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Misdemeanor Process

Procedural Steps In A Misdemeanor In Wisconsin

STEP 1: ARREST OR SUMMONS

Getting Charged After An Offense Has Been Committed

NOT TAKEN INTO CUSTODY AND RELEASED WITHOUT BAIL / SUMMONED INTO COURT BY A SUMMONS AND COMPLAINT / ARREST BY POLICE AND RELEASE FROM JAIL CUSTODY ON BAIL / OR KEPT IN JAIL UNTIL CHARGED AND APPEAR BEFORE A JUDGE FOR A BAIL HEARING

For most misdemeanors, an accused is either not arrested and released by police for charges to possibly come later by summons and complaint, or arrested, taken to jail and released to await a summons or complaint, or arrested and released with conditions of  cash bail bond by the jail or /after seeing a judge or court commissioner and having had a signature bond or cash bond set.

Bail Bonds

Bail is a promise in writing that an accused will attend all court appearances and not commit new crimes while the case is pending. There can be other conditions of bail set such as not drinking, not driving, not having contact with certain people or places, not leaving the state etc. Violations of conditions of bail can result in new charges bring issued as bail-jumping charges.

Types of Bonds

Bail bonds (the written and signed promise to obey the conditions of the bond) can be either a cash bond or a signature bond.

A cash bond is just that. Cash in the form of cash or credit card (where permitted) is posted (given to the jail). That money remains in the government’s possession until the case is completed. Completion is usually at the time of plea and sentencing. The court may use cash posted to pay fines, court costs or restitution. 

A signature bond is just that. The accused only signs a promise to obey the conditions of the bond and no actual money is posted. There is usually a money amount promised to be paid if the accused violates any of the conditions of the bond with a signature bond. The accused makes a promise to obey the conditions of bond. The accused must sign the bond paper that contains her/his current address and phone number and promise to notify the Court of any changes in address or phone number.

Bond schedule

There is a written and published bond schedule (how much an accused must pay to be released for which offense or offenses) for misdemeanors.

Felonies & Bond

There is no bail schedule for felonies. People accused of felonies must appear before a judge to have bail set

STEP 2: INITIAL APPEARANCE & SETTING BAIL

At the initial appearance, the accused receives the criminal complaint that states the charges and basis for charges.

The criminal complaint (the charging document) is served on the accused, if it was not previously served.

The charging document contains the specific charges and sets forth within the charging document the minimum and maximum penalties, that is, the complaint sets forth how big a fine and how much jail an accused can get from each charge. Lawyers call each charge a count, so three (3) charges would be three counts

The complaint must contain the allegations sufficient to show probable cause to believe the accused committed each part all the crimes charged. The complaint is drafted (written up) based upon police reports that have been given to the District Attorney’s office and the police reports are summarized to show the court that the elements (parts) of each part of each crime exist. The entire police report, witness statements, video, audio and all other evidence is usually obtained later, after a motion for discovery is sent by the attorney requesting or demanding those things. See section on motions.

Reading Of The Charges

The Court reads aloud the charges. The Court reads all of the charges unless the accused waives or gives up the reading of  the charges out loud.

Entering A Plea or Asking For An Attorney

THE ACCUSED THEN MAY ASK FOR TIME TO OBTAIN AN ATTORNEY OR
the accused PLEADS NOT GUILTY, or
the accused PLEADS GUILTY, or
the accused PLEADS NO CONTEST.

The accused then may ask for time to obtain a lawyer or may plead not guilty, guilty or no contest. (No contest means that the finding of guilt cannot be used in an associated civil case).

If the initial appearance is in front of a circuit court judge, then the accused can proceed right to sentencing.

If the initial appearance in front of a court commissioner, sentencing must be scheduled before a circuit court judge. Court commissioners are not full judges with the authority to pass sentence (tell the accused her punishment) on crimes.

Bail Setting

Bail (a promise to appear in court and obey conditions secured by a promise in writing or by cash) is set to ensure attendance at future court appearances if not previously set.

Fingerprints & Photographs

The accused frequently is required to set up a time to be fingerprinted and photographed before the next court appearance.

Signature Bond

A signature bond is a promise to come to court for each court appearance and to notify the court of any change of address. It is also a promise to obey the conditions of bond. An accused must sign the bond paper that contains current address and phone number.

