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Recent Blog Posts
Wisconsin Court Clarifies New Self-Defense Rule
One of the murkiest areas of criminal law is that of self-defense. American law has long recognized the right of people to protect themselves from attackers in certain circumstances, but at the same time courts have been afraid of extending that right too far, citing concerns about vigilante justice and unnecessary violence. Three years ago, the Wisconsin state legislature passed the 2011 Wisconsin Act 94, which laid out the rights of a person to defend themselves in their home, office, or car, a law commonly referred to as the “Castle Doctrine.” However, the defendant in a recent case discovered that when a person pushes that right too far, criminal charges can often result.
Self-Defense and the Castle Doctrine
Self-defense is an affirmative defense that a person accused of a violent crime can bring, arguing that their use of force was justified because they were defending themselves. Wisconsin law allows deadly force in self-defense in the limited circumstances where the person defending themselves “reasonably believes that such force is necessary to prevent imminent death or great bodily harm” to their person. Importantly, some states impose a duty to retreat from a conflict, but Wisconsin is not among them. However, Wisconsin does allow juries to consider whether a defendant could have retreated in determining whether the use of deadly force was “necessary.”
New Challenge to the Informing the Accused Form
Wisconsin law requires police officers to take steps to inform people accused of operating while under the influence of an intoxicant (OWI). Among these steps is the requirement that police provide a form known as an Informing the Accused from. This form informs a driver that the police would like to test them for alcohol or other intoxicants under Wisconsin's implied consent law. The implied consent law is a law that allows the police to take a chemical test to determine if a person has been operating while under the influence. However, a recent case is challenging the clarity of the Informing the Accused Form in an effort to invalidate a blood test that was taken following a form. The case plays on an inherent ambiguity that exists within the form to argue that it is confusing to defendants.
Miranda Warning for Defendants in Wisconsin
The U.S. Constitution provides people who are taken into police custody with a variety of rights, including the right to remain silent and the right to an attorney. However, because of the complex legal nature of these rights, the Supreme Court has required officers to read a short explanation of these rights to people being taken into custody. This warning is known as a Miranda warning because the Court introduced it in the case Miranda v. Arizona.
It is important for people in custody to recognize when they are getting their Miranda warning because once they have been informed of their rights they may accidentally waive them. The Miranda warning varies from place to place, but it will generally sound like this: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Knowing and understanding your rights as I have read them to you, are you willing to answer my questions without an attorney present.”
White Collar Crime and Fish Shredding
For many people, the mention of white collar crime conjures up images of corporate executives undertaking shady accounting practices and then shredding their paper trail. White collar crime does not normally bring to mind fishermen and fishing regulations, but the U.S. Supreme Court recently agreed to hear a case, Yates v. U.S., that could expand a major law against white collar crime to other arenas. Depending on which way the case comes out, it could have important implications for how the federal government handles criminal law.
Yates v. U.S.
The defendant in the case is a fisherman who was out catching red grouper. His boat was stopped and his catch was inspected because it is only legal to catch red grouper above a certain size. The inspector on the boat found fish that were too small, and he ordered the defendant to bring his boat in to shore so that the fish could be seized. During the trip to shore, the defendant destroyed the offending fish and replaced them with others in an attempt to avoid prosecution. Now he has been brought up on charges related to white collar crime and the destruction of evidence, colloquially known as the “anti-shredding law.”
Probable Cause and the Scent of Alcohol
Drunk driving charges can have serious consequences that follow a person for the rest of his or her life. For instance, a person with three or more OWI convictions is subject to a reduced blood alcohol concentration (BAC) standard. Ordinarily, this limit is 0.08, but those with more convictions are subject to a 0.02 limit. This means that even a single drink could put a person over the legal limit.
This reduced BAC limit leads to a unique issue with regard to searches and preliminary breath tests for alcohol. Police need some sort of “probable cause” in order to request a preliminary breath test. Normally, this standard is somewhat strenuous for the police, but the Wisconsin Supreme Court has ruled in the case State v. Goss that the mere scent of alcohol is enough to test a person with three or more convictions for OWI.
Civil Asset Forfeiture: The Police's Right to Confiscate Property
While there are a variety of legitimate reasons for police to seize property associated with criminal activities, these sorts of seizure laws are ripe for abuse if not properly supervised. A disturbing nationwide trend of police improperly seizing property under “civil asset forfeiture” laws has recently been garnering a large amount of media attention. These laws allow police to seize a person's property on suspicion that it was involved in criminal activity, and then force the people to engage in an expensive fight to recover the property. In fact, there have even been multiple documented instances of Wisconsin police seizing money from people who were trying to use the cash to bail their loved ones out of prison.
