Badger Lawyer's FAQ’s About Criminal Cases

Click on a question to see the answers and any comments the Badger might have.

What is the difference between a Felony and a Misdemeanor?
What happens to bond money once it is posted?
What Pleas Can I Enter?
What Information is the District Attorney Required to Give Me?
What are my rights in a criminal case?
What is a Defense in a Criminal Case?
What's the Order of Trial?

Why Do I Need A Lawyer?
For the same reason the Badger needs a mechanic. He knows how to drive, he knows the names of most of the parts of the car, he even understands how all of it works together, basically. But when it comes to fixing it, the Badger lets the experts do it because he knows the odds of him messing it up are really high.

The same is true with the law. If you've spent any time on these pages, you've probably learned a few things you didn’t already know about the criminal system. But this is the simplified version. The criminal statutes have all been trimmed down to make them readable and the exceptions and limits of all the defenses have been left off. There’s a hundred times more to know than can fit on this site. And, I'm betting, the idea of standing up in front of a jury probable also isn’t something that fills you with good feelings.

So, leave it to the expert. This is your life that's on the line. Your future. Let someone who really knows what he’s doing advise you.

What is the difference between a Felony and a Misdemeanor?
It’s deceptively simple. A felony is a crime for which the maximum penalty is more than a year. A misdemeanor is one where the maximum is less.

It gets less simple after that. There are situations where a person can serve more than a year on a misdemeanor, or no time at all on a felony. Suffice it to say that felonies are considered more serious crimes and misdemeanors less serious crimes.

What happens to bond money once it is posted?
When money is posted as bond, it is regarded as a guarantee by the person posting it that the accused will behave himself while released. This means coming to court, not committing new crimes, and obeying the terms of the bond, such as not drinking alcohol.

If a person violates the terms of bond, the money posted can be forfeited, just like any breach of contract case. Additionally, the accused can be charged with new crimes – bail jumping – for the violation.

When a case is completed, if the accused has not violated the terms of bond, the money posted first goes by law to any fines ordered by the court. Almost every case has fines involved, and it is pretty easy for fines to total more than the cost of the bond posted. In other words, oftentimes all the bond money posted will go to fines, but in almost every case some of it will. Whatever remains will be returned to the person who posted it by mail to the address they provide when it is posted.

So, if you are posting bond for someone, be forewarned. You probably won’t see all that money back. If that is going to be a hardship, you can talk to the judge at the time of sentencing and request that the fines not be subtracted. Sometimes judges will allow fines not to be taken from the bond money.

What Pleas Can I Enter?
In a criminal case a person can enter the following please:

Guilty. This plea is usually entered in association with a plea bargain.
Not guilty.
No contest, subject to the approval of the court. A no contest plea is an admission that the state can prove its case even while denying culpability.
Not guilty by reason of mental disease or defect.
Stand mute. (The court will enter a not guilty plea)

In most cases, the defendant starts by pleading guilty (or standing mute) and, if he takes a plea bargain, ends by pleading guilty or no contest. While the other pleas can be entered without much ado, a guilty plea takes a lengthy proceeding with the court. The court will ensure the plea is entered voluntarily with understanding of the nature of the charge and the potential punishment if convicted, question the defendant to make sure he really committed the crime, and advise the defendant that a conviction may have immigration consequences.

What Information is the District Attorney Required to Give Me?
In a criminal case, the DA is required to provide you with any information that they may use to convict you, or any information that might prove you innocent ("exculpatory evidence"). This process of information exchange is called "Discovery." Wisconsin statutes outline a specific list of what the DA has to provide. This list is not exhaustive, as there are Supreme Court and other cases which provide broader, more general requirements. The statutory required list is a good start though:

Any written or recorded statement concerning the alleged crime made by the defendant
The testimony of the defendant in any secret proceeding or before a grand jury
The names of witnesses to the defendant's written statements
A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial
The names of witnesses to the defendant's oral statements.
Evidence obtained in a wire tap if the DA intends to use the evidence at trial
A copy of the defendant's criminal record
A list of all witnesses and their addresses whom the DA intends to call at the trial.
(This requirement has some limits.)
Any written or recorded statements of a named witness
Any audiovisual recording of an oral statement of a child witness
Any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony
The results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.
The criminal record of a prosecution witness which is known to the district attorney.
Any physical evidence that the district attorney intends to offer in evidence at the trial.
Any exculpatory evidence.