Cash Bond

A cash bond requires cash, a money order, cashier's check or payment with credit card (where allowed) be put up on conditions of bail (See bail section above) along with written promise to attend all court appearances and obey all conditions of bond with potential of the loss of the money posted if the accused does not do so.

Right To An Attorney Notice

The United States Constitution sets forth the right to have an attorney in criminal cases. The Judge or Court Commissioner must give the accused notice of their right to an attorney. In that notice, the Court notifies the accused that they may hire an attorney and they have a right to a public defender The Court must grant time for the accused to try to obtain a lawyer.

public defender

The State will provide a Public Defender to qualified poor and indigent defendants Poor and indigent means the person makes less than 150% of the poverty level. Those accused who qualify are then appointed a public defender lawyer free of charge or at a minimal cost.

Dean Appointments

The county sometimes provides an attorney for a person who cannot afford to pay due to lack of money. When the accused is appointed a lawyer by the county, the Court requires the accused to pay reimbursement back to the County. The attorney will keep track of his time and bill the county. The accused must then reimburse the county in manageable monthly payments for the lawyer’s bill. This is called a Dean appointment, because the process was established in a court case called State vs. Dean.

The Plea

The accused will have four options:

 

1)  The accused may request more time to hire an attorney, or
2)  The accused may plead Not Guilty, or
3)  The accused may plead Guilty, or
4)  The accused may plead No contest.

Not Guilty

A not guilty plea is not a plea of innocence. It simple is a plea that requires the government to show that there is evidence beyond a reasonable doubt to prove the defendant is guilty of each charge.

Guilty

A guilty plea results in a finding of guilt of all charges and proceeding to sentencing or imposing of the penalty and punishment.

No Contest

A No Contest plea is treated the same as a guilty plea. It results in a finding of guilt and in proceeding on to sentencing (the Court imposes the penalty). Penalties may include fines, jail, and probation (supervision by the Wisconsin Department of Corrections).

STEP 3: MOTIONS

Motions are formal written documents (called pleadings) asking the court to give something. Motions are supported by the reasons and evidence within them, which the court may use to do the thing being requested.

For instance, if an accused is unable to get out of jail on a misdemeanor, the accused or the attorney can ask the Court (lawyers call this moving which means making a motion) to lower the cash bond or to make the bond a signature bond.

The two most common motions are for

1) discovery, and
2) attempt to suppress evidence.

Discovery

THE DEFENDANT IS ENTITLED TO THE POLICE REPORTS AND INFORMATION THE GOVERNMENT HAS in their possession, whether the information is in support of or not in support of their case.

Rules of evidence require the government to show evidence of which they have knowledge or possession that can show innocence or reduce the severity of the crime.

The government must disclose the evidence it intends to use in trial.

A request must be made in writing through either motion and demand for discovery and disclosure or a formal letter.

Motion to Suppress Evidence

A motion to suppress evidence is a request for the court not to allow some evidence to be used at trial.

For example, the accused may request to keep out statements the accused made while in custody (not free to leave) for a crime, when the accused had not been warned by Miranda warnings of the right to remain silent, and may seek to keep out incriminating statements made in response to questions asked by the police that were likely to result in incriminating statements. See the Miranda warning section.

Other Motions

There are many other motions that may be filed. The reasons for motions are endless. Some examples of motions to suppress evidence include: a motion to suppress evidence based upon an illegal stop of a vehicle or person, based upon an improper warning as to the right to counsel, based upon illegal or improper show-up lineup resulting in identification.

There are also many rules involved in a criminal proceeding, such as rules mandating that motions be filed within ten (10) days of the initial appearance.

Motion Hearing

Judge may schedule a hearing on the motion(s) where the attorneys argue only the law or an evidentiary hearing (where evidence by witness or video and admissible documents) is required.

STEP 4: TRIAL

Pretrial Motions

Pretrial motions are motions in limine (at the threshold) arguing about what evidence may be allowed during the trial.

Jury Selection

Jury selection begins with the clerk placing the potential Jurors (the venire) in the jury box.

Questions are presented to the potential Jurors (called voir dire). The Judge asks questions first, then the prosecution asks questions, and lastly, the defense asks questions.

The prosecution and defense may ask the Judge to dismiss any Juror who cannot decide the case fairly, without prejudice. Each side may each strike three or more Jurors until they are able to pool together 12 Jurors (or 13, if there is an alternate Juror).

