EVIDENCE

Updated 2/2/10
(This page primarily tracks the Evidence Code, §§ 901-911. The table outline immediately below contains hyperlinks to the covered topics, and also highlights some of the sub-topics. Relevant material will also be found on other pages, such as Constitution, dealing with confrontation, self-incrimination, and right-to-defense issues.)
Ch. 901 -- GENERAL PROVISIONS
  • Construction of Evidence Code, Generally
  • § 901.03, Objection/Offer of Proof
  • § 901.03(4), Plain Error
  • § 901.07, Completeness Doctrine
Ch. 902 -- JUDICIAL NOTICE
Ch. 903 -- PRESUMPTIONS
  • Misconduct in Public Office
  • Receipt of Mail
Ch. 904 -- RELEVANCE

          § 904.01 -- Relevance, Generally

    • Computer Animation
    • Consciousness of Guilt
    • Consciousness of Innocence
    • Demonstrative Evidence
    • Failure to Identify Defendant and Suggestiveness of Line-Up
    • Field Sobriety Test
    • Flight
    • Gun Possession, Chrage of Drug Trafficking
    • Hand-Swabbing Results
    • Marijuana Use (Negligent Homicide)
    • "Profile Character" (Richard A.P.)
    • Refusal, OWI
    • Silence

          § 904.04 -- Character  
Ch. 905 -- PRIVILEGE
  • Honesty Testing
  • Spousal
  • Confidential Informant
  • Attorney-Client
  • "Shiffra" Material
  • Psychotherapist-Patient
  • Counselor-Patient
  • Comment on / Inference from Claim of Privilege
Ch. 906 -- WITNESSES
  • Personal Knowledge
  • Pretrial Disclosure of Defense, § 906.11
  • Bailiff
  • False Testimony
  • Impeachment
    • Bias
    • Gang Affiliation
    • Deferred Prosecution
    • Motive to Lie
    • Parole Eligibility Date
    • Pending Charge
    • Prior Convictions
    • Silence
  • Involuntary Statement (not Defendant's)
  • Comment on Truthfulness
  • Interrogation by Judge
  • Silence -- Post-Miranda
Ch. 907 -- OPINION & EXPERT TESTIMONY
  • Generally
  • Battered Woman Syndrome
  • Based on Hearsay
  • Daubert
  • ID
  • On Issue of Law
  • "Jensen" Testimony / "Maday" Exam
  • Memory and Suggestibility of Child Witness
  • Mental Disorder
  • OWI / PBT
  • Physician's Desk Reference
  • "Profile Character" ("Richard A.P.")
  • Qualifications
  • TPR
  • Truthfulness of Another Witness
  • Ultimate Fact
Ch. 908 -- HEARSAY
Ch. 909 -- AUTHENTICATION & IDENTIFICATION
Ch. 910 -- CONTENTS OF WRITINGS
RAPE-SHIELD, § 972.11(2)
NEWLY DISCOVERED EVIDENCE
MISCELLANEOUS
  • Applicability
    • Sentencing
  • Bank Records Authentication, § 891.24
  • Confidentiality of Juvenile Records
  • Confidentiality of (Defense-Prepared) Presentence Report: Go here
  • Confessions
    • Corroboration Requirement
    • Juveniles -- Recording Requirement
  • Juvenile Proceedings
    • Reverse Waiver
  • Legislative Privilege, § 13.96
  • Rebuttal
  • Witness List Violation
  • Transcript, Audio-Visual Recording (go here)

Ch. 901 -- GENERAL PROVISIONS
Evidence Code Construction, Generally – Judicial Council Committee’s View
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: While not bound by the Judicial Council Committee Note, the court of appeals nonetheless “view(s) it as significant authority in construing the rule.” ¶40. (See also id., n. 16: "In promulgating the rules of evidence, the Wisconsin Supreme Court stated that it was not adopting either the commentary of the Federal Advisory Committee or the Wisconsin Judicial Council Committee, but was printing them along with the rules for informational purposes. 59 Wis. 2d at R2 (1973). ")
Sufficiency of Objection, , Admissibility of Evidence – Specificity of Ground Required
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.
Holding:
¶31      The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis. Stat. § 906.13(2)(a), and therefore waived that issue. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 ("It is a fundamental principle of appellate review that issues must be preserved at the circuit court."). The State contends that Nelis' objection that the oral statements of Steve Stone were hearsay was insufficient to preserve Nelis' claim now that the statements were inadmissible under § 906.13(2)(a). We agree with the State's argument that Nelis' objection to the oral statements was not specific enough to preserve his claim that the admission of Steve Stone's oral statement contravened § 906.13(2)(a). An objection is sufficient to preserve an issue for appeal, if it apprises the court of the specific grounds upon which it is based. In Interest of Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998). A general objection that does not indicate the specific grounds for inadmissibility of evidence will not suffice to preserve the objector's right to appeal. State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999).

¶34      During the direct examination of Police Chief Stone, Nelis' counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis. Stat. § 908.04(1)(c), claiming that Steve Stone was unavailable, thus not "subject to cross-examination," and that the statement violated Nelis' confrontation right under Crawford, 541 U.S. 36. Nelis' counsel did not, however, object on the ground of Wis. Stat. § 906.13(2)(a). We are satisfied that, because Nelis did not object to the admissibility of Steve Stone's oral statements on the ground of § 906.13(2)(a), such argument was waived for failure to state it with sufficient specificity before the circuit court. State v. Givens, 217 Wis. 2d 180, 195, 580 N.W.2d 340 (Ct. App. 1998).

Sufficiency of Objection, Admissibility of Evidence
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty.
Holding:
¶17      First, at the very least, trial counsel’s objection should have led the court to Wis. Stat. §  904.08, which in turn would have brought Wis. Stat. §  904.10 to the court’s attention. Counsel used the phrase “offer to compromise” in framing her objection, and § 904.08 contains virtually identical language. See State v. Corey J.G., 215 Wis. 2d 395, 407 & n.7, 572 N.W.2d 845 (1998) (stating that although an objection must be sufficiently specific to apprise the trial court of the grounds on which it is based, it is not necessary for counsel to cite the precise statutory section at issue). Section 904.10 lies on the facing page to this statute directly in the reader’s field of vision in the current version of our statutes. Moreover, § 904.10 is directly on point. It categorically mandates the exclusion of plea offers. See State v. Mason, 132 Wis. 2d 427, 432-33, 393 N.W.2d 102 (Ct. App. 1986) (holding that “is not admissible” language in § 904.10 intended a prohibition “for any purpose”). Under the circumstances, § 904.10 was simply too conspicuous not to notice.

¶18      Second, one could reasonably conclude that Norwood ’s trial counsel did adequately preserve an objection based on Wis. Stat. § 904.10. Although it may not have been technically correct to characterize Norwood ’s letter as an “offer of settlement,” counsel appears to have used the term loosely to refer to the ultimate disposition of a case. …

¶19      Third, if we apply waiver to this case, Norwood would probably have grounds to claim ineffective assistance of counsel.  Counsel performs ineffectively when his or her performance is deficient and prejudices the client’s defense. …

Offer of Proof, § 901.03 - Retraction of Waiver of Defendant's Right to Testify
State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski
Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion, waived his right to seek retraction:
¶17      Wisconsin Stat. § 901.03(1) requires a party challenging the trial court’s ruling excluding evidence to make an offer of proof ….

¶18      Here, the trial court excluded evidence, namely Winters’s own testimony. Accordingly, Winters was obligated based on Wis. Stat. § 901.03(1)(b) to make an offer of proof in order to assert error. …

¶20      Although the facts in Brown are different from the instant case, the same legal principles apply. Here, Winters did not request an opportunity to give testimony outside the presence of the jury nor did he submit an affidavit detailing what he planned to say. Without such offer of proof, we cannot review Winters’s claim on appeal that granting his request to revoke his previous waiver and allowing him to take the stand would not have prejudiced the State.

¶21      The determination of whether to allow a defendant to testify after the evidence has closed and after he has previously executed a valid waiver of his right to testify is left to the discretion of the trial court. Arredondo, 269 Wis.  2d 369, ¶¶11, 13, 19. “A trial court must consider ‘whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief.’” Id., ¶19 (citation omitted). Without an offer of proof, the trial court could not consider the potential for prejudice and neither can we.

¶22      Winters offers two excuses for not seeking an offer of proof: (1) his attorney did not want him to testify and thus made no effort to do an offer of proof; and (2) the trial court failed to sua sponte inquire about the substance of his testimony. Neither excuse suffices here. With regard to the latter, as noted above, the trial court was not under any obligation in this instance to be the instigator of an offer of proof. With regard to the former, Winters is correct that his trial attorney made no effort to seek an offer of proof most likely because his counsel believed that taking the stand would not be in Winters’s best interest; however, that moment was not Winters’s only opportunity to submit an offer of proof. He could have done so via an affidavit when he filed his postconviction motion. He did not.

Embellishment of State v. David Arredondo, 2004 WI App 7 (Arredondo similarly waived right to testify, state released rebuttal witnesses, and then retraction of waiver was sought). But there, the trial court found that Arredondo was simply trying to game the system, and the consequential refusal to allow him to testify was upheld on appeal as an appropriate exercise of discretion. And yet another interesting similarity, in Arredondo’s noted failure to make an offer of proof, ¶ 20 n. 2 (“Arredondo did not present any evidence from which the trial court could evaluate the likely value of his testimony.”). But in that case, the absence of a proffer was cited as support for manipulation by defendant, ¶20. Here, no finding of manipulation was made, so the court is in effect taking Arredondo a step farther. Pretty clearly, then, if you’re attempting to undertake a good-faith retraction of waiver you won’t have much choice but to give the state a preview of the testimony. Worse: if the trial court insists, as might well be its prerogative, on a Q & A proffer, then you’re also giving the state a free swipe at the defendant. All in all, the procedure greatly pressurizes the initial decision (not) to testify. Arredondo, incidentally, recently lost his 2254 challenge, David Arredondo v. Huibregtse, 542 F3d 1155 (7th Cir 2008) (for habeas purposes, no controlling authority establishes that trial court must engage in an on-record colloquy with the defendant as to his or her desire not to testify; administration of right to testify reviewed for reasonableness at high level of generality, such that refusal to countenance retracted waiver not objectively unreasonable, given prejudice to prosecution and delay in trial).
§ 901.03, Objection/Offer of Proof - Pretrial: Definitive Ruling Properly Preserves Objection; Conditional Ruling Doesn’t
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: “A definitive pretrial ruling preserves an objection to the admissibility of evidence without the need for an objection at trial, as long as the facts and law presented to the court in the pretrial motion are the same as those that arise at trial.” ¶27. The trial court’s “definitive” rulings on Kutz’s pretrial hearsay objections preserved the issue of admissibility of those statements, and counsel wasn’t obligated to renew those objections at trial. ¶28. A ruling that was “conditional … but nonetheless definitive” (certain statements satisfied a hearsay exception so long as the prosecution laid a proper foundation at trial) similarly preserved the issue without renewed objection (unless the State had failed to present the foundational evidence it said it would); the trial court’s failure to “definitively rule on other possible exceptions did not require Daniel to raise the inapplicability of those exceptions at trial.” ¶29.
However, where the trial “court made very clear it could not rule on what exceptions might apply to those statements until it heard how the evidence came in at trial[, it] was therefore incumbent on Daniel to object at trial to any testimony on this incident that he considered inadmissible hearsay.” ¶30. The court declines to excuse waiver in this instance under its discretionary authority. ¶31.
(The court in effect cautions, ¶30 n. 8, that counsel must resolve doubt in favor of renewed objection:
We understand that it is often not possible for a trial court to give a definitive ruling on an evidentiary issue pretrial because the court does not know exactly what the evidence is going to be at trial. In such situations, the trial court's comments on how it is likely to rule under a particular scenario are helpful to the parties, and we appreciate the trial court's efforts to do that in this case. The difficulty for an appellate court on review is distinguishing between a pretrial ruling that is sufficiently definite so that the moving party should not be expected to make the same objection at trial to preserve the issue for appeal, and statements by the court that are sufficiently tentative or preliminary so that the moving party should be expected to understand that it is necessary to make the same objection at trial to preserve the objection. The best approach for the moving party-from the standpoint of preserving issues for appeal-is both to clarify with the court the nature of the pretrial ruling and to make the same objection at trial if there is any doubt.)
§ 901.03, Objection/Offer of Proof - sufficiency - cite to applicable caselaw.
State v. David C. Tutlewski, 231 Wis.2d 379, 605 N.W.2d 561 (Ct. App. 1999).
For Tutlewski: Dianne M. Erickson.
Issue: Whether citation to relevant authority preserved an evidentiary objection.
Holding: The issue was preserved by contemporaneous objection that included citation to relevant caselaw. ¶10.
§ 901.03, Objection/Offer of Proof -- Format
State v. Richard Dodson, 219 Wis.2d 65, 580 N.W.2d 181 (1998), unpublished decision below.
For Dodson: Michael J. Backes
Issue: Whether an offer of proof must be in question-and-answer form.
Holding:
¶15 The court in Milenkovich did not say, and we do not say now, that every offer of proof should be accompanied by a question and answer format. There are cases in which the evidentiary problem posed is easily resolved by statements of counsel. Other considerations, such as concerns of or for the alleged victim, may well encourage the court to resolve the matter without the question and answer format. Nevertheless, in a close case we encourage the circuit courts to engage in the question and answer format.
Offer of Proof -- Involuntary Intoxication -- Need to Distinguish Right from Wrong
State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999).
For Gardner: Steven P. Weiss, SPD, Madison Appellate
Holding: Gardner attempted to raise an involuntary intoxication defense, § 939.42(1), based on the effects of prescription medication. The trial court heard his offer of proof and barred his expert (psychiatrist) from testifying. Unlike voluntary intoxication, involuntary intoxication doesn't negate intent; it instead renders the actor incapable of distinguishing right form wrong, akin to the test for insanity. The trial court therefore erred in applying State v. Flattum, 122 Wis. 2d 282, 361 N.W.2d 705 (1985) (diminished capacity) to bar Gardner's expert from testifying. The effects of prescription medicine can, the court holds, form the basis for an involuntary intoxication defense, whether or not the defendant knows of its potential effect. Nonetheless, the offer of proof was still deficient because it didn't establish that Gardner couldn't distinguish right from wrong.
Go To Brief
Plain Error, § 901.03 - Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.

¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

§ 901.03, Plain Error - Generally
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶21      Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. [3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party's failure to object.  State v. Mayo, 2007 WI 78, ¶29, 301 Wis.  2d 642, 734 N.W.2d 115. See also 7 Daniel D. Blinka, Wisconsin Evidence § 103.7 (2d ed. 2001). Plain error is "'error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.'" State v. Sonnenberg, 117 Wis.  2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be "obvious and substantial." Id. Courts should use the plain error doctrine sparingly. Id. For example, "'where a basic constitutional right has not been extended to the accused,'" the plain error doctrine should be utilized. Id. (citing Virgil v. State, 84 Wis.  2d 166, 195, 267 N.W.2d 852 (1978) (Beilfuss, C.J., concurring); " Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule." State v. King, 205 Wis.  2d 81, 91, 555 N.W.2d 189 (Ct. App. 1996) (citing to a number of Wisconsin cases applying the plain error doctrine).

¶22      However, "'the existence of plain error will turn on the facts of the particular case.'" Mayo, 301 Wis.  2d 642, ¶29 (citing Virgil, 84 Wis.  2d at 190-91). …

¶23      If the defendant shows that the unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless. [4] Id. (citing King, 205 Wis.  2d at 93). …


 [4]  "It is also consistent with federal case law for us to use a harmless error analysis in determining whether to invoke the plain error doctrine." State v. King, 205 Wis.  2d 81, 92, 555 N.W.2d 189 (Ct. App. 1996). See also United States v. Olano, 507 U.S. 725, 734 (1993). However, unlike the state of Wisconsin where the State holds the burden, in the federal system the burden is on the defendant to show that the error was harmless. King, 205 Wis.  2d at 93. The concurrence advocates for stating the specific language that federal courts use in their plain error doctrine analysis. Instead, the majority decision today incorporates existing Wisconsin case law on that issue in order to clarify Wisconsin's plain error doctrine. See ¶¶21 and 22 of this opinion. While the concurrence questions what would qualify as fundamental and substantial error under the majority's test, the federal doctrine, as espoused by the concurrence, raises the same question. The concurrence also asks whether a fundamental and substantial error can be harmless. Under our analysis, any error that satisfies the first prong of our plain error doctrine, i.e., any error that is fundamental, obvious, and substantial, must then undergo the second prong of whether that error is nonetheless harmless. Today we find that the errors constitute plain error. In this case, we are not presented with facts that satisfy the first prong but are harmless under the second prong. In a future case, however, an error may satisfy the first prong but nonetheless be deemed harmless under the second prong's seven factor test, and thus, the error would not constitute plain error.
“… in the federal system the burden is on the defendant to show that the error was harmless.” Typo, obviously: the burden there is to show the error was prejudicial. The majority appears committed to a two-part plain error analysis: “fundamental,” etc., error; and if so, harmlessness nonetheless. As the court also suggests, plain error is generally limited to constitutional error, as in this case (¶33). Note, as well, that the trial found that the absence of objection was based on counsel’s sound strategy, ¶¶1, 7, 17—the supreme court nonetheless engages in plain error analysis (and for that matter grants relief) without so much as factoring this into the result. It’s hard to see this as anything other than dismissal of the relevance of any strategic basis for lack of objection, at least for purposes of plain error analysis. Perhaps that follows from the fundamental nature of “plain” error, but the court doesn’t say explicitly that that is so.
§ 901.03, Plain Error -- Generally
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School
Issue/Holding:

¶29      Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party’s failure to object properly or preserve the error for review as a matter of right. This court has not articulated a bright-line rule for what constitutes plain error, acknowledging that there is no "hard and fast classification" relative to its application. Virgil v. State, 84 Wis. 2d 166, 190-91, 267 N.W.2d 852 (1978). Rather, the existence of plain error will turn on the facts of the particular case. Id. Of particular importance is the quantum of evidence properly admitted and the seriousness of the error involved. Id. The burden is on the State to prove that the plain error is harmless beyond a reasonable doubt. State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (1996).

§ 901.03, Plain Error -- Generally
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding:
¶35      … See Wis. Stat. § 901.03(4) (2003-04) (court may consider plain errors affecting substantial rights even where not brought to the attention of the trial court). A “plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). …
Plain Error, § 901.03(4) – “Haseltine / Jensen” Issue
State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel
Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error:
¶12      As the circuit court noted, Stephan did not offer an opinion about the cause of Keri’s abrasion, she stated that the abrasion was “consistent” with an injury that resulted from “penetration.”  In fact, Stephan acknowledged that she did not know what caused the abrasion.  We have allowed such testimony in the past.  See, e.g., State v. Ross, 203 Wis. 2d 66, 79-81, 552 N.W.2d 428 (Ct. App. 1996) (allowing testimony because the nurse did not testify that the victim’s physical condition was the result of sexual assault).  Furthermore, we observe that Stephan’s objectionable statement regarding patient histories was elicited by defense counsel during cross-examination.  Counsel likely expected Stephan to testify that some complainants are not forthcoming but, surprisingly, she did not.  Our review of the record, particularly the whole of Stephan’s testimony, convinces us that the exercise of our discretionary reversal power is not required here.
She’d never been given “an inaccurate history during an exam” (¶5)? Sounds like powerfully damaging testimony where the case hinges on credibility, but at least the court distinctly labels it “objectionable,” and the fact that it came out on cross might blunt the impact by making the result fact-specific.
Plain Error, § 901.03(4) – Miscellaneous Confrontation-Based Errors, Stemming from Statements Made by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?
Holding:
¶34      "'The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'" State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; [10] Wis. Const. art. I, § 7. [11] By reading the November 10 hearing transcript at Jorgensen's criminal trial, which essentially provided the jury with the judge's and the prosecutor's conclusions about Jorgensen's guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.

¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen's alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

¶36      The circuit court's commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court's observations. …

¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially "testified" against the defendant without being subject to confrontation. …

Plain Error, § 901.03(4) – Prosecutor’s Closing Argument as Violating Confrontation
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶39      Jorgensen's right to confrontation was also violated during the prosecutor's closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She "testified" that Jorgensen was a "chronic alcoholic" who did not acknowledge his problem, that on November 10 she smelled a strong odor of intoxicants from him, and that she knew Jorgensen was drunk that day in court.
§ 901.07, Completeness Doctrine -- Triggered by Accusation Witness Engaged in "Systematic" Lying
State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue/Holding: Defense cross-examination focusing on inconsistencies in statements of the alleged victim permitted the State to read her entire first statement to the jury under the completeness doctrine; State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997), followed:
¶25      Here, as in Eugenio, the defense essentially argued that the victim “engaged in a systematic pattern of lying about the events.” Id. at 363 (footnote omitted). This is a “sufficient reason” to permit the State to introduce other portions of the victim’s previous statements to rebut that theory. See id. Thus, we are satisfied that the underpinnings for the doctrine of completeness were established and the trial court properly exercised its discretion in permitting the State to introduce the evidence.
§ 901.07, Completeness Doctrine -- Trumping Hearsay Rule
State v. Gordon R. Anderson, Jr., 230 Wis.2d 121, 600 N.W.2d 913 (Ct. App. 1999).
For Anderson: Craig M. Kuhary.
Issue: Whether the trial court erred, under the doctrine of completeness, in refusing to admit certain portions of Anderson's statement to a detective.
Holding: The completeness doctrine trumps the hearsay rule, and the trial court erred in excluding one portion of the statement (though the error was harmless); but did not err in excluding other portions.
Analysis: Anderson didn't testify. He sought to admit portions of a statement he gave to a detective, to rebut other portions introduced by the state. The jury heard Anderson's admission that he helped his co-actor (Moore) carry the victim to a river, but didn't hear that portion containing Anderson's assertion that it was Moore who struck the victim and threw her over a bridge; nor Anderson's "assumption that they were going to put her back in the back of the truck." Admissibility is controlled by the rule of completeness, as explicated in State v. Eugenio, 219 Wis. 2d 391, 579 N.W.2d 642 (1998). The threshold question is whether the partially admitted statement creates a distorted view of the statement as a whole. The state's argument - that the court may allow a distortion because the declarant isn't subject to cross-examination - is rejected. Instead, the completeness doctrine serves to trump the hearsay rule:
We hold that when a defendant in a criminal case objects to testimony of his out-of-court statement as incomplete, or attempts to cross-examine the witness on additional portions of the defendant's out-of-court statement and the State objects, the court should make the two-part discretionary determination required by Eugenio without regard to whether the defendant intends to testify. Once the court has determined that any additional portion of the statement is necessary under the Eugenio standard, it must permit the presentation of that additional portion, although the timing of that presentation is discretionary: it may occur during the State's case or when the defense recalls the witness during its case. Fairness to the State does not require that the additional portion necessary under the completeness rule be excluded unless the defendant testifies, because the Eugenio test is sufficiently narrow to insure that only the additional portion necessary to avoid distortion is admissible. On the other hand, it would be unfair to the defendant to force him or her to choose between giving up the constitutional right not to testify and correcting a distorted impression of his or her prior statement presented by the State.
Leaving out that portion of the statement containing Anderson's assumption that the victim would be taken back to the truck distorted the evidence. But leaving out the parts asserting that Moore struck her and threw her into the river caused no distortion; the prosecutor asked the detective only what Anderson told him about the third time the victim was thrown into the river, and Anderson was entitled only "to have his statement on that point fairly and completely presented." The error was harmless, for fact-specific reasons.
§ 901.07, Completeness Doctrine -- Oral Statements
State v. Juan Eugenio, 219 Wis.2d 391, 579 N.W.2d 642 (1998), affirming State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997)
For Eugenio: Eduardo M. Borda
Issue: Whether the state was properly allowed to admit into evidence, under the rule of completeness, certain oral "challenged statements in their entirety, to show consistency on significant factual issues." ¶29.
Holding: A trial court has authority to apply the rule of completeness, § 901.07, to oral statements, under § 906.11(1). The court cautions that this rule does not support "unbridled" admissibility; only those statements necessary to provide non-distorted context should be admitted, and even then only after close scrutiny "to avert abuse of the rule." ¶41.

Ch. 902 -- JUDICIAL NOTICE
Judicial Notice – Briefs Posted On-Line
State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate
Issue/Holding: The court may take judicial notice of public records, including material found in briefs available on-line, ¶24 n. 9.
Judicial Notice – Local Police P & P Manual
State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler
Issue/Holding: ¶39 n. 6:
After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion, we elect to take judicial notice of this document, which is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. § 902.01(2)(b) (2003-04).
Judicial Notice -- Generally
State v. Leonard A. Sarnowski, 2005 WI App 48
For Sarnowski: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶13. Trial courts may take judicial notice in limited areas-"fact[s] generally known within the territorial jurisdiction of the trial court," or "fact[s] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. Rule 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point "an opportunity to be heard." Rule 902.01(5).1 Further, a judge may not take "judicial notice" of things that he or she knows unless that knowledge also falls within the rule. State v. Peterson, 222 Wis. 2d 449, 457-458, 588 N.W.2d 84, 87-88 (Ct. App. 1998) ("A trial court sitting as fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual.") (footnotes omitted).
Judicial Notice -- Reliance on, Ruling to Admit Evidence
State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual. Hoeft v. Friedli, 164 Wis.2d 178, 189, 473 N.W.2d 604, 607-08 (Ct. App. 1991). In Hoeft the trial judge knew, from personal experience, that the author of a particular letter in evidence had a sense of humor. Based on that personal knowledge, the court discounted the letter's evidentiary value. We held this was an erroneous exercise of discretion because the author's "sense of humor was neither part of the evidence nor a fact generally known." Id. at 189-90, 473 N.W.2d at 608. Similarly, here the trial judge's opinion of what one can see on the river at night is neither part of the record nor a generally known fact suitable for judicial notice. As we stated in Hoeft, "[w]e recognize that the trial judge's opinion was guided by good faith reliance upon his past experience and personal knowledge." Id. at 189, 473 N.W.2d at 608. However, the trial judge may not rely on his own experience on the river at night to determine whether the videotape was an accurate portrayal of the demonstration. We conclude that the court erroneously exercised its discretion in doing so.

Ch. 903 -- PRESUMPTIONS
§ 903.01 -- PRESUMPTIONS, GENERALLY
§ 903.03, Conclusive Presumptions -- Generally
State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill
Issue/Holding: The instructions created a mandatory conclusive presumption that relieved the State of its burden of proving intent to obtain dishonest advantage, ¶¶ 11-27. Same discussion as in State v. Sherry L. Schultz, 2007 WI App 257.
§ 903.03, Conclusive Presumptions -- Generally
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding:
¶9        In State v. Kuntz, 160 Wis.  2d 722, 736-37, 467 N.W.2d 531 (1991), the supreme court explained that:
A mandatory presumption instructs the jury that it must find the elemental fact if the state proves certain predicate facts.  A mandatory presumption that is irrebutable is conclusive.  Thus, a mandatory conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the state proves the predicate facts. 
(Citations omitted.)  Wisconsin Stat. § 903.03(2) limits the circumstances under which a judge may direct a jury to find a presumed fact against a defendant.  In the event that the judge gives such an instruction, § 903.03(3) requires that
the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so.  In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.
§ 903.03, Conclusive Presumptions – Limiting Language Required on Matters of Law as Well as Fact
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10       Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element); [3] and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns….  Political activity includes any of the following:  Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties). [4]  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes. 

¶11      … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).

¶20      We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes.  The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another.  Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact).  This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes.  Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.

The prior appeal established that directing staff to engage in a political campaign with state resources violated the statute, but the court now says that this principle merely meant that the statute wasn’t unconstitutionally vague: “In other words, we said that the defendants could be convicted because the statute apprised a reasonable person that the conduct, as alleged in the complaint, neared proscribed conduct,” ¶13. Directing a verdict on the facts is significantly different, id. This discussion is not, alone, particularly convincing because it merely raises the riddle of the fact-law distinction (see discussion, here; put simply, the court instructs on the law, the jury finds the facts – but sometimes the distinction is muddied). The decision goes on, though, to find support in State v. Dyess, 124 Wis.  2d 525, 370 N.W.2d 222 (1985):
¶17      Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction.  In Dyess, the instruction directed the jury to find negligence on a finding of speeding.  Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes.  We fail to see a distinction. 

¶18      The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper.  The Dyess court rejected this argument. …

That’s plain enough, if nonetheless still involving a certain amount of question-begging – especially in the court’s stress that the challenged instructional language was not a correct statement of the law, ¶19; but that very incorrectness is because of the conclusive presumption created by the language, which makes the court’s “explanation” circular. The court takes pains to ground its holding in the purely statutory rationale of § 903.03 rather than constitutional analysis, ¶1 n. 2. It makes sense, then, to see the holding as a construction of § 903.03 as simply not supporting a distinction between fact and law with regard to instructional presumption. Some of this becomes clearer in the court’s subsequent directive—the jury must be instructed on the substantive law, but not that certain facts satisfy that definition (¶22):
¶23      Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts.  See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper).  Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties.  Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury,[6] whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury.  Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.
 [6]   … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.
Presumed Delivery of Mail
State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding: "¶27 … The law in this state is that when notice is sent by mail and it is not returned, the presumption is that it was delivered. See State ex rel. Flores v. State, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994)."

Ch. 904 -- RELEVANCE
§ 904.01 -- RELEVANCE, GENERALLY
Relevance – Foundational Requirement of Probative Value Applies to Computer-Generated Animation
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding: Foundational requirement of probative value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:
¶17      Turning to probative value, we examine the State’s failure to lay a foundation for the admission of the animation. See, e.g., Gribble, 248 Wis. 2d 409, ¶57 (in determining probative value, the court considered the foundation laid and the credentials of the testifying witness). Again, the State relies on Roy in support of its contention that computer-generated animation may be admitted without witness testimony that the animation fairly and accurately depicts what it purports to depict. The State contends, based on Roy, that it is not required to lay a foundation for a computer-generated animation in the same way that one is laid for a photograph or video. However, the Roy court’s determination was not based on the fact that the evidence sought to be admitted was an animation, as opposed to photograph or video. Rather, the Roy court was addressing an expert’s ability to use an animation to illustrate his or her opinion. Here, Ambach was not illustrating an expert opinion on possible scenarios, his animation showed distances, where the defendants, the victim and witnesses were, and “what people did.” We reject the State’s argument that computer-generated animation used as a demonstrative exhibit to show the scene and events of the alleged crime is exempt from longstanding foundation requirements. [8]
Relevance – Foundational Requirement of Authentication Applies to Computer-Generated Animation
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding: Foundational requirement of authentication value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:
¶18      A determination of relevance demands that evidence offered at trial be connected to the subject matter at issue. Authentication is a special aspect of relevancy and is preliminary and precedent to a question of admissibility. See Judicial Council Committee Note, 1974, Wis. Stat. § 909.01 Here, there was no authentication by any of the witnesses that the animation fairly and accurately represented their testimony and no single witness had firsthand knowledge as to what was depicted in the animation. See Wis. Stat. §§ 909.01 and 909.015[9]; see also 2 Kenneth S. Broun, McCormick on Evidence § 214 (6th ed. 2006) (“The authenticating testimony from a witness would establish that the animated CGE is a fair and accurate representation of what the witness is trying to describe, and admission of the animation would be within the discretion of the trial judge.”). The computer-generated animation was introduced to clarify Giovannoni’s testimony; however, Giovannoni never testified that the animation fairly and accurately represented her recollection of the events.[10] Although the animation was not expressly introduced to clarify Hohisel’s testimony, it incorporated aspects of his testimony and, like Giovannoni, Hohisel never testified to his belief that the animation captured his recollection of events. Neither did Biever. The confusion resulting from this compilation of testimony is evidenced in the trial court’s observation that the animation “illustrated” Giovannoni’s testimony when, in reality, it illustrated much more than that.
General Test
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding:
¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) ("All relevant evidence is admissible unless otherwise provided by law."). Evidence is relevant when it is probative of any material fact. Wis. Stat. § 904.01 (Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Even Wilkens does not argue that Onken's observations of his performance on the FSTs utterly lacked probative value. Certainly, when an officer-particularly one with sixteen years of law enforcement experience and who makes an average of four OWI arrests each month-determines that a driver fails not one but three FSTs, it is more probable that the person has an illegal blood alcohol concentration than if the officer determined he or she passed the tests. We cannot conclude that the trial court erred in considering the evidence.
Association with Drug-involved Individual -- Association with Motorcycle Gang
State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999).
For Petrovic: Robert B. Rondini
Issue/Holding: The court holds admissible the following evidence: defendant's "close" connection to someone (Fooden) with whom an agent "was familiar ... based on drug investigations he had performed for the IRS." "The State's evidence indicating a connection between Petrovic and Fooden was relevant to the issue of drug delivery. Spang stated that he knew Fooden from previous drug investigations." But evidence of Petrovic's connection to the Outlaws motorcycle gang was irrelevant. Nothing tied Fooden to the Outlaws, and nothing showed a likelihood that Petrovic would distribute drugs to the Outlaws. This error, though, was harmless.
Consciousness of Guilt -- as Distinct from Misconduct Evidence
State v. Michael R. Bauer, 2000 WI App 206, 238 Wis. 2d 6887, 617 N.W.2d 902
For Bauer: Thomas Voss
Issue: Whether evidence that the defendant, while awaiting trial, solicited the murders of people who were going to testify against him was admissible.
Holding: This evidence was admissible, not as other acts evidence, but "because it was evidence of a criminal act of the accused intended to obstruct justice or avoid punishment which can be used to prove consciousness of guilt." ¶2.
Analysis: The holding should be self-explanatory. In fact, the court says that the outcome is controlled by a prior case, State v. Neuser, 191 Wis. 2d 131, 144, 528 N.W.2d 49 (Ct. App. 1995) (threat to witness/victim not other acts evidence but simply evidence of consciousness of guilt). ¶6. Why, then, publish a redundant case? The court expresses concern about a perceived "trend in criminal cases," in which consciousness-of-guilt evidence is wrongly classified as other-acts evidence, and issues the following caution: "the first question the lawyers and the trial court should ask is 'what is the purpose of the State's intention to admit the evidence?' If it's not to show a similarity between the other act and the alleged act, then perhaps the parties should entertain the question of whether it is 'other acts' evidence at all." ¶7 n. 2. This admonition, by the way, is contained in a relatively lengthy footnote -- cf. State v. Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918, ¶6 n. 4 ("We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review").
Consciousness of Guilt: Flight
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Evidence of flight is not other-acts evidence but, rather, “an admission by conduct”; thus, evidence that Anderson fled the state after learning that the police had been contacted was admissible, ¶29, citing, State v. Earl L. Miller, 231 Wis.2d 447, 462, 605 N.W.2d 567 (Ct. App. 1999).
Consciousness of Guilt -- Flight Three Days After Crime
State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999).
For Miller: Eduardo M. Borda
Issue: Whether evidence of the defendant's flight from police three days after the crime was admissible.
Holding: "While not part of the original criminal episode, evidence of flight was admissible because it indicated Miller's consciousness of guilt." ¶22.
Consciousness of Innocence – Offer to Take Polygraph
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶39 Finally, we determine that the circuit court did not erroneously exercise its discretion in refusing to admit testimony regarding Shomberg's offer to take a polygraph examination. … However, such an offer is only "relevant to the state of mind of a person making the offer as 'long as the person making the offer believes that the test or analysis is possible, accurate, and admissible.'" Neumann v. Neumann, 2001 WI App 61, ¶65, 242 Wis. 2d 205, 626 N.W.2d 821 (quoting State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d 332, 613 N.W.2d 918). 