Civil Asset Forfeiture
Civil asset forfeiture is a legal mechanism that allows the police to seize assets that they have probable cause to believe were used in the commission of a crime. The concept of the law is somewhat unusual because it does not focus on the person who owns the property, but actually holds the property itself “guilty” for the criminal acts it was involved in. Although, there are some legal protections for innocent owners whose property is seized.
Probable Cause and Warrant Requirements
Law enforcement officers are often allowed a surprising amount of leeway with the truth during the course of an investigation, but a new case involving the FBI in Las Vegas may greatly expand that power, creating serious privacy concerns in the process. In the case, FBI agents cut off the internet connection into a person's home, and then posed as repairmen coming to fix it. The entire purpose of the exercise was to circumvent the need to get a warrant before searching the home because the agents did not think they had enough evidence to get one.
The Case
The case involves a gambler who was in Las Vegas after being caught in Macau running an illegal sports betting operation. The FBI was concerned that he was doing the same thing in Las Vegas, but they had no other evidence of that beyond the incident in Macau. They wanted to search the hotel villa the man was staying in for more evidence, but they did not think they had enough for a warrant.
Wisconsin Introduces Controversial Familial DNA Testing
Forensic science has made great strides over the past several decades, turning a variety of technological advances into techniques for solving crimes. Arguably, the most important of these advancements was the ability to analyze DNA evidence left at crime scenes. Now, police departments in Wisconsin are introducing a controversial new version of DNA testing, familial DNA testing. This form of testing allows law enforcement officials to identify family members of people who leave DNA at a crime scene in order to better track them down. However, this DNA testing technology also has its opponents; many people are raising concerns about how it invades people's privacy in order to apprehend their relatives.
What Familial DNA Testing Is
Familial DNA testing is a new technique for analyzing DNA that removes one of the major limitations on current DNA forensics. Ordinary DNA analysis only produces a record of what the DNA found at the crime scene looks like on a molecular level. This is not enough to tie it to any given person. Instead, it must be compared against records of other DNA runs. This means that in order to use DNA to solve a crime the police either must already have the offender's DNA on file, or they must take a sample from a suspect, which can limit the usefulness of DNA in actually tracking down suspects.
Insanity Defense: Mental Health and the Legal System
Modern media like movies and television often like to use the intersection of mental health and the law as a plot device, playing on legal theories like the insanity defense. However, this trend often leads to misconceptions about how mental health and the criminal justice system interact.
Fundamentally, a defendant's mental health can become important at two separate points during the case. First, it may affect whether the defendant can actually be tried, as in the recent case of the young girl accused of attempting to murder her friend in order to appease a fictional horror movie villain. Second, a defendant's mental health may be raised as a defense to a crime.
Fitness to Stand Trial
The preliminary point in the case where the defendant's mental health can be an issue is before the trial even starts. Chapter 971.13 of the Wisconsin Statutes requires that a defendant be mentally competent to stand trial. This means that the defendant must be able to understand the trial and what is happening to him or her, and he or she must be mentally capable of assisting his or her defense team in the way that a defendant normally would. So long as a defendant is unable to do those things he or she cannot be tried. However, the defendant is periodically reevaluated to determine his or her condition, and also receives treatment in order to try to make him or her mentally competent. Additionally, according to the statute, if a person is competent to stand trial only because they are being medicated, they still qualifies to be tried under the law.
Wisconsin Judges Showing OWI Leniency
The Wisconsin state legislature has attempted to take a hard line when it comes to the crime of Operating While Intoxicated (OWI). One major part of this effort has been their institution of mandatory minimum sentences for repeat OWI offenders. However, the exact length of the mandatory minimum depends on the number of previous OWIs, how long ago they were, and a variety of other factors. The result is that the mandatory minimum sentence for the crime can range anywhere from just a few days to four years in prison.
Now, a recent report by Gannett Wisconsin Media has revealed that some judges are not abiding by these mandatory minimums, and are issuing more lenient sentences. Although some are concerned about the fact that this report shows judges exceeding their authority, it also highlights the controversial nature of mandatory minimum sentences.
The Report
