63 Op. Att'y Gen. 424 (1974)
 
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Wisconsin Attorney General Opinions

27 September 1974.

Defendant; District Attorney;

Under new Evidence Rule (Section) 906.09,
defendant may not be cross-examined about
prior convictions until the court has ruled
in proceedings under Rule (Section) 901.04
that such convictions are admissible.

Nature of former convictions may now be
proved under the new rule.

Defendant has burden of proof to establish
that a former conviction is inadmissible
to impeach him because obtained in
violation of his right to counsel,
under Loper v. Beto, 405 U.S. 473.

Rule of Loper v. Beto, 405 U.S. 473, does not
apply to claimed denial of constitutional
rights other than the right to counsel,
although the conviction would be inadmissible
for impeachment if it had been reversed on
appeal, whether on constitutional or other
grounds, or vacated on collateral attack.

RICHARD C. KELLY,
District Attorney, Juneau County

You have requested an opinion
on the following question:

On cross examination, can the District
Attorney impeach a defendant's testimony by
asking the defendant whether or not he has
previously been convicted of a criminal
offense?

Under the law as it was before
January 1, 1974, the answer to the question
would have been an unqualified yes, but under
the new Evidence Code promulgated by the
Supreme Court the rule is now changed.

Rule (Section) 906.09 (59 Wis.2d R176)
effective January 1, 1974, provides:

906.09

   Impeachment by evidence
   of conviction of crime.

906.09(1) GENERAL RULE.

   For the purpose of attacking the
   credibility of a witness, evidence
   that he has been convicted of
   a crime is admissible.

   The party cross-examining him is
   not concluded by his answer.

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906.09(2) EXCLUSION.

   Evidence of a conviction of a crime may
   be excluded if its probative value is
   substantially outweighed by the
   danger of unfair prejudice.

906.09(3) ADMISSIBILITY OF CONVICTION.

   No question inquiring with respect to
   conviction of a crime, nor introduction
   of evidence with respect thereto shall
   be permitted until the judge determines
   pursuant to Section 901.04 whether
   the evidence should be excluded.

906.09(4) JUVENILE ADJUDICATIONS.

   Evidence of juvenile adjudications
   is not admissible under this rule.

906.09(5) PENDENCY OF APPEAL.

   The pendency of an appeal therefrom
   does not render evidence of a
   conviction inadmissible.

   Evidence of the pendency of
   an appeal is admissible.

The former rule in Wisconsin limited
the state to showing that the witness had
been convicted and the number of convictions,
and did not permit disclosure of the nature
of the offense, on cross-examination of
the witness.

State v. Adams (1950),
257 Wis. 433,
43 N.W.2d 446;

State v. Ketchum (1953),
263 Wis. 82, 87,
56 N.W.2d 531.

The purpose was to prevent the jury from
learning that the defendant had previously
been convicted of the same or similar crimes,
a prejudicial fact.

But the effect was to prevent the jury from
assessing the impeaching quality of the prior
convictions; conviction for perjury or a
crime involving fraud or deception reflects
more upon the veracity of the witness than
one for, e.g., negligent homicide or
violation of the game laws.

Thus to avoid prejudice in a few cases,
the former Wisconsin rule very nearly threw
the baby out with the bath water.

It was, in the modern expression,

   "overbroad."

The new rule permits proof of
the nature of the offense.

The matter of prejudice is taken care of by
Section 906.09(2), which provides for
exclusion of the evidence of the conviction
if its probative value (for impeachment)
is substantially outweighed by the
danger of unfair prejudice.

Thus evidence of prior conviction is brought
within the general rule of relevance
applicable to all evidence stated in
Rule (Section) 904.03 (59 Wis.2d R73).

See

Whitty v. State (1967),
34 Wis.2d 278, 294,
149 N.W.2d 557;

State v. Hutnik (1968),
39 Wis.2d 754, 763-764,
159 N.W.2d 733.

