Tuesday, June 28, 2011

Conspiracy Law in Wisconsin

By John DiMotto

Not a week goes by when the media does not reference a criminal conspiracy that has been uncovered and being prosecuted. Did you ever wonder exactly what is required for criminal activity to constitute a conspiracy? Today, I would like to review Wisconsin statutory and case law regarding the law of conspiracy.

Statutory Law

Wisconsin Statutes section 939.31 addresses "Conspiracy." It sets forth that whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned. The crime of conspiracy is an inchoate crime, that is, one that has begun but not completed.

Elements of a Conspiracy - WI Criminal Jury Instruction 570

One of the best references to conspiracy law in Wisconsin is found in the Criminal Jury Instructions. It sets forth that there are three elements necessary to constitute a conspiracy. First, that a person have the intent to commit a specific crime. Second, that a person was a member of a conspiracy to commit that crime. Third, that one or more of the conspirators performed an act toward the commission of the intended crime that went beyond mere planning and agreement. It is important to note that "the act" performed need not by itself be an unlawful act or an attempt to commit the crime. However, "the act" must be a step toward accomplishing the criminal objective.

A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. There is no need for an express or formal agreement, no need for a meeting, no need for the members of the conspiracy to all know each other. So long as the parties agreed or combined by words or actions and the person intended that the agreement be carried out, it is not necessary that the other persons intended to carry out the agreement. Wisconsin has adopted a "unilateral" approach to conspiracy.

Case Law on Conspiracy

As always, appellate decisions give trial courts and attorneys guidance as to what constitutes a conspiracy.

State v. Cavallari, 214 Wis.2d 42 (Ct. App. 1997). A conspiratorial agreement may be demonstrated by circumstantial evidence. Tacit understanding of a shared goal is sufficient.

State v. Ray, 166 Wis.2d 855 (Ct. App. 1992). It is necessary for the trial court to determine when a conspiracy begins and ends.

State v. Hecht, 116 Wis.2d 605 (1984). Each defendant need not be present at the scene of the crime, just that between all of them, all elements of the crime are done with mutual awareness of what each is doing.

State v. Sample, 215 Wis.2d 486 (1998). In a conspiracy prosecution under 939.31, you assess the subjective behavior of the defendant not the others who may be involved. 939.31 applies to both bilateral and unilateral conspiracies.

State v. Huff, 319 Wis.2d 258 (Ct. App. 2008). A unilateral conspiracy is when a person agrees to proceed in a prohibited manner. This approach assesses the subjective, individual behavior of the defendant. A criminal conspiracy will lie even where 1 of 2 alleged co-conspirators is unknown to the defendant, a cop or an informant who merely feigns participation in the conspiracy. Immateriality of con-conspirator's legal status is implicit in the unilateral approach. A bilateral conspiracy is when 2 or more persons agree to proceed in a prohibited manner. Under the inchoate crime of conspiracy under 939.31, by definition, no substantive crime is ever needed. 939.31 focuses on the subjective behavior of the individual defendant.

State v. Routon, 304 Wis.2d 489 (Ct. App. 2007). The focus of 939.31 conspiracy puts a heavy emphasis on intent. A stake in the venture is not a necessary element of conspiracy - It may be persuasive of the defendant's involvement in the crime but lack of stake in the venture does not absolve one of party to a crime liability for conspiracy.

The issue of whether withdrawal or renunciation is a defense to the inchoate crime of conspiracy under 939.31 has not been specifically addressed in Wisconsin case law. In terms of solicitation, it cannot be a defense. see State v. Boehm. 127 Wis.2d 351 9Ct. App. 1985).


Wisconsin like most other states has taken the steps to criminalize conduct that would lead to actual criminal activity. Conspiracy law has the intent to "nip criminal activity" in the bud. Conspiracy law is a pre-emptive strike against crime.

Thursday, June 23, 2011

Party to a Crime Law in Wisconsin

By John DiMotto

Did you ever REALLY wonder what LEGALLY constitutes being a "party to a crime" (PTAC)? I have been asked that question on more than one occasion by non-lawyers and when I ask them what they believe the answer is, they usually respond "if you are there" you must be a party to the crime. However, that is not accurate. The correct answer -the legal definition is found in the Wisconsin Statutes and is further explained in the Wisconsin Criminal Jury Instructions and appellate decisions.

Statutory Definition

Wisconsin Statutes section 939.05 address "Parties to Crime." It sets forth that:

1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed is has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

2) A person is concerned in the commission of the crime if the person:

a) Directly commits the crime; or

b) Intentionally aids and abets the commission of it; or

c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and under the circumstances is a natural and probable consequence of the intended crime. A person is not a party to the crime is the person voluntarily changes his or her mind and no longer desires that the crime be committed AND notifies the other parties concerned of his or her withdrawal within a reasonable time BEFORE the commission of the crime so as to allow the others also to withdraw.


The statutory definition seems clear, but some concrete examples are helpful to an accurate understanding of the concept of "party to a crime."