The Clerk of the Circuit Court then swears-in the remaining 12 or 13 person jury to decide the case on the merits

Opening Statements

Each side presents an opening statement providing an overview of what they believe the evidence will show. The prosecution goes first, and when they are finished, the defense then delivers their opening statement.

Prosecution's Case In Chief

The trial begins with the prosecution going first. They present their evidence to the Jury and Judge through the testimony of individual witnesses whom they put on the stand one at a time.

The prosecution goes first with their questions of the witness. That is called direct examination. After the prosecution completes their questions with the witness, the defense is entitled to ask questions. That process is called cross examination.

Throughout the process of the prosecution presenting their Case In Chief, the questioning goes back and forth for each witness, first the prosecutor, then the defense.

When the prosecution has presented all of their evidence and witnesses, the prosecutor tells the Judge that she or he rests their case.

Defense Case In Chief

As with the prosecution, the defense has a Case In Chief, which includes all of their evidence and witnesses.

The defense presents their evidence through testimony of individual witnesses who take the stand one at a time. The defense begins the questioning of each witness, which is called direct examination. When the defense finishes asking each witness all of their questions, the prosecution is then entitled to ask the witness their questions, which is called cross examination.

When the defense has presented its entire case, they will tell the judge that they rest their case.

Defendant's Right To Testify & To Choose Not To Testify

The United States Constitution through the Fifth Amendment prohibits compelling a defendant to be a witness against him or herself; therefore, every defendant has a right to choose to testify or not to testify. The prosecution is prohibited from making any comment on the defendant's choice not to testify.

Rebuttal

If the defense brings up a new disputed issue in their case in chief, the prosecution may then call a witness or recall a previous witness to dispute the evidence. If the prosecution’s new evidence can be challenged, the defense may call or recall witnesses.

Closing Arguments

Each side gets to summarize the evidence and argue its meaning and value to the jury. The prosecution gets to argue twice. The prosecution argues first, then the defense argues, then the prosecutor gets to argue a second time to address the defense arguments.

Jury Instructions

Courtrooms throughout the State of Wisconsin maintain standardized jury instructions. Those instructions are kept in three-ring binders, which are regularly updated. Two sets tend to be kept in every courtroom; one set for civil cases and one set for criminal cases.

Judges utilize those standardized instructions when they explain to the jury each element of the crime or crimes being charged against the accused. Judges instruct the jury to remember that the defendant is presumed innocent, and that the prosecution bore the weight of proving each element of the crime beyond a reasonable doubt.

Jury Deliberation

Jury deliberation is the process by which the jurors who heard the case carefully consider (deliberate) the evidence in the light of the elements of the crime or crimes being charged against the defendant.

The jury is sworn to obey the law and to decide the case on its merits based on the evidence presented to them in Court during the trial. They are sworn to decide in secrecy whether the defendant is guilty or not guilty on each criminal count. They are instructed to return with the verdicts (guilty or not guilty) to the Courtroom.

Mistrial

All twelve (12) Jurors must unanimously agree upon a verdict for each of the charges. If all Jurors cannot agree, they send a message to the Judge informing the Judge of the charges on which they cannot agree. At that point, the Judge can order them back into deliberations to spend more time discussing the case, or proceed to declare a mistrial.

If there are multiples of charges, and the Jury unanimously agrees on one or more of the charges, their verdict on the charges to which they all agreed on the verdict can be accepted by the Judge, and the Judge can declare a mistrial on the charges to which the Jury couldn't unanimously agree on a verdict. A prosecutor can recharge the person for those charges that the Jury couldn't agree upon a verdict, and retry the defendant.

When the Jury cannot agree on a verdict, they are said to be 'deadlocked'. When a Jury deadlocks on all charges, the Judge declares a mistrial.

The Verdict

The judge asks the jury if the verdicts are all agreed to by every jury. The lawyers can ask the judge to ask each juror if that is their individual decision. This is called polling the jury. The judge then accepts the verdicts and enters their judgments.

STEP 5: SENTENCING

Sentencing is a hearing at which the Court orders the punishment required of the defendant. That punishment may include a fine, jail, probation, or all three.

The sentencing hearing begins with the prosecutor making a recommendation for punishment to the Court, and arguing why she thinks it is a correct punishment for the crime.

Victims are invited to make statements during the sentencing hearing.

The defense attorney makes his recommendation for punishment, and argues why he thinks his recommendation is correct.

The defendant has an opportunity to make a statement to the Court.

The Judge decides upon the punishment, and provides her reasoning for the sentence.