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In order to insure that convictions which are
excludable under the foregoing principle will
not be unfairly suggested to the jury before
the court has had an opportunity to rule,
Rule (Section) 906.09(3), prohibits the
asking of any question regarding conviction
of a crime (or the introduction of evidence
with respect thereto) until the judge has
decided the question of exclusion pursuant to
Rule (Section) 901.04 (59 Wis.2d R14-R15)
which provides:

901.04 Preliminary questions.

901.04(1) QUESTION OF
          ADMISSIBILITY
          GENERALLY.

Preliminary questions concerning the
qualification of a person to be a
witness, the existence of a privilege,
or the admissibility of evidence shall
be determined by the judge, subject to
Subsection 901.04(2).

In making his determination he is bound
by the rules of evidence only with
respect to privileges.

901.04(2) RELEVANCY CONDITIONED ON FACT.

When the relevancy of evidence depends
upon the fulfillment of a condition of
fact, the judge shall admit it upon, or
subject to, the introduction of evidence
sufficient to support a finding of the
fulfillment of the condition.

901.04(3) HEARING OF JURY.

Hearings on the admissibility of
confessions shall in all cases
be conducted out of the
hearing of the jury.

Hearings on other preliminary matters
shall be so conducted when the
interests of justice require.

901.04(4) TESTIMONY BY ACCUSED.

The accused does not, by testifying upon
a preliminary matter, subject himself
to cross-examination as to other
issues in the case.

901.04(5) WEIGHT AND CREDIBILITY.

This section does not limit the right of
a party to introduce before the jury
evidence relevant to weight or
credibility.

It follows that while the defendant may be
cross-examined regarding prior convictions,
he may not be so cross-examined until there
has been a 901.04 hearing on the
admissibility of his prior conviction
or convictions.

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If the court has ruled that some are
admissible and others inadmissible,
he may be examined regarding only
those ruled admissible.

There need be no surprise to the defense in
this regard since Section 971.23(2), Stats.,
relating to discovery in criminal cases,
requires the district attorney to furnish
a defendant a copy of his criminal record
upon demand.

The defendant may therefore be prepared to
contest the admissibility of any prior
convictions which the state may intend
to use to impeach him as a witness.

Your letter, however, raises further
questions stemming from Loper v. Beto (1972),
405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374,
which may be phrased as follows:

Is the rule of Loper v. Beto, supra, limited
to cases of denial of counsel or does it
extend to denial of other constitutional
rights as well, and must the state prove
beyond a reasonable doubt that the prior
conviction contains no constitutional
infirmities?

In a five-to-four decision, the Supreme Court
ruled in Loper v. Beto that a conviction
obtained in an action in which the defendant
was denied his constitutional right to
counsel cannot be used to impeach him
as a witness in a later case.

The defendant in that case admitted four
previous felony convictions during the course
of questioning, the purpose of which was to
impeach his credibility.

The four member plurality of the court
appeared satisfied that he was without
counsel in the prior cases, although this
point was disputed by the dissenters.

All four of these convictions were obtained
during the period following the decision in

Betts v. Brady (1942),
316 U.S. 455,
62 S.Ct. 1252,
86 L.Ed. 1595,

prior to
Gideon v. Wainwright (1963),
372 U.S. 335,
83 S.Ct. 792,

9 L.Ed.2d 799,
93 A.L.R. 2d 733.

The court's view of those convictions made
use of a retroactive application of Gideon
which deeply encroaches upon the presumption
of regularity discussed below.

Mr. Justice White, concurring in the result,
held that the questions whether Loper was
represented by counsel in the earlier cases,
and if not, whether he waived counsel,
remained open and should be considered
by the Court of Appeals on remand.

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All four dissenting justices joined in the
dissent of Mr. Justice Rehnquist, who was of
the opinion that the petitioner had not met
his burden of proof to establish that he did
not competently and intelligently waive his
constitutional right to the assistance of
counsel (405 U.S. at 499.).