¶40      The evidence in the record is insufficient to establish that Shomberg offered to take a polygraph examination, as opposed to agreeing to take one. …

¶41     Neither does evidence in the record support the second requirement to admit an offer to take a polygraph —— that Shomberg believed the results of a polygraph would be admissible in court. …

Consciousness of Innocence -- Polygraph Test Offer, Made by Counsel
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding:
¶26. While a polygraph test result is inadmissible in Wisconsin, see State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), an offer to take a polygraph test is relevant to an assessment of the offeror's credibility and may be admissible for that purpose. State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143 (Ct. App. 1982). An offer to take a polygraph test is relevant to the state of mind of the person making the offer-so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible. State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d 332, 613 N.W.2d 918.

¶28. The threshold question in this case is whether Pfaff's agreement to submit to a polygraph test at the request of his attorney constitutes an "offer" to take a polygraph test. We addressed this issue in the civil case of Neumann v. Neumann, 2001 WI App 61, ¶64, 242 Wis. 2d 205, 626 N.W.2d 821.3 There, the appellant argued that the trial court erred in excluding evidence that he had offered to take a polygraph test. In rejecting this argument, we stated,

[A]s Neumann acknowledged at oral argument, he did not offer to take a polygraph examination. Instead, law enforcement asked him to take the examination and he agreed. Neumann contends that even though law enforcement suggested the test, his willingness to take the test should still be admissible under the same reasoning applied in Hoffman.
Neumann, 242 Wis. 2d 205, ¶64. Thus, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer within the meaning of Hoffman.

¶29. We see no reason to create an exception to this rule where, as here, the request or suggestion for the polygraph test comes from the defendant's attorney….

¶31. We conclude that Pfaff's agreement to submit to a polygraph test at the request of his attorney was not a "offer" to take a polygraph test within the meaning of the established case law. We uphold Judge Haughney's ruling excluding Pfaff's proffered testimony.

Consciousness of Innocence -- Offer to Take DNA Test
State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg
Issue: Whether a sexual assault defendant's pretrial offer to take a DNA test is relevant as consciousness of innocence.
Holding: "(A)n offer to undergo DNA analysis [is] relevant to the state of mind of the person making the offer -- so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible." ¶4.
Analysis: Santana-Lopez was charged with and convicted of digital and oral penetration of a child. He told the police (probably when arrested; the opinion isn't clear) that he'd take polygraph and DNA tests. The trial court refused to allow this evidence to come in, ruling that the defendant's state of mind when he made the offer wasn't relevant. ¶2. On appeal, Santana-Lopez pursues the DNA offer, abandoning the polygraph. The court of appeals holds that both sorts of offers are relevant, as reflecting "consciousness of innocence" no less than would be consciousness-of-guilt evidence, if the offerer believes the testing would be "possible, accurate, and admissible." ¶4. The trial court's "flatly" ruling that this evidence was irrelevant was an erroneous exercise of discretion. The remedy is procedural: remand to determine whether Santana-Lopez can satisfy the foundation noted above; if so, determination of whether exclusion would nonetheless be warranted under § 904.03; and, if necessary, determination of whether error was harmless. ¶7.
Demeanor -- Evincing Guilt
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding:
¶29 .... Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such. See Paulson v. State, 118 Wis. 89, 106, 94 N.W. 771 (1903) (“Conduct of a suspected person after the crime is a legitimate subject for consideration, as bearing upon the probability of his guilt....”). Thus, the trial court correctly permitted the witness to testify to his observations of Silva’s guilt on the day of the crime.
(It’s not exactly clear just why sitting = sinning (“again”). Take it as given that a suspect’s conduct is a legitimate subject for scrutiny, but that still doesn’t explain how the insolubly ambiguous act of sitting evinced guilt. Maybe there was more to it in the record; maybe there’s a customary response to the preacher’s call that the judges all know about. For an otherwise unrelated case of defendant’s demeanor, but ruled inadmissible at the defendant’s behest to show innocence, see State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999) (evidence of defendant-parents’ “profound shock and grief” would have confused the jury), affirmed on habeas review, Audrey A. Edmunds v. Deppisch (latter court suggesting that expert explanation might be necessary: “Edmunds might have tried to introduce expert evidence that the parents’ demeanor indeed fit a pattern that reputable research has shown to be indicative of lack of grief and consciousness of guilt”). Apparently no expertise was required to understand Silva’s behavior.)
Demonstrative Evidence
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a witness should have been permitted to demonstrate with a doll the force used to cause injuries to the child victim.
Holding: The fact that the experts couldn't agree on the exact cause of the injuries goes to weight, not admissibility, of the demonstration. ¶56. The witness's credentials and the foundation he laid supported probative value on the force used to cause the injuries, even if the witness couldn't accurately replicate that force. ¶57. The fact that the defense didn't contest the amount of force used to cause the injuries didn't bind the state from proving, through this demonstration, the element of utter disregard for human life. ¶58. Probative value wasn't outweighed by unfair prejudice. ¶59.
Failure to Identify Defendant as Bearing on Suggestiveness of Lineup
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶43. Wright argues that Lomack's testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Wis. Stat. § 904.01. Here, Lomack's testimony was proffered for the purpose of describing the lineup and stating his belief that he had mistakenly identified Wright in the lineup. However, our examination of the Lomack offer of proof reveals nothing that impugns the integrity of either the lineup procedure or the in-court identifications by the State's eyewitnesses. In summary, without more, Lomack's inability to identify Wright at a preliminary hearing some eight months after he identified Wright at a lineup does not render the identifications of the other eyewitnesses suspect. We agree with the trial court that Lomack's testimony on the dismissed robbery charge as to the lineup procedure and his mistaken identification did not tend to make Wright's involvement in the other robberies, at which Lomack was not present, more or less probable.
Flight
State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski
Issue/Holding:
¶18      Law and Discussion: It is well established that evidence of flight has probative value as to guilt. See State v. Knighten, 212 Wis. 2d 833, 838-39, 569 N.W.2d 770 (Ct. App. 1997). Analytically, flight is an admission by conduct. State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999). The fact of an accused’s flight is generally admissible against the accused as circumstantial evidence of consciousness of guilt and thus of guilt itself. Id. To be admissible, the defendant’s flight need not occur immediately following commission of the crime. See Gauthier v. State, 28 Wis. 2d 412, 419-20, 137 N.W.2d 101 (1965) (defendant escaped from custody while awaiting trial).
Field Sobriety Test
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding: Field sobriety tests (alphabet and finger-to-nose tests; and heel-to-toe walk) “are observational tools, not litmus tests that scientifically correlate certain types or numbers of ‘clues’ to various blood alcohol concentrations,” ¶17. Thus, the officer’s observations of Wilkens’ performance isn’t treated “any differently from his other subjective observations of Wilkens, i.e., his red and glassy eyes, slurred speech, his speeding, and the smell of alcohol on his person,” ¶19. (Court reserves treatment of HGN test.) And, factfinders don’t in any event need expert testimony on drunkenness “any more than they require an explanation of the theory of gravity in a suit where a plaintiff claims to have been injured by a fallen object,” ¶21.
General
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue: Whether the trial court properly exercised discretion in excluding a statement by a sheriff's investigator that the shooter was left-handed, given that defendant's left hand is crippled.
Holding: Because this testimony would have been both speculative and in any event cumulative, its exclusion was proper. ¶¶46-49.
Gun Possession, on Charges of Drug Trafficking While Armed
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: On charges of drug trafficking while armed, possession of guns (along with flash suppressor and bulletproof vest) was admissible as relevant for purposes other than “bad character,” ¶¶35-39. ( State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977) and State v. Wedgeworth, 100 Wis. 2d 514, 530-31, 302 N.W.2d 810 (1981), explained: when weapons, etc., linked directly to proof of element of offense, they don’t constitute improper character evidence.)
Hand-swabbing Results
State v. Andres DelReal, 225 Wis.2d 565, 593 N.W.2d 461 (Ct. App. 1999).
For DelReal: Richard D. Martin, SPD, Milwaukee Appellate.
Holding/Analysis: At trial on shooting related charges, one detective testified that DelReal's hands had been swabbed for gunshot residue (with unknown results), but the lead detective testified that he hadn't. The trial court struck testimony about the swabbing, ruling it irrelevant. Turns out that DelReal was swabbed and, the results were negative for gunshot residue. The court of appeals holds, first, that "(t)his fact [swabbing] is relevant to attacking both [the lead detective's] credibility and the quality of the police investigation." Relatedly, the court holds that even if the negative test result "cannot conclusively prove that Delreal was not the shooter because he may have taken some action to eliminate any positive evidence, such as washing his hands to remove any residue," it is nonetheless relevant because it "reduces the probability that DelReal fired the gun." Any inconclusiveness goes to weight, not admissibility, the court analogizing to the "similar conclusion on facts analogous to those presented here," in Kyles v. Whitley, 514 U.S. 419 (1995).
(Note: the court seems to premise admissibility on two separate grounds. First, the negative test results had at least some weight, in that it tended to show that DelReal wasn't the shooter. Surveying case law from other jurisdictions, the court generalizes, "(t)he inconclusive nature of this evidence [residue-testing] does not render it inadmissible, but rather, affects its probative value, which is for the jury to determine." Second, and as a seemingly separate basis for admissibility, the lead detective's "credibility was also fair game for defense attack." Applying the favorable Dyess test, the court rejects harmless error. The case "was by no means airtight." Eyewitness identifications "were equivocal," at least initially, and therefore "were not beyond challenge." The evidence wasn't "so overwhelming that the State's failure to disclose this relevant potentially exculpatory evidence was harmless.")
Go to Brief
Marijuana Use -- § 940.10(1), Homicide by Negligent Operation of Vehicle
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:
¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment, she noted at trial that “some driving skills … are affected” including judgment, reaction time and information processing. She also noted that THC “affects a person’s perception of time and space so that the ability to judge distances, speeds and relationship to other objects is also d[i]minished,” and, further, that coordination, balance and concentration are also affected. Finally, she explained that THC “does have a tendency for people to fixate their attention for a longer period of time on one type of task or another, whether it’s looking out the window to check a building or putting in a CD.” These effects all relate directly to a person’s ability to safely drive a motor vehicle. Despite the lack of testimony that Schutte experienced any of these effects prior to the collision, jurors, without speculating on Schutte’s precise level of impairment, if any, could reasonably conclude from the expert’s testimony that Schutte’s use of a substance capable of producing these effects, while (or immediately prior to) driving on a rural highway at night in adverse weather and road conditions, was a circumstance rendering it more probable that her conduct was criminally negligent.
Consideration of § 346.63(1)(am), which criminalizes driving with a detectable amount of a controlled substance, is appropriate in making a relevancy determination, ¶50.
"Profile Character" (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue: Whether Richard A.P. evidence -- that the defendant lacks the psychological characteristics of a sex offender and, therefore, was unlikely to have committed the charged offense -- is admissible.
Holding:
¶15. We conclude that a blanket restriction on Richard A.P. evidence is unwarranted. Discretion to admit or exclude such evidence remains with the circuit court. We agree with the conclusions reached by the court of appeals in Richard A.P. and specifically adopt its reasoning.
(State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).)
¶18. Davis's expert will allegedly testify to the general character traits of sexual offenders, the tests used to determine whether an individual possesses such character traits, his findings on whether Davis possesses such character traits, and, based on these results, the likelihood that Davis committed the sexual assault. Such traits regarding the defendant's propensity to commit sexual assault are pertinent traits of his character. This evidence relates to a consequential fact, that is, whether the defendant committed sexual misconduct with a child. Further, this evidence has probative value in sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Such profile evidence may be extremely important to the defense. Such testimony may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence.
(Note: The court distinguishes Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980) (expert psych testimony inadmissible on intent) as "a narrow holding" and seems to limit it to its facts. ¶25. Though the court largely acknowledges broad-based admissibility of expert testimony in Wisconsin, it does exhort trial judges to "carefully scrutinize" admissibility. ¶21. Note, additionally, the defendant's obligation to disclose information, and the consequential self-incrimination waiver. ¶¶40-41.)
(UPDATE: See also State v. Walters, below, re: no categorical rule of admissibility; such evidence may be excluded, on case-by-case basis, under § 904.03.)
"Profile Character" (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Holding: The trial court reversibly erred in refusing to allow an expert psychologist to testify that defendant "did not show any evidence of any diagnosable sexual disorder. ... [and] that absent a diagnosable disorder, it is unlikely that such a person would molest a child." This evidence was relevant: "[Psychologist] Lodl's testimony may well have assisted the jury in determining whether Richard, who maintained that the child had misinterpreted his actions, committed the charged offense. Lodl's expert testimony was admissible under § 907.02, STATS." Nor is that the only basis for admissibility: "Moreover, the evidentiary code expressly recognizes a defendant's right to present evidence of a pertinent character trait. Section 904.04(1)(a), STATS. ..." That is, evidence of a defendant's "pertinent [character] trait" is admissible under § 904.04, when presented through reputation or opinion testimony per § 904.05. "Character profile" evidence, in sum, is admissible when supported by competent underlying expert testimony. (Caution: A defendant's character profile evidence is not admissible unless defendant offers it; then, the state can, "by way of rebuttal evidence, introduce countervailing evidence. Thus, any risk associated with the presentation of character evidence by the State is triggered by the defendant.")
Racketeering -- Losses Incurred by Defrauded Investors
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding: Evidence of investor losses is relevant to a charge of racketeering, § 946.83. ¶37.
Refusal, OWI.
State v. Kurt J. Doerr, 229 Wis.2d 616, 599 N.W.2d 897 (Ct. App. 1999)
For Doerr: John M. Carroll.
Issue/Holding: Doerr argues that evidence of his refusal to take a chemical test was irrelevant, because it occurred at the police station rather than the arrest scene. The argument is rejected: Though refusal evidence is relevant to show the defendant's awareness that he or she was intoxicated, the evidence wasn't used in that manner:
Here, the refusal was used to demonstrate Doerr's conduct toward police and is directly linked to the criminal events charged against Doerr. The evidence involved Doerr's interaction with the other principal actors, the police officers, followed directly on the heels of Doerr's battery and resisting arrests, and, most importantly, makes the resisting allegations more probable. See United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984) (holding that evidence of the defendant's gang lifestyle "was not admitted to prove bad character; rather, it was intricately related to the facts of [the] case"). We conclude that the evidence was relevant and not unduly prejudicial.
Refusal, OWI - Deficient Breath Sample.
State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999).
For Zivcic: John J. Carter.
Holding: A "deficient sample" printout from an Intoxilyzer 5000 test is held admissible - not as a test result, but as Zivcic's failure to provide adequate breath samples (which equals a refusal).
Silence in Face of Accusation
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552, affirmed by equally divided court, 2001 WI 56.
For Bond: William Coleman; Janet Barnes, Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The prosecution may not use at trial the fact that a defendant stood mute in the face of an accusation. ¶27.
Victim's Medical Records
State v. Frank M. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893
For Ruszkiewicz: Mark S. Rosen
Issue: Whether the trial court erred in refusing to order production of the victim's police and medical records, sought on the theory that they might show a condition that would cause her to bruise easily and, therefore, refute the element of force as demonstrated by her bruises.
Holding: Given the defendant's theory of defense -- which admitted his use of force but denied intent to obtain sexual gratification -- any evidence of a condition showing easy bruising would have been of no consequence to the trial.

§ 904.03 -- PREJUDICE
Unfair Prejudice, § 904.03 – Flight, “Independent Reason” for, as Ground for Inadmissibility
State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski
Issue/Holding:
¶21      Quiroz claims that under Miller, 231 Wis. 2d at 574, there is an automatic exception to the trial court’s discretionary ability to admit flight evidence whenever a defendant has an independent reason for flight that, if admitted, would unduly prejudice the defendant. Relying on his interpretation of Miller, Quiroz argues that the evidence of his flight was inadmissible because he proffered an independent reason for flight.

¶27      Our holding in Miller defeats rather than bolsters Quiroz’s argument. Flight evidence is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must, as it must with all evidence, determine whether to admit the flight evidence by weighing the risk of unfair prejudice with its probative value. Wis. Stat. § 904.03. As in Miller, the trial court performed the proper balancing test and determined that the independent reason for flight was not unduly prejudicial. It held hearings on the flight motions and the record reflects a rational process in its decision to admit the flight evidence and instruction. In determining that the State could introduce evidence of Quiroz’s flight, it made efforts to minimize the prejudicial effect by also ruling that the details of the other charges, proffered by Quiroz as his independent reason for flight, could “not be gone into.” Thus, during trial, the only references to the other charges were those made by Quiroz stating he fled because he was arrested for “more charges” after he posted bail for the sexual assault and exploitation charges. The record reflects the trial court’s careful rationale. The admission of the flight evidence and instruction was a well-considered and proper exercise of the trial court’s discretion.

The court doubts “whether Quiroz has really set forth an independent reason for fleeing,” ¶22, besides which the evidence of guilt was so “overwhelming” any error re: flight evidence would have been harmless, ¶28. Hard to see, then, why the issue supports precedential resolution.
Unfair Prejudice, § 904.03 – Jury Exposure to Proof of Element of Prior Conviction for “Violent Crime” on Stalking Trial
State v. Michael A. Sveum, 2009 WI App 81, PFR filed 5/28/09
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding:
¶43      Sveum was convicted of aggravated stalking based on his 1996 stalking conviction. Proof of this particular aggravated stalking crime requires proof of a previous conviction for a violent crime or a stalking crime involving the same victim pursuant to Wis. Stat. § 940.32(3)(b). Sveum argues that the circuit court erred by admitting evidence of his prior stalking conviction after he had agreed to stipulate to the conviction. The legal basis for Sveum’s argument is difficult to discern, but he relies on State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), a case holding that a defendant’s prior drunk driving convictions should not have gone to the jury, even though proof of the prior convictions was necessary to prove the drunk driving charge at issue in that case. Whatever persuasive value Alexander may have had in a stalking case was put to rest in State v. Warbelton, 2009 WI 6, ¶40, __ Wis. 2d __, 759 N.W.2d 557. In Warbelton, also a stalking case, the court expressly declined to apply Alexander and held that Alexander applies only to drunk driving prosecutions. Warbelton, 2009 WI 6, ¶¶3, 46, 61. We are bound by Warbelton.
Unfair Prejudice, § 904.03 – Computer-Generated Animation – “Surprise” Use
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding:
¶11      The State submits that the computer-generated animation was intended as a demonstrative exhibit. The decision to admit or exclude demonstrative evidence is committed to the trial court’s discretion. [6] State v. Gribble, 2001 WI App 227, ¶55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a reasonable basis for its determination, this court must defer to the trial court’s ruling. Id. In exercising its discretion, the trial court must determine whether the demonstrative evidence is relevant, Wis. Stat. §§ 904.01 and 904.02, and whether its probative value is substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03. [7] Gribble, 248 Wis. 2d 409, ¶55; State v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App. 1998). We conclude that the trial court erred in its determination permitting admissibility of the exhibit.

¶12      The defendants did not have notice regarding the use of the computer-generated animation. While “surprise” is not a basis for exclusion under Wis. Stat. § 904.03, “testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12, 305 Wis. 2d 658, 741 N.W.2d 256, review denied, 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810 (Jan. 22, 2008) (No. 2006AP480) (citation omitted). For several reasons, the surprise in this case was coupled with the danger of prejudice and confusion.

Roy, which upheld admissibility of animation though adverse party not made aware of its intended use until 5th day of 8-day trial, distinguished (largely because there, it was introduced via expert as part of effort to depict theory of case, and here it was via non-expert as part of seeming effort to recreate alleged crime step by step), ¶¶12-18:
¶22      Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information—bits and pieces from each of the State’s witnesses when, mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.
Inadmissibility, then, comes under the overarching 904.03 rubric. Yet, the court also seems to suggest independent bases for inadmissibility, namely lack of personal knowledge, ¶16, foundation¸ ¶17, and authentication, ¶18. If, indeed, each such defect may be a “stand-alone” ground for inadmissibility of computer-generated animation, then you don’t always need the precise concatenation of defects that occurred in this case. Regardless, the holding is narrow in the sense that on the facts it’s limited to a lay witness’s attempt to recreate testimony.
Unfair Prejudice, § 904.03 – Jury Exposure to Proof of Element of Prior Conviction for “Violent Crime” on Stalking Trial
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: On a trial for stalking, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details); but may not bar altogether submission to the jury of the stipulation:
¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.

¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton's 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

That leaves the little matter of State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), which holds that on OWI trial, the existence of priors may be stipulated out of the jury’s sight and sound completely:
¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander's holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations. 

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, [19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant's propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

But: a few paragraphs earlier, the court canvassed “the legislative history of stalking statutes in Wisconsin and nationally,” ¶34, stressing widespread recognition that stalkers often commit increasingly … you guessed it, violent acts, ¶36. Nope, conviction of a prior violent crime, where there’s a general understanding of stalkers’ tendency toward escalating violence, would mean little if anything to the jury. We are left, then, with Alexander as sui generis; better than nothing, given that it could have been overruled.
Unfair Prejudice – Witness’s Reference to Knowing Defendant from Jail as Basis for Ability to Identify Him
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway:
¶47      Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart, 268 Wis. 2d 468, ¶14. The probative value of Marshall’s testimony was not outweighed by any danger of unfair jury prejudice. The theory of defense was misidentification. The nature of the prior contacts between Marshall and Cooks was relevant to show Marshall had a sound basis for making his identification of Cooks at the crime scene. Moreover, Cooks testified to having eight prior convictions. This would have reasonably suggested to the jury that Cooks probably had been incarcerated in the past and therefore detracts from any additional prejudice Marshall’s testimony provided.

¶48      Cooks also suggests that Barth could have stipulated that Marshall knew him from prior contacts and therefore prevented the jury from knowing that he had been in prison. However, even assuming Barth was deficient for failing to so stipulate, Cooks has not established prejudice. Again, the jury could have easily inferred that Cooks had been in prison from his own testimony regarding his eight criminal convictions.

Unfair Prejudice, § 904.03 – Misconduct Evidence, Marijuana Use -- § 940.10(1), Homicide by Negligent Operation of Vehicle
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle wasn’t unfairly prejudicial, ¶¶52-56.
Unfair Prejudice, § 904.03 – Misconduct Evidence, Child Sexual Assault
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶23      Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident. Given the obvious probable prejudice to the defendant, the probative value of the evidence to prove a legitimate fact of consequence—which is not proof of the defendant’s character—should be strong indeed.  The slim reeds of probative value identified above crumble here under the weight of prejudice to the defendant. 
§ 904.03, Balancing Test -- Richard A.P. Evidence
State v. Steven G. Walters, 2004 WI 18, reversing 2003 WI App 24
For Walters: David A. Danz
Issue/Holding:
¶16. ... The term "Richard A.P. evidence" comes from a decision of the court of appeals in which a defendant accused of molesting a child sought to introduce character evidence through the testimony of a psychologist. State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id. ... Additionally, the expert would testify that absent such a diagnosable disorder, it was unlikely that such a person would molest a child. Id.

¶25. Richard A.P. evidence, like other expert evidence, is subject to the requirements of the rules governing the admissibility of evidence. These include not only the rules governing character evidence and expert testimony, but also Wis. Stat. § 904.03, the rule governing the exclusion of otherwise relevant evidence.

¶36. [T]he record supports the circuit court's conclusion that the minimal probative value of Walters's proffered expert testimony was substantially outweighed by the danger that the issues would be confused and the jury would be misled. ...

¶37. Here, due to the victims' late reporting, there was a six-year gap between the first alleged assault and Wakefield's evaluations. During the time frame when the assaults occurred, Walters had a drinking problem. However, when Wakefield evaluated him, he told her that he was no longer drinking and no longer believed that he had a problem with alcohol. At the offer of proof hearing, Wakefield testified that the tests administered assess personality, and that personalities are generally consistent, but can be altered by the consumption of alcohol. She indicated that her test results did not take into account whether the alleged assaultive behavior was triggered by alcohol consumption. This circumstance further minimized the probative value of the expert testimony.

¶42. Thus, we determine that there is neither a blanket restriction of Richard A.P. evidence nor is it compelled. Rather, courts must scrutinize such evidence on a case-by-case basis to assess admissibility. Such evidence has probative value in sexual assault cases where there often is no neutral witness to the assault and seldom any physical evidence implicating the defendant. Davis, 254 Wis. 2d 1, 18. Moreover, it may be of special importance to the jury by helping it to determine whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence. Id.

(A § 904.03 inquiry is necessarily fact-specific. In this instance, perhaps the single most important fact is that the expert "would not have offered any conclusions as to Walters's propensity to commit sexual assault." ¶38. Moreover, the expert's testimony would have been quite lengthy (the offer of proof "consumed approximately 165 pages of transcript over three days of hearing") in comparison to the "testimonial portion of Walter's trial (one day), ¶40 -- which created a significant risk of juror confusion, ¶41.)
§ 904.03, Unfair Prejudice -- Autopsy Photo
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding:
¶34. Whether photographs are to be admitted is a matter within the trial court's discretion. State v. Lindvig, 205 Wis. 2d 100, 108, 555 N.W.2d 197 (Ct. App. 1996). We will not disturb the court's discretionary decision "unless it is wholly unreasonable or the only purpose of the photographs is to inflame and prejudice the jury." Id. (citing State v. Hagen, 181 Wis. 2d 934, 946, 512 N.W.2d 180 (Ct. App. 1994)). "Photographs should be admitted if they help the jury gain a better understanding of material facts and should be excluded if they are not `substantially necessary' to show material facts and will tend to create sympathy or indignation or direct the jury's attention to improper considerations." Ellsworth v. Schelbrock, 229 Wis. 2d 542, 559, 600 N.W.2d 247 (Ct. App. 1999) (citing Sage v. State, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979)).

¶35. Pfaff argues that the evidence was cumulative because he did not dispute Naumann's identity. However, Lindvig rejected the argument that a defendant's willingness to stipulate to an element could render photographs inadmissible. Lindvig makes clear that even when a party is willing to stipulate to an element, "[e]vidence is always admissible to prove an element of the charged crime even if the defendant does not dispute it at trial." Lindvig, 205 Wis. 2d at 108 (citation omitted).

¶37. We conclude that the trial court's decision to admit an autopsy photograph of Naumann was not wholly unreasonable. We further conclude that the purpose of the photograph was not to inflame or prejudice the jury, and Pfaff concedes that the photo is not "particularly graphic or gory in detail." The State was entitled to present the evidence as proof of an essential element of the charged crime. We therefore uphold the admission of the autopsy photograph.

Probative Value vs. Prejudicial Effect, § 904.03 – Extraneous Misconduct – Cautionary Instruction
State v. John P. Hunt
, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶72. In determining whether a piece of evidence is unfairly prejudicial, we have held that cautionary instructions help to limit any unfair prejudice that might otherwise result. Plymesser, 172 Wis. 2d at 596-97.

¶73. Contrary to Hunt's argument and the court of appeals' decision, the circuit court offered proper cautionary instructions on the other-acts evidence. Accordingly, any unfair prejudicial effect caused by the admittance of the other-acts evidence was substantially mitigated by the circuit court's cautionary instructions to the jury.

¶74. As noted before, the circuit court's cautionary instructions to the jury specifically told the jurors that they should not conclude from the evidence that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character. After listing proper purposes for which the jury could consider the other-acts evidence, the circuit court specifically instructed the jury that it should not conclude from the other-acts evidence that the defendant was a "bad person."


§ 904.04 -- MISCONDUCT

§ 904.04(1)(a)

Character Evidence -- "Pertinent Trait" and Relevance
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue/Holding:
¶16. The rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Under our rules of evidence, a defendant may introduce "pertinent trait[s]" of his or her character as evidence. Wis. Stat. § 904.04(1)(a). "Pertinent" refers to the relevance of the traits. 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 404.4, at 133 (2d ed. 2001). Thus, like all admissible evidence, character evidence must be relevant to the facts at issue. Relevancy has two facets: (1) the evidence must relate to a fact or proposition that is of consequence to the determination of the action and (2) the evidence must have probative value, that is, a tendency to establish those consequential propositions. Id. at § 401.1 at 82. A defendant may introduce such relevant character evidence through opinion testimony. Wis. Stat. § 904.05(1).

§ 904.04(1)(b)

Self-Defense – “McMorris” Acts of Prior Violence by Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to "prov[e] prior specific instances of violence within [the defendant's] knowledge at the time of the incident."  State v. Wenger, 225 Wis. 2d 495, 507, 593 N.W.2d 467 (Ct. App. 1999) (quoting McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973)); see also Wis. Stat. §§ 904.04 and 904.05(2).  It is also well established that admissibility of evidence proffered to show the reasonableness of the self-defense claim is within the circuit court's discretion.  State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  As with any "other acts evidence," the evidence is subject to the application of the balancing test involving the weighing of probative value against the danger of unfair prejudice, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Wis. Stat. § 904.03.  Assuming its probative value outweighs such considerations, we have in previous cases established the defendant's right to put on such evidence once a factual basis has been set forth for a self-defense claim, and also established the circuit court's responsibility to vet the evidence prior to admission to be sure it is valid McMorris evidence.  See, e.g., McAllister v. State, 74 Wis. 2d 246, 246 N.W.2d 511 (1976).  The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence's admissibility can be weighed not only prior to admission, but also prior to trial.
Self-Defense – Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26      Given the limited nature of the evidence covered in this order——that is, the requirement that McClaren give notice of the specific McMorris evidence he wants to introduce and which he was aware of on the night of the incident——this order fits comfortably into Wis. Stat. § 906.11's description of the court's sphere of control.  The court is, in fact, required to "exercise reasonable control" over the "present[ation of] evidence" so that it can be done effectively and with minimal wasted time.  See State v. Wallerman, 203 Wis. 2d 158, 168, 552 N.W.2d 128 (Ct. App. 1996).  Both concerns were specifically mentioned by the circuit court with regard to this order.  This is precisely the type of admissibility of evidence questions that circuit courts should be attempting to resolve in advance of trial. [9]

¶28      Under the circumstances presented here, where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat. § 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.

The disclosure order is constitutional: the court analogizes to alibi-disclosure, Williams v. Florida, 399 U.S. 78 (1970), ¶35, while stressing that the trial court’s order “absolutely required” reciprocal prosecutorial disclosure, ¶¶38-39. As for enforcement of the order, guidance is taken from Taylor v. Illinois, 484 U.S. 400 (1988):
¶43      We agree with the State.  The United States Supreme Court has established a test for excluding evidence and has said that under certain circumstances, exclusion of evidence does not violate a defendant's constitutional rights.  There are sanctions short of excluding evidence, of course.  The Court cited a case, for example, that "[gave] consideration to the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful."  Taylor, 484 U.S. at 415 n.19 (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)).  However, as Taylor makes clear, even the sanction of excluding evidence against a defendant is constitutionally permissible in certain cases, such as where there have been willful violations "motivated by a desire to obtain a tactical advantage."  Taylor, 484 U.S. at 415.

¶44      As we noted above, Taylor states well the balancing of interests that goes into a court's oversight of a trial:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor.  But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.  The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.
Id. at 414-15 (emphasis added).

¶45      Whether a violation merits the extreme sanction of exclusion must be determined by a circuit court after a violation has occurred, and under the parameters set forth by the United States Supreme Court in Taylor.

¶50      … It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence," the test set forth in Taylor.

Potentially vast as the implications might be, it is probably wise to treat the holding as narrow, a mere matter of the timing of something that would have to be disclosed sooner or later anyway.
Self-Defense - "McMorris" Acts of Prior Violence by Victim - Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court's denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren't within the state's possession; disclosure isn't limited to mental health records; and, § 971.23(1)(h) exculpatory evidence analysis isn't relevant to the materiality inquiry. ¶¶9-10. Materiality in this case relates to supporting self-defense, in particular proof of the victim's prior acts of violence within the defendant's knowledge. ¶13. Navarro's assertions, though general, sufficed to require an evidentiary hearing on materiality, as prelude to in camera inspection (though greater specificity will be required at the hearing). ¶¶13-17.
Self-Defense -- "McMorris" Acts of Violence by Victim
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶123. We conclude that evidence of a victim's violent character and of the victim's prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense. Such evidence may be probative of a defendant's state of mind and whether she actually believed that an unlawful interference was occurring, that danger of death or great bodily harm was imminent, or that she needed to use a given amount of defensive force to prevent or terminate the unlawful interference. In determining any of these issues, the circuit court should consider all the evidence proffered.
The deceased's verbal threats and physical violence against both the defendant and others, though not contemporaneous with the charged event, "was clearly sufficient to raise the issue of imperfect self-defense" and to require both the admission of at least some of this McMorris evidence and a jury instruction on imperfect self-defense. ¶¶138-141.

§ 904.04(2)

Construction -- General
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶11. Wisconsin Stat. § 904.04(2) evidence may be offered in a criminal trial or a civil suit. State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998) and Daniel B. Blinka, Evidence of Character, Habit and "Similar Acts" in Wisconsin Civil Litigation, 73 Marq. L.Rev. 283, 289 (1989). It has been offered to prove the character of a person: (1) for the impermissible purpose of implying that the person committed a disputed past act6 that is consistent with his or her character, or (2) for a permissible purpose, such as showing the person acted with a plan, motive, absence of mistake.7 Its use is carefully regulated when the other acts are "bad acts" because the admission of such evidence may imply that the defendant is a bad person. Whitty v. State, 34 Wis. 2d 278, 292-97, 154 N.W.2d 557 (1967). As we said in Whitty, when other acts evidence is admitted, there can be "an overstrong tendency" to believe that a defendant is guilty of the crime charged simply because he or she is the kind of person who is likely to act a certain way, or that the defendant should be punished now, not necessarily for the crime charged, but because the defendant may have escaped punishment for a previous offense. Id. at 292.

For authority to the effect that “the supreme court [has] moved directly to an analysis of the legislative intent by looking to resources traditionally reserved for ambiguous statutes.” Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶14.

Construction -- General
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶14. … [I]n ch. 980 proceedings, the fact finder must necessarily consider a respondent's "relevant character traits and patterns of behavior, and the likelihood that any problematic traits or propensities have been or can be modified" in order to assure the safety of the community at large and the person himself.9 To look forward, we must necessarily look back. From this we conclude that Wis. Stat. § 904.04(2) is not applicable when evaluating the admissibility of evidence that is offered in a ch. 980 proceeding.
Burden of Proof
Burden of Proof -- Prior Acquittal of Misconduct
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: Prior acquittal of sexual assault didn’t prevent admissibility of testimony from that trial: the test is whether a reasonable jury could find by preponderance of the evidence that the defendant committed the misconduct, State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36, 41 (Ct. App. 1995), and despite the prior acquittal the jury could reasonably draw such a conclusion. ¶48.

Inadequate Trial Court Reasoning

Inadequate Trial Court Reasoning on Admissibility -- Review -- Remedy
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶43. The State maintains that the court of appeals erred in interpreting Sullivan. We agree. Sullivan does not state, as the decision of the court of appeals suggests, that in situations where the circuit court fails to set forth a detailed analysis for admitting or excluding other-acts evidence, the reviewing court should summarily reverse all counts. Here the circuit court did explain its reasons for the admission of other-acts evidence, but it could have provided a more detailed Sullivan analysis for the decisions made.