Note that the DA only has to provide this information upon request. Also, the defendant has similar requirements for discovery, with the additional requirement that if he has an alibi, he has to disclose the specifics of his alibi and the names of those witnesses no later than 30 days before trial. There are also particular requirements for DNA evidence that both sides must meet. Sanctions may be given to any party not complying with these rules. The usual sanction is you don't get to use the evidence or witness you didn't disclose.

What are my rights in a criminal case?
Going all the way back to the Constitution and the Declaration of Independence, the foundation of American Law declared a right to Liberty. Being put in jail, obviously, is the opposite of liberty, so the rights you have in a criminal case go back a long way. Here are some, and most of these have their roots in the Constitution itself.

Due Process. You have a right not to have your liberty taken away without appropriate court proceedings.
Trial. You may not be found guilty of a crime without a trial, unless you waive it.
Jury. Only a jury may find you guilty. Unlike some other countries, a judge has no right to just decide you did it.
Counsel. You have a right to have a lawyer represent you. If you cannot afford one, one will be provided to you at no cost.
Silence. You know this one: You have a right to remain silent.
Here's some free legal advice: USE IT.
Presumption of Innocence. This is the legal term for innocent until proven guilty.
Reasonable Doubt. You can only be found guilty is the prosecution proves it beyond a reasonable doubt. That basically means that if the evidence is weak, or there is another plausible explanation, the jury should not convict you, even if they are pretty sure you did it.
Searches. You have a right to be free from "unreasonable" searches of your person and home, and of seizure (taking) of the belongings you have. This right has lost a lot of value over the last few decades as many kinds of searches have been found to be "reasonable."
Speedy, Public Trial. You have a right to be tried within a reasonable time in a public setting. No secret trials or endless detentions. (That's what all the fuss over Guantanamo was about.)

What is a Defense in a Criminal Case?
In a criminal case, a defense is a way of saying that the accused should be found Not Guilty. Whether it’s an alibi – "I was somewhere else" or withdrawal – "I started to do it but backed out", or anything in between, a defense is a reason you give to explain why you should not be found guilty of the crime. Here's a selection of defenses.

Accident.
Alibi.
Amnesia.
Coercion or Duress.
Collateral Estoppel.
Consent.
Defense of Others.
Defense of Property.
Double Jeopardy.
Drugged Condition.
Entrapment.
Failure of Proof.
Ignorance.
Immunity.
Incompetency. (Similar to insanity)
Infancy.
Innocence.
Insanity/Mental Disease or Defect.
Involuntary Intoxication/Involuntary Drugged Condition.
Issue Preclusion.
Jury Nullification.
Justification.
Lack of Intent.
Lack of Knowledge.
Lesser-Included Offense.
Mistake.
Mistaken Identification.
Necessity.
Prosecutorial Misconduct.
Protection Against Retail Theft.
Provocation.
Renunciation/Withdrawal.
Selective Prosecution.
Self-Defense.
Self-Defense, Imperfect. (Reduces first-degree homicide to second-degree intentional)
Someone Else Did It. (AKA, SODDI, "Some other dude did it")
Speedy Trial, Denial of.
Statute of Limitation.
Unconstitutional Statute.
Voluntary Intoxication/Voluntary Drugged Condition.
Withdrawal.

What's the Order of Trial?
A trial breaks down as follows. Not everything has to happen on a single day, and bigger trials can last weeks, even months, and there can be days off in between. That said, here's the order:

A jury is selected, in a process called voir dire.
The court determines if the jurors may take notes of the proceedings.
The court may give preliminary instructions to assist the jury in understanding its duty and the evidence it will hear.
Opening statements are offered.
The state first offers evidence in support of the prosecution. This includes physical evidence and testimony from witnesses. The state then rests.
The defendant may offer evidence after the state has rested.
The state may then offer rebuttal testimony.
The defense may offer rebuttal testimony.
Closing statements are offered.
The jury is presented with instructions on the law.
The jury is dismissed to deliberate.
The jury returns with a verdict.