When a crime is being prosecuted, there inevitably are witnesses involved.  This may include people involved in a crime, or who witnessed certain actions, and in some cases this people who were involved in other aspects such as a doctor who treated injuries, or a police officer who helped investigate aspects of the case. Despite the dramatic depiction of people storming into a courtroom, witnesses only appear at trial or at evidentiary hearings.  Each side is required to disclose its witnesses prior to trial, giving the prosecution and the defense the opportunity to prepare for what witnesses may or may not say when taking the witness stand.

As a Wisconsin criminal defense trial firm, one of the things that we closely analyze in each case is the credibility of each potential witness.  We analyze credibility from a variety of perspectives, including a witness’s relationship to the case, possible motives, appearance, and the way that an individual may testify.  For example, say that there is a fight between two individuals, and the only witness to this altercation is the defendant’s brother.  The brother is an obvious witness, and at a trial would almost certainly testify.  The prosecution would likely try to undermine (or “impeach” in legal parlance) the credibility of this witness, implying that the brother would be likely to lie, or embellish certain facts, because he would have an inherent interest in helping his brother.  Conversely, the defense would work with the witness to make sure the brother could articulate his recollection of events in a manner that did not seem biased against the alleged victim, or overly defensive of his brother.

Character Evidence

A term that gets thrown around a lot on television and in movies is “character evidence”.  On the screen a lawyer, just as likely to be the prosecutor as a defense attorney, starts a barrage of questions about a person’s life, usually detailing aspects of his or her life, from bad relationships to if they ever kicked a puppy.  The end result of this questioning is to make the witness seem completely unreliable and secure a quick trial victory.  In reality, this rarely happens, and even then, the scope of questions is limited.  Character evidence is not limited to non-party witnesses, but also can apply to the defendant as well, if he or she decides to testify.

So what types of questions are typically permitted in questioning a witness?  In general, questions that relate directly to the case at hand, but this has exceptions as well.  For example, questions regarding an alleged victim’s sexual history in a sexual assault case are off limits, unless the defense attorney files a specific type of motion prior to the trial.  Criminal histories are another area that are frequently asked about.  Is someone’s criminal history fair game for questioning?  The answer is maybe, and often only to a certain point.  One determining factor is how long ago the person was convicted of a crime.  In general, convictions less than ten years old are more likely to be admissible.  And, generally speaking, the fact that the person has been convicted of some number of crimes is typically admissible, while the substance, or facts, of those crimes are typically not.  Crimes involving dishonesty (like theft or fraud) are more likely to be relevant to a witness’s credibility than something like an Operating While Under the Influence of an Intoxicant.  One thing to remember is that the witness is not on trial: unless an attorney can prove how something is directly relevant, it is unlikely that a judge would permit excessive and detailed questioning of a witness about his or her past.

Witnesses at Trial

When it comes down to it, proper witness preparation is a huge factor at trial.  Most people do not have frequent interactions with the criminal justice system, and testifying can often be an intimidating and nerve-racking experience. A good defense attorney will want to have direct and cross examinations thoroughly prepared prior to the trial, and to have spoken with and prepared important witnesses prior to trial. This allows an attorney to explain what to expect and to go over what may or may not be allowed to be discussed in court.

At Nicholson & Gansner we pride ourselves in our aggressive trial style, and in our detailed trial preparations.  This type of dedication has lead our office to receive awards for our trial skills, including a Hanson Award (an award for a straight acquittal in a homicide trial), as well as make history in Wisconsin by receiving the only not guilty by reason of insanity or mental defect in a double first degree intentional homicide case.  If you or a loved one is currently facing criminal charges in Wisconsin and a criminal trial, contact the history making, precedent setting Wisconsin criminal defense trial attorneys at Nicholson & Gansner.