¶44. Rather, Sullivan requires that the circuit court "articulate its reasoning for admitting or excluding the evidence, applying the facts of the case to the analytical framework." Sullivan, 216 Wis. 2d at 774. A circuit court's failure to delineate, with sufficient detail, the factors that influenced its decision in admitting other-acts evidence would seem to be contrary to the requirements we set forth in Sullivan. That case declared that ordinarily the appropriate recourse for the court of appeals should be to review the record independently, to determine the existence of a reasonable basis for the circuit court's discretionary decision. As noted in Sullivan:

A circuit court's failure to delineate factors that influenced its decision constitutes an erroneous exercise of discretion. When a circuit court fails to set forth its reasoning, appellate courts independently review the record to determine whether it provides a basis for the circuit court's exercise of discretion.
Id. at 781 (citations omitted).

Inadequate Trial Court Discretion -- Review
State v. James E. Gray, 225 Wis.2d 39, 590 N.W.2d 918 (1999), affirming unpublished decision.
For Gray: Helen M. Mullison.
Issue/Holding: Gray was tried and convicted and attempting to obtain controlled substances by misrepresentation. The prosecution was allowed to introduce evidence of prior incidents of obtaining controlled substances by misrepresentation. The court upholds admissibility, on various grounds. The circuit court provided no reasoning for its conclusion, and the supreme court therefore independently reviews the record to determine whether "it provided a basis for the circuit court's exercise of discretion in admitting the other acts evidence." This is a two-step process: existence of permissible purpose, and relevance. The court concludes that the other acts evidence related to the permissible purposes of identity (sufficient similarity of shared features to "constitute the imprint of the defendant"); plan/scheme (individual manifestations of general plan to obtain prescription drugs through forged prescriptions); motive (to deceive pharmacist and satisfy drug addiction); absence of mistake (similarity of other acts to charged act tends to undermine Gray's innocent explanation). Gray's argument on relevance focuses on whether he was sufficiently connected to the prior acts. This function of relevance requires that the circuit court neither weigh credibility nor determine whether the state proved the connection - the question, rather, is whether a reasonable jury could find so by preponderance of the evidence. That test is met here. Finally, the evidence was not "unfairly prejudicial."

"Sullivan" Analysis -- Particular Examples

§ 904.04, Applicability of “Sullivan” Analysis – Evidence of Drug House not Extraneous Misconduct but Proof of Element
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff
Issue/Holding:

¶29      Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered. Carter also testified that on May 27, 2004 (approximately one month before the search warrant was executed), a person later identified as McAdams pulled up in a van, entered the building, left two minutes later and drove off, in response to which he and his partner followed the van, eventually stopped it due to a traffic violation, and searched it. At this point defense counsel objected, and, after much discussion, the trial court decided to disallow any more evidence about McAdams.

¶30      Dukes mischaracterizes the evidence as other acts evidence. The evidence was not evidence of another act by Dukes, was not introduced for any of the purposes listed in Wis. Stat. § 904.04(2), and was certainly not an impermissible attempt to introduce character evidence about Dukes. Rather, the evidence was introduced to show that Apartment 1 at 450 North 33rd Street was indeed a drug house. This was an element of count three, maintaining a drug house, see Wis. Stat. § 961.42(1), with which Dukes was charged. Thus, even though Dukes erroneously categorizes the evidence as other acts evidence, we disagree with his contention that the evidence was irrelevant because introducing evidence to show that a drug house existed was central to the charge of maintaining a drug house. See State v. Hammer, 2000 WI 92, ¶25, 236 Wis. 2d 686, 613 N.W.2d 629 (evidence relevant to charged crime is admissible).

¶31      We are also not convinced by Dukes’s claim that the evidence was unfairly prejudicial under Wis. Stat. § 904.03. “Unfair prejudice arises either when the evidence admitted has a tendency to influence the outcome of the jury deliberations by the use of improper means, or when it arouses in the jury a sense of horror or desire to punish.” State v. Opalewski, 2002 WI App 145, ¶23, 256 Wis. 2d 110, 647 N.W.2d 331. The evidence presented by Carter informed the jury of police surveillance of 450 North 33rd Street, that the behavior they had observed was consistent with the operation of a drug house, and that they searched a car because they suspected that it contained drugs purchased from 450 North 33rd Street and their suspicions were confirmed. In presenting the evidence, the State did not use improper means or arouse a sense of horror or a desire to punish. See id. Moreover, any potential for unfair prejudice was further diminished when the testimony about McAdams’s drug purchase was cut short by the judge in response to a defense objection

Particular Examples of Misconduct, § 904.04(2) – Bias of Prosecution Witness
State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen
Issue: Whether evidence of police officer Mucha's mistreatment of a 3rd-party (Scull) in an otherwise unrelated but similar instance was admissible to further defendant Missouri's claim that Mucha was untruthful in denying physical abuse against and planting evidence on Missouri.
Holding: This evidence satisfied the three-part test of  State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998) (1. acceptable purpose; 2. relevance; 3. probative value not substantially outweighed by unfair prejudice).
Acceptable purpose.
Although “Scull’s testimony could not be admitted for the purpose of showing that because Mucha mistreated Scull, he also must have mistreated Missouri ..., § 904.04 does allow character evidence to be admitted for other purposes,” ¶14:
¶15      Specifically, “other-acts” character evidence can be admitted to show “proof of motive … intent … or absence of mistake or accident.” WIS. STAT. § 904.04(2).  It can also be admitted to show the bias or prejudice of a witness.  State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978). Here, the defense wanted to introduce Scull’s testimony to show that Mucha had a motive to lie and cover up what he had done, and that this was intentional, not the result of mistake or accident. The Scull evidence would also be used to show that Mucha intended to frame Missouri for a crime, which occurred because Mucha’s prejudice toward black people causes him to commit physical assaults and use excessive force. We conclude that the Scull evidence satisfied the “other purpose” prong of the Sullivan test.
Relevance.
¶16      We also conclude that the Scull evidence was relevant to a consequential fact. Here, the Scull testimony is very similar in substance and time to what occurred in the instant case. The Scull testimony would be very relevant in questioning Mucha’s credibility and truthfulness. It would be relevant to show that Mucha had a motive to lie about what happened between him and Missouri, that Mucha had the intent to frame Missouri for a crime he did not commit, and that Mucha’s conduct was not an accident. Thus, we also conclude that the second prong of the Sullivan test is satisfied.
Unfair prejudice.
¶17      The final prong addresses whether the probative value of the Scull testimony would be substantially outweighed by the danger of unfair prejudice, waste of time or confusing the jury. See WIS. STAT. § 904.03. Would it unfairly prejudice the State to allow Scull’s testimony? We think not. The State, like this court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a State’s witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether the officer or the defendant is telling the truth. It is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder.
Missouri's break. But it might be worth recalling that “bias or prejudice of a witness is not a collateral issue[,] and extrinsic evidence may be used to prove that a witness has a motive to testify falsely,”  State v. Tito J. Long, 2002 WI App ¶18, quoting  State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978); also,   State v. Jon P. Barreau, 2002 WI App 198, ¶51 (potential bias of witness relevant). This case seems to be a variation on that theme, illustrating if nothing else the idea that there are fewer restrictions on evidence of bias than on other types of “character” evidence. Nonetheless, the fact that the court engages full-blown Sullivan  analysis before finding admissibility is potentially problematic, and if nothing else raises the question of when that test must be satisfied where the claim is one of bias. Certainly Missouri's claim is a bit more removed than most, in that bias was arguably indirect (as opposed to, say, a prior hostile relationship between witness and defendant). But that distinction isn’t entirely satisfying. Long is instructive. There, the State sought to show that defense witness were gang members and thus sworn to “a street code of silence among gang members in relating to police.” The court did not bother with Sullivan analysis, but instead hinged admissibility merely on the fact that the witness was affiliated with the gang, ¶19. Again: evidence of bias is always relevant. Proving it, of course, is something else. And when you get right down to it, proof of bias in Long was “indirect.” What, then, of Missouri? His argument was apparently a very narrow one, and perhaps that explains the holding:
¶22      In addition, “[t]he bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely.”  Williamson, 84 Wis. 2d at 383. The defense here argued that Mucha had a bias or prejudice against black people who were not immediately compliant with his orders. Thus, that bias/prejudice can be explored through extrinsic evidence to attack Mucha’s character. As long as this evidence is direct and positive and not remote and uncertain, it may be received to discredit the testimony of the witness.  See id. at 383 n.1. Here, we are convinced that the Scull testimony satisfies these requisites. Thus, we conclude that the trial court erroneously exercised its discretion in refusing to allow the defense to present its witnesses who would have attacked the credibility of Officer Mucha. The jury should hear the defense witnesses so that it can make a fair and informed determination as to what truly happened in this case.
You would think, too, that a cop's statement, “I can come over here any time I want, nigger," ¶6, establishes bias a bit deeper than against merely non-compliant African-Americans. (Missouri's race isn't explicitly noted in the opinion, but CCAP confirms that he's African-American.) Why isn't the epithet alone enough to show that Scull had a demonstrative animus against African-Americans? And if that's so, then why isn't that alone enough to support admissibility. (It might also have been said that the mere multiplicity of instances of misconduct increased the risk of job loss, thus creating an additional incentive to lie.) But without knowing the record it is impossible to say for certain. If the claim is one of bias against the non-compliant, then it will surely be necessary to show a closely similar instance of non-compliance. And if that is all that Missouri argued, then the court’s analysis is understandable. But the the court's stress on defense proof of something “very similar in substance and time to what occurred in the instant case” is potentially problematic if meant to apply generally to claims of bias; at the least, the holding shouldn't be extended beyond these very particular facts. (The court also holds admissible on grounds of newly discovered evidence, four other instances of similar misconduct involving Mucha, ¶¶23-25; the court essentially incorporates the same analysis: "closeness in time, the similarity of" facts.)
Particular Examples of Misconduct, § 904.04(2) – Recognizance Bond as Documentary Proof of Defendant's Connection to Place Where Drugs Founds – Criminal History Generally Inadmissible
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding: A document, identified to the jury as “recognizance of bond in a criminal case … by the defendant,” found in the same room as a controlled substance and meant to show his connection to the drug, was inadmissible:
¶82      Criminal History Generally Inadmissible. Ordinarily evidence of a defendant's criminal history is not admissible because when such evidence is admitted, there can be an "overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts" and because of "the confusion of issues which might result from bringing in evidence of other crimes." [38] Evidence of a defendant's criminal history may serve as "an invitation to focus on an accused's character" and to "magnif[y] the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged." [39]

¶86      … We agree with the State, defense counsel, and the circuit court, concluding that the State improperly introduced evidence of the defendant's criminal history when the State called the jury's attention to a recognizance bond bearing the defendant's name and when a State witness referred to the bond as "a court bail bond, some kind of court paperwork for [the defendant]" and then a "recognizance of bond in a criminal case . . . a posting of $1,000 by the defendant."

The court finds the error to be harmless, ¶¶87-90.
Particular Examples of Misconduct, § 904.04(2) – Intent -- Child Abuse
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding: Other acts evidence that on two prior occasions the defendant, while disciplining her child, had struck the child with sufficient force to cause injury and require government intervention, was relevant and admissible under § 904.04 to prove the intent element of the charged offense of abuse of a child, § 948.03(2)(b), and also to disprove the defense of reasonable discipline. ¶¶38-41.
Misconduct Evidence, § 904.04 – Particluar Examples: “Context” – Possession of Drugs and Guns, to Refute Self-Defense
State v. Tony Payano, 2009 WI 86, reversing 2008 WI App 74
For Payano: Patrick Cavanaugh Brennan
Issue: Payano was convicted of shooting at police officers who entered his apartment under a no-knock warrant; he claimed self-defense (i.e., defending himself against unknown armed intruders); over objection, the State presented an informant’s testimony that the day before he had been at Payano’s apartment and seen Payano with drugs and a handgun: the issue is whether this testimony was properly admitted to provide “context” for the event.
Holding1:
¶65      The question that inevitably occurs to an outsider looking at this shooting is why Payano shot at the door. This implicates Payano's claim of self-defense. It also implicates his motive and knowledge. Motive and knowledge are both enumerated purposes for the admission of other acts evidence under Wis. Stat. § 904.04(2).

¶66      Payano has never asserted that the other acts evidence was not offered for a proper purpose. In fact, in his brief to this court, Payano explicitly acknowledges that "these are acceptable purposes for offering 'other acts' evidence." The circuit court did not erroneously exercise its discretion on the issue of purpose.

Holding2:
¶72      As the circuit court's ruling makes clear, the central dispute at trial was whether Payano acted reasonably in self-defense and defense of others when he shot Officer Lutz——whether he knew or should have known it was the police at the apartment door when he shot the gun. In other words, as the State argued, "the jury needed to decide between two competing motives for the shooting: to protect his family, as Payano argued; or to buy time to hide drug evidence, as the State argued." (Emphasis added.) Payano's entire defense theory was premised on the fact that he acted reasonably to protect himself and his family when he shot Officer Lutz. Hence, what Payano knew or reasonably believed at the time of the shooting was paramount to the "determination of the action." Wis. Stat. § 904.01; Sullivan, 216 Wis.  2d at 772; see also Wis. Stat. § 939.48 (1) and (4).

¶75      In sum, Kojis's testimony and the information he provided to Officer Lutz was offered by the State to undermine Payano's claim of self-defense and defense of others by offering an alternative theory of the case, that Payano's shooting of Officer Lutz was criminal rather than privileged. Consequently, the State's other acts evidence satisfies the first prong of the relevancy analysis because it was offered to help prove a "fact [or proposition] that is of consequence to the determination of" Payano's guilt or innocence. Wis. Stat. § 904.01.

¶76      The other acts evidence satisfies the second prong of the relevancy test as well, because its admission made the State's claim——that Payano shot the gun to deter the police from entering the apartment so that he would have time to get rid of drugs——more probable than it would have been without the evidence, and it made Payano's claim——that he shot the gun to protect himself and his family——less probable than it would have been without the evidence. See Wis. Stat. § 904.01; Sullivan, 216 Wis. 2d at 772; Blinka, supra, § 404.6 at 181; see also Sullivan, 216 Wis. 2d at 784 ("Evidence of other acts may be admitted if it tends to undermine an innocent explanation for an accused's charged criminal conduct."); Kourtidias, 206 Wis. 2d at 582 ("[T]his other acts evidence was very relevant to this theory of defense.").

Holding3:
¶93      There is no denying that the other acts evidence regarding a gun and a large amount of cocaine being present at Payano's apartment the day before the shooting may have caused the "the jury [to] draw the forbidden propensity [or character] inference." Blinka, supra, § 404.6 at 185. It is certainly plausible that some members of the jury may have decided to convict Payano based on "improper means" upon hearing the other acts evidence. See Sullivan, 216 Wis.  2d at 789-90; Johnson, 184 Wis.  2d at 340 (citing Christensen, 77 Wis.  2d at 61).

¶94      Having said that, this is not a classic case of unfair prejudice, like McGowan, where the other acts evidence is so similar in nature to the charged act that there is danger the jury will simply presume the defendant's guilt in the current case. See McGowan, 291 Wis.  2d 212, ¶¶1-2, 9-10, 23. Moreover, the danger of unfair prejudice is not as great as it would be if the other acts evidence were used to prove Payano's identity or that he committed the charged offense. Cf. Whitty, 34 Wis. 2d at 294 ("[T]he standards of relevancy should be stricter when prior-crime [or other acts] evidence is used to prove identity or the doing of the act charged than when the evidence is offered on the issue of knowledge, intent or other state of mind. McCormick, Evidence (hornbook series), p. 331, sec. 157."). Although we cannot say that the other acts evidence presented no danger of unfair prejudice to Payano, the danger was not exceptionally high given the nature of the evidence compared with the nature of the charged offense.<

¶95      Instead, similar to the other acts evidence offered in Pharr and Johnson, the evidence offered by the State in this case is directly linked and necessary to the determination of Payano's guilt. …

¶103    The court limited the use of the evidence to "a very narrow point"——namely, as proof that Payano shot the gun, knowing that the police were at the door, so that he could get rid of drugs——and there is no suggestion that the evidence was used for any reason beyond that "very narrow point." In fact, the court of appeals makes mention in two different paragraphs of its opinion that the State did not use the evidence for any improper purpose. See Payano, 312 Wis.  2d 224, ¶¶31, 35 ("[T]he prosecutor complied with the trial court's restriction . . . .").

¶104    Although the lack of a cautionary instruction may be the deciding factor in some cases of whether the evidence is admissible under Wis. Stat. § 904.03, see Wis JI——Criminal 275 at 3, that is not the situation here because the probative value of the evidence far outweighed its danger of unfair prejudice, with or without a limiting instruction, see supra, ¶¶93-98.

Particular Examples of Misconduct, § 904.04(2) – “Context”
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶58. First, the circuit court could reasonably have concluded, as it did, that the other-acts evidence was admissible for the purpose of establishing context. Other-acts evidence is permissible to show the context of the crime and to provide a complete explanation of the case. Pharr, 115 Wis. 2d at 348-49; Shillcutt, 116 Wis. 2d at 236. The context of other-acts evidence in this case provided insight as to the unique circumstances in the Hunt household. The other-acts evidence provided an understanding of the abuse that took place in the home, and the authority and control Hunt possessed over Ruth, Angelica, and the children living with them. Moreover, the other-acts evidence of abuse toward Ruth, and drug use, provided a context in which the jury could understand the victims' and witnesses' fear of the defendant and their pattern of recantations.
Particular Examples of Misconduct, § 904.04(2) – “Victim's State of Mind”
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:  
¶59. The other-acts evidence was permissible to show the victims' state of mind, to corroborate information provided to the police, and to establish the credibility of victims and witnesses in light of their recantations. Such purposes have been held to be permissible purposes in Wisconsin. See State v. C.V.C., 153 Wis. 2d 145, 450 N.W.2d 463 (Ct. App. 1989) (holding that the other-acts evidence that husband had been charged with false imprisonment and sexual assault of his wife and had threatened his wife's life some two years earlier was properly admitted for limited purpose of showing the wife's state of mind on issue of whether she consented to acts of sexual intercourse); Kluck v. State, 223 Wis. 381, 389, 269 N.W. 683 (1936) (holding that, where other criminal acts are so connected with the offense charged that their commission directly tends to prove some element of the latter, such as guilty knowledge, or some specific intent, evidence of such other acts is admissible to explain or to corroborate the evidence showing the act charged); State v. Schaller, 199 Wis. 2d 23, 43, 544 N.W.2d 247 (Ct. App. 1995) (holding that evidence of the defendant's abuse of his child in a public park as testified to by third-party witnesses was admissible to illustrate extent to which his wife would go to extricate her husband, the defendant, from potential criminal prosecution and to assist jury in evaluating whether the wife was being truthful when she later recanted sexual assault charges against husband). While only mentioned in the cautionary instructions given, preparation or plan was also a permissible purpose for admission of other-acts evidence.
Particular Examples of Misconduct, § 904.04(2) – “Opportunity and Motive”
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶60. Next, the circuit court could reasonably have concluded that the other-acts evidence was admissible for the purpose of establishing opportunity and motive. When a defendant's motive for an alleged sexual assault is an element of the charged crime, we have held that other crimes evidence may be offered for the purpose of establishing opportunity and motive. State v. Davidson, 2000 WI 91, ¶57, 236 Wis. 2d 537, 616 N.W.2d 606 (citations omitted). As noted before, Hunt was charged with two counts of first-degree sexual assault of a child (Wis. Stat. § 948.02(1)), one count of repeated sexual assault of the same child (Wis. Stat. § 948.025(1)), one count of first-degree sexual assault resulting in the pregnancy of a child (Wis. Stat. § 940.225(1)(a)), one count of exposing a child to harmful materials (Wis. Stat. § 948.11(2)(a)), and one count of second-degree sexual assault by use of force (Wis. Stat. § 940.225(2)(a)). As such, five out of the six crimes Hunt was charged with related to sexual assault. There is no doubt that sexual assault, involving either sexual contact or sexual intercourse, requires an intentional or volitional act by the perpetrator. See State v. Olson, 2000 WI App 158, ¶6-12, 238 Wis. 2d 74, 616 N.W.2d 144. As an example, under Wis. Stat. § 948.01(5)(a), sexual contact is defined as:
Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.
The other-acts evidence was properly admitted to prove motive because purpose is an element of sexual assault, and motive and opportunity are relevant to purpose. State v. Plymesser, 172 Wis. 2d 583, 593-96, 493 N.W.2d 376 (1992). Thus, Hunt's motive or opportunity for allegedly touching or having intercourse with Tiffany J. was part of the corpus of the crimes charged, and evidence relevant to the motive or opportunity was therefore admissible. Id.
Particular Examples of Misconduct, § 904.04(2) – Motive and Intent -- Videotapes Depicting Sex Acts by Young Females -- Relevance to Child-Enticement
State v. Gabriel DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. Derango, 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether the trial court properly admitted, as misconduct evidence relevant to motive and intent on child enticement-related charges, depictions of sex acts by young females on videotapes found in the defendant's home.
Holding: Following the methodology required by State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the videotapes were relevant and highly probative (based on strong similarities to charged offenses) and, given the sensitive nature of the charges in the first place along with a proper cautionary instruction on use of the tapes, weren't unfairly prejudicial. ¶¶37-47.
Particular Examples of Misconduct, § 904.04(2) -- (Non-)Consent & State v. Alsteen
State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak
Issue: Whether the holding of State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982) (re sexual assault where the defendant admits the act but claims consent: prior sexual misconduct has no probative value) imposes an absolute bar against admissibility of prior other-acts to prove the contested issue of consent.
Holding:
¶20. Although, as the supreme court explained, consent, in the context of sexual conduct, "is unique to the individual," id., and although, therefore, the prior non-consent of one person to sexual contact may not be introduced solely to prove the non-consent of another person to sexual contact, the preclusion of such other-acts evidence is not absolute. Where, as here, the other-acts evidence of non-consent relates not only to sexual contact but also to a defendant's modus operandi encompassing conduct inextricably connected to the strikingly similar alleged criminal conduct at issue, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident under Wis. Stat. § 904.04(2).

¶21. In this case, the trial court recognized that, while the assaults of Daryl and Mary differed in some respects, they shared what the court termed "some strong similarities ... in terms of the person representing [himself to be] a police officer and the basic act of physical and sexual degradation." Noteworthy, also, was Ziebart's vigilante-like modus operandi; his determination to deal with "crack whores," in Mary's assault, and "drug addicts," in Daryl's.

...

¶24.... Where, as here, a defense of consent is inextricably connected to a defendant's conduct surrounding and including sexual contact, and where other-acts evidence is probative of a modus operandi rebutting that defense, Alsteen does not preclude an instruction advising the jury that it may consider the evidence on the issue of whether an alleged victim consented to the defendant's conduct.6

¶25. We also acknowledge that the authorities are divided on this issue.7 And we recognize that, in this case, the trial court could have accurately instructed the jury without using the words "consent" or "non-consent." Thus, we go on to explain why, even if we were troubled by a jury instruction that might seem inconsistent with Alsteen, we would conclude that any possible error was harmless.


6 Ironically, in the instant case, an important difference between the two assaults-the gender of the victims-further supports our decision. Mary, a woman, was confronted by Ziebart who sexually assaulted her and, in vigilante fashion, claimed to be ridding the streets of "crack whores," and pretended to be a police officer. Evidence of Ziebart's strikingly similar attack on Daryl, a man, was highly probative. Indeed, the "uniqueness" of non-consent would seem to recede as Ziebart maintained his modus operandi regardless of the gender of his victims.

7 See Sheri B. Ross, Yes or No to Consent? Conforming Rule 404(B) to Society's New Understanding of Acquaintance Rape, 48 U. Miami L. Rev. 343, 366-67 (1993) ("Corroborative evidence both reduces the possibility that the victim is lying and increases the probability that the defendant committed the crime.... Under this standard, the defendant's prior conduct [of committing sexual assaults] says something about the victim's present conduct-that she is not lying.... This inference does not imply that simply because one woman refused, this woman also refused. [Rather,] [i]t is [the defendant's] prior conduct that makes it more likely that she[, the victim here,] did not consent to sexual intercourse."). But see State v. Mitchell, 633 N.W.2d 295, 299-300 (Iowa 2001) (concluding that use of other-acts evidence from another victim of child sexual abuse cannot be used to bolster the complainant's credibility and corroborate her testimony); accord State v. Glodgett, 749 A.2d 283, 693-96 (N.H. 2000).

(If any error would indeed be harmless then this discussion should be dicta. Should be, but won't be treated that way. To belabor the obvious: § 904.04(2) misconduct has slowly but surely become a rule of inclusion rather than exclusion, despite occasional rhetorical nods in the latter direction. In child sexual assaults the "greater latitude" rule is firmly entrenched. If there was a modest bar, it was the Alsteen inhibition on prior misconduct to prove consent in adult sexual assault trials. No more. The court does take pains to retain this prohibition where the evidence is offered "solely" to prove non-consent, and that is where the battles will have to be fought. The court also pays lip service to the idea that the misconduct has to "encompass[] conduct inextricably connected to the strikingly similar alleged criminal conduct at issue" (emphasis supplied) - whether trial courts will observe that limitation remains to be seen. And when you get right down to it, after the evidence has come in for identity, plan, motive, intent, etc., what difference does it make if it also comes in for consent?)
Particular Examples of Misconduct, § 904.04(2) -- Prior Child Abuse -- Trial on Homicide of Child
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether evidence of prior child abuse, both to the immediate victim and another child, was properly admitted in a trial on homicide of a child.
Holding: There was sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the defendant committed the various prior acts. ¶¶41-47. The evidence of abuse to the other child was sufficiently similar and close in time to support admissibility. ¶¶48-52.
§ 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding: On a prosecution for felon in possession of a firearm, based on the allegation that the defendant “handled” a gun in a gun store, evidence of a 3rd-party’s prior felony conviction was admissible, where: the identity of the person who touched the gun was disputed; and, the 3rd-party acknowledged in an extrajudicial statement, admitted into evidence as against his penal interest, that he and not the defendant had touched the gun:

¶17 As Jackson also argues, evidence of Carlos Williams’s prior felony conviction enhanced his out-of-court admission to Papka that he, and not Jackson, handled the gun in the store because it subjected him to being charged with possessing a firearm while a felon. Indeed, this is the very rationale underlying the admission of hearsay statements that are against the declarant’s penal interest; the potential consequences of such an admission makes it unlikely that the out-of-court declaration is not true. See State v. Buelow, 122 Wis. 2d 465, 477, 363 N.W.2d 255, 262 (Ct. App. 1984) (“The circumstantial guaranty of reliability for the exception against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.”). Further, the State, apparently deliberately, left the jury with the false impression that Carlos Williams did not have a felony record when it asked Sergeant Bennett the following question to which Bennett replied, “no”: “Did you have any reason to believe that Carlos Williams was a felon or person prohibited for any reason by either a felony conviction or a domestic violence injunction that there was any prohibition in Carlos Williams handling a gun at that time?” Although true to the extent that it reflected Bennett’s knowledge in February of 2004 when the West Milwaukee officers went to the gun store and arrested Jackson, it left the jury with the misleading impression that Carlos Williams was not a felon. Additionally, in her closing argument, the prosecutor told the jury: “So for some reason Carlos Williams--and this speaks to his character--when he sees police officers feels the need to flee stores [sic].” (Emphasis added.) It was equally or even more likely that, as a convicted felon, Carlos Williams did not want to hang around a gun store when the police were there. But, of course, the jury did not know that Carlos Williams was a convicted felon, and the trial court’s apparent failure to recognize that Carlos Williams’s felony status was a significant fact for the jury to use in weighing the truthfulness of what Carlos Williams told Papka was a misapplication of the law and, accordingly, an erroneous exercise of discretion.

Particular Examples of Misconduct, § 904.04(2) - "Sullivan" Analysis & "Reverse" Misconduct
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father's vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:
¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father's vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide's vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide's vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun's father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide's vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.

¶29      Due to these dissimilarities, we conclude that Muckerheide's offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts "is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged."

State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. Draw your own conclusions as to whether identity of extraneous-conduct evidence has a distorting effect on the outcome. One noteworthy point, though: Muckerheide argued that Sullivan’s 3rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.
Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - Admissibility Test of "Other Acts" of Another
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding:
¶14. There are three hurdles that evidence of a person's other acts must clear: (1) the evidence must be "relevant," Wis. Stat. Rules 904.01 & 904.02; (2) the evidence must not be excluded by Wis. Stat. Rule 904.04(2); and (3) the "probative value" of the evidence must not be "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Wis. Stat. Rule 904.03. See State v. Sullivan, 216 Wis. 2d 768, 772-773, 576 N.W.2d 30, 32-33 (1998). Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 904.01. This is not a high hurdle; evidence is relevant if it "'tends to cast any light'" on the controversy. Zdiarstek v. State, 53 Wis. 2d 420, 428, 192 N.W.2d 833, 837 (1972) (quoted source omitted). Additionally, although evidence of bad things that a person may have done "is not admissible to prove the character of a person in order to show that the person acted in conformity therewith," such evidence may be introduced for other reasons, including proof of "opportunity" and "intent." Rule 904.04(2). We analyze the evidence against this background.  
For general statement, see U.S. v. Montelongo, 10th Cir No. 04-2215, 8/24/05:
Rule 404(b) is typically used by prosecutors seeking to rely on a criminal defendant's prior bad acts as proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" in the crime charged. The Rule is not so limited in its application, however, and evidence of a witness' other wrongs, acts, or crimes is admissible "for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him." Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999) (alternations and quotations omitted). This type of evidence is often referred to as "reverse 404(b)" evidence. See, e.g., id.; United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004).
(Court further noting that R. 608(b) -- equivalent of §. 906.08(2) -- isn't impediment to admissibility: that rule only applies to specific instances of witness's character for truthfulness; reverse msiconduct by contrast seeks to negate defendant's guilt by showing a 3rd-party's guilt in some fashion.)

Constitutional footing for evidence of 3rd-party guilt: Holmes v. South Carolina, USSC No. 04-1327, 5/1/06.

Critcism of label "reverse misconduct," preference for "nondefendant Rule 404(b) evidence": U.S. v. Murray, 474 F3d 938 (7th Cir 2007), and expressing view that "(t)he other crime and the crime of which the defendant is accused must be sufficiently similar to make it likely that whoever committed the other crime committed this crime as well, and that standard will not be satisfied unless there is something distinctive about all the crimes that makes them form a pattern, rather than their having merely a chance resemblance."

Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - Misidentification of Defendant on Similar Crime
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
Issue/Holding: Evidence that Davis was misidentified as the perpetrator of a crime he could not have committed but which was similar to the crimes he was tried for was admissible:
¶28      Looking at the first factor, the State concedes that this witness’s testimony was offered for identification purposes, an admissible purpose under Wis. Stat. § 904.04(2). As to the second Sullivan factor, the misidentification of Davis as the burglar, under circumstances similar to those of the other burglaries, relates to a fact that was of consequence to the jury’s determination and was relevant. This is not a situation where someone accused of a crime makes a general claim that someone else must have done it. Rather, here we have a burglary victim who twice misidentified Davis as the person he saw in his apartment. This fact provided Davis with the opportunity to attempt to prove that someone else, someone who looks a great deal like Davis, was burglarizing and robbing homes within the same general time frame. Indeed, the State originally charged Davis with the Hartwig burglary in the same complaint as the other burglaries. Consequently, this evidence was of great probative value. Thus, a proper Sullivan analysis would have shifted the balance in favor of admitting the evidence.

¶30      There is little chance that this witness would have caused an undue diversion or would have confused the jury. The proposed witness’s testimony went to the heart of the dispute. The State contended that Davis committed all the charged crimes. Davis claimed someone else committed them. Indeed, proof that a victim misidentified Davis and that Davis had previously been charged with burglary was significant in determining the identification issue. Moreover, while admitting this evidence may have changed the result of the trial, under our system of law, the State is charged with the duty of seeking justice, not simply obtaining convictions. Making sure that the truly guilty are convicted is tantamount to doing justice. We do not believe the State would have been unfairly prejudiced by the admission of this evidence, evidence that satisfied the Sullivan test and was the foundation of Davis’s defense. Thus, the trial court erroneously exercised its discretion when it denied Davis’s motion to call Hartwig as a witness. As a result, we are satisfied that the real controversy has not been fully tried, and we exercise our statutory right under Wis. Stat. § 752.35 to reverse the judgment of conviction and remand for a new trial.  

Not clear why the court relied on interest-of-justice, § 752.35—typically invoked to gain review of an unpreserved issue—rather than harmless error analysis of a properly preserved issue, as this one appears to have been. Regardless, the court’s language is fairly strong and reminds that the misconduct-evidence door swings both ways.
Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - "Other Acts" of Another -- Remoteness
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding: Testimony that as recently as 8 months earlier a clerk had stolen from the store, offered to support the defense theory that the clerk wasn’t robbed by the defendant but rather took the money voluntarily from the till to pay off a drug debt, wasn’t too remote to be inadmissible. ¶16.
Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - Interaction of §§ 904.04(2) and 904.06
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding: Evidence of a store clerk’s “habit” of stealing from the till wasn’t barred by § 904.04(2), “because it went to [his] ability and willingness (“opportunity” and “intent”) to treat his employer’s money as something he could convert to his own use.” ¶17. Thus, this evidence was relevant to support the defense theory that the clerk had voluntarily taken money from the till to pay off a drug debt to the defendant, and not because the defendant was robbing the store.
Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - Complainant's Drug Dealing
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue: Whether complainant’s selling marijuana at the store where he clerked and was allegedly robbed by defendant was admissible, where the defense theory was that the complainant merely turned money over to the defendant to pay off a drug debt and not because the defendant was robbing the store.
Holding:
¶20. Evidence that Ehlers sold marijuana to Sonny has to clear the … three Sullivan hurdles …. The trial court recognized that "[w]hether Mr. Ehlers sold marijuana from the 7-Eleven store would be relevant" to bolster White's contention that he had purchased the marijuana for which he paid $325 from Ehlers at the store. We agree. Additionally, the evidence of Ehlers's prior marijuana sales to Sonny would not be excluded by Wis. Stat. Rule 904.04(2) because it goes to Ehlers's "intent" and "opportunity" to use the store as a convenient place to accommodate his marijuana customers. Finally, this evidence, too, went to the core of White's defense: that on October 10, 2000, he bought marijuana from Ehlers and was "shorted." Thus, as with the allegation that Ehlers had stolen from his employer, the probative value of evidence that he used his employer's property as a store from which to sell marijuana was not "substantially outweighed" by any of the considerations in Wis. Stat. Rule 904.03.
Particular Examples of Misconduct, § 904.04(2) - "Reverse" Misconduct - Inability of Witness to Identify Defendant of Similar Uncharged Crime
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶44. Alternatively, Wright argues that Lomack's testimony was admissible as other acts evidence of a third-party perpetrator pursuant to Scheidell. Scheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity. Id. at 287. The supreme court set forth a three-step analytical framework to be applied when a defendant proffers such other acts evidence. Id. at 306. The first step is to determine whether the other acts evidence is offered for a permissible purpose under Wis. Stat. § 904.04(2), such as to establish motive, opportunity, plan, knowledge or identity. Scheidell, 227 Wis. 2d at 306. The second step is to determine whether the other acts evidence is relevant such that it relates to a fact or proposition that is of consequence to the determination of the action. The final step is to determine the probative value of the proffered testimony or its tendency to make a consequential fact more or less probable than it would be without the evidence. Id. at 307. The purpose of this test is to assure that the other acts evidence does more than raise conjecture or speculation. Id. at 305.