The court had previously held that a
conviction obtained in violation of the
defendant's right to counsel could not be
used to enhance his punishment under a
recidivist statute,
Burgett v. Texas (1967),
389 U.S. 109,
88 S.Ct. 258,
19 L.Ed.2d 319.

This case was very heavily relied on by the
plurality in Loper as was the more recent
case of
United States v. Tucker (1972),
404 U.S. 443,
92 S.Ct. 589,
30 L.Ed.2d 592.

In Tucker, two prior convictions obtained in
violation of the constitutional right to
counsel were considered by the judge in
imposing a maximum sentence for
the present conviction.

This conviction was remanded for resentencing
without consideration of the prior
convictions by the court of appeals, whose
judgment was affirmed by the Supreme Court.

(In Tucker the invalidity of the two prior
convictions was conclusively determined
several years after the sentencing, in a
collateral proceeding in a state court.

The case before the United States Supreme
Court arose out of a 28 U.S.C. Section 2255
proceeding

(post-conviction collateral attack)
initiated after the state court
proceedings. The state court's
determination was thus given retroactive
effect to invalidate a sentence long
previously imposed in a federal court.)

In

Stockwell v. State (1973),
59 Wis.2d 21,
207 N.W.2d 883,

the Wisconsin Supreme Court followed Tucker
and applied it to a pre-Gault adjudication of
delinquency in which the juvenile had been
denied the right to counsel, overruling
earlier Wisconsin cases holding that such
adjudications might be considered in imposing
sentence in later adult convictions.

All these cases involve the
right to counsel only.

Neither the Wisconsin Supreme Court nor the
United States Supreme Court has suggested
that the court must consider whether other
constitutional rights have been denied in
deciding whether a conviction is admissible
to impeach a defendant as a witness.

For reasons which will be discussed
below it seems improbable that such
an inquiry will be required.

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Of course, if a conviction has previously
been reversed on appeal or vacated in
post-conviction collateral proceedings it may
not be used for impeachment purposes.

This will be true no matter what the grounds
for reversal or collateral attack were.

But so long as the judgment of conviction
remains unreversed and has not been vacated
in collateral proceedings it is entitled to
the presumption of regularity and correctness
applicable to all judgments of courts of
record.

In

29 Am. Jur. 2d 211 Ev. Section 170
it is stated in part:

   Under the law of evidence, it is
   presumed, unless the contrary appears,
   that judicial acts and duties have been
   duly and regularly performed, the
   presumption of regularity attending the
   acts of public officers being applicable
   to judges and courts and their officers,
   and to justices of the peace.

   Thus, on the review of a lower court
   decision by a higher court, all
   reasonable presumptions and intendments
   consistent with the record will be
   indulged in favor of the validity of the
   judgment or decision under review, and
   of the regularity and legality of the
   proceedings below; every presumption
   consistent with the record is in favor
   of the correctness of the decision of
   the trial court.

The same principles apply whenever a
judicial proceeding or a judgment or
decree rendered therein becomes a factor
in the trial of another case.

The familiar maxim

   "omnia praesumuntur rite
   et solemniter esse acta"

[All things are presumed to have
been rightly and duly performed.]

is given full application whenever a
judgment or decree of another court of
either general or special jurisdiction
comes into question.

The court rendering the judgment is
presumed to have had jurisdiction of
the subject matter and the parties,
and to have rendered a judgment
valid in every respect.

However, jurisdiction to render a
judgment in a particular case or against
particular persons may not be presumed
where the record itself shows that
jurisdiction has not been acquired, or
where there is something in the record
showing the absence of jurisdiction.

(Bracketed material supplied.)

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The foregoing rule has been recognized
in this state from the earliest times
to the present.

