by admin
on February 24, 2010
USSC decision
In a pathmarking decision, Miranda v. Arizona , 384 U. S. 436, 471 (1966) , the Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” The question presented in this case is whether advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time … during th[e] interview,” satisfies Miranda . We hold that it does.
State courts are free, the Court reminds, to decide cases purely under state law, and when they do so, the result is immune from federal review. However, a presumption applies that the state court decision rests on the federal constitution unless “the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds.”
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by admin
on February 23, 2010
Michelle Williams v. Housing Authority of the City of Milwaukee, 2010 WI App 14
Issue/Holding:
¶13 The circuit court reversed the Housing Authority’s denial of rent assistance because it concluded that, under Gehin v. Wisconsin Group Insurance Board, 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572, the Housing Authority could not base its decision solely on uncorroborated hearsay evidence (the officer’s written notes recalling the witness’s statement of what Williams said), and therefore, the Housing Authority lacked sufficient evidence on which to base its denial. We agree.¶14 Uncorroborated hearsay evidence, even if admissible, does not by itself constitute substantial evidence. Id., 278 Wis. 2d 111, ¶8 (citing Folding Furniture Works, Inc. v. Wisconsin LRB, 232 Wis. 170, 189, 285 N.W. 851 (1939)). Adherence to this rule is premised on hearsay’s innate lack of reliability. See id., ¶58. “Substantial evidence has been defined … as ‘that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.’” Id., ¶48. Substantial evidence must include something “more than ‘a mere scintilla’ of evidence and more than ‘conjecture and speculation.’” Id. (citations omitted).
Hearsay, to be sure, is admissible at an administrative proceeding, the point being that ultimately more is required, ¶¶15-24.
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by admin
on February 22, 2010
Thaler v. Haynes, USSC No. 09–273, 2/22/10 (per curiam)
Nothing in Supreme Court caselaw clearly requires “that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalls the relevant aspect of the prospective juror’s demeanor.” In other words, there’s no requirement that the judge have been present during jury selection in order to evaluate a Batson claim defended by the prosecutor as based on the juror’s demeanor. “Thus, where the explanation for a peremptory challenge is based on a prospective juror’s demeanor, the judge should take into account, among other things, any observations of the juror that the judge was able to make during the voir dire. But Batson plainly did not go further and hold that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror’s demeanor.”
This holding merely applies the finely-meshed screen of habeas review, which in the first instance requires that the claimed applicable principle be “clearly established” else it can’t be applied. A state court is free to require as a matter of state (or, for that matter, federal constitutional) law that on a demeanor-based Batson defense the judge actually have been present.
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by admin
on February 21, 2010
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Frisk analysis applies to police demand that suspect drop object in hand, ¶22.
¶23 Here, Carroll led officers on a high-speed chase in a car that the officers had been observing in connection with an armed robbery investigation, and exited his car quickly while holding an unknown object. Given that behavior, the officers would have been justified—based on the objective belief that Carroll could have been holding a weapon—in conducting a frisk or pat-down, which would have resulted in Belsha’s legal possession of the cell phone. Hence, Belsha’s order for Carroll to drop the object and his subsequent retrieval of it were reasonable actions, and accordingly, his initial seizure of the phone was justified.
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by admin
on February 20, 2010
State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20
For Pickens: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: A temporary detention is narrowly circumscribed, in terms of duration and intensity, by the least intrusive means necessary to dispel suspicion¸¶27. Thus, in the absence of any reason to believe weapons were present, use of handcuffs on Griffin was unjustified, ¶30.
¶33 In sum, we conclude that the State failed to show that the level of restraint used to detain Pickens was reasonable because the State points to no specific, articulable facts that justify handcuffing and securing Pickens in a squad car. In the absence of any other developed argument supporting admission of evidence obtained from Pickens in the parking lot, we conclude that that evidence must be suppressed.[5]
Court observes that “(a) number of courts have concluded that police exceeded the permissible scope of a temporary detention in circumstances that we find at least as compelling as those here,” and proceeds to catalog them, ¶33 n. 5. Import: long-delayed recognition that handcuffing/squad placement may well convert stop into full-blown arrest.
The court declines to resolve definitively whether suspected drug activity alone justifies handcuffing, but cautions “that our research indicates that we would likely reject such an argument,” ¶31.
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by admin
on February 15, 2010
supreme court “decision” (court splits 3-3); for Allen: Robert R. Henak
Recusal – Individual Supreme Court Justice – Reviewability
The question of whether a claim of bias against one Justice (Gableman) is reviewable by the full court fails to yield a majority. The court splits 3-3 (Justice Gableman not participating), in a total of 5 separate opinions (3 would assume jurisdiction to review claim and would order full briefing on merits of claim; 3 reject idea that claim is reviewable and would leave resolution to individual Justice at issue, though they nonetheless somewhat inconsistently proceed to review the merits). Because there is no majority, the net effect is to reject jurisdiction to review, non-precedentially. If you want a quick overview, look at ¶¶1-9. No attempt is made here to summarize the various positions, for that, go here.
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by admin
on February 8, 2010
court of appeals decision (1-judge, not for publication); Resp Br. (Baake); Reply (State)
Traffic Stop – Failure to Yield to Stopped Police Vehicle
Stop for failure to yield unsupported: “§ 346.072, by its plain language, only requires a motorist to change lanes if there are two or more lanes in the motorist’s direction of travel and it is safe to do so,” ¶11; no “testimony that Baake failed to slow down or that he was traveling at an unsafe speed, or any other details that would support reasonable suspicion of a traffic violation,” ¶15.
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by admin
on February 8, 2010
court of appeals decision
Appellate Procedure – Standard of Review – Evidence Admissibility
¶14 However, not all evidentiary rulings are discretionary. For example, if an evidentiary issue requires construction or application of a statute to a set of facts, a question of law is presented and our review is de novo. State v. Jensen, 2007 WI App 256, ¶9, 306 Wis. 2d 572, 743 N.W.2d 468. …
Evidence – Hearsay – Business Record Exception, § 908.03(6)
20 … Wis. Stat. § 908.03(6) does not require that the “custodian or other qualified witness” be the original owner of the records. However, under the plain language of this exception, being a present custodian of the records is not sufficient. The language is “as shown by the testimony of the custodian or other qualified witness.” The only reasonable reading of this language is that a testifying custodian must be qualified to testify that the records (1) were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) that this was done in the course of a regularly conducted activity.
¶21 In order to be qualified to testify on these two points, Oliphant must have personal knowledge of how the account statements were prepared and that they were prepared in the ordinary course of Chase’s business. …
¶22 It is true, as Palisades contends, that a custodian or other qualified witness does not need to be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of WIS. STAT. § 908.03(6). However, the witness must have personal knowledge of how the records were made so that the witness is qualified to testify that they were made “at or near the time [of the event] by, or from information transmitted by, a person with knowledge” and “in the course of a regularly conducted activity.” See WIS. STAT. § 908.03(6). In re Denslow, 104 B.R. 761 (E.D. Virginia, 1989), on which Palisades relies, does not dispense with the requirement that a qualified witness must have personal knowledge of how the records were prepared. Rather, it rejects the argument that the party advocating admissibility under the federal rule counterpart to § 908.03(6) is required to produce the person who made the record. Id. at 764-65.
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