¶45. Wright's argument under Scheidell is a nonstarter. Without more, we hold that the mere inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime perforce takes the jury into the realm of conjecture or speculation. Unlike Scheidell, where the defendant sought to present evidence of a similar crime committed by an unknown third party while the defendant was in jail, id. at 291, Lomack's proffered testimony does not demonstrate that Wright was incapable of committing the similar crime. At the most, Lomack's proffered testimony merely shows that he could not identify Wright as the robber; it does not demonstrate that Wright could not have committed the offense. As such, Lomack's testimony does not tend to make a consequential fact more or less probable than it would be absent his testimony. Id. at 307. We agree with the State: "When there is a series of similar crimes, the fact that the State is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes." Lomack's testimony was not competent other acts evidence under Scheidell, and the trial court did not err in excluding it.

Particular Examples of Misconduct, § 904.04(2) -- "Reverse" Misconduct -- 3rd-party similar crime as exoneration of defendant
State v. Daniel G. Scheidell, 227 Wis.2d 285, 595 N.W.2d 661 (1999), on reconsideration, State v. Scheidell, 230 Wis.2d 189, 601 N.W.2d 284 (1999), reversing State v. Scheidell, 220 Wis.2d 753, 584 N.W.2d 897 (Ct. App. 1998).
For Scheidell: Mitchell E. Cooper, SPD, Madison.
Holding: Scheidell sought to introduce evidence that, while he was in jail awaiting trial on this sexual assault-related case, someone else committed a similar assault; the idea, of course, is that this was "reverse-Whitty" evidence to show that the 3rd party likely committed the charged assault. This sort of evidence is tested for admissibility under a three-step process.
  • First, permissible purpose under Wis. Stat. § 904.04(2) (here, identity, which is certainly permissible).
  • Second, relevance, comprised of two sub-steps. (A) relation to a consequential fact or proposition (here, identity again, which passes this test); (B) probative value, which turns on nearness in time, place, etc. (and in practice probably turns on sufficient similarities between charged and extrinsic crime). Similarities don't have to be strong enough to amount to "signature," but do have to establish "more than conjecture or speculation." The court disdains generalization, except to belabor the obvious: the greater the similarity, complexity, distinctiveness and frequency, the greater the case for admissibility.
  • Third, "the court must balance the probity (sic) of the evidence, considering the similarities between the other act and the crime alleged, against the considerations contained in Wis. Stat. § 904.03. ..." The court acknowledges a laundry list of similarities in this case but says that they aren't "so distinctively similar as to support the inference that some unknown third party, and not Scheidell, committed the charged crime." Therefore, the evidence is deemed inadmissible.
Particular Examples of Misconduct, § 904.04(2) -- Prior Juvenile Offense -- Probative Value
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether evidence that the defendant committed a burglary at the age of 13 was admissible as extrinsic evidence to impeach his testimonial denial, on cross-examination, of intent to steal.
Holding: § 906.08(2) expressly prohibits using extrinsic evidence of specific instances of conduct to attack a witness's credibility. ¶33. Nor is this evidence relevant under § 904.04(2), under the following analysis. Proof of the prior burglary relates to intent to steal and, because the defendant was currently charged with burglary and robbery -- both of which contain the intent-to-steal element, this evidence relates to a fact of consequence. ¶36. However, it must also have probative value:

¶38. We must also take into consideration, however, the fact that Collins was thirteen years old when the prior acts allegedly took place. The difference between a thirteen year old and a twenty year old is much more significant than the difference between someone who is thirty-three and someone who is forty. Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult. See Roberts v. State, 634 S.W.2d 767 (Tex. Crim. App. 1982); Edward J. Imwinklried, Uncharged Misconduct § 8.08 at 27 (1999).

Nor was there a strong similarity between the incidents. Other than the fact that both involved intent to steal from a residence, no similarities were shown. ¶39. The rule on misconduct evidence is one of exclusion. ¶40. Therefore, because the prior misconduct was remote in time and lacked similarity in relation to the charged offenses, it lacked probative value and should have been excluded. ¶41. (The error, however, is deemed harmless.)

Particular Examples of Misconduct, § 904.04(2) -- Prior Sexual Assault of Child -- 11 years Earlier -- not Remote in Time
State v. Michael L. Veach, 2002 WI 110, reversing 2001 WI App 143
For Veach: Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether, on charges of sexually assaulting a 7-year old girl, evidence that the defendant had sexually assaulted his 9-year old daughter approximately 11 years earlier was properly admissible.
Holding:
  • 1). The evidence was offered for an acceptable purpose, namely intent, motive, and absence of mistake or accident. ¶58.
  • 2a). The evidence was relevant, the court rejecting Veach's argument that an element must be disputed before extrinsic evidence may be deemed relevant to that element. ¶77. (Note: The court therefore devotes much of the opinion to discussing an irrelevancy -- the idea that Veach didn't really concede intent. ¶¶60-76.)
  • 2b). The incidents were sufficiently similar to have probative value: young girl, father(-like) relationship. ¶¶79-82. Acknowledged dissimilarities, and lengthy passage of time, are overcome by the idea that the prior incidents "obviously had at least some probative value" -- to show motive and absence of mistake/accident. ¶¶83-84.
  • 3). The other acts were "graphic, disturbing, and extremely prejudicial," but the danger of unfair prejudice didn't outweigh probative value, especially given the greater latitude rule (relaxed admissibility for extrinsic acts in child sexual assault cases).

Go To Brief

Particular Examples of Misconduct, § 904.04(2) -- Prior Domestic Abuse -- on Trial of Battery to Live-in Girlfriend
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether, in a prosecution for battery against the defendant's live-in girlfriend, evidence of the defendant's domestic abuse of his former wife was admissible.
Holding: The evidence tended to refute the defense of lack of intent to harm:

¶22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love's testimony had a strong tendency to make Volk's defense less probable than if she had not testified. Unlike the "other acts" evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love's testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim. See id. at 788-89. Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk's actions involved strikes to the head and choking. We are satisfied that Love's testimony served to make it less probable that Volk did not intend to harm Swim or that Swim injured herself. As such, the evidence satisfied the second aspect of the second prong of Sullivan.

Particular Examples of Misconduct, § 904.04(2) -- Admissibility -- in General
State v. Joseph F. Rizzo, 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 824, reversed and remanded on other grounds, 2002 WI 20
For Rizzo: Franklyn M. Gimbel
Issue: Whether admission of other acts evidence was an erroneous exercise of discretion.
Holding:

¶5 ... In a written decision, the trial court properly applied the Sullivan three-step analysis:

The acts which took place some years ago are remarkably similar to the allegations before the Court in this case ... [and the] evidence does tend to make the consequential fact or proposition more probable than it would be without it. It further can be relevant if used in regard to credibility of the child witness.

Finally, as to the probative value, the Court does not believe it is outweighed by undue prejudice, confusion of issues, or misleading of the jury or by considerations of undue delay waste of time or needless presentation of cumulative evidence.

While these other acts may be chronologically old, they are very similar in nature.

The trial court did not err in deciding that [t]he probative value in this case outweighs the danger of unfair prejudice. We hold that the trial court properly exercised its discretion in admitting the other acts evidence.

Particular Examples of Misconduct, § 904.04(2) -- Motive to Flee: Outstanding Warrants -- "Not Classic 'Other Crimes' Evidence"
State v. Brian D. Seefeldt, 2002 WI App 149, affirmed, 2003 WI 47
For Seefeldt: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶23. We are satisfied that the reference to the outstanding warrants is not classic "other acts" evidence invoking Wis. Stat. § 904.04(2) analysis. Rather, the existence of the warrants is "part of the panorama of evidence" that directly supports Seefeldt's defense and sits at the heart of his right to present exculpatory evidence. See Johnson, 184 Wis. 2d at 349, 354 (Anderson, P.J., concurring). Therefore, Carroll's remarks did not cause the jury to hear any information that would have rendered the proceedings unfair to the State.
(Admissibility was really subsidiary to the main issue, whether defense counsel's mentioning outstanding warrants for Seefeldt's girlfriend established the latter's motive to flee in their car created a manifest necessity for mistrial. As the quote above suggests, the court of appeals held that this reference didn't involve "classic 'other acts' evidence" and therefore no manifest necessity existed for mistrial. On the question of manifest necessity, the supreme court affirmed, and its handling of the subsidiary question of admissibility is consistent with the court of appeals, ¶ 39 [this evidence would have been admissible on the issue of the girlfriend's motive for engaging in a high speed chase, and also her bias to curry favor for subsequent incriminaiton of Seefeldt].)
Particular Examples of Misconduct, § 904.04(2) -- Motive and Intent.
State v. Gordon R. Anderson, Jr., 230 Wis.2d 121, 600 N.W.2d 913 (Ct. App. 1999).
For Anderson: Craig M. Kuhary.
Issue: Whether the trial court erred in admitting evidence in this 1st degree homicide trial of a prior sexual assault that resulted in Anderson being sent to prison, as evidence of his motive and intent to kill the deceased so she couldn't testify against him.
Holding: The prior acts evidence was relevant and not unfairly prejudicial.
Analysis: The state was allowed to show that in 1994 Anderson had sexually assaulted someone upon whose testimony he was subsequently sent to prison. The court of appeals sustains admissibility of this other acts evidence, under the 3-part test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998): acceptable purpose; relevancy; unfair prejudice. This evidence properly demonstrated motive and intent - to prevent the victim from testifying against him so he wouldn't have to go to prison again. The two events were sufficiently similar to establish relevance - in each, Anderson met the victim in a bar, drove away to purchase drugs, assaulted her by the roadside, etc. A twice given cautionary instruction (limiting consideration of the prior act to motive and intent) eliminated any possibility of unfair prejudice.
Particular Examples of Misconduct, § 904.04(2) -- Prior Sexual Assaults -- 15-25 Years Earlier, not Remote
State v. Eugene P. Opalewski, 2002 WI App 145, PFR filed 6/6/02
For Opalewski: Lorinne J. Cunningham
Issue/Holding: On charges of first degree sexual assault of a child and incest, evidence of the defendant's past sexual abuse of his two daughters and the children of a prior girlfriend was admissible under the three-step test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).
  • Similarity: The prior acts were similar to the charged act, especially in that "(i)n each instance, a child within a familial or quasi-familial setting was sexually assaulted." ¶18.
  • Remoteness in time: Though the prior acts occurred 15-25 years earlier, they weren't remote (court stresses the repetitive nature and similarities of the acts, i.e., "a pattern of consistent activity"). ¶¶21-22.
  • Prejudice: The prior acts weren't unfairly prejudicial: testimony challenged as unduly prejudicial was either unobjected-to and self-inflicted (i.e., brought out on cross without objection) and therefore waived, ¶25, citing United States v. Ohler, 529 U.S. 753, 755 (2000); or wasn't of such nature as to "provoke hostility and revulsion." ¶27.

And, certain other challenges to closing argument as exacerbating prejudicial effect are held waived by lack of objection. ¶29.

Particular Examples of Misconduct, § 904.04(2) -- Prior Resisting Arrest -- Similarity to Charged Offense
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue: Whether a prior act involving drunken resisting arrest was properly admitted into evidence.
Holding: The prior act was admitted on the permissible purposes of showing intent and absence of mistake; had probative value due to strong similarities to the current offense; and, given high probative value along with cautionary instruction, wasn't unfairly prejudicial. ¶¶28-31.
Particular Examples of Misconduct, § 904.04(2) -- Prior Sexual Assault of Adult -- Relevance to Charge of Child Sexual Assault -- Dissimilarities, Including Age Disparity of Victims
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether a prior sexual assault of an adult was sufficiently similar to the charged sexual assault of a child to be admissible as other crimes evidence.
Holding:

¶14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value. Id. "`The measure of probative value in assessing relevance is the similarity between the charged offense and the other act.' Similarity is demonstrated by showing the `nearness of time, place, and circumstance' between the other act and the alleged crime." Hammer, 2000 WI 92 at ¶31 (citations omitted). Stated otherwise, the greater the similarity between the two acts, the greater the relevance and probative value. Here is where the State's argument fails. In Hammer, the supreme court found that the adult-child distinction did not impact on probative value because the victims, with one exception, were all near the age of majority. Id. at ¶32. That is not the case here. The victim in the other act was twenty-three years old, well past the age of majority. The victim in the charged act was a fourteen-year-old boy-four years away from the age of majority. This distinction is significant.

¶15. Moreover, unlike the "mirror image" acts in Hammer, the other act here was substantially dissimilar from the charged act. The other act occurred in a private bedroom following an illegal entry, in the middle of the night, while the victim was sleeping; the sexual contact was through the victim's clothes. The charged act is drastically different: it occurred in a public place, during the day, while the victim was awake; the sexual contact was directly to the skin, and no illegal entry was involved. These differences greatly reduce the probative value of the 1992 conviction, and lean toward making the earlier act propensity evidence. The State suggests that the two acts are similar in several ways; i.e., both victims were young male strangers, both involved isolated victims in places close to the perpetrator's home, neither incident involved force, and the sexual contact in both was with the victim's penis. Even with the application of the greater latitude rule, we cannot conclude that this suggested list of similarities overcomes the greater dissimilarities. The State's list presents factors or similarities that are, for the most part, common to most sexual assaults.

Particular Examples of Misconduct, § 904.04(2) -- Harmless Error
State v. John J. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999).
For Thoms: Steven L. Miller
Holding: On a charge that Thoms sexually assaulted his sister, the trial court allowed the state to introduce evidence that, 14 years before, he had allegedly sexually assaulted both a stranger and his niece, as evidence of "common plan or scheme to obtain sexual gratification by force." The court of appeals accepts the state's concession of error under State v. DeKeyser, 221 Wis. 2d 435, 585 N.W.2d 668 (Ct. App. 1998), leaving harmless error as the only issue. The error is held reversible, for fact-specific reasons, the court stressing that this inadmissible evidence had the effect of bolstering the complainant's credibility and undermining Thoms', when the case turned on credibility.
Particular Examples of Misconduct, § 904.04(2) --  Inadmissible Propensity -- Charge of Sexual Assault, Defense of Consent
State v. Luther Wade Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214
For Cofield: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether, on a charge of sexual assault where the defense was consent, evidence of prior sexual assaults were properly admissible.
Holding (Given the fact-intensive and variegated nature of the discussion, a detailed quote is provided. This is a potentially important other-acts case that will help turn amber that bright green light of admissibility.):

¶11 In reviewing the list set forth in WIS. STAT. § 904.04(2), we reject each of the proper 'other purposes' under which the State and the trial court argued the prior acts evidence should be admitted. First, the evidence was not admissible to show intent because intent was not an element of the offense charged. See State v. Danforth, 129 Wis. 2d 187, 202-03, 385 N.W.2d 125 (1986). The State concedes that intent was not an element it had to prove on the sexual assault charges, but argues that intent was an element on the kidnapping charge and, therefore, admissible. This argument, made only on appeal, is a stretch at best. It is clear throughout the entire trial court transcript that the other acts evidence was being introduced as relevant to the sexual assault, not the kidnapping. The State also contends that the evidence was used to show intent to hold the victim to servitude for sex as in State v. Grande, 169 Wis. 2d 422, 433, 485 N.W.2d 282 (Ct. App. 1992). This argument, however, was never made in the trial court and the cautionary instruction on the other acts evidence never mentioned this other purpose. In addition, the prosecutor's closing argument focused on linking the prior acts with the charged offenses. The State, therefore, has waived both arguments. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

¶12 Similarly, the other acts cannot be properly admitted to show motive. Other crimes evidence may be admitted to establish motive for the charged offense if there is a relationship between the other acts and the charged offense, see e.g., Holmes v. State, 76 Wis. 2d 259, 268-69, 251 N.W.2d 56 (1977), or if there is a purpose element to the charged crime, see State v. Friedrich, 135 Wis. 2d 1, 22, 398 N.W.2d 763 (1987). Here, neither can be satisfied. There was no connection between Cofield's earlier convictions and the Lee case, and there is no evidence that the prior offense provided a reason for committing the charged offenses or that there was some link between them. Further, there is no purpose element in the crimes charged in this case.

¶13 The State argues that the similarities between the old and new offenses demonstrated a common scheme or plan. That is, a knife was used in each incident, the race of the women was the same, all of the victims were in their twenties or thirties, they were all women Cofield had seen before, and he told each of them that if they were compliant, they would not get hurt. Our supreme court has addressed the concept of 'plan' as that term is used in WIS. STAT. § 904.04(2):

The word 'plan' in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be 'such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.'

State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977) (citation and footnote omitted). In other words, similarity of facts is not enough to admit other acts under this 'other purpose.' There must be some evidence that the prior acts were a step in a plan leading to the charged offense, or some other result of which the charged offense was but one step. See State v. Roberson, 157 Wis. 2d 447, 453, 459 N.W.2d 611 (Ct. App. 1990). This linkage is simply not present here. There is no evidence that the prior acts were simply a step in a plan leading up to the Lee incident. In addition, there are as many dissimilarities between the earlier acts and the charged offenses as there are similarities. In the charged offense, Cofield shared cocaine with the victim, he put the knife down, the incident took place in his apartment as opposed to the victim's bedroom, he allowed the victim to leave to retrieve her child, and the instant case occurred during the day.

Go To Brief
Particular Exmples of Misconduct, § 904.04(2) -- Prior Sexual Assaults
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding: Prior sexual assaults were admissible at Silva’s trial for 1st-degree sexual assault of his 6-year old niece: Silva’s 13-year old niece; Silva’s girlfriend’s 13-year old daughter; and Silva’s 9-year old daughter. ¶¶27-28.
(Note: It simply isn't clear why this case doesn't fall under the "greater latitude rule"; regardless, the court analyzes admissibility as a straight "Sullivan" problem.)

Greater Latitude Rule

Greater Latitude Rule in Sexual Assaults, Generally
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶14      … The supreme court has provided significant guidance concerning the use of other acts evidence in child sexual assault cases. In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, the court discussed the three-step framework, which was originally set forth in State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998), that courts must follow when deciding whether to admit other acts evidence in all Wisconsin cases:
1.  Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2)?
2.  Is the other acts evidence relevant under Wis. Stat. § (Rule) 904.01? 
3.  Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion, or delay under Wis. Stat. § (Rule) 904.03?
Davidson, 236 Wis. 2d 537, ¶35. Davidson also recognized that “alongside this general framework, there also exists in Wisconsin law the longstanding principle that in sexual assault cases, particularly cases that involve sexual assault of a child, courts permit a ‘greater latitude of proof as to other like occurrences.’” Id., ¶36 (citations omitted). Davidson held that “in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant’s other crimes was properly admitted at trial.” Id., ¶51.
Greater Latitude Rule in Sexual Assaults, Generally
Extraneous Misconduct Admissibility, § 904.04 – Pornographic Images -- “Greater Latitude” Rule, Applicable to Sexual Assault of Vulnerable Adult
State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg
Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.
Holding:
¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography, not prior sexual assaults, if the adult victim functions at the level of a child due to disabilities. We also conclude the court properly exercised its discretion in applying the rule in this case. [5] Thus, in analyzing the circuit court’s decision we will bear in mind that the application of the rule permits a more liberal admission of other crimes evidence, while also recognizing that the rule does not relieve a court of the duty to ensure that the other acts evidence is admissible under the proper legal standards. See id. at 52.

¶21      … The first step requires only that the other acts evidence be offered for a permissible purpose. We conclude the circuit court reasonably concluded that the State satisfied this requirement by identifying the permissible purpose of motive and explaining that the State wanted to show that Normington was motivated by his sexual interest in inserting objects into body orifices when he inserted the toilet plunger into Bob’s anus.

¶22      We turn next to the second step, which requires an inquiry into the relevance of the pornography evidence. …

¶24      Because inserting a toilet plunger into another person’s anus is an unusual thing to do, knowing why a person might be motivated to do such a thing is highly significant to deciding whether Normington did it.  A reasonable inference from the evidence that Normington viewed pornography showing the insertion of objects into a person’s anus is that he found that practice sexually arousing.  A reasonable judge could conclude that this inference makes it more probable that Normington would insert an object into Bob’s anus than if there were no evidence he had a sexual interest in the insertion of objects into a person’s anus.

The court also concludes that the evidence wasn’t unfairly prejudicial: “having a sexual interest in the pornography is less, not more, disturbing than inserting a toilet plunger into a mentally deficient person’s anus,” ¶35; Normington was offered but declined a standard cautionary JI, ¶36; the State’s argumentation properly limited the inferential purposes, ¶37; and, Normington was acquitted on two of four counts, which “demonstrates that the jury did not decide to find Normington guilty simply because of the pornography he viewed,” ¶38.
Greater Latitude Rule in Sexual Assaults -- Admissibility of Assault by One Child on Another Child 8 Years Before Charged Offense
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶20      We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim, together with significant differences in the nature and quality of the assaults, does not tend to make the latter frequent and more complex assaults of Sasha more probable. Nor does such testimony make Sasha’s testimony about the later events more credible because of the significant differences in the details involving the earlier event and the later events. Nor does the conduct of a ten-year-old child give “context” to, or provide evidence of the motive or intent of, an adult some eight or more years later. See Barreau, 257 Wis. 2d 203, ¶38 (“Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult.”).
The Court separately holds the evidence unfairly prejudicial, ¶21.
Greater Latitude Rule in Sexual Assaults
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶86. We have ruled that "Wisconsin courts permit a more liberal admission of other crimes evidence in sexual assault cases than in other cases." Davidson, 236 Wis. 2d 537, ¶44; State v. Hammer, 2000 WI 92, ¶23, 236 Wis. 2d 686, 613 N.W.2d 629. Accordingly, in a sex crime case, the admissibility of other-acts evidence must be viewed in light of the greater latitude test….

¶88. Applying the above rules to the facts of this case, we hold that that the circuit court was correct here in applying the greater latitude rule in the determination of whether other-acts evidence was admissible. Accordingly, we hold that the court of appeals was in error in its determination regarding the applicability of greater latitude in sex crimes cases, particularly when a child victim is involved.

(The court thereby rejects Hunt’s arguments that the greater latitude rule applies only when the extraneous misconduct involves sexual assault of a child; and that the misconduct must be similar to the charged offense. ¶84.)
Greater Latitude Rule in Sexual Assaults
State v. Dale H. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, reversing State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 038
For Davidson: Jerome F. Buting & Pamela Moorshead
Issue: Whether, on a charge of sexually assaulting a 13-year old niece while on a camping trip, evidence of the defendant's conviction ten years previous for sexually assaulting a 6-year old girl in a church basement was admissible.
Holding: Applying the three-step analysis of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) "together with the greater latitude rule that is well established in Wisconsin law, the admission of evidence of Davidson's prior conviction did not constitute an erroneous exercise of discretion." ¶5.
Analysis: Sullivan mandates consideration of three factors: acceptable purpose under § 904.04(2); relevance under § 904.01; unfair prejudice under § 904.03. ¶35. However, this generally applicable other-crimes test is modified in sexual assault cases, "particularly cases that involve sexual assault of a child, [where] courts permit a 'greater latitude of proof as to other like occurrences.'" ¶36. The court squarely rejects the idea that the greater latitude rule applies only to the first Sullivan step:

¶51 We conclude that in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant's other crimes was properly admitted at trial. The effect of the rule is to permit the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child.

The court notes in a casual aside that this doesn't mean automatic admissibility, ¶52, but in its proceeding analysis the court appears to be on automatic pilot. ¶¶53-80 (though these are quite obviously very different incidents, the court says that they're strikingly similar, etc.) The majority's approach stimulates an unusually arch dissent, which explicitly accuses the majority of being result-oriented:

¶107 This court now has an established pattern of admitting prohibited propensity evidence. In a rare exception to this established pattern, the court recently approved the exclusion of other acts evidence in a sexual assault case. However, predictably it was in a case in which the defendant, not the State, sought to introduce the evidence. See State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999). The majority reached this conclusion notwithstanding its acknowledgement that a less stringent standard for admissibility applies when a defendant offers prior acts for purposes of exoneration. Id. at 304.

The dissent bluntly accuses the majority of being less than "honest and forthright" in its adherence to the "artifice" of § 904.04(2); and exhorts the majority to "simply lay all its cards on the table and acknowledge that it is sanctioning the blanket use of propensity evidence in child sexual assault cases." ¶¶109-110.

Greater Latitude Rule
State v. Edward A. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629, on certification, habeas denied, Hammer v. Karlen, 02-3921 (7th Cir. 9/5/03)
For Hammer: Rex Anderegg
Issue: Whether, in a trial for sexual assault of several adolescent males while staying at defendant's parents' home, evidence that defendant fondled an adult male, 5-7 years earlier while a guest at his home in Ohio, was admissible.
Holding: Applying the greater latitude rule (see State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606), the evidence was admissible to show modus operandi, through which the assailant's identity may be proved. ¶24. The evidence was also admissible to show motive and absence of mistake. ¶¶27-28. The charges, keep in mind, included allegations that Hammer touched a penis with his hand, then sucked on it and asked the person if he'd "remember this in the morning." ¶12. So, assuming the jury believes the allegation, it will apparently need guidance on the motive for fondling and sucking on someone's genitals; or whether a penis happened to find its way into the defendant's mouth by virtue of some big mistake.
Analysis: As the dissent points out, there is an intolerable tension between the greater latitude rule and the requirement "that proof of identity through other acts evidence requires a more stringent standard of admissibility." ¶52. That's because the other act must be so unique that it establishes the actor's "signature," hence identity. But if the standard's lowered via the greater latitude rule, then where's the rationale for establishing identity? As the dissent points out, the "more stringent standard for proof of identity" is "nullifie(d)." ¶62. On a less abstract level, the dissent observes, as it did in Davidson, that admissibility of misconduct evidence is now automatic:

¶59 In each of the three steps of its other acts analysis, the majority explains that it is applying the greater latitude rule, citing to Davidson, 2000 WI 91, ¶51. Engaging in such a nuanced approach to the greater latitude rule seems unnecessary because the bottom line is that, whether for one step or for all three, the majority will admit other acts evidence in child sexual assault cases. To apply the rule separately to each step simply lengthens the majority's discussion to arrive at the predictable conclusion that prior acts have been admitted properly under Wis. Stat. § (Rule) 904.04(2).

Waiver

Waiver of Objection to Admissibility, by Wallerman Stipulation
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a "Wallerman" stipulation.
Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn't admitted) waives the issue of admissibility:
¶5. We conclude that the trial court's ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation. ...

¶9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. ....

¶14. .... Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. ...

Opening Door to Admissibility
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999).
For Edmunds: Dean A. Strang.
Holding: In her opening statement, Edmunds told the jury that no one would testify that she did "an unloving act to a child." This assertion allowed the state to show that she had struck a child over the head with a hard cover book.
Wallerman/DeKeseyer Stipulation Rule -- Overruled
State v. Michael L. Veach, 2002 WI 110, reversing 2001 WI App 143
For Veach: Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether counsel should have stipulated to the existence of certain elements, and thereby prevented the state from admitting into evidence, as relevant to those elements, other acts of the defendant's misconduct.
Holding: Under the current case law the defense may stipulate to one or more elements and prevent the prosecution from putting in misconduct evidence, State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996); and, counsel is ineffective for non-tactically overlooking such a strategy, State v. DeKeyser, 221 Wis. 2d 435, 585 N.W.2d 668 (Ct. App. 1998). Those cases are now overruled:
¶118. We determine that to the extent Wallerman and DeKeyser imply that the state and the circuit court are obligated to accept Wallerman stipulations, those cases are incorrect and must be overruled. We conclude that requiring the state or the circuit court to accept a Wallerman stipulation is directly contrary to Wisconsin law as stated in Davidson and Hammer, and in the case of child sexual assaults, is also contrary to the greater latitude rule. While we do not hold that Wallerman stipulations are invalid per se, we do hold that, with the exception of stipulations to a defendant's status, the state and the court are not obligated to accept stipulations to elements of a crime even if the stipulations are offered in compliance with the four-part test set forth in Wallerman. ...

¶123. We do not mean to imply that Wallerman stipulations are per se invalid, even in child sexual assault cases. We simply conclude that the state and the court do not have to agree to Wallerman stipulations.

Go To Brief

§ 904.10 -- PLEA BARGAIN STATEMENTS

§ 904.10

§ 904.10, Defendant’s Unsolicited Statement to Court Asking for Care by “Mental Doctors”
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether defendant’s letter to the trial court, stating that he did not want the case to go to trial; that he wished to be placed in a facility in the care of “mental doctors”; and that the court sentence him for a Class B felony, was admissible.
Holding:
¶20      We agree with Norwood that Wis. Stat. § 904.10 prohibited the use of statements from his correspondence to the court. Norwood stated that he wanted to avoid trial. Nothing in the record indicates that the State was amenable to dismissing the case. That fact left Norwood with two choices:  plead or go to trial.  Obviously, the only way he could avoid trial was to enter a plea. An offer to plead guilty or no contest was therefore implicit in the admitted statements. …

¶21      We reject the trial court’s rationale that Norwood ’s statements could come in as party admissions.  Wisconsin Stat. § 908.01(4)(b) deals with admissions by a party as a general rule. Admissions incidental to an offer to plead, however, are a special kind of party admission:  they are impossible to segregate from the offer itself because the offer is implicit in the reasons advanced therefor. Wisconsin Stat. § 904.10 trumps § 908.01(4)(b)….

(However, the error is deemed harmless, the court pointedly – and properly – noting in the process that “the precise standard for harmless error is still in flux,” ¶22.)

Ch. 905 -- PRIVILEGES
Privileges – Honesty Testing, § 905.065(1): Voice Stress Analysis Admissibility
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, "at least under the present state of the scientific art"). We see no reason at this time to treat these two methods of "honesty testing" differently.

¶21      Our analysis, as detailed below, primarily requires us to determine whether a defendant's statement was given at an interview totally discrete from the voice stress analysis. If the defendant's statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.

¶44      While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale for excluding statements made during honesty testing, [16] the underlying rationale is simply that our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065. [17] Wisconsin Stat. § 905.065(2) states, "[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject."

¶45      Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, and the statement was given voluntarily, then the statement is admissible. However, if the statements and examination are not totally discrete events but instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065.

Privileges – Honesty Testing, § 905.065(1)): “Totally Discrete” Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23      Under the totality of the circumstances, we conclude that Davis's statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis.  2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant's statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles).
Issue/Holding2: On the particular facts, Davis’s statement was “totally discrete” from the testing procedure, despite close temporal proximity:
¶30      In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved——one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, "I'm finished here," closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms.

¶31      While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be admissible so long as two totally discrete events occurred. See Johnson, 193 Wis.  2d at 389 (concluding that neither Barrera v. State [14] nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). "[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the . . . test, the events are sufficiently attenuated." Johnson, 193 Wis.  2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis.  2d at 43.

This is a highly fact-intensive case, and therefore no attempt will be made to describe the operative facts in any detail; the reader is urged to closely study the opinion, including the dissent (¶¶47-80, which very persuasively argues that Davis had good reason to think the stress analysis wasn’t over when he made his statement. (And see, especially, ¶¶58-59, which make the point that the majority effectively “alters the test” from whether the examination and interview are totally discrete to whether the examination and statement are.) The upshot may well be that once the subject is unhooked from the testing device and statement is likely to be admissible – though, to be sure, the court makes no such generalization; again: read it closely and draw your own conclusion.
Spousal, § 905.05(3) -- 3rd-Party Exception
State v. Richard G.B., 2003 WI App 13, PFR filed 1/13/03
For Richard G.B.: Bridget E. Boyle
Issue: Whether the "third-party exception" to spousal privilege -- which overrides the privilege for crimes committed "against" the spouse, § 905.05(3) -- is triggered by sexual assault of a non-spouse, on the theory that such an act amounts to adultery, § 944.16(1), hence a crime against the spouse.
Holding:
¶15. In light of the purpose of both the privilege and exceptions in Wis. Stat. § 905.05(3)(b), we conclude it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. It is also irrelevant whether a crime against the spouse is the "primary crime" rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third-party exception in para. (3)(b) is best carried out if committing a crime against a third party "in the course of" committing a crime against one's spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one's spouse. We therefore conclude that Richard committed sexual assaults against Melissa "in the course of" committing a crime against Tracy within the meaning of § 905.05(3)(b).

¶16. Richard may also be contending that adultery is not "a crime against" his wife. However, he apparently concedes that adultery is defined as a crime by Wis. Stat. § 944.16(1), which provides:

Adultery. Whoever does either of the following is guilty of a Class E felony:

(1) A married person who has sexual intercourse with a person not the married person's spouse....

It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this State, and therefore it plainly is a "crime" within the meaning of Wis. Stat. § 905.05(3)(b). We also see no ambiguity concerning whether adultery is a crime "against" Richard's wife. Certainly she is injured, although not physically, by her husband having sexual relations with a person other than herself. Even if we assume, for purposes of argument, that there is an ambiguity on this point, we conclude that construing a "crime against the other [spouse]" to include adultery is more consistent with the purposes of the privilege and exceptions in para. (3)(b). When a married person commits a sex crime against a third person, that married person has transgressed against his or her spouse as well as the third person, and the justification for preventing one spouse from testifying against the other no longer outweighs the interests of ascertaining the truth.

¶17. Accordingly, we conclude that under Wis. Stat. § 905.05(3)(b) Tracy's testimony is admissible despite Richard's invocation of the spousal privilege because he was charged with crimes of sexual assault against a third party, Melissa, committed "in the course of" committing the crime of adultery "against the other [spouse]," Tracy.

The holding should not be taken as the final word. To the contrary, both reasoning and result are highly problematic and should be challenged rather than accepted, especially in light of Lawrence v. Texas, 02-102 (same-sex sodomy statute penalizing acts in private on its face violates the due process right to privacy). Indeed, the Virginia supreme court has held that a statute criminalizing fornication must meet the fate as the Lawrence sodomy statute, at least to the extent that it forbids consensual acts between adults in private: Martin v. Ziherl, VA SCt No. 040804, 1/14/05. In other words, Wisconsin's adultery statute isn't sustainable as a matter of federal due process -- and that makes the Richard G.B. foundation not only rickety, but subject to re-visiting. Of course, the cited instances deal with fornication and sodomy: is adultery meaningfully distinguishable? In the first place, of course, a same-sex couple may each be married (to other partners); they could not be charged with sodomy; does it make any sense that they could nonetheless be charged with adultery? That little conundrum aside, the logic of Lawrence extends inexorably to adultery. Compare this Findlaw commentary shortly after Lawrence, cautioning that a broad "reading would throw laws against fornication, adultery, and even adult incest into question" and was thus "probably too simplistic"; with a post-Ziherl commentary by the same author, singing a different tune, and concluding that fornication statutes in other states indeed "are equally doomed, under Lawrence - for just the reasons the Virginia court gave"; and, more immediately pertinent: "to the extent an adulterous affair is conducted in private, it may well fall within the bounds of the private, intimate relationships with which the government is not supposed to interfere."

Some states, it should be noted, bar prosecution of such an archaic “offense” as fornication as a matter of state constitutional right of privacy, which is to say, quite apart from Lawrence, see e.g., In re: J.M., 276 Ga. 88, 575 S.E.2d 441 (2003) (fornication statute violates Georgia's state constitutional right to privacy). Wisconsin doesn’t have a specific privacy provision – and no, Art. I, § 21, “Rights of suitors,” doesn't apply, speaking instead to something quite distinct – but perhaps the Wisconsin constitution's due process clause might be put to that use. Moreover, the conceded absence of adultery prosecutions triggers the doctrine of "desuetude": “a statute may be abrogated because of its long disuse.” The statutory exception doesn't speak of "transgressions against" -- which has a broad, even moralistic coloration -- but of "crime(s) against," which clearly suggests something more technical; that is, there first must be a crime. If the "crime" relates to a statute which has been abrogated through non-use, then is it really a "crime"? More: the court seems to have very casually created a sexual assault exception to spousal privilege, and who knows what other crimes will be squeezed into this category; haven't you "transgressed" against your spouse by committing a fraudulent act that threatens financial ruin? In short, the result in this case is desperately seeking a rationale.