Jackson v. Astor (1841)
1 Pinney 137;

Merritt v. Baldwin (1857)
6 Wis. *439, *443;

Tallman v. Ely (1858)
6 Wis. *244, *259;

Ableman v. Roth (1860)
12 Wis. *81, *90;

Bunker v. Rand (1865)
19 Wis. *253, *260;

Tarbox v. French (1871)
27 Wis. 651, 654;

Oakes v. The Estate of Buckley (1880)
49 Wis. 592, 598, 599
6 N.W. 321;

In re Estate of McCormick (1900)
108 Wis. 234, 238
84 N.W. 148;

State ex rel. La Follette
v.
Circuit Court (1967)
37 Wis.2d 329
344, 155 N.W.2d 141.

It has also been applied by the
United States Supreme Court.

In
Re Cuddy (1889)
131 U.S. 280
33 L.Ed. 154
9 S.Ct. 703;

Johnson v. Zerbst (1938)
304 U.S. 458, 468, 469
58 S.Ct. 1019,
82 L.Ed. 1461, 1468, 1469,
146 A.L.R. 357.

Accordingly, on collateral attack it is
recognized that the petitioner has the burden
of showing the invalidity of the judgment.

Johnson v. Zerbst, supra;
Kitchens v. Smith (1971),
401 U.S. 847,
91 S.Ct. 1089,
28 L.Ed.2d 519;
39 Am. Jur. 2d 284-285 -
Hab. Corp. Section 152, 146 A.L.R. 413.

The Wisconsin Supreme Court has not had
occasion to pass on this question directly,
but in State ex rel. Kohl v. Kubiak (1949),
255 Wis. 186, 38 N.W.2d 499, a habeas corpus
attack on an extradition warrant, it was held
that the petitioner had the burden of proof
to overcome the presumption arising from the
face of the governor's warrant.

By parity of reasoning, a defendant claiming
the invalidity of a conviction sought to
be used to impeach him must likewise
assume the burden of proof.

This is recognized by the dissenters in
Loper v. Beto, supra, 405 U.S. at 499.

If the prior conviction was in Wisconsin, the
judgment or certificate of conviction will
generally disclose whether or not the
petitioner was represented by counsel.

If it does show representation, that should
be sufficient to end the matter.

If it does not, two questions must be asked:

(1) Was the defendant able to retain counsel
    at his own expense, so that his lack of
    representation was by his own choice and

(2) if he was indigent, did he effectively
    waive appointment of counsel?

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Since the enactment of Chapter 448, Laws of
1945, Wisconsin courts in felony cases, and
more recently in all cases where required by
the Constitution, have been required to
advise unrepresented defendants of their
right to counsel, and that counsel will be
appointed at public expense if they are
financially unable to retain an attorney.

See Stats. 1967, Section 957.26(1), and
Stats. 1971, Section 970.02(1)(b).

The presumption of regularity referred to
above requires that in the absence of a
showing to the contrary, it must be presumed
that the court performed its statutory duty
and that counsel was voluntarily and
intelligently waived.

Moreover, the requirement of proof beyond a
reasonable doubt applies only to the
essential elements of the crime.

McCormick, Evidence (2d Ed. 1972), page 799;

In Re Winship (1970),
397 U.S. 358, 364,
90 S.Ct. 1068,
25 L.Ed.2d 368.

It is true that the Wisconsin Supreme Court
has imposed the duty on the state of proving
voluntariness of confessions beyond a
reasonable doubt,

State ex rel. Goodchild v. Burke (1965),
27 Wis.2d 244, 264-265,
133 N.W.2d 753, cert. den. 384 U.S. 1017,

although ordinarily there is no such burden
to establish the admissibility of evidence.

But the state is not aided by any presumption
that the confession of a person accused of
crime is voluntary or was obtained in
accordance with the Miranda rules.

On the contrary, there is a presumption
in favor of the regularity of judgments
of conviction.

The Wisconsin court has wavered on the
placement of burden of proof in
search and seizure questions.