Credibility of a Victim In A Sexual Assault Case

Our law firm, Nicholson & Gansner, has an emphasis in defending people in Wisconsin against criminal charges of sexual assault of all types, both against adults and children. On television and in the movies, these cases are always portrayed as clear cut situations, typically with ample amounts of forensic evidence. Real life, however, is quite different. Many cases of sexual assault involve delayed reporting or delayed disclosure, that is, the victim does not make any allegations of assault until sometime later (sometimes years later), when it would be impossible to collect any physical evidence. Many people incorrectly assume that an individual making claims of sexual assault would not be enough to have charges brought against them. This type of case is sometimes referred to as a “he said, she said” case, meaning that the case largely comes down to the credibility of the alleged victim and the defendant.

What is Fair Game

To determine the credibility of an individual either in our everyday lives or in court, we may depend on a variety of factors: the person’s age, occupation, potential motives to lie or tell the truth, past actions, and a host of other things. However if a sexual assault case is brought to trial, there are certain aspects of a person’s life that are not fair game. An example of this would be the victim’s sexual history, preference, or past accusations. The reason that our justice system prevents these topics from regular questioning in a criminal prosecution is, in part, a phenomenon sometimes colloquially referred to as “slut shaming”. Essentially, this is to prevent a victim from becoming the victim of prejudices from a stigma that is associated with actions. That is, the law and the court seeks to prevent a complaining witness (another term for victim) in a criminal prosecution of charges of sexual assault from being blamed or re-victimized for other or past conduct.  The law and the court hold that a complaining witness’s past sexual conduct is not legally relevant to a determination of a defendant’s guilty, or lack thereof, to specific criminal charges of sexual assault.  For example if the alleged victim is a prostitute, the prosecution might seek to keep this information out of trial (to exclude it from trial, to prevent the jury from hearing about it), arguing that it is not directly relevant to the criminal charge at issue. The argument would also be that any attempt to present evidence to the jury that the victim, or complaining witness, was a prostitute would be an effort to embarrass the victim, to shame her, and to distract the jury from its job of determining whether the defendant is guilty or not guilty of the criminal charge.  After all, a person may sell their body for money, but this does not mean that this person cannot be sexually assaulted.  Similarly, a person who frequently engages in sexual encounters with different partners can also be sexually assaulted.  The body of law that prevents an attorney from brining up these topics during a trial is referred to as Rape Shield.

The Exception to the Rule

Like most rules (certainly legal rules), there is an exception to Rape Shield.  Prior to a trial the defense might draft, submit, and possibly argue a motion to introduce evidence of past or other sexual activity.  If a defendant wishes to introduce evidence of other sexual activity (meaning other than the sexual conduct that forms the allegations and basis for the criminal charge) in a sexual assault case, the defense is required by law to file a motion asking the court for permission to do so.  In this motion the defense would outline their reasoning as to why evidence about things such as the alleged victim’s sexual history, or actions, is directly relevant to the case at hand.  In some cases these motions will be granted outright, in some they will be denied, and in some a judge will outline what areas, and sometimes even specific questions, that would be allowed, or deemed off limits.

Defendant’s Bias

Aside from Rape Shield questions, another frequent problem is a defendant’s bias.  When accused of a crime, especially one that he or she is innocent of, a Defendant is sure of their case and how it will be viewed.  This is because the defendant was actually there in the moment and saw the events unfold.  In certain circumstances, situations may be difficult to believe, or inconsequential inconsistencies seem very important, and this is where the defendant’s bias comes into play. Knowing one’s own character, tone, etc. a defendant may be overconfident, or incorrectly assume how a jury may interpret certain facts. In some cases this may spring from overconfidence, or hope, and in others, it is simply an ignorance of how the criminal justice system works. While there are certainly cases in which the facts of the case are exactly the way that it seems, more often than not, the intricacies of a case can be viewed in a more than one way. This is especially true if you, a family member, or a close friend, are accused of a crime.