And what about this: Matter of Blanchflower, N.H. 2003-50, 11/7/03 (because "adultery" is defined as intercourse between a man and woman, it does not encompass homosexual acts)? Does this mean that Richard G.B. doesn't apply where the extramarital sex is homosexual (because, in that instance, the crime of "adultery" has not been committed)? If it seems silly to ask such a question, it is because the Richard G.B. result is so very questionable.

Confidential Informant, § 905.10(3)(b) -- Procedure for Disclosing
State v. Phonesavanh Vanmanivong, 2003 WI 41, reversing, 2001 WI App 299
For Vanmanivong: John J. Grau
Issue/Holding:
¶33. With the benefit of these above-stated standards, we now move to the second issue: the application of the procedures in this case. The parties here agree, as do we, that it was error for the circuit court to rely upon an unsworn memo in determining whether the identities of the confidential informants should be disclosed. Section 905.10(3)(b) specifically states: "The showing [by the State] will ordinarily be in the form of affidavits but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit." Under the plain language of the statute, affidavits or testimony are the two options given the circuit court. Both of these options provide for sworn evidence. If the judge finds that the affidavits provided are inadequate, as in this case, the court may then take testimony. By relying upon an unsworn memo, the circuit court here failed to follow the statute. Additionally, we note that the danger of relying upon unsworn evidence played out in this very case. Here, two memos purportedly from Detective Bloedorn were submitted to the court. One of those memos was a forgery created by the defendant. Fortunately, here, the forgery was discovered. We find, however, that relying upon unsworn evidence for purposes of the in camera process under Wis. Stat. § 905.10(3)(b) is error. This memo, at least as used during the in camera procedure, shall not be considered as evidence to be relied upon in this review.

¶34. We also find that the circuit court erred by independently requesting additional information from law enforcement, a request that led to receipt of the unsworn memo from Detective Bloedorn. The circuit court relied upon that independently gathered information to make a ruling on disclosure. Again, if the affidavits collected are inadequate, the judge has the option of hearing testimony. Wis. Stat. § 905.10(3)(b). Judges are generally prohibited from independently gathering evidence by the rules of judicial ethics. Supreme Court Rule 60.04(1)(g) prohibits a judge from engaging in ex parte communications concerning a pending action, with several exceptions not applicable here. The Comment to the rule states, in part, "A judge must not independently investigate facts in a case and must consider only the evidence presented." Id. A judge must not go out and gather evidence in a pending case. To do so is error. The judge here did disclose his communication with law enforcement to both parties before ruling upon the motion for disclosure. He also provided the unsworn memo to the defense before trial. These were appropriate actions under SCR 60.04. See Comment to SCR 60.04(1)(g). These actions, though, cannot balance the potential harm done by seeking evidence independently and then relying upon such evidence in making a ruling.

(Note: As discussed elsewhere, the court holds that this error was harmless. ¶¶40-50.)
Confidential Informant, § 905.10(3)(b) -- Test for Disclosure
State v. Phonesavanh Vanmanivong, 2003 WI 41, reversing, 2001 WI App 299
For Vanmanivong: John J. Grau
Issue/Holding: The test for disclosing an informant’s identity under § 905.10(3)(b) is found in the concurrence to State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982):
¶24. We now reaffirm our holding in Dowe that the concurrence in Outlaw states the test to be applied in determining whether an informant's identity must be disclosed. Based on the language of the concurrence, a defendant must show that an informer's testimony is necessary to the defense before a court may require disclosure. See Outlaw, 108 Wis. 2d at 139 (Callow, J., concurring). "Necessary" in this context means that the evidence must support an asserted defense to the degree that the evidence could create reasonable doubt. See id. at 141-42. The court of appeals in the instant case relied upon the lead opinion for a point of law upon which the concurrence-majority opinion controls. As such, the court of appeals erred in its statement of the law.
In other words, “relevancy and admissibility” are not to be equated with “necessity,” but are separate inquiries. ¶26. § 905.10(3)(b) codifies the policies embodied by Roviaro v. U.S., 353 U.S. 53 (1957), which requires a case-by-case balancing rather than any fixed rule as to disclosure. ¶¶19-20, 27-28.
¶32. Based upon the above analysis of the law, the following procedures should be used by Wisconsin circuit courts when determining whether an informant's identity should be disclosed. Once a defendant has made an initial showing that there is a reasonable probability that an informant may be able to give testimony necessary to the fair determination of the issue of guilt or innocence, the state has the opportunity to show, in camera, facts relevant to determining whether or not the informant can, in fact, provide such testimony. If, and only if, the court determines that an informer's testimony is necessary to the defense in that it could create a reasonable doubt of the defendant's guilt in jurors' minds, must the privilege give way. Outlaw, 108 Wis. 2d at 141-42 (Callow, J., concurring).
(The opinion contains unnecessarily broad language suggesting that this case-by-case abrogation of the privilege is purely a matter of local evidentiary significance; not, that is, of constitutional dimension. ¶¶29-20. If this is what the court indeed meant to say, then it is plainly wrong, at least as a general proposition. E.g., U.S. v. Sanchez, 988 F.2d 1384 (5th Cir. 1993) (“The final consideration rises to constitutional magnitude: If the privilege interferes with a defendant's due process right to prepare his defense or if disclosure of the informant or his communication is essential to a fair determination of the defendant's guilt or innocence, the privilege must give way.” Citing Roviaro, 353 U.S. at 62.) Possibly, the court meant to say merely that the violation of statutory procedure in resolving the question of privilege does not in and of itself raise a constitutional problem. That, certainly, is an unremarkable proposition. Point is, the court’s broad language shouldn’t deter citation of both statute and due process in support of disclosure.)
Confidential Informant, § 905.10(3)(b) -- Procedure for Disclosing
State v. Marc Norfleet, 2002 WI App 140
For Norfleet: Alan D. Eisenberg
Issue/Holding: Once the trial court reasonably determines that disclosure of an informant's identity is required, there is no need to hold an in camera hearing. ¶¶13-14.
Abandonment of Claim of Privilege
State v. Frederick G. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999)
For Jackson: Allan D. Krezminski.
Holding: Jackson's attempt to suppress a urine sample by invoking the physician-patient privilege held abandoned by his failure to adduce any relevant facts or proffer works a trial-level abandonment of the privilege claim.
Attorney-client Communications, § 905.03 -- Billing Records
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: The attorney-client privilege shields statements from attorney to client, such as billing records only to the extent that disclosure would "reveal[] the substance of lawyer-client communications." ¶40. The undisputed record here shows that the sought billing records "contain detailed descriptions of the nature of the legal services rendered to [the client]. Producing the attorney billing records would, therefore, reveal the substance of lawyer-client communications between [client] and [counsel]. Accordingly, we conclude that the attorney billing records are protected by the lawyer-client privilege." ¶41.
The court specifically "declines(s) to establish a broad rule that all attorney billing records are protected by the lawyer-client privilege." Id. And, indeed, foreign authority seems to be to like effect, Chaudry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999): "Typically, the attorney-client privilege does not extend to billing records and expense reports." See also id. for brief description of what does comes within privilege. See also Slusaw v. Hoffman, 2004 PA Super 354, 9/13/04, ¶13 ("The subpoenaed invoices are not privileged documents to the extent that they do not disclsoe confidential communications which Slusaw disclosed to Attorneys Wallitsch and Reich. If the invoices contain any references to such confidential communications, those references can be redacted from the invoices.")
Attorney-client Communications, § 905.03(2) – and Competency Determinations, § 971.14
State v. Jerry J. Meeks, 2003 WI 104, reversing 2002 WI App 65, 251 Wis. 2d 361, 643 N.W.2d 526
For Meeks: Christopher T. Van Wagner
Issue: “¶18. This case presents an issue of first impression: whether an attorney’s opinions, perceptions, and impressions of a former client’s mental competency are confidential communications within the meaning of Wis. Stat. § 905.03(2) [1997-98] and SCR 20:1.6.”
Holding:
¶34. Thus, under the comment to SCR 20:1.6, the attorney-client privilege applies in situations other than those "where evidence is sought from the lawyer through compulsion of law." The confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information unless the client consents after consultation, except as stated in the Rule.

A. Observations and Perceptions and the Attorney-Client Privilege

¶35. As noted above, courts in other jurisdictions are split on the question of whether an attorney's opinions, perceptions, and impressions of his or her client are covered by the attorney-client privilege. The majority of these courts have held that the attorney-client privilege only protects confidential communications between an attorney and his or her client. An attorney's opinions, perceptions, and impressions of a former client's mental competency are, therefore, not protected by the privilege if they do not reveal the substance of their communications….

¶36. However, a number of other courts have held that disclosure of even non-verbal communications, such as the ones at issue here, violates the attorney-client privilege….

¶37. These cases hold that it is difficult, or nearly impossible, for an attorney to testify regarding an opinion of the client's competency to proceed without violating the attorney-client privilege….

¶40. We agree with the jurisdictions that hold that an attorneys opinions, perceptions, and impressions of a client's competency to proceed are protected by the attorney-client privilege. An attorney's opinion of a client's mental competency is based largely upon private communications with the client. In a law review article, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court?, the author Rodney Uphoff states:
 . . . it is clear that a criminal defense lawyer . . . often forms his opinion of a client's competency largely as a result of private communications with the client. The protection of the attorney-client privilege is not limited only to the client's words but may include the client's nonverbal communications. A number of courts have held that a lawyer can be compelled to testify regarding counsel's opinion of a client's competency even though the lawyer's observations would involve privileged client communications, but the better reasoned position is that a lawyer's opinion about a client's competence or state of mind is inextricably mixed with the client's private communications.
1988 Wis. L. Rev. 65, 91. (citations omitted)
There may be a temptation to see the result as an unalloyed, pro-defense ruling (after all, what does the defense bar generally hold more dear than client confidentiality?); but before leaping to full-throated praise of Meeks, you might first ponder the potential costs. Meeks glosses over several problems, ranging from the pragmatic to the doctrinal:
  • it creates potentially intolerable tension between duty to maintain client confidentiality and equally compelling duty to ensure client competency;
  • it conflates ethical rules of confidentiality with evidentiary rules of privilege;
  • sooner or later, it will be used to inhibit cross-examination.
Client competency. The court acknowledges tension between its holding and State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) (counsel has duty to reveal doubts as to competency) but splits the difference by saying that the “very narrow and limited breach” demanded by Johnson is supported by “compelling interests” of the present representation that don’t affect former counsel. ¶¶42-50. In other words, the "compelling interests that drove" Johnson simply aren't present, ¶49. If that is indeed a meaningful distinction, then Meeks may be argued to be and limited as very fact-specific: it may apply only to disclosure relative to prior representation (a situation unlikely to come up much if at all), without in any way inhibiting counsel's duty to disclose doubts as to present representation. Although the pragmatic need to have counsel fully air present doubts as to competency may well lead to such a limitation, the logic of the opinion itself doesn't lend itself to such a facile distinction. That is, the entire basis of the holding -- "that disclosure of even non-verbal communications, such as the ones at issue here, violates the attorney-client privilege," ¶36 -- applies equally to present as past representation. The court thus has established tension between long-standing duty of disclosure under Johnson and the newly created duty of confidentiality under Meeks, yet fails to explain how this tension might be resolved. Indeed, as discussed below, the court actually makes a muddle of the problem.

First, just on the facts: as the dissent cogently points out, former counsel was never asked for and never offered any testimony about her opinions, perceptions and impressions of Meeks’ mental state. ¶67. See also ¶87: “The majority concludes that [counsel]'s testimony violates the attorney-client privilege without evaluating any of the specific questions asked of [counsel] or the answers she gave.” The net result would thus seem to be violation of the privilege for an attorney simply to testify that she represented the defendant and that in general she raises any doubt at all as to a client’s competence. ¶¶66-67. What this means, then, is that it’s hard to see how former counsel can testify to anything (nor is there any reason to believe that this case is context-specific, i.e., limited to competency questions; exceptions exist, of course, but they are discrete, see, ¶32).

Fairly summarized, then, all counsel really said was that she’s sensitive about, and alert to, the need to raise competency. (And, that an Alford plea is conceptually complex.) If that reveals confidential information, then it's hard to see what wouldn't -- something that would be equally true in regard to current representation. The majority recognizes the problem (sort of) ... then punts:

¶46. This tension, however, does not amount to a direct conflict requiring that we overrule Johnson. An attorney's duty under Johnson demands a very narrow and limited breach of the attorney-client privilege. The attorney is merely obligated to "raise the issue [of competency] with the trial court." Johnson, 133 Wis. 2d at 220. There is no requirement that the attorney testify about his or her reasons for raising the issue or the opinions, perceptions, or impressions that form the basis for his or her reason to doubt the client's competence.
A most inelegant solution: You can tell the trial court you have doubts as to competency (indeed, you're presumably still required to do so); but you can't tell the court why. With any luck, courts will generally order an evaluation on the attorney's say-so, but after that or in the face of judicial opposition ... good luck. On the other hand, it might be argued that rights are attended by hierarchical values: a witness's (valid) invocation of the 5th amendment privilege is assigned greater value than the defendant's 6th amendment right of confrontation, e.g., State v. Jon P. Barreau, 2002 WI App 198, ¶51 ("Even where the defendant's right of confrontation may be implicated, a witness cannot be compelled to waive his or her privilege against self-incrimination."). The same could well be said in the present context: the importance of assuring present competency outweighs the "very narrow and limited breach of the attorney-client privilege," and thus allows full expression of counsel's doubts. (This analysis is admittedly contrary to the court's suggestion above, yet, that suggestion is really dicta.)

If the holding is indeed built on a hierarchy of values which places the attorney-client privilege at the very apex, then it is apparent that the court simply failed to consider that competency itself is the very foundation on which the privilege rests. See, for example, People v. Pokovich, Cal SCt No. S127176, 8/31/06:

Just as strong, however, is the policy against trying persons who are mentally incompetent. In the words of the United States Supreme Court: “ ‘Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.)

The policy that a mentally incompetent person not be subjected to a trial has its roots in our constitutional, statutory, and common law. It is thus a policy of ancient and venerable origin, founded on the view that to subject the mentally incompetent to trial or to punishment is inhumane and cruel....

The court of appeals subsequently, and without so much as mentioning Meeks, held that standby counsel may offer an opinion as to the pro se litigant’s competence, and that a decision to rescind self-representation may be based on such an opinion, Dane County DHS v. Susan P.S., 2006 WI App 100, ¶53 n.6, and accompanying text. (“We are aware of no legal or logical support for the proposition that the right to self-representation is denied by the mere act of standby counsel opining that a pro se litigant is incompetent.”) Whether the court simply overlooked Meeks, determined that that case isn't relevant to standby counsel, or recognized that Meeks is, indeed, unworkable, remains to be seen.

Ethics vs. privileges. The court explicitly imports into the evidentiary rule of privilege the ethical rule of confidentiality, ¶¶30-34, something “the preamble to SCR Chapter 20 says must not be done,” as the dissent points out, ¶86. The ethical rule is broad one; privileges are narrowly construed – they do protect distinct interests, after all – the majority doesn’t address this problem. Interestingly, this conflation of privilege and confidentiality is surprisingly common, if not systemic. See, generally, Fred C. Zacharias, "Harmonizing Privilege and Confidentiality," 40 S. Tex. L. Rev. 1037:

... In the real world, the most significant issues are not the scope of confidentiality rules, but rather the scope of privilege and the failure of lawyers and judges to distinguish privilege from confidentiality in key situations.... Because of the surprising number of instances in which even courts addressing client secrecy issues conflate the principles of privilege and confidentiality, it is important to differentiate them.... Legislatures should seek to harmonize at least the terminology of privilege and confidentiality rules. They can best do so by writing definitions for privilege and confidentiality -- or for a single, newly named principle of secrecy -- that identifies shared elements and frames their disparities in terms of discovery rules and shared exceptions.
The interaction between "confidentiality" and "privilege" isn't exclusive to the attorney-client context, but it may simply be that (for understandable reasons) that's where the judiciary is most sensitive and that other contexts won't run the same risk of conflation. Indeed, in a subsequent case, the court ruled that although legislative confidentiality is distinct from legislative privilege, that distinction didn't in and of itself create a privilege to refuse disclosure of the confidential material under a John Doe subpoena -- see the LTSB case, below.

More concretely, the court holds both that the privilege belongs to the client and, because nothing in the record indicates that Meeks himself consented to the testimony, he didn’t waive the privilege; thus, you simply can’t rely on the privilege holder’s partisan advocate to argue the privilege. Does this mean that an ineffective assistance claim, which has long been understood to operate as a waiver of the privilege, now requires a personal waiver from the defendant? Meeks, then, will reverberate.

For that matter, consider the court's gratuitous aside, that counsel “should have continued to protect the attorney-client privilege in her testimony by declining to give her opinions, perceptions, or impressions as to Meeks' competency to proceed,” ¶53; but consider: the issue in Meeks was one of first impression, ¶18; “the overwhelming weight of authority find(s) no attorney-client privilege violation” in that setting, Dissent, ¶72; more judges in Meeks’ case found no privilege (trial court, unanimous three-judge court of appeals panel, including the author of a major evidence treatise, and two dissenting justices) than found a privilege (the five justices in the supreme court majority); and both Meeks’ prior and present counsel did object on privilege grounds, ¶72 n. 11, but were overruled. Given all that, the court nonetheless expected counsel to resist disclosure. Note, in this regard, that some jurisdictions authorize disclosure of otherwise confidential information when "required by law or court order." E.g., State v. Doe, 101 Ohio St.3d 170, 2004-Ohio-705. Although no such escape hatch is written explicitly into current SCR 20:1.6, the current Comment to 1.6 does say, "The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client"; and the proposed, pending revision to 1.6 specifically authorizes such disclosure. Back to the court's seemingly gratutitous criticism of counsel: as noted, an objection was made and overruled, and counsel was ordered to disclose information. Did the supreme court by its criticism mean to say that you should flatly ignore a judicial order which abrogates thepotential privilege? That there is simply no duty to comply with a court order where the attorney-client privilege is concerned? That's hard to imagine, but it's one of the knottier possibilities left unresolved by the court's less than rigorous treatment. Maybe the court meant to say that a more vigorous objection should have been lodged, and that is certainly the message to take away from this case. In other words, resist disclosure at all costs and for as long as you can. But why you would be any more obliged to obey an appellate than trial court order to disclose would remain a mystery. Cf. In re Appeal of Duckman, 2006 VT 23, ¶10, 3/10/06:

The collateral bar rule provides that individuals cannot challenge the validity of a court order by violating the order. ... Generally, attorneys must comply with a court's ruling regardless of whether the ruling has legal support. See Maness v. Meyers, 419 U.S. 449, 458 (1975) ("Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect."). Thus, an attorney cannot generally defend against a contempt finding for violating an order by arguing that the underlying order was unlawful. ... If an attorney feels that the court's order is illegal or incorrect, the attorney's obligation is to object and preserve the point of error for appeal. Maness, 419 U.S. at 459.
Granted, revelation is the harm and would indeed render an appeal moot, so that the Meeks court must perceive that counsel will obtain a stay and appeal the order to disclose. And if the stay isn't granted? That is the sticking point, and it may well be that the court would prefer that, pending appeal, counsel go to jail for disobeying the order.

And see also discussion here, re: doctrine that exclusionary rule doesn't apply to SCR violation is seemingly incompatible with doctrine that SCR informs evidentiary rulings.

Other contexts. As noted, the case may be limited to its facts. But the danger is that it will be read broadly, not merely as a wholesale importation of ethical into evidentiary rules, but as turning the attorney-client privilege into a trump card that overrides other, competing rights. For example: it is settled that the right to cross-examination must give way before valid exercise of the right to silence; can Meeks be used similarly to squelch, on attorney-client confidentiality grounds, the right to confront a witness? If it does come up, these authorities may be helpful, Murdock v. Castro, 9th Cir. No. 02-55650, 4/5/04:

… Today, we address a situation where a substantial showing has been made that, depending upon the content of Dinardo’s letter, the Confrontation Clause and attorney-client privilege are potentially at odds - a set of facts the Supreme Court has not yet examined. Its precedents, however, clearly provide that evidentiary privileges or other state laws must yield if necessary to ensure the level of cross-examination demanded by the Sixth Amendment. …

… The attorney-client privilege should not be an unequivocal bar to access to the only evidence of inconsistent statements and ulterior motives made by accomplices turned government witnesses.

U.S. v. Almeida, 341 F.3d 1318, 1325 (11th Cir. 2003):
It is also an ancient rule in many jurisdictions that “where an accomplice turns state’s evidence and attempts to convict others by testimony which also convicts himself, he thereby waives the privilege against disclosing communications between himself and counsel.” See W.R. Habeeb, Annotation, Party’s Waiver of Privilege as to Communications with Counsel by Taking Stand and Testifying, 51 A.L.R.2d 521 § 4 (1957). …
Attorney-client Communications, § 905.03 -- Waiver by Counsel’s Voluntary but Mistaken Disclosure
Sampson v. Sampson, 2004 WI 57, reversing 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831
Issue: “¶2 The question before this court is whether a lawyer's voluntary production of documents in response to opposing counsel's discovery request constitutes a waiver of the attorney-client privilege under Wis. Stat. § (Rule) 905.11 when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client.”
Holding:
¶4 We agree with the circuit court. We conclude that a lawyer, without the consent or knowledge of a client, cannot waive the attorney-client privilege by voluntarily producing privileged documents (which the attorney does not recognize as privileged) to an opposing attorney in response to a discovery request. We hold that only the client can waive the attorney-client privilege under Wis. Stat. § (Rule) 905.11 regarding attorney-client privileged documents.

¶32 First, according to the text of Wis. Stat. §§ (Rules) 905.03(2) and (3) and 905.11, the client holds and controls the attorney-client privilege and only the client can waive it.

¶33 Second, according to Wisconsin case law interpreting Wis. Stat. §§ 905.03 and 905.11, the client, not the attorney, must waive the privilege….

¶36 Third, although we acknowledge that under agency law, ordinarily a litigant is bound by the acts of counsel during the representation, the court of appeals' reliance on the agency theory and, for example, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), is misplaced here….

¶40 One reason we applied the agency doctrine in Johnson was that the agency doctrine promoted the functioning of the justice system. The court-ordered dismissal in Johnson would conduct harmful to an adversary and the justice system. In the present case, the clients are already motivated to prevent release of attorney-client privileged documents, and protecting the attorney-client privilege promotes the functioning of the justice system.

¶42 The purpose of the attorney-client privilege is to promote "full and frank communication" between client and attorney. Full and frank communication is in turn promoted by endowing the communication with confidentiality.

¶48 We acknowledge that the information obtained from the documents before the plaintiffs made any objection to the disclosure cannot easily be erased from the minds of defense counsel or the defendants with whom the documents were shared. The defendants argue that it is not reasonable or practical to try to "unring the bell." But a return of the documents and the circuit court's prohibition of their use is the only remedy available in this proceeding.

Attorney-client Communications, § 905.03 -- "Corporate Entity" Rule
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: A former officer and director of a corporation is not entitled to waive the corporation's attorney-client privilege, even with regard to information generated during the person's corporate tenure. Under the "entity rule," the privilege belongs solely to the corporation, and only the corporation may waive it. ¶¶33-35.
Attorney-client Communications, § 905.03 -- Crime-Fraud Exception
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: Although a mere allegation is insufficient, the burden for establishing a prima facie case of the attorney-client crime-fraud exception is low -- reasonable cause (i.e., more than suspicion but less than preponderance-of-evidence) to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme. ¶50, quoting United States v. Chen, 99 F.3d 1495, 1503 (9th Cir. 1996). "Once the circuit court determines the prima facie case has been established, an in camera review is the proper procedure to determine if the crime-fraud exception to the lawyer-client privilege applies." ¶55. The decision to hold an in camera review is discretionary, as informed by the factors outlined in United States v. Zolin, 491 U.S. 554, 572 (1989). ¶56. (The court requires an in camera inspection in this case but doesn't really say why, except: ""Only by reviewing the documents at issue is the circuit court able to determine whether [counsel's] legal services were rendered in furtherance of fraud." Id.)
Attorney-client Communications -- Work Product.
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: Work-product is a "qualified privilege" to refuse disclosure of materials generated by counsel in anticipation of litigation that only gives way upon showing of substantial need along with undue hardship in obtaining the substantial equivalent through other means. ¶61. The trial court erroneously exercised discretion in simply rebuffing the claim of privilege without finding the existence of substantial need preparation in anticipation of litigation. An in camera inspection is ordered on remand. ¶62.
Lane describes in some detail in the cited paragraphs the showing necessary to find a work product privilege. As the court notes, this privilege is codified in § 804.01(2)(c); and, because FRCivP 26(b)(3) is "the federal analogue to "this statute, "federal decisions construing the federal counterpart" are relevant.
Attorney-client Communications -- Work Product
In re Petition for Subpoena of Documents: Ramiro Estrada v. State, 228 Wis.2d 459, 596 N.W.2d 496 (Ct. App. 1999).
For Estrada: Keith A. Steckbauer.
Holding: An alleged sexual assault perpetrator's wife videotaped an interview with the complainant, after an attorney told them it would be helpful to know more about the allegations. The court of appeals upholds a discovery order to turn the video over to the prosecution, rejecting arguments of attorney-client privilege and work-product. Because the communication was made in the presence of a third person (the complainant), it wasn't confidential, and therefore not privileged, § 905.03(2). (This, in contrast to an interviewer's report to the attorney.) As to work-product: this common law privilege requires that the material "have been obtained at the attorney's direction and in anticipation of litigation." That showing isn't met; the attorney didn't direct the spouse to interview the complainant or ask her certain questions. (The court specifically declines to discuss the statutory protection for work-product, § 804.01(2), because it isn't adequately briefed.)
§ 905.13, Comment on Silence
State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall
Issue/Holding:
¶19. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. State v. Nielsen, 2001 WI App 192, 32, 247 Wis. 2d 466, 487-88, 634 N.W.2d 325, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784 (Wis. Oct. 23, 2001) (No. 00-3224-CR). The court must look at the context in which the statement was made in order to determine the manifest intention that prompted it and its natural and necessary impact on the jury. Id.
(Comment with respect to Cooper’s prearrest silence -- that Cooper chose not to talk to investigating officer at some point after previously talking -- not manifestly intended to imply invocation of right to silence, but instead explained why the investigation terminated at that point. ¶19. And, that Cooper remained silent at one point during postarrest interrogation in which he was otherwise responsive similarly not intended to be comment on invocation of right to silence. ¶20.)
Attorney-client Communications -- Government Lawyer
In Re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002)
Issue/Holding: Privilege between government lawyer and client -- state agency -- does not extend to criminal proceedings such as grand jury investigation.
Mental Health Records -- Showing of Materiality -- in camera inspection
State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999)
For Ballos: Robert N. Myeroff.
Issue: Whether the trial court should have ordered production of the state's witness's mental health records, for in camera inspection, upon showing that the witness had been hospitalized for depression and was obsessed with bomb-building, and where the theory of defense was that the witness rather than defendant committed the crime.
Holding: To obtain in camera inspection of records, the defense must show their materiality. Ballos satisfied that test, given the witness's hospitalization less than three months before the charged arson, and his obsession with bombs. The error, though, was harmless in light of overwhelming evidence of guilt.
"Shiffra" Material -- In Camera Inspection
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court's denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren't within the state's possession; disclosure isn't limited to mental health records; and, § 971.23(1)(h) exculpatory evidence analysis isn't relevant to the materiality inquiry. ¶¶9-10. Materiality in this case relates to supporting self-defense, in particular proof of the victim's prior acts of violence within the defendant's knowledge. ¶13. Navarro's assertions, though general, sufficed to require an evidentiary hearing on materiality, as prelude to in camera inspection (though greater specificity will be required at the hearing). ¶¶13-17.
"Shiffra" Material --Preliminary Showing for In Camera Inspection
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding: The court modifies the threshold showing required for an in camera inspection, in favor of "a slightly higher standard," namely a "'reasonable likelihood' that the records will be necessary to a determination of guilt or innocence."¶32.
¶34. Based on the above considerations, we set forth the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be "necessary to a determination of guilt or innocence" if it "tends to create a reasonable doubt that might not otherwise exist." See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.

¶35. In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. See Walther, 2001 WI App at ¶14. We have confidence in the circuit courts to then make a proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant's pretrial discovery.

Green's showing falls short. He merely asserted that statements made in counseling might be inconsistent with other pretrial statements. ¶37.
(But see State v. Frederick Robertson, 2003 WI App 84 (showing necessary for in camera inspection met, on postconviction review, Where defense found out after trial that complainant had been treated for depression with psychotic features around the time of the incident, and the principal trial issue concerned the complainant’s credibility.)
"Shiffra": Viability Affirmed
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding: Viability of State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) upheld, against claim by state that it should be overturned. ¶22 n. 4. State v. Munoz, 200 Wis. 2d 391, 395, 546 N.W.2d 570 (Ct. App. 1996) ratified as setting forth correct test for triggering Shiffra rights. ¶25 n. 8.
"Shiffra" Material --Preliminary Showing for In Camera Inspection
State v. Munoz, 200 Wis. 2d 391, 395, 546 N.W.2d 570 (Ct. App. 1996)
For Munoz: Craig M. Kuhary
Issue/Holding:
Here, as in Lederer, the defense offered nothing more than "the mere possibility" that the records "might produce some evidence helpful to the defense." Lederer, however, was decided before Shiffra. The broad language of Shiffra-"that the sought-after evidence is relevant and may be helpful to the defense," Shiffra, 175 Wis.2d at 608, 499 N.W.2d at 723 (emphasis added)-certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more than "the mere possibility" that psychiatric records "may be helpful" in order to justify disclosure for an in camera inspection.
"Shiffra" Material -- "Jensen" Testimony not Enough to Trigger
State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel
Issue: Whether the prosecution opened the door to otherwise privileged "Shiffra" evidence.
Holding:
¶51. Before trial, the circuit court found that there was nothing relevant in D.F.'s treatment records that was not also in Dr. Pucci's summary report. Although Dr. Pucci ventured beyond the scope of her summary report at trial in that the report did not say she would give Jensen testimony, it does not automatically follow that Rizzo was entitled to D.F.'s treatment records. Because Dr. Pucci's factual testimony was anticipated, her Jensen testimony did not change the scope of relevant information in D.F.'s treatment records. The argument that Rizzo could somehow impeach Dr. Pucci's expert knowledge of the common behaviors of sexual assault victims by accessing the treatment records of one of her patients is not persuasive.

¶52. Rizzo also argues that he needed D.F.'s treatment records to cross-examine Dr. Pucci because it was unclear whether a statement in quotation marks in Dr. Pucci's summary report was attributable to Dr. Pucci or to D.F.'s parents. The statement said that D.F. was 'lying, and manipulative, and good at diverting attention.' Dr. Pucci testified that these were not the parents' exact words, but rather her interpretation of what they had said. She explained that she placed them in quotation marks to signify that she was quoting another source, an intake form.

¶53. Rizzo's position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.'s parents, this would have undermined Dr. Pucci's credibility. We do not adopt Rizzo's position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim's confidential records. In effect, Rizzo's position would provide that the defendant must receive full access to the victim's treatment records in every case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim's interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609-10.

"Shiffra" Material -- In Camera Inspection
State v. Terrance W. Walther, 2001 WI App 23, 240 Wis. 2d 619, 623 N.W.2d 205
For Walther: Raymond M. Dall'Osto, Kathryn A. Keppel
Issue: Whether the defendant's motion for in camera inspection of the child sexual assault complainant's confidential records should have been granted.
Holding:
¶11 Here, Walther established more than the mere possibility that the requested records 'may be necessary to a fair determination of guilt or innocence.' See Shiffra, 175 Wis. 2d at 610. The information Walther provided, both in counsel's affidavit and supplemental submissions, about the child's background and treatment history, in combination with the information about the reported sexual assaults at St. Aemilian's, established more than the mere possibility that the requested records would reveal information necessary to a fair determination of guilt or innocence....

¶14 ... (W)e caution trial courts to carefully consider, in cases presenting 'close call[s],' the consequences of cutting off in camera review. As emphasized in Shiffra, and as reiterated in Munoz, a trial court's in camera review 'is a limited intrusion that often provides the best tool for resolving conflicts between the sometimes competing goals of confidential privilege and the right to put on a defense.' Munoz, 200 Wis. 2d at 400 (quoting Shiffra, 175 Wis. 2d at 611-12).

"Psychotherapist-Patient Privilege, § 905.04
State v. Curtis M. Agacki, 226 Wis.2d 349, 595 N.W.2d 31 (Ct. App. 1999)
For Agacki: John M. Carroll.
Issue/Holding: Psychotherapist-patient may be abrogated by "dangerous-patient exception" recognized by Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159 (1988), and Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).
(See more detailed discussion here.)
Counselor-Patient -- Waiver: Volitional, Not Intentional
State v. Denis L.R., 2004 WI App 51, affirmed as modified, 2005 WI 110
For Denis L.R.: Richard Hahn; Dwight D. Darrow
Issue/Holding:
¶15. This court recently analyzed whether waiver of the attorney-client privilege must be intentional under Wis. Stat. § 905.11. Sampson Children's Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831, review granted, 2003 WI 140, 266 Wis. 2d 60, 671 N.W.2d 847 (Wis. Oct. 1, 2003) (No. 02-1515). There, the court held "as recognized by the Federal Advisory Committee note to proposed Fed. R. Evid. 511, which was adopted in Wisconsin as Wis. Stat. Rule 905.11, the formulation of waiver by Johnson v. Zerbst, 304 U.S. 458, 464 (1938), as the intentional relinquishment of a known right, does not apply to waiver of evidentiary privileges." Sampson, 265 Wis. 2d 803, ¶11. Thus, if the "holder of the privilege" "voluntarily discloses" a communication shielded by evidentiary privilege under Wis. Stat. § 905.04, that disclosure need only be volitional. Sampson, 265 Wis. 2d 803, ¶17. "[O]nce confidentiality is destroyed through voluntary disclosure, no subsequent claim of privilege can restore it, and knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant." Id., ¶11 (citation omitted).

¶16. Dawn contends that our holding in Sampson does not apply in this case because there we were discussing the attorney-client privilege. While we agree that there are nuances of Sampson that are inapposite to this case, it remains that the Sampson court held that a waiver of the attorney-client privilege under Wis. Stat. § 905.11 need only be volitional, not intentional. We see no sound reason to adopt a different rule in a counselor-patient setting. We therefore reject Dawn's contention that the trial court erred in failing to consider her lack of intention in waiving Kirstin's privilege by voluntary disclosure of confidential information to a third party.

The supreme court affirmed, but without reaching the issue of waiver of privilege, 2005 WI 110, ¶7. Because the supreme court didn't actually overrule the portion of the court of appeal's decision quoted above, it arguably retains its precedential value and thus remains posted.

