The Burden of Proof

Why is the burden of proof different for police and prosecutors, or for an arrest or conviction?

An arrest is not a conviction. Formal charges are not a conviction.

The police are looking for a suspect and information that they can pass to the district attorney - the prosecutor - and say, "this person probably did the crime."

The evidence upon which they base those decisions isn't subjected the scrutiny of a jury or judge trial, and in most instances, the person isn't represented by a criminal defense attorney.

It is simply enough for the police to be able to say, "we have probable cause" or "this guy probably committed the crime."

That's enough evidence to arrest the suspect, charge him or her, and start the prosecution process. Then the suspect is released unless the charge is a felony. That isn't enough evidence to convict the person and take away his or her liberties.

Conversely, the district attorney seeks to charge a person with a crime when he or she has been told by the chief of police that they have enough evidence to support the charge and the DA looks at the evidence and concurs. The DA should be more than "probably" sure that the alleged defendant committed the crime. The DA will look at the evidence from the standpoint of the probability of obtaining a conviction.

At the next level - the trial - the burden of proof is even higher. At that level, the judge in a bench trial or the jury in a jury trial must be convinced beyond a reasonable doubt that the person committed the crime.

A person is innocent until proven guilty. If they are proven guilty, their personal liberties will be restricted. Our system guarantees people who are accused of a crime the right to face their accusers, to cross examine the witnesses that accused them of the crime, to examine the evidence presented against them, and to provide their own witnesses. People also have the right to give testimony on their own behalf or to refrain from taking the stand.

That level of proof and cross examination cannot occur in the district attorney's office, nor can it occur in the police station. It can only occur during a trial.

During a recent interview by Wisconsin Channel 3000 with Attorney Chris Van Wagner, TV3000 examined this very issue as it related to a recent arrest of a "suspected" sexual assault offender. Shortly after the arrest, police questioned whether the arrested suspect even could have committed the crime - the facts just didn't fit. Police released their suspect, but tied him to a tether and monitored his actions.

In another interview, Attorney Chris Van Wagner analyzed Scott Jensen's new trial. In that situation, evidence in the first trial that should have been presented to the jury for their consideration was not. When evidence is withheld - particuarly when it is critical to the jury's decision - justice has not been served. See Jensen's Trial for more information.

Triple Murder Charges Filed

One Year After A Triple Murder, Charges Are Filed

One year ago, on January 11, 2007, a triple murder took the lives of three people at their Janesville, Wisconsin home. Today, charges were filed against a suspect.

When charges lagged and were not immediately filed after the killing, the public began asking questions. As the weeks passed, many people were very upset over the district attorney's failure to file charges. In a Madison TV 3000 special segment, we discussed the burden of proof in a criminal trial, and compared that to the burden of proof required for an arrest. (The Burden of Proof - Beyond A Reasonable Doubt)

Today, the focus is on a one year delay in criminal charges. Why do prosecutors delay charging a person? What happens in the time between the crime and the date on which criminal charges are filed against a suspect?

In some instances, prosecutors choose to delay charges for a particular reason. While in other instances, a delay may be caused by some circumstance outside of the prosecutor's control. It could never be said that the act of filing charges on the one year anniversary date of a crime is not without impact, or that charges filed on the fifth anniversary of a crime send a very different message.

In some cases, a delay is a legal strategy, but most delays are caused by circumstances beyond the prosecutor's control such as when criminal records are not readily available, or the crime lab is backed up (see Wood Speaks Out On Criminal Lab Delays).

Whether criminal charges are filed immediately, the single most important factor to keep in mind is that everyone is innocent until proven guilty. Whether a prosecutor is quick to file charges or waits to file charges for some certain event to occur should not be construed as an inference of guilt or innocence.

Helpful information:
Wisconsin Criminal Trials - Proceedings explains the criminal trial process and jury selection
Wisconsin Circuit Court Access provides access to some circuit court records including criminal charges, arrests, and convictions
WIBA - Madison 1310
Wisconsin Statutes
Wisconsin Circuit Courts

If Arrested, Will The Arrest Appear Online?

Wisconsin Open Records Law

ANSWER:

If a person is arrested, the arrest, citation, and information regarding the arrest can be made public and published on the Internet through many portals including newspapers, television, radio stations, and CCAP, as well as personal websites.

Newspapers often maintain an online version of their printed news, which may include the entire newspaper or just selected areas of news. Arrests, tickets and other police news are usually published online bcause people like to read about those types of newsworthy issues.

Some cases make the six o'clock news and subsequently are published on the television station's website. High profile criminal cases broadcasted on major networks such as Court-TV or CNN almost always make the website edition.

CCAP (see cap) is the Wisconsin circuit court records website located at http://wcca.wicourts.gov/. Under Wisconsin open records law, CCAP mirrors the clerk of courts records. With very few exceptions, arrests are published on CCAP along with subsequent court activity. Among the few exceptions are an arrest of a juvenile or an arrest incident to a mental committment. Even juvenile arrests have exceptions, such as arrests resulting from traffic offenses because juveniles are treated as adults in traffic case.

Case information remains accessible on WCCA for the minimum retention period for the case type as set by Supreme Court Rule - Chapter 72. However, cases with active warrants, active appeals or money still owed remain available on WCCA. However, a person can contact the Clerk of Circuit Court office in the county where the case was filed for complete case information for those cases that no longer display on WCCA.

Case records remain available on CCAP for a number of years. A traffic forfeiture, non traffic ordinance violation, or a subsequent arrest to incarcerate a person for violation of a court order remain on CCAP for 5 years. Tax warrants, civil cases, foreign judgment cases, transcripts of judgement cases, unemployment compensation cases, workers compensation cases, tribal court orders, misdemeanor and criminal traffic cases remain available on CCAP for 20 years. However, drunk driving cases remain available on the Department of Transportation records forever. Class A felony and John Doe cases remain available on CCAP for 75 years. Class B, C, D, E, F, G, H, and I felony cases remain available on CCAP for 50 years.

An expunged record is one that is removed from a person's public information, however, it is not completely destroyed. An expunged record still exists in a file drawer in the clerk of court office where the charge originated. An expunged record can also appear on CCAP even after the expungement order has been entered. In those instances, additional legal action must be taken to remove the expunged record from CCAP.

Helpful links:
Drunk Driving Tickets & Records
Expungement
WI State & Federal Arrests
Wisconsin criminal penalties