In Gray v. State (1943),
243 Wis. 57, 9 N.W.2d 68, it was held that
the defendant had the burden of establishing
that evidence was unconstitutionally seized.

But the court later held that the state had
the burden to prove that consent to search
was voluntarily given,

Barnes v. State (1964),
25 Wis.2d 116,
130 N.W.2d 264,

by clear and positive evidence,

State v. Camara (1965),
28 Wis.2d 365,
137 N.W.2d 1.

However, the burden to show denial of
constitutional right is on the petitioner
on motion for leave to withdraw a plea
of guilty.

Creighbaum v. State (1967),
35 Wis.2d 17, 29,
150 N.W.2d 494.

Both the Wisconsin Evidence Rule (Section)
906.09(5), quoted above, and the Proposed
Federal Evidence Rule 609(e) (41 Law Week
4028) submitted to Congress by the United
States Supreme Court November 20, 1972, adopt
the majority view (see 16 A.L.R. 3d 726) that
the pendency of an appeal from a conviction
does not render evidence thereof inadmissible
for impeachment.

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The Federal note (59 Wis.2d R184) states that
this is based on the presumption:

   Subsection (e).

   The presumption of correctness which
   ought to attend judicial proceedings
   supports the position that pendency of
   an appeal does not preclude use of a
   conviction for impeachment.

The presumption of regularity which the rule
itself thus clearly recognizes is quite
inconsistent with any requirement that the
validity of the judgment be established by
the state beyond a reasonable doubt.

The burden is the other way.

Finally, it appears most improbable
that the Supreme Court will extend
the rule of Loper v. Beto, supra,
to other constitutional rights.

Lower courts are not warranted in assuming
that the rule does so apply.

Although the court in Loper painted with a
broad brush in stating the issue on
certiorari (405 U.S. at 480), its actual
decision is limited to convictions void
for denial of counsel in violation of

Gideon v. Wainwright (1963),
372 U.S. 335,
83 S.Ct. 792,
9 L.Ed.2d 799,
93 A.L.R. 2d 733,

relying heavily on the theory that
the absence of counsel impairs the
reliability of such convictions

(405 U.S. 483)

and

that the principle established in
Gideon goes to "the very integrity
of the fact-finding process"
in criminal trials

(405 U.S. 483-484).

It was for that reason also that Gideon
received retroactive application.

Linkletter v. Walker (1965),
381 U.S. 618, 639,
85 S.Ct. 1731,
14 L.Ed.2d 601, 614.

In contrast, at least some other
constitutional rights, such as that against
unreasonable searches and seizures and the
Miranda rule, are not essentially necessary
to the integrity of the fact-finding process.

Linkletter v. Walker, supra, at 637;

Johnson v. New Jersey (1966),
384 U.S. 719, 730,
86 S.Ct. 1772,
16 L.Ed.2d 882.

See also
Tehan v. Shott (1966),
382 U.S. 406, 415,
86 S.Ct. 459, 15 L.Ed.2d 453.

And in cases on review of alleged
constitutional errors other than
representation by or waiver of counsel,
it is always necessary to search the record
to determine questions of waiver and
harmless error as well as whether
the error even occurred.

While nearly all of these cases are without
merit, it is very time consuming to make the
record on which the issues can be determined.

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To permit such issues to be injected
collaterally into another trial in a hearing
on admissibility of the conviction to impeach
a witness would be like delaying an airline
flight with the passengers aboard and
seatbelts fastened, to hold a hearing on
whether the pilot correctly answered the
questions on his written examination for
his pilot's license many years earlier.

As shown earlier, both the United States
Supreme Court and the Wisconsin Supreme Court
have provided in the evidence rules that
pendency of an appeal does not exclude
the conviction.

It is most improbable that the United States
Supreme Court intended a complicated
collateral attack on the conviction, a
full-scale lawsuit in itself, to be
injected into the trial when even the
pendency of an appeal is insufficient.

RWW:WAP

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