Privilege – Patient-Counselor, § 905.04(4) (2001-02) – Extinguished by Mandatory Reporting Obligations
State v. Denis L.R., 2005 WI 110, affirming as modified 2004 WI App 51
For Intervenor Dawn R.: Dwight D. Darrow
Issue/Holding: Revelation of a child’s statement to a counselor, discussing whether or not she had been sexually abused, may not be resisted on ground of privilege:
¶7        We do not address these issues regarding waiver because we conclude that there is no privilege here. Fears reported the sexual assault to the authorities, presumably pursuant to his mandatory reporting obligations under Wis. Stat. § 48.891 [sic, 48.981]. Under the circumstances presented, we conclude that Fears' reporting the abuse to the authorities under Wis. Stat. § 48.891 extinguishes Kirstin's privilege under Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, there is no privilege with respect to any "confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient's . . . mental or emotional condition . . . " with respect to the sexual abuse. See Wis. Stat. (Rule) § 905.04(2). Therefore, any information the counselors at Choices have that is relevant to the prosecution or defense of Denis for the sexual assault is not privileged. Accordingly, we affirm the decision of the court of appeals on other grounds.

¶37      The therapist-patient privilege in Wis. Stat. (Rule) § 905.04(2) is a testimonial rule of evidence. …

¶38      However, this privilege is not absolute. …

¶39      … Our review of the statute's language indicates that the child abuse exception applies when three criteria are satisfied. 

¶40      The first criterion requires an "examination" of the child to have occurred.  … [T]he term "examination" refers to and can encompass a wide variety of exploratory practices. …

¶41      The second criterion requires that the examination create "a reasonable ground for an opinion" of the enumerated providers that the child has been abused or neglected. 

¶42      The third criterion requires that the opinion must relate to abuse or neglect that was caused by means other than accident or infliction by another.

¶43     When these criteria are satisfied, Wis. Stat. (Rule) § 905.04(4)(e)2 states that "[t]here is no privilege."  …  We agree with the State that these criteria are satisfied here.

¶48      According to Wis. Stat. § 48.981(2), counselors are legally required to report to the authorities if the counselor has "reasonable cause to suspect" that the child "has been abused or neglected." …

¶53      … Where a counselor reports child abuse under Wis. Stat. § 48.981(2) and (3), that counselor has expressed a "reasonable ground for an opinion  . . . that the abuse or neglect was other than accidentally caused or inflicted by another."  See Wis. Stat. (Rule) § 905.04(4)(e)2. [19] 

¶54      Here, Fears formed a reasonable suspicion that child abuse occurred ….

¶55      Accordingly, because the strictures of Wis. Stat. (Rule) § 905.04(4)(e)2. have been met, there is no privilege with regard to any confidential communications Kirstin made at Choices Family Services regarding the sexual assault for purposes of treatment. [20]  See Wis. Stat. (Rule) § 905.04(2) ("privilege" refers to "confidential communications made or information obtained or disseminated for purposes of  . . . treatment of the patient's . . . mental or emotional condition . . . . ").


[19] This syllogism will not always hold true. Those required to report under Wis. Stat. § 48.981 include many persons not mentioned in Wis. Stat. (Rule) § 905.04(4)(e)2. Thus, for example, if a teacher has a reasonable suspicion that a child is abused, and that child has been seeing a counselor, the teacher's reporting does not abrogate the child's counselor-patient relationship.
 [20] We limit the breadth of the exception's application because Kirstin went to counseling for many reasons. The exception applies to the extent that any communications made for mental health treatment regarding the sexual abuse are not privileged. Kirstin's other communications that related to other reasons for attending counseling remain privileged, unless they relate to the opinion that Kirstin was abused or neglected.
Privilege -- Comment on Silence, Permissible Impeachment, § 905.13
State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe
Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13. (Various authorities— State v. Feela, 101 Wis.  2d 249, 268, 304 N.W.2d 152 (Ct. App. 1981); State v. Wulff, 200 Wis.  2d 318, 340-41, 546 N.W.2d 522 (Ct. App. 1996), rev’d on other grounds, 207 Wis.  2d 143, 557 N.W.2d 813 (1997); United States v. Hale, 422 U.S. 171 (1975)—distinguished, on same basis: “The prosecutor impeached the alibi witnesses with Ewing’s statements, not his non-statements.” ¶¶14-16). For discussion, generally, on constitutional principles, see U.S. v. Santiago, 7th Cir No. 04-2489, 11/3/05.

Also see cases here.


Ch. 906 -- WITNESSES
§ 906.06 - Verdict - Competency of Juror to Impeach
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding:
¶62   Finally, we consider Miller’s argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to “guilty” to end jury deliberations so that he could leave for his fishing trip. Wisconsin Stat. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict “except … on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that “the subject matter of the proposed hearing is within an exception to Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial.” Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id. at ¶19.

¶63   We conclude Miller’s affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror’s “impending departure for his annual trip, and no doubt the chiding he could expect from his buddies,” was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an “outside influence” within the meaning of Wis. Stat. § 906.06(2).

Witness – Personal Knowledge Requirement, § 906.02 – Computer-Generated Animation
State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly
Issue/Holding: Lay witness, who testified to computer-generated animation that attempted to recreate the alleged crime through the eyes of certain witnesses, lacked personal knowledge to undertake this effort:
¶16      As a lay witness, Ambach’s testimony should have been limited to matters of which he had personal knowledge. See Wis. Stat. § 906.02. … Contrary to the State’s assertions, the computer-generated animation was not simply a demonstrative exhibit—like a rough drawing on a chalkboard—used to illustrate a testifying lay witness’s testimony. See Anderson v. State, 66 Wis. 2d 233, 248, 223 N.W.2d 879 (1974). Rather, as Ambach testified at trial, it was intended to depict the State’s three key witnesses’ “memories” and show “what people did.” Thus, the animation combined elements from the testimony of Giovannoni, Hohisel, and Biever with measurements provided by Clapper to produce an animation which summarized the State’s version of what occurred. As a lay witness lacking personal knowledge, Ambach’s testimony to that effect was inadmissible.
Disclosure by Defense of “McMorris” Self-Defense Evidence, Under § 906.11 State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: § 906.11 provides authority to require pretrial disclosure by the defense of "McMorris" evidence as related to self-defense. (See summary above.)
Bailiff as Potential Witness
State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski
Issue/Holding Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:
¶57      In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram's potential influence for only a very limited period of time.

¶58      Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59      Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60      More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …

Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis. Stat. Rule 906.11, Wisconsin’s version of Rule 611 of the Federal Rules of Evidence. See United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980) (“There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers “added” was cumulative, and, further, if Rodriguez’s trial lawyer had objected, the prosecutor could have simply reviewed his notes and asked more focused questions to each officer.
Cross-Examination – Prosecutorial Accusation of Defendant “Lying”
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶35      … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. See Harris v. New York, 401 U.S. 222, 223–226 (1971) (prosecutor did not violate defendant’s rights by introducing on cross-examination the defendant’s statement to the police even though the defendant had not been warned of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), because the defendant opened the door by denying matters he admitted in that uncounseled statement) (“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.”) (citations omitted). Further, in context, the prosecutor’s use of the words “lie” and “lying” was not, as Rodriguez contends, the prosecutor’s “personal[] comment” on Rodriguez’s credibility; it was the prosecutor’s confronting Rodriguez with what Rodriguez tacitly at least admitted were inconsistencies in his testimony, when he acknowledged that he did, indeed, have unexecuted warrants. Rodriguez’s claim that what the prosecutor did denied him a fair trial is without merit.
False Testimony
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue:: Whether an expert witness's testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background.
Holding:
¶33. We cannot conclude that the circuit court's refusal to strike Thomalla's testimony was improper. While Thomalla's past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law. See In re Spengler, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) (holding that court of appeals may not reverse circuit court's determinations regarding credibility unless the witness is credible or incredible as a matter of law). First, we agree with the circuit court that although Thomalla may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there is no dispute that he is a licensed psychologist or that he has experience evaluating sexually violent persons. Second, we are not convinced that Thomalla's dishonesty regarding his curriculum vitae suggests his opinion regarding the likelihood that Sprosty will reoffend is similarly unreliable.
Nor did belated revelation of these matters deny Sprosty effective cross-examination: The possibility that the witness thought he could save his job by giving favorable testimony to the state is speculation; and, there was no prejudice from being unable to cross-examine on inaccuracies in the witness's curriculum vitae. ¶37.
Go To Brief
Impeachment -- Bias -- Generally
State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding:
¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). Although, as Van Arsdall observes, this does not mean there can be no limits on a defendant’s cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a “dead track.” We analyze Yang’s confrontation-denial contention against this background.
Impeachment -- Gang Affiliation of Witnesses-- Irrelevant in Absence of Evidence Defendant Was Gang Member
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding: Issue/Holding: Testimony by a “gang expert” as to the gang-affiliation of certain witnesses, in an effort to explain their motive to testify as they did, was irrelevant in the absence of any evidence that the defendant was himself a gang member:
¶14   Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v. Long, 2002 WI App 114, 255 Wis. 2d 729, 647 N.W.2d 884. There, we stated that “[f]or a witness’s gang affiliation to be relevant to show bias in favor of [the defendant], the State was required to establish [the defendant]’s gang affiliation.” Id., ¶19. …

¶15   … The State argues that Bowens’ and Jones’ gang connections are relevant to show not, as in Long, their bias in favor of the defendant, but rather their “bias against the prosecution.” …

¶16   But the State’s focus only on Warmington’s identification of Bowens and Jones as gang members ignores the much broader reach of Warmington’s testimony. [6] Identifying witnesses as gang members may be admissible where there is a tight fit between their gang membership and some specific motivation to be untruthful, as is generally present in common-membership cases. See Abel, 469 U.S. at 47-48. But this is not what Warmington testified to; rather, he spoke in generalities about people “up in that area” not cooperating with the police out of fear of retaliation, or because “they in some way, shape, or form participated in something that led to them being shot.” Warmington went on to testify that “witnesses” (here it is unclear whether he is talking about gang members or neighborhood residents) will make “excited utterances” to the police that they later deny. [7]

¶17   We agree with Burton that this testimony, whether viewed as going to bias or character for truthfulness, was prejudicial because it invited the jury to discredit the several witnesses who testified favorably to Burton, either by tarring them with undemonstrated gang affiliation or simply based on the neighborhood in which they live. We see little, if any, probative value in this sort of testimony. …

¶18   We also find objectionable Warmington’s testimony that a gang member who had been “publicly embarrassed” would “feel the need to gain that respect back … through retaliation, through physical confrontation, a fight, a shooting.” Though Warmington did not mention Burton by name, the whole line of questions and answers is obviously intended as support for the prosecution theory that Burton shot Bowens in retaliation for the alleged robbery; indeed, the prosecution explicitly sought to introduce this testimony to show Burton’s motive. As Burton points out, the State adduced no evidence that he was in any gang ….

¶19   Given the low to nonexistent probative value and highly prejudicial nature of the portions of Warmington’s testimony we have discussed, we hold that the circuit court misused its discretion in admitting it. See Wis. Stat. § 904.03.

The court cites with approval, and therefore seemingly adopts (¶17), the concurrence in People v. Roberts, 65 Cal. Rptr. 2d 17, 22 (Ct. App. 1997) (warning of dangers of “generalized ‘bias’ testimony based on group tendencies”).
Impeachment (Hearsay Statement) -- Bias: Gang Affiliation
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: Where the defendant’s brother testified that the non-testifying complainant had recanted, the prosecution could impeach the brother with the possibility that the complainant was motivated by fear due to the brother’s gang affiliation, ¶31: “A witness’s motive (whether testifying 'live' or by admission of his or her out-of-court assertions) is never collateral, see State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978), and, if an out-of-court declarant, may be attacked and supported as provided for in Rule 908.06.”
Impeachment -- Gang Affiliation -- Admissibility on Bias
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Evidence of gang affiliation is admissible (if state shows that defendant in fact was affiliated) to show witness' bias, per United States v. Abel, 469 U.S. 45, 52 (1984). ¶¶17-19.
Bias -- Limitation on Cross-Examination
State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:
  • The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. … his inquiry into that area was not yet closed.  Accordingly, the trial court’s invocation of, in essence, ‘asked-and-denied’ to move the trial along was not yet justified, given the critical nature of motive to Yang’s defense.”) ¶13.
  • Although the inquiry would not have directly proved the defense theory, the desired inference was one “Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. … Indeed, … are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence[.]” ¶14.
  • Yang asserted, in opening statement, the fact sought to be established by the inquiry and it is therefore assumed that there was a good-faith basis for the questioning; nor would the jury have been bound by the witness’s denial. “Thus, Yang was entitled to have the jury decide from his lawyer’s questions and the nature of his former wife’s responses whether she was telling the truth[.]” ¶15.
The error was prejudicial, ¶17: it was a close case, as exemplified by partial acquittal; motive to lie was, by the State’s own representation to the jury, crucial and the curtailed cross “would have been an appropriate tool for them to use in making that assessment.” All in all, a fact-specific case, though it does seem to be a ringing endorsement of the right to cross-examine, especially with regard to potential matters of bias or motive to lie.
Impeachment -- § 906.06, Motive to Lie
State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen
Issue: Whether the defense should have been allowed to cross-examine the arresting officer about an instance of misconduct between the officer and a third party which was assertedly very similar to the defense theory that the officer mistreated the defendant and planted evidence on him. Holding:
¶20      Moreover, WIS. STAT. § 906.08(2) provides:
      SPECIFIC INSTANCES OF CONDUCT.  Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility … may not be proved by extrinsic evidence. They may, however … if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination ….
¶21      Based on this statute, at a minimum, defense counsel should have been able to ask Mucha about the Scull incident during cross-examination. The Scull incident was not remote in time, and was probative of whether Mucha was being truthful or untruthful.
Impeachment -- Deferred Prosecution Agreement
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.
Holding:
¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not 'evidence that the witness has been convicted of a crime.' See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

¶38. Instead, Chu's entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness's motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

¶39. Here, however, Weiss's criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly, Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss's motive to lie, we reject his argument.

Impeachment -- Witness's Mental Condition
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Issue/Holding: Diagnosis of multiple personality disorder, to impeach witness: evidence of mental impairment does not, without more, affect witness's credibility. Without evidence that this condition affected the witness's recall ability, it is irrelevant.
Impeachment -- Interplay with Fifth Amendment
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness's "real and appreciable apprehension" of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony. ¶¶51-52. (No error found here, because the inhibited inquiry would have been largely cumulative. ¶54.)
Impeachment -- Pending Charge -- Accomplice
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶44. The State charged Gundy as an accomplice to Ross's criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross. Ross argues that he should have been allowed to make inquiry about Gundy's release from custody as a possible motive for false testimony. If that were the case, indeed Ross's counsel would have been entitled to question Gundy about his release from custody. The error of this contention, however, as pointed out by the trial court, is that Gundy had secured his release before a plea agreement had been reached.

¶45. Thus, a reasonable basis existed to limit the scope of cross-examination. Furthermore, Ross was able to cross-examine Gundy about the benefits of his plea bargain-namely, that as a result of his agreement to testify, Gundy's potential incarceration had been reduced from thirty-five years to ten years, and that if convicted, the State would recommend straight probation without any jail time. From this review, we conclude that a reasonable basis existed for the trial court to limit the scope of factors that may have motivated Gundy's decision to testify against Ross.

Impeachment -- Pending Charges
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
A witness's pending criminal charges are relevant to bias, even absent promises of leniency. ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury's presence that there were none. Any error on the inhibition of confrontation was therefore harmless. Additionally, there was no prohibition on asking the witness whether he had any pending charges; though counsel didn't pursue that inquiry, there was no error, because confrontation requires only the opportunity for effective cross-examination, not its actualization.
Impeachment -- Witness's Parole Eligibility Date
State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding
Issue: Whether a defense witness was properly impeached with evidence that he was serving life in prison with no prospect for parole.
Holding: The witness's attempt to admit the crimes and exonerate the defendant would have misled the jury absent revelation of his functional immunity stemming from his parole status: "where no practical, penal consequence could accrue, a jury would be misled were it not informed of the witness's no-risk status." ¶26.
Impeachment -- Prior Convictions, § 906.09
State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:
¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that "a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted." State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995). The decision whether to admit prior conviction evidence for impeachment purposes under § 906.09 lies within the trial court's discretion. Id. at 525. We will uphold a trial court's discretionary decision if it correctly applied accepted legal standards to the facts of record and used a rational process to reach a reasonable conclusion, putting aside "whether we would have made the same ruling." Id.

¶25. The trial court allowed all five of Gary's convictions to be admitted based solely on its understanding that there is "a presumption in the statute ... [that] ... allows for prior convictions to be brought in because [they] do[] say something about the person's credibility." ...

¶26. Wisconsin Stat. § 906.09 does not end with the "general rule," however. Subsection (2) requires that a court also consider whether conviction evidence should be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice." …

¶¶27. Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. See, e.g., State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). Had it done so, the court might have concluded that Gary's three twenty-five-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. Although we may independently review the record to determine whether the proper legal standard applied to the facts of record support the trial court's ruling, we decline to do so here. Because there were no evidentiary proceedings (and only very brief argument) on the issue in the trial court, the record provides no basis for us to conclude that, had the court applied the correct legal standard, it would have reached the same result.  

NOTE: The supreme court's affirmance doesn't generate a majority of votes in favor of any distinct holding that could be seen as a reversal of the quoted holding -- the split is: 3 (plurality: all convictions are relevant to truthfulness) - 1 (concurrence: any error was harmless) - 3 (dissents: favoring reversible error). An argument may be made that the court of appeals' holding therefore remains viable. But an alternative possibility is presented. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) ("when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court's ultimate holding"). If you compare the lead opinion’s seeming bemusement at the idea that somehow 5 priors was unfairly prejudicial when 2 concededly weren’t (¶32) with the concurrence’s apparent belief that multiple priors don’t create additional prejudice, then the holding might be something like: when one prior is correctly admitted into evidence, additional priors simply don’t matter (not, at least, when there’s been a limiting instruction, as in this case).  
Impeachment -- Post-Miranda Silence
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding:
¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant's silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant's choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post-Miranda silence)).

¶32. If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or by defense counsel's questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution's permissible use of post-arrest silence to "challenge the defendant's testimony as to his behavior following arrest"), the government may use the defendant's silence for the limited purpose of impeaching his testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant's silence is inconsistent with his claim of innocence. Id.

¶33. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant's right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.
...

¶36 ... We conclude that Nielsen opened the door to government questioning by his counsel's questioning, and the State was permitted to clarify that Nielsen had not answered all questions for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview....

Involuntary Statement of Witness (Not Defendant) -- Admissibility -- Test
State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565; habeas denied, Samuel v. Frank, 7th Cir No. 07-1243, 5/12/08
For Samuel: Robert A. Henak
Issue/Holding:
¶30. With due process as our touchstone, we conclude that when a defendant seeks to suppress witness statements as the product of coercion, the police misconduct must be more than that set forth in Clappes. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically 'egregious' police misconduct that offends due process. Our concern is with police misconduct that, by its nature, undermines confidence in the reliability of a witness's statements. Witness statements obtained by police methods that induce lying have no place in our system of justice because a conviction based on unreliable evidence undermines the fundamental fairness of a defendant's trial. In short, due process demands that the State not marshal its resources against an accused in a manner that results in a conviction based on unreliable evidence obtained through egregious police practices.

¶31. Upon an examination of the case law and the parties' arguments, we glean several factors to consider in determining whether police misconduct is egregious such that it produces statements that are unreliable as a matter of law. These factors include (1) whether a witness was coached on what to say; (2) whether investigating authorities asked questions blatantly tailored to extract a particular answer, see Gonzales, 164 F.3d at 1289; (3) whether the authorities made a threat with consequences that would be unlawful if carried out, see United States v. Tingle, 658 F.2d 1332, 1335-36 (9th Cir. 1981); (4) whether the witness was given an express and unlawful quid pro quo; (5) whether the State had a separate legitimate purpose for its conduct, Tingle, 658 F.2d at 1337; and, (6) whether the witness was represented by an attorney at the time of the coercion or statement, see Merkt, 764 F.2d at 269. The presence of the first four factors weighs in favor of suppression while the presence of the second two factors weighs against it. Application of these and other relevant factors will help to ensure that it is unreliable evidence that is suppressed. It will also help to guarantee that the State does not obtain convictions based on practices that offend fundamental fairness.

¶32. In cases where an application of the factors results in a determination that witness statements at issue will not be suppressed, the defendant nevertheless retains the ability to test the credibility of the witness statements through, among other approaches, cross-examination before the jury. See Nerison, 136 Wis. 2d at 45. Cross-examination is an essential tool for "sifting the conscience of the witness" and thereby protecting a defendant's rights at trial. State v. Bauer, 109 Wis. 2d 204, 208 n.3, 325 N.W.2d 857 (1982) (citing Mattox v. United States, 156 U.S. 237, 242-43 (1895)). The jury, of course, has the duty to scrutinize and weigh the testimony of witnesses and to determine the effect of the evidence as a whole. See Hampton v. State, 92 Wis. 2d 450, 462, 285 N.W.2d 868 (1979); Wis JI--Criminal 300.5 These safeguards--cross-examination and the jury's role in weighing the evidence--help ensure a fair trial where due process does not require the suppression of witness statements."

But see State v. Daniels, KS SCt NO. 87,790, 6/25/04 ("To determine whether a witness' statements are voluntary, the court looks at the totality of the circumstances and considers the same factors used to weigh the voluntariness of a defendant's confession.").
Opinion Testimony -- Character for truthfulness.
State v. Juan Eugenio, 219 Wis.2d 391, 579 N.W.2d 642 (1998), affirming State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997).
For Eugenio: Eduardo M. Borda
Issue: Whether the defense engaged in attacks on the complainant's character for truthfulness so as to open the door to opinion testimony that she was truthful.
Holding: § 906.08 supports rehabilitation of a witness "only in limited situations," not "a broad range of attacks on a witness's testimony.... Thus, contradiction in testimony is not to be equated pro forma with an attack on character." Overruling prior court of appeals' decisions, the court holds that a mere attack on veracity or motives doesn't call into question a witness's character. Rather, the circuit court must determine that the attack represents an assertion not just that the witness is "lying in this instance, but is a liar generally." The trial court properly exercised discretion in determining that such an attack was made here.
(See also Impeachment -- Cross-Examining Defendant re: Another Witness Lying, below.)
Opinion Testimony -- Comment by One Witness on Whether Another Witness "Is Lying"
State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen
Issue/Holding: A defendant may be asked whether another witness offering contradicting testimony “is lying.” ¶11.
The seminal case is State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984): one witness may not give an opinion as to whether another witness is telling the truth. A subsequent court of appeals decision allowed the prosecutor “to restate prior witnesses’ testimony and to ask [the defendant] if the prior witnesses were lying.” State v. Jackson, 187 Wis. 2d 431, 437-38, 523 N.W.2d 126 (Ct. App. 1994). But a still later decision said that Jackson, being “in clear conflict with” Haseltine, didn’t necessarily have to be followed; instead, Haseltine was the “correct” result. State v. Kuehl, 199 Wis. 2d 143, 147-151, 545 N.W.2d 840, 841-843 (Ct. App. 1995). And now the court of appeals says that it had no power to do what it did in Kuehl, which means that Jackson is restored to the books. But why should that be so? If Jackson indeed is “in clear conflict with” Haseltine, then why can’t it be said that the usurping decision is Jackson and not Kuehl? The court doesn’t say – but if the right to challenge a court of appeals’ arrogation of authority has an unlimited shelf life, then it’s hard to see why that question can’t be litigated. “Because the court said so in Bolden” is no answer, by the court’s own logic. Nor is the argument far-fetched: only recently, the court said that where its own precedents sharply conflict it is free to follow the one embodying “the better-reasoned analysis.” Bruzas v. Quezada-Garcia, 2002 WI App 57, ¶22, 251 Wis.2d 449, 460, 642 N.W.2d 207 (Ct. App. 2002). See also Tomczak v. Bailey, 206 Wis.2d 405, 414, 557 N.W.2d 840 (Ct. App. 1996) (“when such a condition exists, we are free to follow those cases which we conclude represent the better law”). And what happens when the court of appeals is confronted with conflicting supreme court precedent? “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court's most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857.

So, which is it, Kuehl (blindly follow) or Bruzas (decide which case makes more sense)? Again, one thing’s sure: just because Bolden says so doesn’t make it so. And if you're looking for, say, federal authority -- after all, our code of evidence is patterned on the FRE -- you can start with U.S. v. Gaines, 170 F.3d 72, 81 (1st Cir. 1999):

This circuit has held that it is improper for an attorney to ask a witness whether another witness lied on the stand. United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998); United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996); United States v. Akitoye , 923 F.2d 221, 224 (1st Cir. 1991); cf. United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2d Cir. 1987). Underlying this rule is the concept that credibility judgments are for the jury, not witnesses, to make. Sullivan, 85 F.3d at 750.
See also, e.g., U.S. v. Combs, 9th Cir. No. 02-50485, 8/5/04 (plain error for prosecutor to make defendant call government agent-witness a liar); U.S. v. Harris, 3rd Cir No. 05-2016, 12/12/06 (after noting that "nearly all" federal courts find error in questioning defendant about credibility of government witness):
Today, we follow our sister circuits and hold that asking one witness whether another is lying is inappropriate. Such questions invade the province of the jury and force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal. In addition, as Harris’ counsel explained during oral argument, such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar.

Actually, the “correct” answer, at least for the case at hand, might be that Jackson can be seen as mere embellishment on rather than overruling of Haseltine; and that Kuehl didn’t have to (or even in fact) overrule Jackson. All three decisions might be reconcilable. That is because the holding in Jackson is actually fairly narrow, and indeed distinguishes Haseltine: the prosecutor didn’t seek an opinion whether the other witnesses were truthful, but was merely “highlighting the inconsistencies between Jackson’s testimony and the testimony of other witnesses in an effort to impeach Jackson and to see if he had any explanation for the differences in the testimony.” 187 Wis. 2d at 437-38. This questioning, the court carefully noted, didn’t violate Haseltine given the intended purpose and effect of the questioning (i.e., impeachment). Id. Granted, the distinction between impeachment and substantive effect is often artificial, but that’s true of many things. Keep the distinction in mind. Nor is there any reason to think that such an inquiry can’t be directed at a state’s witness in an appropriate instance.

Variant: jury hears recorded interrogation in which police accuse defendant of lying, Lanham v. Commonwealth, KY No. 2003-SC-0268-MR, 8/25/05 (unredacted recording admisisble, but must be accompanied by limiting instruction to effect that such comments not admissible for their truth but to provide context to defendant's responses; closely-split opinion contains detailed discussion of cases from around country on issue).

UPDATE: The supreme court (see below), has authorized the technique of asking a defendant whether another witness is lying, at least where the other witness is an eyewitness to the crime and the "purpose and effect" is to impeach the examined witness's credibility rather than to bolster the other witness's. State v. Victor K. Johnson, 2004 WI 94. Bolden, is therefore specifically approved (grounded, it should be noted, in the distinction posited above, between impeachment and mere opinion as to another witness's credibility). But for a different result given a different context see State v. Smith, 2003 WI App 234 (prosecutor's closing argument impermissibly characterized defense theory as "the police are lying," where the defense had not in fact made such an argument to the jury. See case summary here.)

Opinion Testimony – Comment by One Witness Whether another Witness Truthful 
State v. Patrick R. Patterson, 2009 WI App 161,
For Patterson: David R. Karpe
Issue/Holding:
¶35      The first three alleged instances of misconduct are similar. In each instance, the prosecutor sought to demonstrate the possible unreliability of one witness’s recollection by using seemingly inconsistent recollections of another witness. For example, in one instance the prosecutor asked: “So if all other witnesses said that at 11:00 your mom was already home … that would be wrong?” We see no Haseltine problem with these three instances because the prosecutor was not asking a witness to opine as to whether another witness was telling the truth.

¶36      The fourth alleged instance does appear to have involved a Haseltine violation. The prosecutor asked a police investigator: “Do you believe [a witness the investigator interviewed] was being truthful when she gave [certain] information to you …?” The investigator answered, “I believe she was being truthful.” It does not appear that this exchange was offered for any purpose other than bolstering the credibility of the other witness. Cf. State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (detective’s testimony offered to show the detective’s thought process during his investigation); State v. Smith, 170 Wis. 2d 701, 718-19, 490 N.W.2d 40 (Ct. App. 1992) (a detective’s testimony that he did not believe a witness was properly introduced to show why he continued interrogating the witness). Accordingly, we will assume that the exchange ran afoul of Haseltine.

This tainted exchange, however, wasn’t “particularly important”; no harm, no foul, ¶37.
Opinion Testimony - comment on truthfulness of another, mentally impaired witness
State v. David C. Tutlewski, 231 Wis.2d 379, 605 N.W.2d 561 (Ct. App. 1999).
For Tutlewski: Dianne M. Erickson
Issue: Whether one witness's opinion that state's witnesses were incapable of lying invaded the jury's province.
Holding: This testimony violated the rule that one witness may not testify to the credibility of another witness.
Analysis: The alleged sexual assault victim and her roommate are cognitively disabled. Both testified as state's witnesses. Another witness, who had been their special education teacher, when asked for an opinion about "their reputation for truthfulness and honesty," testified: "I think both ... are very honest, truthful young people ... and I don't think it is within their capabilities to lie or be deceitful." Tutlewski argues that this testimony violated the rule in State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), that an opinion by one witness as to the credibility of another invades the jury's province. Though Tutlewski clearly had attacked the witness' character for truthfulness, the challenged opinion testimony exceeded the limits set by Haseltine. While it is permissible to impeach "an impaired witness whose ability to perceive events or to tell the truth might be affected, there is no corresponding right to bolster a witness's testimony's testimony if the witness has a mental impairment." ¶18. Discussion of these witnesses' cognitive impairments was proper, but testimony that they "were incapable of lying clearly crossed the line of admissibility articulated in Haseltine."
Character -- Defendant's Record Used to Cross-Examine Alibi Witnesses
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the prosecutor properly cross-examined an alibi witness as to what the defendant had told him about his prior offense.
Holding:
¶21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose. Here, arguably, the evidence was admitted to show motive, intent, or plan. The evidence cannot be admitted or used to prove bad character or propensity to commit crimes. The cross-examination of Holmes regarding the 1992 conviction was clearly used to attack Meehan's character-to show that he lied and concealed this information from his significant other. This was improper.
Character -- Extrinsic Proof, § 906.08(2)
State v. Troy D. Moore, 2002 WI App 245
For Moore: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: Extrinsic evidence offered by the state solely to bolster a witness's credibility, by showing that he had provided reliable information leading to the arrests of other drug dealers, violated § 906.08(2). ¶15. (Note: the court holds open the question of whether such evidence might be admissible under § 904.04(2). ¶15 n. 2.)
Sufficiency of Objection, , Admissibility of Evidence – Specificity of Ground Required
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.
Holding:

¶32      Further, we are satisfied that Police Chief Stone's testimony regarding Steve Stone's oral statements to the police was not hearsay, since such statements were properly admissible as prior inconsistent statements under Wis. Stat. § 908.01(4)(a). During direct examination by the State, Steve Stone testified that he did not see Nelis on top of Diane S. when he entered the bedroom, and that he did not remember whether Diane S. was crying or bleeding.

¶33      Police Chief Stone later testified that Steve Stone told him that he had seen Nelis on top of Diane S., and that Diane S. was crying and bleeding. Steve Stone's oral statements given to Police Chief Stone were not hearsay. Rather, the statements were admissible under Wis. Stat. § 908.01(4)(a), because Steve Stone was a testifying witness who testified at trial concerning his statements to the police on the night in question, because he was subject to cross-examination concerning those statements, and because the prior oral statements were inconsistent with his testimony at trial.

Steve Stone testified, and was dismissed as a witness. Chief Stone then testified to a prior statement Steve Stone had made. The concurrence makes the point that prosecutorial witness-declarant Steve Stone wasn’t “subject to cross-examination concerning the statement,” as required by § 908.01(4), because the defense simply was never informed of the prior statement, ¶¶56-63. However, the defense never showed that Steve Stone was “unavailable” after being dismissed as a witness and for that reason it can’t be said he wasn’t “subject to cross-examination,” ¶¶64-72. The majority, though a bit less than crystal-clear, apparently agrees with the concurrence on this point, ¶46 n. 5. Take careful note, then, of the dissent observation that § 906.13(2)(a), requires “that a witness must be given the opportunity, while testifying, to explain or to deny the statement,” ¶62:

¶63      … Contemplating the fact situation before us, a leading treatise on Wisconsin evidence concludes that for purposes of Wis. Stat. § 908.04(1), a witness is not subject to cross-examination "where the prior statement is never mentioned during the examination of the witness, the witness is then excused from testifying, and the statement is later proffered through extrinsic evidence (i.e., another witness or a document)." 7 Daniel D. Blinka, Wisconsin Practice: Evidence 544 (2d ed. 2001). …

Stress, “is then excused”: when that condition doesn’t obtain then failure to mention the statement to the witness doesn’t bar extrinsic proof, State v. Zebelum Smith, 2002 WI App 118, ¶13. (Just some things to keep in mind during the heat of trial.)

Prior Inconsistent Statement -- Foundational Requirement, §§ 906.11(1), 906.13(2)(a)2
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue: Whether, as a foundational requirement for introducing a witness's prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.
Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn't been excused from testifying:
¶13. Thus, the trial court was clearly wrong in ruling that Smith had not established a proper foundation in order to introduce the alleged inconsistent statements under Wis. Stat. § 906.13(2)(a)2. A prior inconsistent statement is admissible under Wis. Stat. § 906.13(2) without first confronting the witness with that statement. Under § 906.13(2)(a)2 and 3, extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case, or if the interest of justice otherwise requires its admission. See Ruiz v. State, 75 Wis. 2d 230, 232-33, 249 N.W.2d 277 (1977). In the instant case, because Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim - inconsistent with testimony that the victim had previously given - who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2.
Nor does the trial court's broad discretion to control presentation of evidence, § 906.11(1) allow the court to override the specific mandate of § 906.13(2)(a)2. ¶14. (The court suggests, however, somewhat confusingly, that a trial court may use § 904.03 as a basis for exclusion in this context. ¶16. The court then goes on to find the error harmless -- not because of § 904.03, but because the discrepancies embodied by the prior inconsistent statements were minor.
Calling and Interrogation by Judge, § 906.14
State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148, 266 Wis. 2d 168, 667 N.W.2d 800
For Carprue: Stephanie G. Rapkin
Issue/Holding:
¶39 … (A)ppellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning ….

¶40 … We have always recognized judicial authority to call and interrogate witnesses but simultaneously admonished caution against judicial abuse. …

¶41 The struggle for balance appears again in State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), overruled on other grounds by State v. Stevens, 26 Wis. 2d 451, 463, 132 N.W.2d 502 (1965). … In the conflicted manner typical of decisions in this area, we reasoned: "While the court cannot function as a partisan, it may take necessary steps to aid in the discovery of truth." Id.

¶42 In State v. Asfoor, the tension between the competing interests was very apparent. … The court concluded that the jury was not improperly influenced by "any action" of the court, and therefore rejected the defendant's bias claim. Id.

¶43 Over the years, this court has demonstrated particular concern about the impression that judicial questions might convey to a jury. …

¶44 The opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates, State v. Garner, 54 Wis. 2d 100, 104, 194 N.W.2d 649 (1972), or betray bias or prejudice, State v. Driscoll, 263 Wis. 230, 238, 56 N.W.2d 788 (1953), or engage in excessive examination, Breunig v. American Family Insurance Co., 45 Wis. 2d 536, 548, 173 N.W.2d 619 (1970), particularly in front of juries. Last term, we reversed a conviction after a suppression hearing in which a circuit judge crossed the line of propriety. State v. Jiles, 2003 WI 66, ¶39, 262 Wis. 2d 457, 663 N.W.2d 798 ("The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander.").

