing
C. Make probable cause determination
D. Bail and conditions of release
II. Not a critical stage – do not need attorney
Preliminary Hearings (felonies only)
I. Types
A. Indictment – Grand Jury
1. 5th amendment right. Not applicable to the states
2. If not done within so many days, must be into a preliminary hearing
B. Information
1. WI – charges screened before a judge
2. Within 10 days of initial appearance if in custody and bail is over $500.
Otherwise, must happen within 20 days of initial appearance.
a. Untimely prelim – motion to dismiss. Lost jurisdiction.
3. Rules of evidence apply, but hearsay is admissible
a. Uncorroborated confession is sufficient for bindover, but not for
conviction.
4. Defendant can present witnesses after the state presents evidence
C. Direct Filing
1. No screening, but defendant has right to pre-trial discovery and summary
judgment
II. Statutory, not a constitutional right

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 III. Critical stage – right to counsel. Connection between what happens at hearing and what happens
at criminal trial.
IV. Purpose is to establish probable cause that a felony has been committed and that the defendant
probably did it.
A. Standard: believable account of defendant’s commission of a felony.
1. PC is more than a bare suspicion, but greater than an arrest warrant
B. Read complaint to determine
1. Each charge is transactionally related. If so, PC to one felony is PC to all
transactionally related felonies.
a. Look to parties involved, witnesses involved, geographical proximity,
time, physical evidence, motive, and intent
C. Once bound over on at least 1 count relating to a transaction, prosecutor may add
additional charges not wholly unrelated.
D. In multi-count complaints, transactionally distinct count found lacking in PC and
dismissed cannot be recharged in subsequent information
V. Options
A. PC to believe the defendant committed a felony – bind over for trial
1. If bound over, file information within 30 days.
a. If not done, move to dismiss
B. PC to believe defendant committed a misdemeanor – amend to a misdemeanor, move to
dismiss and refile as a felony if there is new or additional evidence, or appeal
C. No PC for any crime – dismiss the case
VI. Test for new charges filed in complaint
A. Sufficiency of the evidence
1. Evidence must be sufficient to support a reasonable inference that the defendant
probably committed a felony
2. For new charges
B. Wholly related tested
1. Charges are not wholly unrelated to transactions or facts considered or testified to
at the preliminary examination.
VII. Challenges to Information
A. Motion to dismiss – abuse discretion in selecting charges because selection violates
judge’s rulings or facts arising out of a count dismissed at preliminary hearing
VIII. If defendant waives preliminary hearing
A. DA can file information that charges same crimes alleged in the complaint
B. DA can add new charges wholly unrelated to the complaint provided the information also
contains charges from the complaint
Arraignment
I. Pleas
A. Guilty
1. Admission of every element of the crime
B. No contest
1. Admission of every element, but admission can’t be used in subsequent civil case
C. Alford
1. “I didn’t do it, but I want the deal”
2. State has to put in strong evidence of defendant’s guilt. Stronger than typical
guilty plea.
3. Acceptance at the discretion of the judge
D. Not guilty by reason of mental disease or defect
1. Plead not guilty and not guilty by reason of insanity
a. 2 phase trial before the same jury

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 b. Defendant has burden of persuasion as to mental disease
2. Please guilty and not guilty by reason of insanity
a. One phase trial on mental disease only
Discovery
I. Upon demand, both sides turn over nearly everything.
II. Bagley – requires prosecutor to turn over all exculpatory evidence that
A. Negates guilt
B. Mitigates the offense
C. Can be used to impeach
Sentencing
I. Court must, on the record, consider:
A. Gravity of the offense
B. Rehabilitative needs
C. Protection of the public
II. Life sentences
A. Class A Life Imprisonment Felonies – Court must impose life
B. Court sets extended supervision eligibility date at time of sentencing
1. At 20 years
2. After 20 years
3. Never eligible
C. Burden of proof for release to extended supervision on offender by clear and convincing
evidence that offender isn’t a danger to the public.
III. Bifurcated Sentences
A. Term of confinment and extended supervision
1. Confinement + extended supervision = imprisonment
a. Minimum confinement term = 1 year
b. Extended supervision must be at least 25% of confinement. Can be more.
B. Extended Supervision
1. Maximum probation = maximum initial term of confinement
2. No probation for class A felonies
3. Maximum for class I – 3 years
4. If offender violates, ES may be revoked and offender returned to prison to serve
whole ES term of a portion. No credit for time served on ES. Judge has to use up
all of initial ES term
IC ES IMP
5 10 15
3 7
4 3
C. Enhancers and Habitual Criminality
1. Increases possible confinement and maximum term of imprisonment by the same
amount, but NOT the term of extended supervision
2. Apply enhancers first to determine new maximum term of imprisonment and
then apply habitual criminality
D. Bootcamp
1. If eligible, can reduce confinement term. Offender placed on ES within 30 days.
2. Increase ES term to original length of bifurcated sentence
3. Total length of bifurcated sentence doesn’t change
E. Sentence Adjustment
1. Offender may petition court to adjust

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2. Class C, D, or E felony can petition after 85% of confinement term and for F, G,
H, or I after 75%
a. No early out for B
3. Considerations
a. Rehabilitation
b. Change in law
c. Interest of justice
d. Sentence in other state
4. Remaining confinement term converts to time on ES.

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