Consulting a Lawyer

Most people never have to come into contact with the criminal justice system, and that is a good thing. What that does mean, however, is that most people are unfamiliar with criminal procedure, and how different facts are collected and viewed. For this reason, you must consult with a law office to fully understand your position, your options, and the risks you face. If you or someone you know is being investigated for sexual assault or is facing criminal sexual assault charges in Wisconsin, call the highly experienced Wisconsin sexual assault and criminal defense attorneys at Nicholson & Gansner.

Our office has received many questions in regards to carrying a concealed weapon, specifically a firearm. In this blog post we will attempt to go over the basics of the concealed carry law in Wisconsin.

Who Can Carry Concealed?

It is legal for some people to carry a concealed weapon, due to the State of Wisconsin passing Act 35 in 2011. It is equally important to point out that not everyone is legally able to carry a concealed weapon. To become eligible to carry a concealed weapon, you must fill out, submit, and receive your concealed carry license from the Department of Justice (DOJ). Applications are available on the DOJ’s website, where they can be printed off for free. Approval of the application can take several weeks, and you are not eligible to carry a concealed weapon until you have been approved to do so and receive your license.

What is a Concealed Weapon?

When people hear the term concealed weapon, the most frequent image that is conjured up is a handgun.  But what does concealed weapon actually mean? This can be answered in two parts. A concealed weapon is not limited to a firearm.  The term, as well as a concealed carry permit, also applies to a knife, stun gun, or asp. The term concealed is also an important factor. Concealed does not necessarily mean completely hidden from view, such as a handgun in an inner pants holster, but it can also mean partly hidden from view. Some examples of this would be a firearm in a holster that is partly covered by a shirt or a jacket, or a knife that is clipped to the inside of a pocket. While these items may be partly in view, depending on the situation, these could be considered a concealed weapon. If you are unsure of the definition, it is better to error on the side of caution until you can find out the answer.

Concealed Carry Everywhere?

After receiving a concealed carry permit, you are responsible for knowing when and where you are able to carry concealed. A permit does not entail you to carry a concealed weapon everywhere or in every situation. For example, you are not able to carry concealed in government buildings, schools, city transportation, or establishments that have “no weapons permitted” signs posted. In addition to this, you are not able to carry a firearm concealed, or otherwise, if you are under the influence of intoxicants.

If you have questions about carrying concealed, or are facing charges in regards to carrying a concealed weapon, call the Wisconsin criminal defense and trial lawyers at Nicholson & Gansner.

What is bond or bail?  What is cash bail?

As Wisconsin criminal defense and trial attorneys, people contact us all the time with questions about bail or bond, terms which are used almost interchangeably in Wisconsin.  The judge set cash bail too high and they can’t post the amount.  They want to get out of jail, naturally.  What can be done?  Or they are out of jail but the judge ordered conditions of release (“bond conditions”) that are disrupting their lives.  What can be done?

In Wisconsin, after someone has been arrested he or she is eligible for release under “reasonable conditions” that are designed to do three things: 1) assure the defendant’s appearance in court; 2) protect members of the community from serious bodily harm; 3) prevent the intimidation of witnesses.

Bail, or monetary conditions of release (often referred to as “cash bail”), may be imposed only if the court finds that, as the statute reads, “there is a reasonable  basis to believe that bail is necessary to assure appearance in court.”  The statute also says that “the judge shall first consider the likelihood of the defendant appearing for trial if released on his or her own recognizance.”

How is cash bail set?

What does all that mean?  What factors does a judge take into account before deciding whether to impose cash bail?  How does a judge evaluate “the likelihood of the defendant appearing for trial”?  Perhaps the most common factors the judge will consider are where the defendant lives, whether there is a history of missed court appearances, and the gravity of the charges.

If a defendant lives in the area and has strong ties to the community, the belief is that the defendant will be less likely to flee from the charges.  If you’ve lived in the town where you’re charged with a crime for fifteen years, are married, own a home, have children who attend school in town, and have a job in the area, the logic is that you have many factors that tie you strongly to the community, and make it less likely that you will run from the charges or otherwise fail to show up for future court dates.  Conversely, if you’re charged with a crime in Dane County, but you live in another state, you have far fewer ties to Wisconsin and the logic is that you may return to your home state and refuse to come back to answer to the charges against you.