This discussion on judicial intervention arises in the context of discussion on waiver due to lack of objection. It seems clear, though, that the court is sending a message about judicial intervention – which in this instance involved a judge outside the jury’s presence more or less suggesting to the State a fruitful attack on Carprue’s credibility. ¶¶17-26. The court is clearly perturbed by this activity (¶1: “prudence would have counseled less assertive conduct from the circuit judge”; ¶3: “The State argues, and we agree, that … the circuit judge’s actions were inadvisable”; ¶69: “Judge Schellinger's conduct, while unusual and not recommended”), and as the quotes above indicate, the court does not want trial judges to abuse the authority provided by § 906.14. That this imprudent, inadvisable, unusual activity occurred outside the jury’s presence is therefore probably crucial (“judges must not function as partisans or advocates … particularly in front of juries”). Indeed, the court goes on, in discussing whether counsel was ineffective for not objecting to this intervention, to hold that no prejudice accrued precisely because “none of the information disclosed [by the intervention] was ever presented to the jury,” ¶50. As the court further explains, it doesn’t want “to overreact to this situation in the absence of any discernible harm to Carprue,” ¶67 – harm that might well have been discernible had the judge’s actions occurred in front of the jury. Finally, the court’s reference to Jiles should be seen as the exception that proves this rule: though not explained in these terms, by citing Jiles with unreserved approval, the court can only mean that when the judge displays partisanship while acting as a fact-finder it is simply irrelevant that the jury isn’t present.

For an instance of impermissibly intrusive judicial involvement, violating defendant's due process right to fair trial, see Wallace v. Bell, 387 F. Supp. 2d 728 (E.D. MI. 2005 ("the trial judge trenched onto forbidden territory when he called and questioned an unlisted expert witness in violation of his own sequestration order who bolstered the prosecution’s DNA witness"). And for a perhaps even more extreme example, where the judge's intrusion went so far as to be in the nature of witness testimony, in violation of FRE 605 (equivalent of § 906.05), see U.S. v. Nickl, 10th Cir No. 04-3499, 11/1/05. See also U.S. v. McCray, 7th Cir No. 05-1412, 2/9/06:

Although we conclude that this defendant was not prejudiced by the district court’s inquiry, we express some concern over the judge’s decision to proceed with extensive questioning. When coupled with the trial court’s practice of not permitting sidebars, the judge’s questions in this case arguably placed the defendant’s lawyer in an awkward position. Defense counsel was faced with either passively accepting what he perceived to be an unwarranted examination or potentially exacerbating the situation by challenging the judge’s impartiality in front of the jury. To avoid the risk of unforeseen prejudice, we encourage district judges to remain vigilant to the potential impact of their questions during a jury trial.
Similar effect: Smith v. State, Md. Ct. Spec. App. No. 614, 10/6/08 (reversible, where "trial court’s persistent questioning here, however well-intentioned, risked suggesting to the jury that the trial court wanted to elicit facts that fit into a distinct timeline that favored the State’s case"); People v Melendez, 2006 NY Slip Op 04336, 6/1/06 (judge's function is to protect not make record at trial, hence impermissible to appear to be advocate; though trial judge didn't commit reversible error, appellate court expresses disquiet at "the trial judge's overly intrusive involvement in the questioning of witnesses and undue interference in the orderly presentation of proof"). Also: Lyell v. Renico, 6th Cir No. 04-1106, 12/1/06 (habeas relief granted due to judicial intervention amounting to bias, court observing: "Difficult as this standard may be to reach, the trial judge seemingly made every effort to satisfy it."); State v. Thompson, WVA SCt No. 33097, 5/15/07 (judicial questioning amounted to plain error).
Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶14      Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio, 426 U.S. 610 (1976), which we applied in State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), and State v. Nielsen, 2001 WI App 192, ¶31, 247 Wis. 2d 466, 634 N.W.2d 325, the two cases on which Cockrell primarily relies. Cockrell does not cite to any cases that do not use the Doyle due process framework to analyze a prosecutor’s use of a defendant’s silence to cross-examine the defendant and in closing argument. [3] Therefore, we analyze Cockrell’s challenge under the due process clause of the Fourteenth Amendment. The application of constitutional principles to undisputed facts presents a question of law, which we review de novo. See, 247 Wis. 2d 466, ¶32.
Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Partial Exercise of Rights
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest. One situation is where the defendant’s testimony conveys that he or she cooperated with the police; it is not then fundamentally unfair for the prosecutor on cross-examination to elicit, or in closing argument to comment upon, the fact that the defendant was non-responsive or remained silent in answer to certain questions. …

¶17      Other situations in which courts have found no violation of due process under Doyle include those where the defendant volunteered on direct his reason for not telling the police his version of the crime, United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir. 1983), and where the defendant testified that he attempted to tell the officers what happened but they would not let him speak. United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979).

¶18      However, even if the defendant “opens the door” to cross-examination or closing argument on his post- Miranda silence, to be permissible under the due process clause, the State’s response must be directed at impeaching the defendant’s credibility regarding his testimony. …

Self-Incrimination – Impeachment with Post-Miranda Silence – Refusal to Answer Certain Questions without Counsel Present
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶24      Cockrell argues that the cross-examination was improper because he did not testify that he cooperated with police, but instead accurately stated that he had declined to answer questions about the incident. Therefore, he asserts, unlike Wulff and Nielsen, there was no reason to impeach his credibility on that point and the cross-examination had the impermissible purpose of suggesting he fabricated his trial testimony. …

¶26      … However, Cockrell did more than volunteer that he declined to answer questions about the shooting: he explained why he declined—that he wanted an attorney present so his story would not be misinterpreted.

¶30      … However, we do not agree this is fundamentally unfair. Had Cockrell said nothing about declining to talk to the police about the shooting incident itself, the State under Doyle could not have used Cockrell’s post- Miranda silence to suggest that his trial testimony about the man in the back seat was fabricated. However, Cockrell chose to volunteer what he did and did not say to the police and why. In these circumstances it is not fundamentally unfair to permit the State to “explor[e] the soundness of that explanation [for not telling the police that he acted in self-defense] by measuring it against the defendant’s subsequent failure to assert it … [after he obtained counsel].” Saulsbury, 702 F.2d at 656.

Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences, if accepted by the jury, might make it more likely it will find the defendant guilty. See Wulff, 200 Wis. 2d at 343-44.

¶32      In this case, the prosecutor wanted the jury to infer that Cockrell was not telling the truth as to why he did not tell the police about the man in the back seat. It is true that, if the jury accepted these inferences, it was more likely to decide Cockrell did not act in self-defense but was instead guilty of attempted homicide. However, we do not agree that this is the same as asking the jury to make a direct inference of guilt from Cockrell’s silence.

¶33      The due process inquiry under Doyle is whether the cross-examination of Cockrell or the challenged comments in closing argument were fundamentally unfair to Cockrell given his volunteered testimony on declining to talk to the police about the shooting and his reason for that. Balancing the defense and prosecution interests and applying “considerations of fairness within the context of the truth-seeking function of trials[,]” Mavrick, 601 F.2d at 933, we conclude the challenged cross-examination and closing argument were not fundamentally unfair.

The court also holds that failure to object to efficacy of the “limiting” instruction waived any right to raise it on appeal, ¶¶34-36.

Ch. 907 -- OPINION & EXPERT TESTIMONY
(For confrontation as related to hearsay-based expert opinion, go here.
Opinion & Expert Testimony – Admissibility, In General
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue/Holding:
¶18      Wisconsin employs the “relevancy test” to resolve the admission of challenged scientific, technical or other specialized evidence. State v. Peters, 192 Wis. 2d 674, 687-88, 534 N.W.2d 867 (Ct. App. 1995). The test is straightforward and simple, expert testimony is admissible if (1) it is relevant, (2) the witness is qualified based on his or her “specialized knowledge,” and (3) the testimony will help the trier of fact in determining an issue of fact. Id. The relevancy test does not require the reliability of the underlying scientific evidence be established. Id. at 688. Wisconsin’s approach is unique because the vast majority of jurisdictions employ some form of the federal reliability test embodied either in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or the combination of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).  
Commentary follows, largely derived from Wisconsin’s leading evidence expert, Daniel Blinka. The crux is that, unlike the federal regime, Wisconsin’s is much more free-wheeling (or, as Professor Blinka puts it, we have greater “faith in adjudication by trial”). Not discussed, however: a tendency by Wisconsin courts to invoke a Daubert-like gatekeeper role when the expert is defense-sponsored. Otherwise, we’d have, among other things, a diminished capacity defense, wouldn’t we?
Opinion & Expert Testimony – Admissibility, In General
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶10 "The admissibility of expert opinion testimony lies in the discretion of the circuit court." State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777 (citing Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698; State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999)). "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale, 246 Wis. 2d 67, ¶28 (citations omitted). We apply the erroneous exercise of discretion standard to both evidentiary issues in this case.

¶11 The inquiry into a circuit court's exercise of "discretion in making an evidentiary ruling is highly deferential. . . ." Id., ¶29. As we have previously stated:

The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised.
Id. (citations omitted).

"We will not find an erroneous exercise of discretion if there is a rational basis for a circuit court's decision." Id. (citations omitted).

Battered Women's Syndrome
State v. Shirley J. Peters, 2002 WI App 243
For Peters: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶27 n. 3. .... Comparison testimony is permitted so long as it does not include conclusions about the battered person's actual beliefs at the time of the offense, about the reasonableness of those beliefs or about the person's state of mind before, during and after the criminal act. State v. Richardson, 189 Wis. 2d 418, 426, 525 N.W.2d 378 (Ct. App. 1994). Thus, counsel could have elicited testimony from Kelly and Adams comparing Peters' situation to the profile of a battered woman. Further, Jennifer Parker, a domestic violence expert retained for the purposes of the postconviction hearing, stated that she could have testified about the lasting impact of verbal and psychological abuse on victims generally and how Peters compared to the profile of the verbally and psychologically battered woman she had constructed. Comparison testimony from Kelly, Adams and Parker could have provided a context both from which the judge could have made an informed determination about whether to issue a self-defense jury instruction and from which the jury could understand, and in the case of perfect self-defense assess the reasonableness of, Peters' beliefs that she was in imminent danger of death or great bodily harm and that the force used was necessary to defend herself. See id. at 427.
Battered Women's Syndrome -- Domestic Abuse, Compared
State v. Greg A. Mayer, 220 Wis. 2d 419, 583 N.W.2d 430 (Ct. App. 1998)
For Mayer: Joseph E. Redding
Issue/Holding:
Mayer next argues that the trial court erred by allowing expert testimony of BWS because there was no evidence that Kathryn suffered from the syndrome. Although the trial court did not admit Schnorr as an expert expressly on BWS, Mayer claims that the trial court effectively did so by allowing her to testify as an expert on victims of domestic abuse generally. Based on his interpretation of State v. Bednarz, 179 Wis.2d 460, 507 N.W.2d 168 (Ct. App. 1993), Mayer contends that an expert can testify about the common characteristics of victims of domestic abuse only when those characteristics result from BWS.

... Bednarz simply does not prevent a trial court from admitting expert testimony on characteristics of domestic abuse victims when the requirements of § 907.02, Stats., are met.

Opinion & Expert Testimony – Hearsay-Based
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.
Holding:  
¶35      In State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), the supreme court explained: “In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37, 469 N.W.2d 595 (1991), we stated that ‘even if [the expert] arguably relied on hearsay in forming [the expert’s] opinion, [the expert’s] opinion is still admissible.’” We note, however, that
[Wisconsin Stat. §] 907.03 is not a hearsay exception. Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule. (Citation omitted.)
State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

¶36      Safarik was asked to analyze all of the evidence from the Recob home to determine if their simultaneous death was naturally or criminally caused—the medical examiner had ruled out accident or suicide. Naturally, he would seek out information on simultaneous death by natural causes to test his hypothesis that the deaths were the result of a crime. The statistics relied upon by Christakis of Harvard and Anderson of the CDC were not admitted into evidence; rather, they served to illustrate the basis for the opinion they shared that it was statistically impossible for a couple to suffer simultaneous death from natural causes—an opinion Safarik took into consideration when reaching his conclusion that death was by a criminal act. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (The trial court may, in its discretion, allow an expert to testify to otherwise inadmissible facts for the limited purpose of serving as a basis of the expert’s opinion.). The trial court did not err in permitting Safarik to rely upon the opinions of Christakis and Anderson.  

Nor, the court adds, does the underlying hearsay violate confrontation, ¶37, citing State v. Barton, 2006 WI App 18 (overarching principle summarized as: “confrontation rights were not impinged because the hearsay opinions of others were not admitted for the truth of the matter asserted but as the basis of the expert’s testimony”). It is possible, though far from certain, that this on-going issue of prosecutorial exploitation of side-door hearsay will be resolved in the pending Melendez-Diaz v. Massachusetts; background here.
Based on Hearsay
Walworth County v. Therese B., 2003 WI App 223
Issue/Holding:
¶8 It is well settled that it is “proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others.” Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 299, 254 N.W.2d 255 (1977). However, there are two important qualifications of this rule. First, although WIS. STAT. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999). The circuit court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. Id. at 200-01. In State v. Coogan, 154 Wis. 2d 387, 399 n.4, 453 N.W.2d 186 (Ct. App. 1990), we sounded a cautionary note:
We need not reach the question of whether an expert’s opinion based solely on inadmissible evidence, but that of a type reasonably relied on in his field, is admissible. However, this court has suggested that at some point when the reliability of the underlying evidence is called seriously into question, it is permissible to bar the expert’s testimony.
¶9 Second, WIS. STAT. § 907.03 does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. State v. Williams, 2002 WI 58, ¶19, 253 Wis. 2d 99, 644 N.W.2d 919. In Williams, the supreme court relied upon United States v. Lawson, 653 F.2d 299 (7th Cir. 1981), to reach this conclusion. In Lawson, the challenge was that the admission of hearsay in the testimony of an examining psychiatrist violated Lawson’s right to confront the witnesses against him. Id. at 301. The examining psychiatrist testified that he never interviewed Lawson privately but reached his opinion by relying upon reports and material he received from two treating physicians, other staff at the hospital and other sources. Id. The Seventh Circuit agreed with Lawson that “the introduction of expert testimony based in large part on hearsay may raise serious constitutional problems if there is no adequate opportunity to cross-examine the witness.” Id.
An expert’s testimony that was based entirely on hearsay reports, while it might satisfy Rule 703, would nevertheless violate a defendant’s constitutional right to confront adverse witnesses. The Government could not, for example, simply produce a witness who did nothing but summarize out-of-court statements made by others. A criminal defendant is guaranteed the right to an effective cross-examination.
Id. at 302 (footnote omitted). The court also noted that the right of confrontation might necessitate giving a defendant the opportunity to cross-examine the person or persons who prepared the underlying data on which the expert relied. Id. at 302 n.8.
(Footnotes omitted)

Indeed, expert testimony almost necessarily relies on hearsay, which means that a potential confrontation objection hovers nearby. Indeed, ¶9 fn. 5 cites with seeming approval State v. Towne, 453 A.2d 1133 (Vt. 1982), which found not only hearsay error where the testifying expert told the jury that a nontestifying expert agreed with his diagnosis, but also a confrontation violation "because Towne was prevented from cross-examining and exploring the qualifications of the nontestifying expert." See also Howard v. Walker, 2nd Cir No. 01-2471, 4/26/05 (expert reliance on inadmissible evidence such as hearsay generally permissible, but limits on cross-examination in this instance violated confrontation).

Based on Hearsay
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a testifying expert must herself have tested a substance in order to render an opinion about the nature of the substance.
Holding:
¶29. Section 907.03 implicitly recognizes that an expert's opinion may be based in part on the results of scientific tests or studies that are not her own. It is rare indeed that an expert can give an opinion without relying to some extent upon information furnished by others. Reardon, 806 F.2d at 42. Thus, contrary to Williams' assertion, Koresch need not have performed the tests herself to form an admissible expert opinion based upon them, and Williams' characterization of Koresch's testimony as something other than an expert opinion lacks merit.
(Discussion on confrontation: here.)
Based on Hearsay.
State v. John J. Watson, 227 Wis.2d 167, 595 N.W.2d 403 (1999), reversing unpublished decision.
For Watson: Richard D. Martin, SPD, Milwaukee Appellate.
Holding: Expert testimony may be based in whole or in part on information contained in a presentence investigation (based, that, on otherwise inadmissible evidence): "The statute [§ 907.03] authorizes the admission of an expert's opinion when it is based on information reasonably relied upon by experts in the particular filed. This includes presentence investigations, even though the PSI upon which the opinion is based includes inadmissible hearsay." However, § "907.03 is not a hearsay exception" i.e., "does not transform inadmissible hearsay into admissible hearsay." Two implications follow. First, the hearsay statement relied upon by the expert isn't itself admissible "without substantiation." Second, "the trier of fact must understand its authority to disregard or devalue the expert's opinion if it is not based on evidence of record." And, in the present context, an expert's opinion based "solely" on inadmissible hearsay can't support bindover.
Daubert: Wisconsin Does Not Require Reliability
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding: Even if challenged field sobriety tests were scientific evidence, no showing of reliability would be required as a condition of admissibility, Wisconsin not being a Daubert state:
¶23. Wisconsin, unlike the federal courts, considers the reliability of scientific evidence a question of weight and credibility for the trier of fact to decide. Id. at 690. A party can challenge the reliability of such evidence through cross-examination or other means of impeachment. Id. The evidence is admissible as long as it is relevant, the witness testifying to such evidence is a qualified expert, and the evidence will assist the fact finder in understanding the evidence or determining some factual issue. Id. at 687-88. Wilkens has not challenged the trial court's consideration of the FST evidence on any of these grounds.

¶24. We hold that nothing precluded the trial court from considering Onken's testimony about what he observed when he administered the FSTs to Wilkens. The reliability of this evidence was totally irrelevant for purposes of its admissibility. … Hence, an admissibility challenge premised exclusively on the unreliability of the observations misses the mark.

Reference, of course, is to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and if, being in a non-Daubert state, you want to check out what you’re missing, try this: http://www.daubertontheweb.com/. For present purposes, the situation is summed up pretty well in Green v. Smith, 2000 WI App 192, ¶21, 238 Wis.2d 477, 497, 617 N.W.2d 881 ("Unlike in the federal system, where the trial court has a significant 'gatekeeper' function in keeping from the jury expert testimony that is not reliable ..., the trial court's gatekeeper role in Wisconsin is extremely limited”), affd, 2001 WI 109. A couple of points should be made, but briefly:
  1. The door to “wide-open” admissibility swings both ways; case in point: State v. Davis, 2002 WI 75.
  2. The court of appeals a few years back certified the very of issue of “the Wisconsin rejection of the trial court's ‘gatekeeper’ function under Daubert”; and although the supreme court accepted review, it ultimately left the issue hanging, Conley Publ. Grp. V. Journal Comm., 2003 WI 119:
    ¶35. Whatever merit there may be in revisiting Wisconsin law on the admissibility of expert testimony in light of Daubert, we do not believe that this case presents the proper vehicle. The Daubert standard governs the admissibility of expert opinions and deals with the threshold reliability of an expert's opinion. In the present action, the parties do not dispute the qualifications of any experts or the relevancy of their testimony. Because the admissibility of an expert's opinion was not challenged in this appeal, the Daubert issue is not sufficiently present to require a decision. Rather, as explained below, the central question presented involves how the circuit court considered the admissible expert testimony in reaching its decision to grant summary judgment.
Just something to remember in case anyone is minded to challenge Wisconsin-as-a-non-Daubert state.
Opinion & Expert Testimony – "Death Scene" Analysis
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue: Whether “death scene” analysis from an FBI agent was admissible to establish cause of simultaneous death of two elderly individuals found dead in their home.
Holding:  
¶25      The general field of crime scene analysis has been recognized as being a body of specialized knowledge. United State v. Meeks, 35 M.J. 64 (C.M.A. 1992). …

¶¶26     Through education and experience, Safarik had the necessary knowledge to provide helpful answers the jury could use in answering the central question, whether the Recobs died simultaneously from natural causes or as the result of homicide. …

¶28      The jury was required to resolve a double homicide with no witnesses. The bodies were found in a decomposed and mummified state, raising questions as to the manner or cause of death. The jurors, faced with such a repellent job, would be assisted by a specialized analysis of the crime scene in light of other equivocal deaths and homicide cases. “A homicide and its crime scene, after all, are not matters likely to be within the knowledge of an average” juror. Meeks, 35 M.J. at 68-69. <> ¶29      One example of Safarik’s specialized analysis is his conclusion that there was “staging” at the death scene that was consistent with homicide. … It is beyond the everyday knowledge of an average juror to recognize evidence of “staging” or to understand the implication of such evidence. And, it is certainly beyond the ability of the average juror to correlate all nine factors Safarik considered in reaching his expert opinion. [6]

HGN test
State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999).
For Zivcic: John J. Carter.
Holding: The trial court's discretionary determination to admit expert testimony on the HGN sobriety test is upheld. In particular, specialized knowledge in the "underlying principles" of HGN testing isn't necessary. All that's required is expertise in administering and evaluating the test.
Opinion & Expert Testimony – Eyewitness Identification – Sequential vs. Simultaneous Lineup
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding: Trial court’s refusal to admit expert testimony on factors influencing witness’s ability to identify a stranger during a lineup procedure, in particular the distorting effect of a simultaneous as opposed to sequential procedure, was not an erroneous exercise of discretion:
¶15     In 2002, at the time of the circuit court's decision to exclude testimony from Shomberg's expert, New Jersey was the only state to mandate sequential rather than simultaneous lineup procedures. In the intervening years, much has been learned about the processes and limitations of memory. There has been a wealth of information that has come to the public that has increased awareness of some of the inherent difficulties with eyewitness identification. …

¶16     In State v. Dubose, this court recognized that "[t]he research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined." State v. Dubose, 2005 WI 126, ¶30, ___ Wis. 2d ___, 699 N.W.2d 582. …

¶17      Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory. However, the issue before us is not what we would have done, or what a court might do today. The issue is whether, at the time of the decision, the bases upon which the circuit court decided to exclude Shomberg's expert testimony constituted an erroneous exercise of discretion. The court clearly felt that the limitations of eyewitness identification, as articulated by counsel for Shomberg, were known and understood by the court. [6] Neither counsel's written motion nor oral advocacy at the motion hearing was sufficient to satisfy the court that Shomberg's eyewitness expert would assist the trier of fact "to determine a fact in issue," especially since the arguments were known and understood by the court. [7] Wis. Stat. § 907.02. We conclude that the "'court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of the record,'" and therefore it was not an erroneous exercise of discretion for the circuit court to deny Shomberg's motion to admit expert eyewitness testimony. Martindale, 246 Wis. 2d 67, ¶29 (citations omitted). [8] 

Elided from quoted passage above: reference to legislative and prosecutorial efforts to assure reliable identifications. They are available here; and here. They are important resources, though, apparently only with respect to a post-2002 world. For pre-2003 cases, such as the hapless Shomberg’s, there’s a different standard, as the court frankly suggests, ¶17 (“…today … it is highly likely that the judge would have allowed the expert to testify”). You’d think that subsequent developments casting doubt on the very foundation of the ruling would be a ground for reversal, not affirmance. And that is just one of the more curious features of this result. Unreliable by today’s standards but not by yesterday’s is good enough; would not have assisted the trier of fact in 2002 but would do so today is an adequate basis to keep evidence out; it’s almost as if the court is applying a retroactivity analysis—something which makes no sense for a case on direct appeal with a preserved issue. Perhaps the court has one eye on stemming collateral attacks based on Dubose-type arguments. You might also think that, if a changed perception of reliability doesn’t penetrate the shield thrown up by deferential review, interest-of-justice review is sufficiently malleable to accommodate a different result. Isn’t that the purpose, really, of authority to reverse in the interest of justice? You’d be wrong there, too: the court goes on to hold that through cross-examination and closing argument the issue was fully tried notwithstanding inadmissibility of the expert, ¶38. The court also, and relatedly, holds that any error would be harmless, ¶¶18-25. But that in turn raises this question: if any error would be harmless, and if the entire way we look at identification testimony is different now, why not just dismiss this case as improvidently granted? What precedential value is there in saying that the trial court ruling was good enough for 2002 but would come out differently today? Not much. Or perhaps it is just that, at least if you’re looking for a positive spin: the result would be different today. Thus, the not-so-subtle message to trial courts is that they should be inclined to admit expert testimony on identification procedure. (See ¶¶42-43: court declines to adopt presumption of admissibility of expert eyewitness testimony, but   “encourage(s) circuit court judges to carefully consider” whether such testimony would be helpful.) Then again, perhaps this also brings us back to the idea that “older” convictions aren’t going to be reopened just because of new-fangled science.
Expert Testimony – Opinion as to Issue of Domestic Law
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether the circuit court erroneously admitted an attorney's expert opinion testimony that LaCount had engaged in a securities transaction.
Holding:
¶19 As noted previously, appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court's decision to admit expert testimony. We are satisfied that the circuit court did not erroneously exercise its discretion in admitting Cohen's testimony, because the circuit court's decision rested on a reasonable basis and was in accordance with both accepted legal standards and the facts in the record. Cohen's testimony was the type of expert testimony that was envisioned by Wis. Stat. § 907.02, because it encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented at LaCount's trial. Such testimony also could assist the jury in determining a fact in issue in the case, here, whether LaCount's transaction with Wills involved a security.
The general rule is that "no witness may testify as an expert on issues of domestic law,"  State v. Derryle S. McDowell, 2003 WI App 168, ¶62 n. 20,  affirmed,  2004 WI 70. (The court of appeals, unlike the supreme court, acknowledged the general rule but declined to reach the merits under a harmless error analysis, 2007 WI App 116, ¶¶15-17.) How does this case square with the general rule? You decide:
¶22 We are further satisfied that Cohen did not impermissibly testify on a legal issue, contrary to LaCount's claim that Cohen improperly testified on the definition of an investment contract. Cohen did testify that the basic features of an investment contract were someone "handing over some money," while "expecting the other person or some other person besides [themselves] to do something to generate a return for [them] on that money."

¶23 However, even if Cohen's statement that a security covered basically everything "you can't figure out" was overly broad, the jurors were properly instructed that they were not bound by any expert's opinion, that they were the sole judges of the facts, and that the court was the sole judge of the law. Jurors are presumed to have followed jury instructions. See State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Cohen's testimony was generally consistent with the jury instructions that were given and, thus, with Wisconsin law. Under such circumstances, "[w]e are unable to perceive any prejudicial error." State v. DiMaggio, 49 Wis. 2d 565, 580, 182 N.W.2d 466 (1971). In that case, we emphasized the therapeutic effect of the circuit court's correct instructions. size=3> Id. at 579-80.

On Issue of Law
State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL
Issue/Holding: “(N)o witness may testify as an expert on issues of domestic law; ‘the only “expert” on domestic law is the court.’ Wisconsin Patients Comp. Fund v. Physicians Ins. Co., 2000 WI App 248, 8 n.3, 239 Wis. 2d 360, 620 N.W.2d 457.” ¶62 n. 20
"Jensen" Testimony -- Defendant's Right to Examine Complainant's Psychological Condition -- Remedy for Denial of Right
State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel
Issue1: Whether testimony by a state's expert amounted to "Jensen" testimony, i.e., expert opinion that the sexual assault complainant's behavior was consistent with that of sexual assault victims in general.
Holding:
¶21. We agree with the court of appeals that Dr. Pucci's testimony made the requisite comparison between D.F.'s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci's testimony would have been Jensen evidence only if she had used magic words such as 'D.F.'s behaviors are consistent with that of persons known to be sexual assault victims.' We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor's questions along with Dr. Pucci's answer to provide the comparison that is the essence of Jensen evidence.

¶22. The phrasing of the prosecutor's questions and the substance of Dr. Pucci's answer combined to send a clear message to the jury that D.F.'s behaviors were consistent with those of known sexual assault victims. The factual portion of Dr. Pucci's testimony established that she knew D.F. to be a sexual assault victim. The prosecutor then solicited her expert opinion as to what someone would do 'under these circumstances' and 'in this position.' This made it apparent to the jury that a direct comparison was to be drawn between D.F. and others in her circumstances or position, which, according to the factual testimony of Dr. Pucci, were the circumstances or position of a sexual assault victim.

Issue2: Whether the defendant's right to a psychological examination of the complainant, under State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), once the prosecution introduces "Jensen" testimony, is limited to instances where the "Jensen" witness has actually been retained by the prosecution.
Holding:
¶32. We must not lose sight of the fundamental fairness principle that drives the Maday decision. If the State is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own. As the Maday court explained in support of its holding, 'a definitive opinion requires an extensive interview plus review of material on the victim's life and behaviors.' 179 Wis. 2d at 357.

¶33. With these principles in mind, we conclude that it would strain logic and ignore fairness to determine that a psychological expert such as Dr. Pucci does not trigger Maday. Dr. Pucci was not just any professional who briefly encountered D.F. after a reported sexual assault. Dr. Pucci was a clinical psychologist who had an extensive, ongoing relationship with D.F. She interviewed, examined, and diagnosed D.F. Moreover, Dr. Pucci testified that the bulk of her treatment of D.F. in 1997 was directed at the sexual assault. In short, the extent and nature of Dr. Pucci's contacts with D.F. bring her within the ambit of Maday.

¶34. In addition, we agree with Rizzo and the court of appeals that the State "retained" Dr. Pucci in the sense meant by David J.K. Although there is no assertion by Rizzo that Dr. Pucci received a specific witness fee, the State admitted that it "paid three times" for Dr. Pucci's flights, hotel, rental cars, and meals in order to bring her from Tennessee, where she had relocated since treating D.F.

¶35. More to the point, however, we determine that even if the State had not compensated or reimbursed Dr. Pucci, she would still have been a Maday expert. A determination of whether the State 'retains' an expert for purposes of Maday cannot stand or fall on whether or how it has compensated its expert. Such a determination would thwart the fundamental principle underlying Maday and would allow the State to subvert Maday by, for example, obtaining an expert willing to volunteer her time. For the same reasons, we conclude that an expert's status as the complainant's treating therapist does not preclude that expert from being 'retained' by the State for purposes of Maday.

Issue/Holding3: Neither outright grant of new trial nor affirmance is an appropriate appellate response to denial of a "Maday" expert, where trial court never had the opportunity to exercise its discretion. Proper remedy is remand for trial court to apply "Maday" factors; if result is that Rizzo was entitled to pretrial psychological examination of complainant, then new trial should be ordered. ¶¶43-47.
"Maday" Examination of Complainant Where State's Expert Never Conducted Exam
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Where the State’s expert witness never interviewed the victim (nor viewed a videotape of the victim’s statement), the defendant wasn’t entitled to a psychological examination of the victim pursuant to State v. Maday, 179 Wis. 2d 346, 359-60, 507 N.W.2d 365 (Ct. App. 1993), ¶27.
"Maday" Examination of Complainant (Defendant's Right to Examine Complainant's Psychological Condition), to Meet State's "Jensen" Testimony
State v. Joseph F. Rizzo II, 2003 WI App 236, PFR filed 11/13/03, on appeal after remand of State v. Rizzo I, 2002 WI 20
For Rizzo: Kathryn A. Keppel, Raymond M. Dall'osto
Issue: Whether Rizzo is entitled to a psychological examination of the sexual assault complainant pursuant to State v. Maday, 179 Wis. 2d 346, 507 N.W. 2d 365 (Ct. App. 1993) (where the state offers expert opinion under State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988) that the sexual assault complainant's behavior was consistent with that of sexual assault victims in general, the defendant is entitled to meet such testimony with a defense expert).
Holding: Because the State’s “Jensen” testimony was limited to the complainant’s delay in reporting, and because Rizzo’s expert conceded that he could assess that aspect without a personal examination, such an examination wasn’t necessary.
(This seems to be more of a very fact-specific resolution rather than a retreat from Maday. In the first place, the court holds “that the State's Jensen evidence did not embrace a more general comparison between D.F.'s behaviors and the common behaviors of sexual assault victims,” ¶6. (Rizzo argues otherwise, and whether or not he’s right is beside the point: the holding is limited by that finding.) True, the State’s expert gave “Jensen” testimony with respect to why the complainant delayed reporting the alleged sexual contact; and, the court seemingly denigrated that testimony as relating “only” to “the requisite comparison between D.F.'s reporting behaviors and the common reporting behaviors of sexual assault victims,” ¶14. But in context, the court is merely saying that this analysis “establishe(s) the scope of the Jensen evidence in this matter,” ¶17. This limited scope is important because Rizzo’s expert did not “require[] a personal interview with the victim in order to rebut the State's Jensen testimony about delayed reporting” (emphasis supplied). ¶18. And it is for that reason that a Maday exam isn’t necessary. Take note, too, of this usefully pithy summary of Maday, (¶19): “The purpose of the Maday rule is to level the playing field by giving the defendant an opportunity to counter the State's Jensen evidence.” The State may have used Jensen evidence in this case, but the defense could refute it without a Maday exam: that is all, really, that this case says.)
Memory and Suggestibility of Child Witness
State v. Steven G. Walters, 2003 WI App 24, reversed on other grds., 2004 WI 18
For Walters: Jenelle L. Glasbrenner, David A. Danz
Issue/Holding:
¶28. Again, the admissibility of expert testimony is committed to the discretion of the trial court. Friedrich, 135 Wis. 2d at 15. At the offer of proof hearing, Walters's proposed expert, Dr. Underwager, testified about his ability to render an opinion about the type of interviewing the officer used in questioning the alleged victims. Dr. Underwager testified that he would address the quality of the investigative techniques used in this case, indicating that police interviews of the victims failed "to conform to generally accepted guidelines on how to perform investigatory interviews in cases of alleged child abuse."

¶29. The trial court properly exercised its discretion in granting the State's motion to exclude Dr. Underwager's testimony. In doing so, the trial court provided three bases. First, the trial court found that the majority of Dr. Underwager's testimony would cover matters within the knowledge and general experience of the community which would not require expert testimony. In addition, the trial court found that Dr. Underwager's proffered testimony would not have highlighted specific examples of improper techniques used by the police nor explained how these techniques could have affected the children's statements. Finally, the trial court concluded that because the State was planning on using live witnesses and would not rely on the children's statements to police, evidence regarding the interviewing techniques would be, at best, minimally relevant. On this issue, the trial court considered the relevant facts, applied a correct standard of law and arrived at a reasonable result through a rational thought process, and we affirm. See Peters, 192 Wis. 2d at 685.

Mental Disorder - Usefulness to Fact-Finder
State v. John J. Watson, 227 Wis.2d 167, 595 N.W.2d 403 (1999), reversing unpublished decision.
For Watson: Richard D. Martin, SPD, Milwaukee Appellate.
Holding: Admissibility of a psychologist's (preliminary hearing, 980 proceeding) testimony that Watson's crime was sexually motivated is upheld: "The average person is simply not prepared to expound on paraphilia or other sex-related mental disorders. An expert should be able to assist the fact finder in determining the nature and source of an offender's motivation."
PBT: Expert Testimony, Even if only Partly Based on PBT, Inadmissible, § 343.303
State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
For Fischer: James M. Shellow, Robin Shellow; Urszula Tempska
Issue1 Whether the express statutory bar on PBT results, § 343.303, precludes admissibility of expert opinion based on those results, notwithstanding that expert opinion generally may be based on inadmissible data, § 907.03.
Holding1
¶25      Fortunately, in this case, the legislature's policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer. Reading the statutes together to create an exception to Wis. Stat. § 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature's intent. The alternative would likely nullify Wis. Stat. § 343.303 whenever a party attached the opinion or report of an expert to the PBT result it wished to get before the jury.
Bit more to it than that, of course, but it reduces to categorical bar on
¶20      The thorny question of what to do with inadmissible evidence that experts rely upon as a basis for an opinion is one that has proved difficult to answer with a fair and workable rule.

