The Fundamental Rights of the Criminal Defendant in Wisconsin

By John DiMotto

On July 13, 2011, the Wisconsin Supreme Court released State v. Denson, 2011 WI 70. In this decision, the Court held that a criminal defendant's constitutional right not to testify is a fundamental right the must be waived knowingly, voluntarily and intelligently. (However, unlike the scenario when a defendant wants to testify, the Court held that the trial court is not required to conduct an on the record colloquy to determine if the waiver is done so although they recommend a colloquy to be the better practice.) In light of this decision, I thought this would be a good time to look at the various "fundamental rights" of people who live in Wisconsin.

Right to Procreate

In State v. Oakley, 245 Wis.2d 447 (2001), the Wisconsin Supreme Court addressed the constitutional right of people to procreate. In this case, the defendant was charged with Failure to Support. The defendant was convicted and placed on probation. As a condition of probation, the trial court ordered that he may not procreate unless he shows he can support his children. In a 4-3 decision, the Wisconsin Supreme Court held that the right to procreate can be restricted. The four male members of the court were in the majority, the three women members of the court dissented.

Right to be Present

In State v. Anderson, 291 Wis.2d 673 (2006), the Wisconsin Supreme Court indicated that a criminal defendant has a constitutional right to be present which derives from the right to be heard and confront witnesses.

Right to a Jury Trial

In State v. Warbelton, 315 Wis.2d 253 (2009), the Wisconsin Supreme Court reiterated that a criminal defendant's constitutional right to a jury trial is a fundamental right. However, the Court also indicated that a criminal defendant does not have a fundamental right to insist upon a bench trial.

Right to Testify

In State v. Weed, 263 Wis.2d 434 (2003), the Wisconsin Supreme Court indicated the a criminal defendant's right to testify is a fundamental right requiring a personal colloquy with the defendant on the record.

Right to An Attorney and Right to Self Representation

In State v. Klessig, 211 Wis.2d 194 (1997), the Wisconsin Supreme Court reiterated that a criminal defendant has a fundamental right to assistance of counsel as well as the right to self representation. When a defendant wants to proceed pro se, the trial court must engage in a personal colloquy with the defendant on the record.

Right to Enter a Guilty Plea

In State v. Gordon, 262 Wis.2d 380 (2003), the Wisconsin Supreme Court indicated that while defense counsel is entrusted with authority to make tactical decisions regarding trial strategy, fundamental decisions, such as whether to plead guilty, are left to the criminal defendant.

Right to a Unanimous Verdict

In State v. Grant, 230 Wis.2d 90 (Ct. App. 1999), the Court of Appeals indicated that the right of a criminal defendant to a jury trial includes the right to a unanimous jury verdict. This right is not constitutionally required but exists under the Wisconsin Supreme Court Supervisory Authority.

Right to Poll the Jury

In State v. Weise, 162 Wis.2d 507 (Ct. App. 1991), the Court of Appeals indicated that the right of a criminal defendant to poll the jury is a corollary right to a unanimous verdict.

Right to Appeal

In State v. Albright, 96 Wis.2d 122 (1980), the Wisconsin Supreme Court recognized that the right to appeal is a fundamental right personal to the criminal defendant.

Right Against Self Incrimination

In State v. Hereford, 224 Wis.2d 605 (Ct. App. 1999), the Court of Appeals indicated that the right against self incrimination is a fundamental right of a criminal defendant.

Right to a Public Trial

In State v. Ndina, 315 Wis.2d 653 (2009), the Wisconsin Supreme Court indicated that the 6th Amendment affords a criminal defendant a fundamental right to a public trial.

Conclusion

In Wisconsin, criminal defendants have many rights. These rights are conferred upon any person charged with a crime because of dire consequences that can attend a conviction. Those rights that are most important, that are fundamental are carefully guarded to ensure that a person is afforded due process of law.