1) Direct Commission -- Armed Robbery -- If "A" decides to rob a bank, takes a gun, goes into a bank, points the gun at the bank teller and demands money or says he will shoot the teller, "A" is given money and flees the bank, "A" has directly committed an Armed Robbery because "A"'s conduct meets all elements of the crime.

2) Intentionally Aids and Abets the Commission of a Crime -- Armed Robbery (PTAC) -- If "A" decides to rob a bank but wants someone to be a "lookout" (keep an eye out for the presence of police and to let "A" know if any police might come on the scene to stop the commission of the crime) and so "A" tells "B" of his plan to rob a bank and asks "B" to come along and stand at the door of the bank and to warn "A" if the police are coming and "B" agrees and does so, "B" is a party to the crime of Armed Robbery and is as guilty as "A" even though "B" did not have a gun, did not threaten anyone and did not take the money.

3) Conspiracy PTAC theory -- Armed Robbery (PTAC) -- If "A", B" and "C" agree to rob a bank and "A", "B" and "C" each consciously intend to make it happen and have a stake in the venture and one of them actually robs the bank, all three are equally guilty of the crime.

4) Natural and Problem Consequence theory -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway driver" (i.e. "B" will drive "A" to the bank and drive "A" away after the robbery.) If "A" intentionally shoots and kills the bank teller BOTH "A" and "B" can be convicted of First Degree Intentional Homicide as parties to the crime since homicide is a natural and probable consequence of an armed robbery. This is so even though "B" never entered the bank. The reason for this liability is to deter people from joining in such crimes.

5) Withdrawal theory -- Armed robbery (PTAC) -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway" driver but when "A" comes to "B"is house "B" tells him he has changed his mind and will not drive "A" to the bank, "B" has withdrawn before the commission of the crime and can not be held responsible. What is critical to legally withdrawing from being a party to a crime is the withdrawal must be done before any acts in furtherance of the crime are done.

Jury Instructions on Party to a Crime

Since the "Intentionally Aid and Abet" theory is most often used by prosecutors to charge a person who does not directly commit the crime, I will focus on that concept.

A person intentionally aids and abets the commission of a crime by either:

1) Actually assisting the person who directly commits the crime (i.e. "B" comes along with "A" and acts as a lookout, "B" is a party to the crime); or

2) Is ready and willing to assist the person who directly commits the crime and the person who directly commits the crime knows of the willingness to assist. (i.e. "A" tells "B" that he is going to rob a bank one week from the day of their conversation and "B" tells "A" that if he comes to learn of anything that will prevent the successful completion of the crime he will notify "A", "B" is a party to a crime.)

A person does not intentionally aid and abet the commission of a crime if he is only a bystander or spectator and does nothing to assist the commission of the crime. (i.e. "A" is dealing drugs out of the kitchen of his home. He sells to people who come to the back door. "B" is in the home visiting "A"'s sister who is "B" girlfriend. If there is no interaction between "B" and "A", "B"'s presence in the home does not subject him to any criminal liability.

Case Law

State v. Rundle, 176 Wis.2d 985 (1983). For aiding and abetting, a person needs to engage in some conduct, verbal or overt, that as a matter of objective fact aids another in committing the crime AND the person must have a conscious desire or intent that the conduct will in fact yield such assistance.

State v. Simplot, 180 Wis.2d 383 (Ct. App. 1993). There is no need for the jury to be unanimous regarding the alternative ways for a person to be a party to a crime. So long as all twelve agree that the person either directly committed the crime or aided and abetted the commission that is sufficient.

Holland v. State, 91 Wis.2d 134 (1979). Party to a crime statute does not create a separate and distinct offense. It sets forth a ways to be involved in the commission of a substantive crime. Also, there is often overlapping between being an aider and abettor and a conspirator.

State v. Whiting, 136 Wis.2d 400 (Ct. App. 1987). To convict a person of being a party to a crime there need only be evidence showing that the person was a willing participant. for example, merely locating a homicide victim and bringing the shooter and victim together is enough.

State v. Marshall, 92 Wis.2d 107 (1979). A person need not perform an act which constitutes an essential element of a crime in order to be an aider and abettor. A person need only undertake some conduct.

State v. Zalenka, 130 Wis.2d 34 (1986). Proof of acts which can support liability as a party to a crime is separate from proof of the underlying criminal act.

State v. King, 120 Wis.2d 285 (Ct. App. 1984). Mere presence and ambivalent conduct at the scene of a crime is insufficient to support a conviction as a party to a crime.

State v. Williquette, 125 Wis.2d 86 (Ct. App. 1985). An omission may constitute aiding and abetting only if a person has a legal duty to act. (A parent has a legal duty to protect one's child and failing to protect one's child from the other parent may constitute aiding and abetting.)

State v. Martinez, 150 Wis.2d 47 (1989). Being ready and willing to assist the commission of a crime is "some conduct" that as objective fact aids another.

Bethards v. State, 45 Wis.2d 606 (1970). A lookout can properly be held vicariously liable for the crime of another.

