225 Wis. 2d 271 - State v. Kivioja’s Empirical Analysis

Citation profile

44 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 44 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “A defendant seeking to withdraw a plea of guilty or no contest before sentencing must show that there is a 'fair and just reason,' for allowing him or her to withdraw the plea.”

   3 later decisions quote this exact passage
   e.g. 384 Wis. 2d 415 - State v. Solomon · State v. Nelson

2. “In addition to meeting these four criteria, when the newly discovered evidence is a witness's recantation as it is here, the circuit court must determine that the recantation has reasonable indicia of reliability. The test we adopt differs from the more onerous McCallum test in significant ways. First, a defendant will be held to demonstrate a fair and just reason for withdrawal of a plea by a preponderance of the evidence, less demanding than the clear and convincing standard required of a similar motion made after sentencing. Second, a defendant need not show that there is a reasonable probability of a different result at trial. Third, a defendant will not need to show other new evidence that corroborates the recantation. In place of this last requirement found in McCallum , under the test we articulate here, the defendant will be held to the lesser showing that the recantation has reasonable indicia of reliability — that is, that the recantation is worthy of belief. Should the court find that the first four criteria are met, and that the recantation is worthy of belief, the defendant will have provided a sufficient fair and just reason for withdrawal. The application of this modified McCallum , test is justified prior to sentencing because the credibility and the reliability of recantation evidence is crucial to a determination of whether the fair and just reason offered by the defendant actually exists. Regardless of when recantation is offered, its inherent unreliability”

   2 later decisions quote this exact passage · from the concurrence
   e.g. 387 Wis. 2d 685 - State v. Johnson · State v. Ferguson

3. “These cases are evidence that credibility assessments are crucial to a determination of whether the evidence offered is a fair and just reason supporting withdrawal and they are consistent with the requirement that the defendant must do more than allege or assert a fair and just reason, that he or she must also show that the reason actually exists. ... In order to assess whether a reason actually exists, the circuit court must engage in some credibility determination of the proffered reason, without which withdrawal would be automatic, a matter of right. Because the reason offered must be genuine, the circuit court must determine whether the defendant's reason is credible, plausible or believable.”

   2 later decisions quote this exact passage · from the concurrence
   e.g. 229 Wis. 2d 648 - State v. Carnemolla · 2006 WI App 26 - State v. Harvey