Next, the court will likely consider a defendant’s criminal history, including whether there is a history of missing court dates in the past.  Somebody with a long criminal history is more likely to get cash bail than somebody with no criminal history.  Somebody who has missed court dates on three occasions in the past is very likely to get cash bail.  Why?  Cash bail is intended to assure that a defendant shows up for future court dates; if you’ve missed court dates in the past, you’re a higher risk to do so again in the future.

The more serious the charges, the more likely the court is to impose cash bail.  Why?  The more serious the potential consequences a defendant faces, the more likely the defendant is to flee or otherwise try to avoid court to face the charges.  That’s the logic.

What happens if the court orders cash bail? What can I do about it?

By law, cash bail is to set only “in the amount found necessary to assure the appearance of the defendant.”  The court is also required by statute to consider the ability of the defendant to post cash bail.

If you are criminally charged and the court imposes cash bail and you cannot post that amount of cash bail, you will sit in jail either until your case resolves or until the court lowers your cash bail.  How can you get cash bail lowered?  Your attorney can file a bond modification motion asking the court to review and lower the amount of money required for you to post.  It is certainly not guaranteed that the court will lower your cash bail in response to a motion, but an effective Wisconsin criminal defense attorney can talk with you, identify the facts most favorable to you, file a motion, and argue on your behalf to the court.

If the court decides cash bail is not necessary in your case, you will be released on a signature bond, meaning that you are simply required to sign a bond form acknowledging what your bond conditions are before you are released.

What are bond conditions?

Bond conditions are the conditions the court sets that a defendant must adhere to while the case proceeds.  Different types of cases have different conditions that are common.  For example, defendants charged with OWI in Wisconsin will commonly be ordered not to operate a motor vehicle with any alcohol in their system, or within some number of hours after consuming alcohol, or even not to drink at all.  Defendants charged with crimes of domestic abuse or violence in Wisconsin will commonly be ordered either not to have any contact with the alleged victim or not to threaten or commit any additional acts of violence against the alleged victim.  Any case that includes allegations that the defendant was drinking or on drugs will commonly result in an “absolute sobriety” condition, meaning the defendant cannot consume any alcohol or any type of illegal drug.  Any case involving weapons allegations will commonly result in the defendant being ordered not to possess any type of weapon.

If the bond conditions ordered in your case are onerous and causing real problems for you, an experienced Wisconsin criminal defense attorney can file a bond modification motion asking the court to alter your bond conditions.

What do bond conditions mean for me?

What is the significance to the defendant of the bond conditions?  If you don’t adhere to those conditions, you can be charged with additional crimes–Bail Jumping, either misdemeanor or felony.  Adding more charges to whatever you were already facing can have a very negative effect on the outcome of your case.  And Bail Jumping is often a very easy charge for prosecutors to prove.

But the very best way to avoid cash bail, or to avoid very high cash bail, and to avoid conditions that are going to cause you or your family serious problems is to consult with an attorney before your bond conditions are imposed.  In Wisconsin, bond is typically established at a hearing called the Initial Appearance.  The Initial Appearance happens after you have been arrested and is usually your very first court appearance.  At the Initial Appearance you are formally told what the charges against you are and bond is then set.  If you have been arrested in Wisconsin, call the experienced, aggressive, history-making criminal trial attorneys at Nicholson & Gansner, S.C. before your Initial Appearance.

No-Contact Order

A no-contact order is a common condition of bond in Wisconsin criminal cases. It forbids contact of any kind between a defendant and another individual. Usually a no-contact order will apply to the alleged victim of the case, often in cases charged as one of domestic violence or abuse, but it could also be a witness or family members of an alleged victim or witness. People sometimes mistakenly refer to no-contact bail conditions as restraining orders, but–although in some instances they may have similar effects–they are legally distinct.