Clark v. State, 62 Wis.2d 194 (1974). Supplying a gun; loading the gun is sufficient for party to a crime liability.

State v. Charbarneau, 82 Wis.2d 644 (1978). When a person is ready and willing to render aid that person is an aider and abettor. This is a reasonable assumption since this tends to further the criminal objective by providing support.

In the Interest of R.B., 108 Wis.2d 494 (Ct. App. 1982). Mere presence at a party, even though the juvenile had knowledge that beer would be there and its accessibility to him is insufficient to constitute possession of beer.

State v. Doney, 114 Wis.2d 309 (Ct. App. 1983). A co-conspirator is an agent in a criminal venture. Persons who enter into a conspiracy become ad hoc agents for one another.


The concept of party to a crime involves an intent to be involved in the commission of a crime and some conduct in furtherance of the crime. "Just being present" at a crime scene or "just knowing" that a crime is being committed alone does not make one criminally liable for the conduct of the criminal actor. To sum it up, to be a party to a crime requires "mens rea."

Thursday, June 9, 2011

Daubert Revisited -- The Role of the Trial Judge

By John DiMotto

It has been a little over four months since Daubert became the "law of the land" in Wisconsin with respect to the introduction of expert testimony. To date, I have yet to have a case where any lawyer has made an issue out of any expert testimony. It is my sense that unless the science/topic/subject matter is really unusual that Daubert will not be an issue that will take up too much time in the litigation. However, that remains to be seen. Therefore, it is very important that every judge understand the critical role the judge has in the resolution of Daubert motions.


I believe that the admission of expert testimony under Daubert requires three conditions precedent -- that is, three levels of "Qualifications."

1) The expert witness must be "qualified" to discuss the science/topic/subject matter. The expert must have special expertise by education, training or experience.

2) The science/topic/subject matter must be "qualified" for admission. This requires that the principles and methodology must be reliable and valid enough to be considered by the trier of fact.

3) The expert witness must have properly applied the "qualified" science/topic/subject matter principles and methodology to the facts in the case.

Daubert Test

The test under Daubert is not the correctness of the expert's conclusions but the soundness of the expert's methodology. Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010). The correctness of conclusions and the weight to be given to the conclusions is a consideration for the trier of fact. This is not to be a concern of the court.

Role of the Court

The role of the court when addressing a Daubert issue is to analyze the expert testimony in the context of its field to determine if it is acceptable science. Boyd v. City and Cnty of S.F., 576 F.3d 938 (9th Cir. 2009). The term "science" is a broad concept. It encompasses technical science as well as street science. The role of the court when addressing a Daubert issue is a flexible one. its overarching subject is scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1973). Trial judges must understand that their role is truly one of serving as a gatekeeper. Trial judges are to be concerned with reliability. Overall relevancy is reserved for the trier of fact. Daubert does not take the case out of the hands of the attorneys. Vigorous cross examination, presentation of contrary evidence and careful instructions on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. These attorney "tools of the trade" are the safeguards. Daubert, supra. If the trial judge determines that the science/topic/subject matter is valid, the expert is qualified and the expert has properly applied the principles and methodology to the facts, the test is met and the evidence is admissible.

How the Court Should Exercise its Powers

In Wisconsin, Daubert issues are to be addressed by the trial court as preliminary questions of fact under 901.04. I believe that this is a determination that can be made one of four ways:

1) Pretrial paper review. (i.e. Summary Judgment)

2) Pretrial evidentiary hearing.

3) At trial.

4) No hearing needed (where there is not dispute as to the expert, the science/topic.subject matter or expert's application of principles to facts)

Each case is different and the decision as to how to make the determination of fact rests within the sound discretion of the trial court.

Scheduling Orders

It will be critical for the trial judge to craft a scheduling order to address Daubert. I believe that the trial judge should have a six point order in order to address and resolve a Daubert motion in an orderly fashion.

1) Set a deadline for disclosure of plaintiff's experts, submission of written expert reports with supporting materials. The submissions should:

a) Set forth the expert's ultimate opinions.

b) Set forth the basis of the expert's opinions.

c) Address each of the Daubert factors and the Committee Comments to the 2000 Amendments to the Federal Rules factors.

d) Provide any case law where the science/topic/subject matter has previously been deemed reliable and admissible for Daubert purposes.

e) Set forth counsel's position with respect to how the court should make its 901.04 determination.

2) Set deadline for completing discovery of plaintiff's experts.

3) Set deadline for disclosure of defendant's experts, submission of written expert reports with the same supporting materials required of plaintiff's counsel.

4) Set deadline for completing discovery of defendant's experts.

5) Set deadline for filing of Motions in Limine to exclude Daubert evidence.

6) Set status date to address how the court should resolve the Daubert Motions in Limine.


It is incumbent upon the trial judge to take control over the Daubert issue at the scheduling conference in order to keep control over the case. It is the role of the attorneys to educate and persuade the trial judge on the ultimate Daubert decision to be made. It is the role of the trial judge to ensure that the attorneys provide the court with the tools needed to resolve the Daubert issue in the case.