What No Contact Means

No-contact orders mean that a defendant cannot have contact with a specific person directly or indirectly. Direct contact means contacting that person via phone, e-mail, text message, social media, or other similar methods. Indirect contact means using a third party (such as a family member or friend) to deliver a message or communicate, leaving gifts or unsigned messages.  A no-contact order means exactly what it says: no contact of any kind.  Period.

A court may also order no contact except under specific circumstances or in specific locations. Some examples of situations in which we may see these type of no-contact orders include, but are not limited to, between individuals who are in the process of a divorce, live/work together, or have a child in common. General examples of these no-contact orders include phrases such as “contact limited to incidental contact only at work” or “communication limited to arranging placement exchanges”. These conditions, while possible, are not frequent, and would be specifically ordered. Most often conditions such as those listed above are the result of negotiated or argued bail modification motions, and not general conditions of bond.
But We Live Together!

One frequent question that our office gets in relation to no-contact orders involves living arrangements. A common situation is when the court imposes a no contact order between a husband and a wife who both reside in the same house. Can I go home? Where am I supposed to go? What if I want to get my things? The simple answer is this: you are not going to be able to go home for the duration of the no-contact order, or until your bond conditions are modified. This may well be extremely frustrating and inconvenient. A defense attorney may be able to help you arrange a time where you can have a third party retrieve belongings, or the police can accompany you back to your home so you can grab basic necessities in what is referred to as a “preserve the peace.” Even if the party with whom you have a no contact order says he or she wants contact with you, or has submitted a letter to the court stating that he or she does not want a no-contact order, you are still cannot have contact or return to the residence.  You can only resume contact if a judge changes your bond conditions.

What Happens If I Violate a No-Contact Order?

People violate their no-contact orders. Some simply ignore them. Others think that because the other party initiated communication, the no-contact order doesn’t apply. Regardless of how the no-contact order is violated, doing so can have serious consequences. At the very least each interaction (phone call, text message, meeting, etc.) can result in one count of Bail Jumping. Depending on how your original case was charged, this could mean an additional misdemeanor or felony case. Bail Jumping charges are often difficult to defend, especially since you have signed bond conditions acknowledging you could not have contact and have had the repercussions explained to you. An additional criminal case is not the only possible negative outcome. If cash bond has been posted it can be forfeited, resulting in the loss of that money.  When you pick up a second pending criminal case, you are less likely to be released without posting a larger amount of cash bail, meaning you may sit in jail. Finally, violating a no contact order weakens the negotiating position held by you or your defense attorney, and thus can result in a less favorable deal in plea negotiations.

If you are currently subject to a no-contact order and have questions about your situation, or have violated a no-contact order and want to discuss the legal repercussions, contact the Wisconsin criminal defense attorneys at Nicholson & Gansner for a free consultation.

Probation Holds

nickgansner —  August 11, 2015 — Leave a comment


Probation is often seen by many defendants as a desirable outcome, especially when the other possible outcome is time spent in custody. But probation comes with it’s own set of rules and regulations; in fact, one of the first things that happens when someone goes on probation is that he must read and sign his rules of supervision. Many of these rules are standard for everyone: no illegal activity, maintain contact with the probation officer, and reporting any contact one has with a police officer. Some probation is more strict than others, or will have specific sets of rules, such as sex offender probation, or probation for offenses related to alcohol. If someone violates one of his rules, there are different possible consequences. You may ultimately receive a warning. Your period of probation can be extended.  Your agent may decide to try to revoke you. But one of the most common consequences–and the most immediate–is being placed on a probation hold.

What Is a Probation Hold?

A probation hold occurs when someone who is on probation commits a rule violation. Depending on the circumstances of the rule violation an individual may be taken into custody on the spot by a law enforcement officer, or required to turn themselves into the local jail where they will be held in custody.

When Can I Get Out?

The most frequent question that our office is asked when dealing with probation holds is ‘how long am I going to be in custody?” There is no one answer to this question. It depends upon the circumstances. Some of the factors that will influence how long you are in custody are: the type of rule violation, the severity of new charges if you are being charged in another case, if you have been placed on a PO hold before, the day you are taken into custody, and many more. While many factors can effect how long you will remain in custody, after being held for fourteen days, you must either be released, or your agent must move to revoke your probation, in which case you will remain in custody.

Can I Post Bond?

Unfortunately, when you are placed on a probation hold you are not given, or entitled to a bond.

What Happens If My Agent Moves to Revoke me?

In the event that an agent moves to revoke your probation, you may not actually be revoked. Sometimes an agent will proceed with revocation because of the time limits of a PO hold. Many times a defense attorney is able to contact the probation agent and negotiate an Alternative To Revocation, also known as an ATR. An ATR can be a variety of things, in some cases it can be an agreement to get treatment or a jail sanction. If you or someone you know is worried about being placed on a PO hold, or is in need of someone to negotiate an ATR, contact the attorneys at Nicholson & Gansner for a free consultation.

an agreement to get treatment, spend time in a halfway house, or a jail sanction. If you or someone you know is worried about being placed on a PO hold, or is in need of someone to negotiate an ATR, contact our office for a free consultation.

How a Judge is Assigned

Most counties in Wisconsin have more than one judge, and the larger a county is, the greater number of judges it has. For example, Dane County has seventeen different judges who typically handle specific types of cases, like juvenile, criminal, or civil cases. Counties may differ in how a case is assigned, whether it is assigned to a judge who oversees a particular area of law, or a judge may have a case assigned due to being on a rotating intake schedule.

How A Judge Can Effect Your Case

When you are initially charged with in a criminal case, one of the things your defense attorney will consider is whether or not the assigned judge is favorable to your case. Just like basketball players, teachers, and doctors, different judges have different styles. One example of this would be a judge’s reputation on ruling on certain types of motions. Depending on your type of case, a judge’s tendency to rule a certain way on these types of issues could be beneficial or detrimental to your case. Another factor to consider is the judge’s history. What area of law did they practice before coming on the bench? If it was criminal law, are they a former defense attorney or prosecutor? If they were a prosecutor, did they have a specific area of emphasis? Your attorney may also consider a judge’s reputation on sentencing. The fact of the matter is that some judges have a reputation for sentencing defendants more harshly than others.

Substitution of A Judge

What is the substitution of a judge? It is a legal procedure that allows the assigned judge to be removed from the case, and another judge to be assigned. A defendant always has this right, however there is a specific process that must be followed within a certain procedural time frame. If you wait too long, you lose the ability to request a different judge. A motion requesting the substitution of the judge is filed with the clerk of court, the prosecutor, and with the judge, and this will trigger the removal of the judge from the case. The defendant does not have the right to choose who the new judge will be. In larger counties it will typically be another judge from that county, but in those that are more rural, a judge from a different county may be assigned. Again, it is important to note that a defendant does not have the ability to request the substitution of a judge at any time. A motion requesting the substitution of a judge must be filed at the beginning of a case, before the defendant is arraigned in a felony case. In a misdemeanor criminal case in Wisconsin, a defendant must do it before the originally assigned judge makes any substantive rulings.

Filing a motion for the substitution of a judge is not a matter to be taken lightly, and there are many factors to consider. Because this decision is so time sensitive, and an informed decision requires extensive knowledge of the judge and the county in question, a defendant needs to make this decision with defense counsel. The judge will essentially make all important rulings in a case, and in the event of a plea deal or conviction, will make the sentencing determination. If you or someone you know has been charged with a crime in Wisconsin, contact the Wisconsin criminal defense attorneys at Nicholson & Gansner, S.C. for a free consultation.