¶21      Law professor Daniel Blinka concisely summarizes the practical difficulty of explaining the bases for expert opinions when they include inadmissible evidence, and the unsatisfactory options for resolving the question ….

If you’re looking for a “fair and workable rule,” for “[]satisfactory options for the resolving the question,” this opinion isn't for you. Nor, for that matter, does the court suggest it's even trying to do more than kick this particular can down the road. Sure, the court says there are good, “practical” reasons for absolute inadmissibility, ¶26, but the court doesn’t bother to explain why the generally available options (such as limiting instruction re: substantive use of PBT result) wouldn’t work. Juries are supposed to ignore patent hearsay underlying an expert opinion, why can’t they just ignore the PBT? The court doesn’t attempt to penetrate this mystery, precisely because it doesn’t have to: its holding relates solely to statutory construction of a clearly expressed statute which creates categorical inadmissibility: § 343.303 is an exception to § 907.03, rather than the other way around. The underlying problem—endemic, for example, to all Ch. 980 litigation, wholly dependent as it is on expert opinion based largely on hearsay—is a doctrinal crisis, really, related to administering expert opinions and it simply isn’t going to disappear. No need to use this case to delve into it, hence the otherwise inexplicably relieved tone (“Fortunately ….”).
Issue/Holding 2 Assuming without deciding that an expert opinion based at least partly on inadmissible PBT results has probative value and is necessary to the defendant’s case, the constitutional right to present this evidence “is nonetheless outweighed by the State’s compelling interest in excluding the expert evidence based on PBT results,” ¶32.
¶5        Fischer argues that excluding the expert's opinion violates his right under the constitutions of the United States and Wisconsin to present a defense. We disagree. In United States v. Scheffer, the United States Supreme Court held that state rules that result in exclusion of defense evidence are constitutionally valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” … For reasons explained herein, we hold that in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the State's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding such evidence in OWI prosecutions, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the State's compelling interest in public safety on its roads. The legislature's decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get——cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. 
The court of appeals had held that “the testing mechanism for the PBT is simply not designed so the result obtained during the investigation of a possibly intoxicated driver is accurate enough that it can be used to help a jury determine the driver’s guilt or innocence,” 2008 WI App 182, ¶17. The supreme court, while not quite rejecting that holding, expressly “take[s] a different approach,” ¶34, namely one that assumes PBT accuracy. As the majority goes on to concisely explain, the lower court’s approach simply trades one problem for another: “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact, which continues to be the law, cannot be squared with an analysis that excludes evidence on the basis of its lack of reliability,” ¶34. No, it can’t. But that doesn’t stop the 3-Justice concurrence from making the attempt, ¶¶37-43. It might be tempting to dismiss that attempt as merely result-oriented, but consider this: if, given “Wisconsin's tradition of leaving the weight and credibility of the evidence to the trier of fact,” reliability doesn’t determine admissibility, then how do we explain categorical inadmissibility of diminished capacity evidence? Or, as the concurrence alludes to, ¶40, polygraph evidence? Odd as it might seem, we’re a very long way from some Grand Unifying Theory of admissibility for expert opinions.

For discussion of court of appeals decision, now seemingly supplanted, go here.

PBT - Requires Expert Testimony
State v. Kurt J. Doerr, 229 Wis.2d 616, 599 N.W.2d 897 (Ct. App. 1999).
For Doerr: John M. Carroll
Holding: A preliminary breath test (unlike certain other breath test instruments) requires expert testimony to explain its import: "The PBT device has not been approved by the DOT and does not receive a prima facie presumption of accuracy to establish a defendant's blood alcohol level. Therefore, prosecutors who wish to rely on the PBT results are required to present evidence of the device's scientific accuracy and reliability and prove compliance with accepted scientific methods as a foundation for the admission of the test results." The state didn't lay a proper foundation for its witness to testify about the PBT results. The error, however, was harmless.
But see State v. Richard M. Fischer, 2010 WI 6, summarized above, to effect that PBT result is categorically inadmissible, including expert's opinion based even partly thereon.
Physician's Desk Reference: Expert's Reliance On
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:
¶42      Here, the forensic scientist conducted both a presumptive identification and a confirmatory test on a random sample of the suspected Oxycontin. Identification of a pill using the Physician’s Desk Reference qualifies as a presumptive test.  Wisconsin Stat. § 907.02 and State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991), recognize that any specialized knowledge beyond the ken of the average person, including knowledge gained from experience alone, can form the predicate of an expert opinion. Thus, the knowledge need not be “scientific,” see id. (no special technical or academic training necessary), and “scientific certainty” is not necessary. The fact that the witness here was a forensic scientist therefore did not preclude her from forming an expert opinion about the accuracy of the desk reference based on experience. This witness testified that in her eleven years of experience, she had never found her pharmaceutical identification of a tablet inconsistent with the results of scientific tests. Detective Davila gave similar testimony based on her experience on the vice control squad, stating that she had never seen a case in which the pill she identified in the desk reference turned out to be a counterfeit of that drug.

¶43      Moreover, we note that other courts have recognized the Physician’s Desk Reference as a source commonly relied upon by members of the medical profession and pharmaceutical industry. …

¶44      In addition to the presumptive pharmaceutical evaluation by Detective Davila and the forensic scientist, the jury in this case, just as the fact finder in Dye, had a confirmatory follow-up test and other circumstantial evidence of content that it could consider. …

"Profile Character" (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue: Whether Richard A.P. evidence -- that the defendant lacks the psychological characteristics of a sex offender and, therefore, was unlikely to have committed the charged offense -- is admissible.
Holding:
¶15. We conclude that a blanket restriction on Richard A.P. evidence is unwarranted. Discretion to admit or exclude such evidence remains with the circuit court. We agree with the conclusions reached by the court of appeals in Richard A.P. and specifically adopt its reasoning.
(State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).)
¶18. Davis's expert will allegedly testify to the general character traits of sexual offenders, the tests used to determine whether an individual possesses such character traits, his findings on whether Davis possesses such character traits, and, based on these results, the likelihood that Davis committed the sexual assault. Such traits regarding the defendant's propensity to commit sexual assault are pertinent traits of his character. This evidence relates to a consequential fact, that is, whether the defendant committed sexual misconduct with a child. Further, this evidence has probative value in sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Such profile evidence may be extremely important to the defense. Such testimony may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence.
(Note: The court distinguishes Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980) (expert psych testimony inadmissible on intent) as "a narrow holding" and seems to limit it to its facts. ¶25. Though the court largely acknowledges broad-based admissibility of expert testimony in Wisconsin, it does exhort trial judges to "carefully scrutinize" admissibility. ¶21. Note, additionally, the defendant's obligation to disclose information, and the consequential self-incrimination waiver. ¶¶40-41.)
"Profile Character" (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Issue/Holding: The trial court reversibly erred in refusing to allow an expert psychologist to testify that defendant "did not show any evidence of any diagnosable sexual disorder. ... [and] that absent a diagnosable disorder, it is unlikely that such a person would molest a child." This evidence was relevant: "[Psychologist] Lodl's testimony may well have assisted the jury in determining whether Richard, who maintained that the child had misinterpreted his actions, committed the charged offense. Lodl's expert testimony was admissible under § 907.02, STATS." Nor is that the only basis for admissibility: "Moreover, the evidentiary code expressly recognizes a defendant's right to present evidence of a pertinent character trait. Section 904.04(1)(a), STATS. ..." That is, evidence of a defendant's "pertinent [character] trait" is admissible under § 904.04, when presented through reputation or opinion testimony per § 904.05. "Character profile" evidence, in sum, is admissible when supported by competent underlying expert testimony. (Caution: A defendant's character profile evidence is not admissible unless defendant offers it; then, the state can, "by way of rebuttal evidence, introduce countervailing evidence. Thus, any risk associated with the presentation of character evidence by the State is triggered by the defendant.")
Qualification -- Confession: Recantation and Interview Techniques (-- and Generally)
State v. Bradley Alan St. George, 2002 WI 50, reversing unpublished court of appeals decision
For St. George: Donald T. Lang, SPD, Madison Appellate
Issue: "Was the circuit court's exclusion of the testimony of the defendant's expert witness an erroneous exercise of discretion, or alternatively, a deprivation of the defendant's constitutional right to present evidence, as the defendant asserted?" ¶2
Holding: The trial court's rejection of the expert was based on his lack of extensive experience in the area; however, in considering only the expert's qualifications and not the defendant's constitutional right to present a defense, the trial court erroneously exercised discretion. ¶48. A two-part inquiry must be undertaken:
¶54. In the first part of the inquiry, the defendant must satisfy each of the following four factors through an offer of proof. The defendant must show:
1) The testimony of the expert witness met the standards of Wis. Stat. § 907.02 governing the admission of expert testimony.
2) The expert witness's testimony was clearly relevant to a material issue in this case.
3) The expert witness's testimony was necessary to the defendant's case.
4) The probative value of the testimony of the defendant's expert witness outweighed its prejudicial effect.
¶55. After the defendant successfully satisfies these four factors to establish a constitutional right to present the expert testimony, a court undertakes the second part of the inquiry by determining whether the defendant's right to present the proffered evidence is nonetheless outweighed by the State's compelling interest to exclude the evidence.
The test was satisfied; exclusion of the expert was improper. (The merits are fact-intensive. At the risk of oversimplification: The state presented a witness who testified to the percentage of recantations that were ultimately reaffirmed, and a witness who used what he described as a nationally accepted interview technique employing non-leading questions. ¶¶31-32. The excluded expert would have refuted both these claims. ¶34. See also concurrence, ¶¶79-81.)
Qualifications -- Lay Expert -- Probation/Parole Officer, Opinion as to Likelihood of Sexual Violence
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Fact that probation/parole agent wasn't mental health specialist didn't preclude him offering lay expert opinion on likelihood of ch. 980 respondent re-offending. Lay expertise may be found under § 907.02, based on relevant experience, educaiton, and/or training.
Qualifications -- Gang Affiliation
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Officer's background, including "gang training" and investigations into numerous gang-related shootings, made him qualified to testify as to gang activities in city. ¶26.
Qualifications
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.
Holding: Because the witness had "expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue." ¶29. The error, however, was harmless: The witness was allowed to testify to all but the ultimate opinion, and another witness was allowed to give an ultimate opinion in Sprosty's favor. ¶30.
(Note: The social worker's qualifications are mentioned only in passing, namely that "she provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release." ¶11. The harmless error analysis is wrong on its face: "because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court's decision, we conclude the error was harmless[.]" ¶30. This exactly inverts the burden, which is, instead, that the state show beyond reasonable doubt that the error didn't contribute to the result.)
Go To Brief
Expert Opinion – TPR Parent’s Ability to Meet Condition for Child’s Return
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.
Holding:
¶40      In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr. Wellens administered and did not consider the psychologist's experience, training, interview with Shannon R., and review of the voluminous case history. Thus the circuit court did not consider all the relevant facts.

¶41      Dr. Wellens could address Shannon R.'s abilities and her future behavior based not only on his training and review of her voluminous case history but also on his personal interview with and testing of Shannon R. and from listening to the opinions of others. …

¶42      The circuit court erred by not applying the proper legal standard.  It failed to recognize that courts ordinarily allow psychologists to opine about the future behavior of an individual. …

¶43      … The circuit court seemed to be saying that only those experienced or trained in social work have the expertise to testify in termination of parental rights cases about the substantial likelihood of a parent's meeting the conditions for return of a child within the 12-month time period. Such a ruling is an error of law. Thus the circuit court erred as a matter of law in declaring that Dr. Wellens, a psychologist, would know so little about the subject that he should not be permitted to give his opinion. …

Concise summary is difficult. This is very much a fact-bound case; keep in mind that the county was allowed to ask its experts whether Shannon “would be able to meet” the conditions for return (the answer of course being, No); but that Shannon was denied the opportunity to ask her expert precisely the same question (the answer would have been, Yes). There’s a 3-vote dissent that, though mostly geared toward harmless error, does say that the trial court’s exclusion was OK. Apparently a Ph.D. in clinical psych, as well as an MA in counseling psych; a private practice focused on counseling both adults and children; and regular commitment and competency exams for the local courts (¶26) wasn’t good enough. What would have satisfied the dissent (¶¶112-19)? The holding does seem to support a meta-message, which is that Wisconsin has a very liberal view of admissibility of expert opinion testimony; see discussion of Daubert on this page, in the summary of State v. Wilkens.
Expert Opinion Testimony re: Truthfulness of Complainant, as to Signs of Coaching or Suggestion
State v. Bryan James Krueger, 2008 WI App 162
For Krueger: Bradley J. Lochowicz
Issue/Holding:
¶15      Here, Mason was asked whether she had formed an opinion as to whether or not S.B. “was the product of any suggestibility or any coaching.” … Signs of coaching or suggestion could fall into the realm of knowledge that is outside that of a lay-person jury. [10]

¶16      However, in assessing that because S.B. was not highly sophisticated she would not have been able to maintain consistency throughout her interview “unless it was something that she experienced,” Mason testified that S.B. had to have experienced the alleged contact with Krueger. The testimony was tantamount to an opinion that the complainant had been assaulted—that she was telling the truth. As in Haseltine, this testimony simply went too far, and its effect was to usurp the role of the jury in determining credibility. See Haseltine, 120 Wis. 2d at 96; Romero, 147 Wis. 2d at 278; Tutlewski, 231 Wis. 2d at 390. [11]

¶17      We therefore agree with Krueger that counsel’s performance was deficient in failing to object to Mason’s testimony and that Krueger was prejudiced by counsel’s deficient performance. The appropriate measure of attorney performance is reasonableness, considering all the circumstances. See State v. Brooks, 124 Wis. 2d 349, 352, 369 N.W.2d 183 (Ct. App. 1985). While trial counsel testified that she had not objected because she viewed Mason’s testimony as admissible expert opinion, her view of the law was incorrect. It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable. [12] Haseltine, 120 Wis. 2d at 96; Strickland, 466 U.S. at 687.

As Judge Brown points out in concurrence, ¶21, the holding is actually quite narrow:
I write separately to underscore that prosecutors will not be hamstrung by this opinion one iota. The opinion simply means that, while expert evidence regarding coaching or the lack of it is allowable, prosecutors must be careful in how they present it. The key word here is “objective.” The questions must be objectively tailored and designed to elicit objective answers. A good starting point for prosecutors would be footnote ten of the majority’s opinion. Certainly, prosecutors can tailor an objective, nonleading question about the child’s “ability to supply peripheral details of the alleged incident.” They can ask about the child’s use of language in describing the assault. They can ask about information “not appropriate for the developmental level of the child.” There are probably many more objective questions a prosecutor can ask that will get the prosecutor’s point across. What the prosecutor cannot do is cross the line by inviting the expert to give her or his opinion about whether the child was coached. In sum, be careful.
One small matter. The court takes pains to note that “Wisconsin law has not yet addressed the precise question of the admissibility of expert opinion testimony about whether the child’s testimony and behavior exhibit signs of coaching or suggestion,” ¶14. That being so, why didn’t the court simply say, “Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue,” State v. Jennifer Wery, 2007 WI App 169, ¶17, and wash its hands of the matter? Apparently because, in the final analysis, the issue wasn’t all that novel as the court itself ultimately acknowledged: “It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable,” ¶17.
Truthfulness of Another Witness, Comment On -- Comment by One Witness on Whether Another Witness "Is Lying"
State v. Victor K. Johnson, 2004 WI 94, affirming unpublished decision of court of appeals
Issue: Whether the State impermissibly cross-examined the defendant about the truthfulness of another witness.
Holding:
¶2. We conclude that the purpose and effect of the prosecutor's cross-examination of Johnson was to impeach Johnson's credibility, not to bolster the credibility of another witness, because both Johnson and the other witness were testifying to their personal observations about the same events. Therefore, the cross-examination of Johnson was permissible. …
There are, the court says, two lines of cases addressing whether one witness may comment on another witness’s testimony: an expert commenting on direct, State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984); and eye-witness testimony on cross, State v. Jackson, 187 Wis. 2d 431, 523 N.W.2d 126 (Ct. App. 1994). ¶13. The court preserves the Haseltine rule (an expert can’t comment on the credibility of another witness), but draws the line there:
¶19. We perceive no conflict between the Haseltine and Romero line of cases and those headed by Jackson and Bolden. In the Haseltine line, the objected to testimony is simply bolstering another witness's testimony of an event about which the expert witness has no personal knowledge. It is generally done on direct examination and usurps the jury's role as the "lie detector in the courtroom." See Haseltine, 120 Wis. 2d at 96. The jury can independently determine the credibility of each witness, see Romero, 147 Wis. 2d at 278, and does not require an expert witness to assist it with that determination.

¶20. By contrast, in the Jackson line of cases, two witnesses are testifying about an event that both claim to have seen, and their testimony conflicts. The purpose5 and effect of the cross-examination of the second witness is to test that witness's credibility through his or her demeanor and answers to questions. It aids the jury in its truth-finding function. See Wis. Stat. § 906.07 (2001-02) (stating the credibility of any witness may be attacked by any party). The testimony elicited by the prosecutor in Bolden and Jackson was not placed before the jury to bolster the credibility of the other witnesses. Instead, cross-examination was used to highlight the inconsistencies in the testimony, and give the witness an opportunity to explain those inconsistencies. Bolden, 265 Wis. 2d 853, ¶8; Jackson, 187 Wis. 2d at 437-38. As the court of appeals concluded, the questions posed "were solely to impeach [the defendant's] credibility." Jackson, 187 Wis. 2d at 437. Such questions may help the jury assess the credibility of witnesses. Bolden, 265 Wis. 2d 853, ¶8. Such a technique is permissible cross-examination.6

Not clear just why it mattes whether the witness was an eyewitness or an expert; why, that is, the one usurps the jury function but the other doesn’t; after all, each is called upon to assert whether or not another witness is telling the truth. But there you have it nonetheless. Apparently, for whatever reason, it does matter whether the witness called upon to comment was an eyewitness – thus, the court stresses that both the defendant and the witness he was required to comment upon were eyewitnesses to the crime. ¶23. (What if the defense were alibi? Presumably, this inquiry would be impermissible.) The court also stresses that the sole purpose of this sort of inquiry is impeachment. This limitation seems to rest on a fairly arcane and for that matter unexplained distinction (“So, you’re saying that Witness X was lying when she said that you …” has just what limited meaning? that the defendant’s answer is only relevant to whether X was truthful when she said he had committed the crime?). But for whatever good it might do, presumably you’d be entitled to a limiting instruction of some sort under § 901.06. If you manage to craft one, by all means share it. (“The testimony of the defendant that X lied when testifying that defendant had committed the crime is limited to assessing defendant’s credibility in denying that he had committed the crime, and may not be used for any other purpose.")

One other point. The court of appeals has held that the State can’t simply interject in closing argument, for the first time, a claim that the defense is asserting that the witnesses against him are lying. State v. Steven T. Smith, 2003 WI App 234 (in that instance, that the police must have been lying). That result probably survives this one, because it was based on different considerations, namely lack of any evidentiary support or of invited response.)

See also discussion above, re: cross-examining defendant about truthfulness of another witness.

Truthfulness of Another Witness, Comment On
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶8. After reviewing these cases, we can discern some general rules: (1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; (2) the testimony can include opinions regarding symptomatology common to child sexual assault victims; (3) the testimony can include a description of the symptoms exhibited by the victims; and (4) the testimony can include the expert's opinion as to whether or not the victims' behavior is consistent with behavior of sexual assault victims. Our supreme court has concluded that such testimony is not tantamount to vouching for the credibility of the victims and does not establish that an assault actually occurred.

¶9. We can also conclude from this case law assessment what an expert witness may not do: (1) he or she may not testify that the victim is "being totally truthful," State v. Romero, 147 Wis. 2d 264, 277, 432 N.W.2d 899 (1988) (citation omitted); (2) he or she may not testify that there is "no doubt whatsoever" that the accuser was a victim of moral turpitude, Haseltine, 120 Wis. 2d at 96 (citation omitted); and (3) if he or she is hired to determine whether or not an assault has occurred, the testimony may be limited."

Go to Brief
See also "Comment on Truthfulness," above.
Expert Testimony – Conclusion as to Ultimate Fact
State v. Louis H. LaCount, 2007 WI App 116, affirmed, 2008 WI 59, ¶20
For LaCount: T. Christopher Kelly
Issue/Holding:
¶19      Under Wis. Stat. § 907.04, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See, e.g., State v. Elm, 201 Wis.  2d 452, 459, 549 N.W.2d 471 (Ct. App. 1996). An expert opinion on an ultimate fact is permissible in situations “[w]here evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case.” Rabata v. Dohner, 45 Wis. 2d 111, 123-24, 172 N.W.2d 409 (1969) (citation omitted).

¶21      LaCount’s attorney made sure jurors understood Cohen was merely assuming facts in giving his opinion. … Therefore, Cohen was properly allowed to testify as to the basic factual characteristics of an investment contract. …


"Exculpatory Evidence": See here.

Ch. 908 -- HEARSAY
General note on confrontation and hearsay
The seminal Crawford v. Washington, 541 U.S. 36 (2004) has fundamentally altered the way confrontation claims are litigated, essentially decoupling hearsay from confrontation analysis, in the sense that hearsay "reliability" no longer determines the outcome of a confrontation analysis under Crawford. However, the hearsay rule remains the first stop: it remains no less true under Crawford that the court's first task in resolving a confrontation claim is to determine admissibility of the statement under the rules of evidence, State v. Antwan B. Manuel, 2005 WI 75, ¶23; if the statement is found admissible then a confrontation analysis is engaged, id., ¶25. For confrontation cases, go here.
911 Call
State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999)
For Ballos: Robert N. Myeroff
Issue/Holding:
¶12. Wisconsin case law has not yet clarified whether, or on what basis, 911 calls, tapes, or transcripts may be admissible. Although the precise analysis may vary from case to case or even from call to call depending on the specific facts and circumstances, we see several avenues of admissibility for 911 evidence, all of which allow for the admission of the 911 evidence in this case.
The court proceeds to ground admissibility of the statements themselves under various alternative hearsay exceptions - present sense impression (¶13), excited utterance (¶¶14-15), statement of recent perception (¶16); and the transcripts of the calls under the record of regularly recorded activity rule (¶19). The kitchen-sink quality to the court's discussion may make it difficult to mount a successful hearsay challenge to any given 911 call. The various rationales by the court -- present sense impression ("the 911 callers were describing the events they were perceiving or had just observed"); excited utterance ("suddenly seeing a building on fire is a startling event"); statement of recent perception (statement not instigated by another, describing recently perceived event, made in apparent good faith) -- will probably apply to most any 911 call / caller. And, apparently, transcripts of 911 calls seem to be admissible as a matter of law, under the "business records" exception (assuming, of course, that the statements they document satisfy a hearsay rule). But a very significant issue of confrontation admissibility has been re-opened, by Crawford. (See generally here).

The crucial question, unanswered by Ballos, is whether a 911 call is considered "testimonial"; if it is, then the confrontation clause bars admissibility. That issue was resolved in Adrian Martell Davis v. Washington, No. 05-5224, 6/19/05 (911 call not testimonial, at least where made under circumstances objectively indicating that primary purpose of interrogation is to enable police assistance to meet ongoing emergency; Court, however, carefully cautions that purpose of call may segue from nontestimonial report of ongoing emergency to testimonial recitation -- in that instance, trial judge should redact the testimonial portion).

Some first reactions to Davis (and companion case Hammon) posted here. Earlier treatments may have to give way to these cases, of course, but may nonetheless prove useful: treatment of admissibility of 911 calls under the confrontation clause, see Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U.Pa.L.Rev. 1171 (no non-commercial link available, but abstract available here; brief summary of Friedman's position on 911 calls may be found here. Crawford's attorney, Jeffrey Fisher, has posted a very useful outline (presumably updated with some regularity), which includes a subsection (I.D.12.) of 911-call cases, here. See also surveys of relevant caselaw in U.S. v. Arnold, 6th Cir No. 04-5384, 6/21/05 (911 call "testimonial" where, though one purpose may have been to secure assistance, declarant could reasonably expect statement to be used at future trial); and U.S. v. Hinton, 3rd Cir No. 03-3803, 9/14/05 (911 call not testimonial on facts, with court suggesting that that will generally be the case). Also see detailed survey of cases in State v. Davis, 364 S.C. 364, 613 S.E.2d 760 (2005). In the nature of things, 911 calls tend to raise the question of excited-utterance admissibility; for a summary of the three distinct approaches to admissibility (excited utterances never testimonial; excited nature of hearsay has no bearing on whether testimonial; connection is case-specific), see U.S. v. Brito, 1st Cir No. 04-1755, 10/20/05, itself taking third approach: "We therefore reject the categorical approaches that lie at either end of the spectrum. Instead, ... (t)he testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated (that is, excited by the stress of a startling event), would have had the capacity to appreciate the legal ramifications of her statement."

Trite, then, but true: each case will turn on its own, operative facts, with the critical feature of admissibility will be whether the caller seeks protection from immediate danger, see, e.g., U.S. v. Brun, 8th Cir No. 04-4208, 8/1/05. See State v. Camarena, OR App No. A122282, 10/11/06 (911 calls "immediately after the assault occurred" nontestimonial; defendant had left premises buy "the danger of a renewal of the domestic assault had not necessarily or fully abated").

Authentication of Document
State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether proof-of-service documents, introduced to show defendant's knowledge of a domestic violence injunction, violated the hearsay rule.
Holding:
¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits. See Black's Law Dictionary 58 (7th ed. 1999) (An 'affidavit' is a 'voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.'). Further, because the State did not enter these documents into evidence through a witness, such as the officer who allegedly served the defendant or the records custodian from the Milwaukee County Sheriff's Department, these documents were never properly authenticated. See State v. Garner, 54 Wis. 2d 100, 107, 194 N.W.2d 649 (1972) (stating that under the public records exception to the hearsay rule, custodianship is important, and a competent witness must provide the required identification of official records). Given the absence of proper authentication combined with the trial court's mistaken belief that these documents were affidavits, we conclude that the trial court erroneously exercised its discretion in admitting these documents into evidence pursuant to Wis. Stat. § 908.03(8). See Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 654, 495 N.W.2d 318 (1993) ('A circuit court erroneously exercises its discretion when it makes a mistake with respect to the facts upon which its decision is based.').
Like effect: People v. Jambor, MI App No. 259014, 5/2/06 (failure to adduce proper authentication precluded admissibility as business or public record: "But even if an exception to the hearsay rule would allow admission of the evidence, the exception does not absolve the offering party from the usual requirements of authentication.")

In some instances the State may attempt to introduce a document as a business-record exception, without any accompanying testimony; this is especially problematic where the document requires expertise, such as a lab report. In such an instance would proper authentication, or some other necessary foundation, overcome a confrontation objection? Maybe, maybe not. Caselaw is split. For a collection of authorities, see State v. Caulfield, MN SCt No. A04-1484, 10/5/06 (itself holding: "lab report, offered at trial to prove that a substance seized from the defendant was cocaine, is testimonial, implicating the defendant’s confrontation rights under Crawford v. Washington"):

The state refers us to cases from other states that, after Crawford, hold that lab reports are not testimonial. But these cases seem to wrongly focus on the reliability of such reports. See Commonwealth v. Verde, 827 N.E.2d 701, 705 (Mass. 2005) (holding that drug certificates “merely state the results of a well-recognized scientific test determining the composition and quantity of the substance” and are within the state public records hearsay exception); State v. Dedman, 102 P.3d 628, 634-36 (N.M. 2004) (holding a report not testimonial and within public records exception because it was prepared by agency that is not law enforcement); State v. Cao, 626 S.E.2d 301, 305 (N.C. Ct. App. 2006) (holding that lab reports are nontestimonial business records only when the testing on which they are based is mechanical), rev. denied (N.C. Jan. 17, 2006); Oregon v. Thackaberry, 95 P.3d 1142, 1145 (Or. Ct. App. 2004) (finding that lab report may be similar to a business record), rev. denied (Or. Aug. 11, 2004). In Crawford, the Court observed, “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’” 541 U.S. at 61.

We are persuaded that the better line of cases are those that have held that lab reports are testimonial under Crawford. See Shiver v. State, 900 So.2d 615, 618 (Fla. Dist. Ct. App. 2005) (finding that parts of affidavit related to maintenance of breathalyzer were testimonial because they were statements one would reasonably expect to be used prosecutorially and were made in circumstances that would lead an objective witness to reasonably believe the statements would be available for trial); People v. Lonsby, 707 N.W.2d 610, 618 (Mich. Ct. App. 2005) (holding that lab report on identification of evidence was testimonial and inadmissible), rev. denied (Mich. Mar. 27, 2006); People v. Rogers, 780 N.Y.S.2d 393, 397 (N.Y. App. Div. 2004) (holding that report of test of victim’s blood alcohol, admitted to prove inability to consent, was testimonial); State v. Crager, 844 N.E.2d 390, 397, 399 (Ohio Ct. App. 2005) (holding that DNA report was testimonial and admission without testimony of analyst who prepared it violated defendant’s Confrontation Clause rights), appeal accepted (Ohio Apr. 26, 2006).

Compare State v. Norman, OR App No. A122051, 12/7/05 (certifications of accuracy of Intoxilyzer not testimonial; and cites therein); U.S. v. Weiland, 9th Cir No. 04-30091, 8/24/05 (routine certification by custodian of public record -- "penitentiary packet" in this instance -- not testimonial), People v. Shreck, Colo. App. 02CA1413, 9/23/04 (chain-of-custody document regarding DNA sample not testimonial), Napier v. State, Ind. App. No. 55A01-0406-CR-237, 1/6/05 (toxicologist certificate not testimonial because ruling to the contrary would be "impractical"), with, United States v. Diaz, 223 U.S. 442 450 (1912) (holding arguably revitalized by Crawford methodology that autopsy report could not be used against the accused without entitling the defendant "to meet the witness (who authored the report) face to face"), City of Las Vegas v. Walsh 91 P.3d 591 (Nev. 2004), no link available (nurse s chain-of-custody affidavit concerning method of conducting and preserving blood alcohol test is testimonial); People v. Rogers, 780 N.Y.S.2d 393 (N.Y. App. 2004) (report of blood test is testimonial); People v. Capelan, 2004 N.Y. Slip Op. 24513, 791 N.Y.S.2d 315 (affidavit of DMV records manager concerning defendant's driving record testimonial). See also cases collected, Belvin v. State, fn. 2, FL App 4th Dist No. 4D04-4235, 3/8/06.

Also see confrontation discussion here, relating to lab report which is explicated by testifying witness, albeit not one who prepared it.

Narrative Statement -- Distinct Assertions -- Admissibility Methodology
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶18. Shelleen Joyner argues that Trudy Joyner's statement is against her penal interest, however, because Trudy Joyner admitted that she "knowingly helped a robber escape." We disagree. "[W]hen ruling upon a narrative's admissibility ... a court must break it down and determine the separate admissibility of each 'single declaration or remark.'" United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995) (quoting Williamson v. United States, 512 U.S. 594, 599 (1994)). "[E]ach particular assertion in a narrative should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest." Silverstein v. Chase, 260 F.3d 142, 148 (2d Cir. 2001) (citing Williamson, 512 U.S. at 603-604).
Hearsay, Definitions – “Assertion,” § 908.01(1) – Expression of Fact, Condition or Opinion
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding1: “(W)e conclude that ‘assertion,’ as used in § 908.01(1) means an expression of a fact, condition, or opinion.” ¶38. And, the speaker must intend the utterance to be an “assertion” as thus defined, because “when a speaker does not intend to communicate anything, his or her sincerity is not in question and the need for cross-examination to test perception, memory, and narration is much diminished.” ¶40.
Issue2: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was necessarily excluded from the definition of “assertion,” § 908.01(1), because it was an “instruction.”
Holding:
¶41. The State contends that Elizabeth's utterance to her mother cannot be considered an assertion because it is an instruction. It is generally true that commands, instructions, and questions are not considered assertions under the federal rule because they are not expressions of a fact, opinion, or condition, but instead are telling someone to do something or asking someone for information. However, this principle is not as rigid as the State suggests….

¶42. We can see no logical reason why the grammatical form of an utterance-whether a declarative sentence, command/instruction or question-should conclusively determine whether an utterance is intended by the speaker as an assertion within the meaning of Wis. Stat. § 908.01(1). We therefore conclude that the fact that Elizabeth's utterance to her mother was in the form of an instruction does not automatically mean it was not an assertion.

Issue3: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was necessarily excluded from the definition of “assertion,” § 908.01(1), because it was an implied rather than express statement of fact, opinion, or condition.
Holding:
¶46. We conclude that the preferable approach is to include within the meaning of "assertion" in Wis. Stat. § 908.01(1) an expression of a fact, opinion, or condition that is implicit in the words of an utterance as long as the speaker intended to express that fact, opinion, or condition. From the standpoint of the principles underlying the rule against hearsay, we see no reason to distinguish between an explicit and an implicit assertion. As for determining whether the speaker intends an implicit assertion and if so what, we adopt the framework described in the Judicial Council Committee's Note and the Federal Advisory Committee's Note for determining whether non-verbal conduct is intended as an assertion. The burden is on the party claiming that an utterance contains an implicit assertion to show that a particular expression of fact, opinion, or condition was intended by the speaker, and the trial court determines this as a preliminary matter. See supra note 14. See also United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996). Sometimes it will be evident from the utterance itself that the speaker necessarily intended an implicit assertion. However, when evidence of surrounding circumstances is needed to resolve the issue, the party claiming an implicit assertion must present that evidence to the trial court. Id.

¶47. In this case, when the prosecutor stated at the motion hearing that Elizabeth's instruction to her mother contained a highly relevant inference and defense counsel objected that use of the instruction for that purpose was hearsay, the trial court should have taken up the issue of whether the instruction contained an implicit assertion, and, if so, what. Although the trial court did not do so, our independent review of the record persuades us that a reasonable trial court could have concluded that the instruction did not contain an implicit assertion by Elizabeth that Daniel was dangerous. The instruction itself does not necessarily imply the assertion Daniel propounds. That is, the instruction itself necessarily implies that Elizabeth intended to assert to her mother that she wanted her mother to come looking for her if she was not home by 3:45 p.m., but the instruction, in itself, does not necessarily imply any assertion about the reason for her request. It was therefore incumbent upon Daniel to present evidence of the surrounding circumstances to support his position that Elizabeth intended to express to her mother that Daniel was dangerous. It is by no means clear from the submissions that she intended to express that fact. The submissions would support a determination that she intended to express to her mother her fear about what Daniel might do, which is not the same thing as expressing the fact of his dangerousness. The submissions are also consistent with her fearing that he would bother her by insisting on talking her into coming back to him or by following her to prevent her from meeting Stahl-not that Daniel would harm her. Accordingly, we conclude there was a proper basis in the record for deciding that the instruction was not an assertion within the meaning of Wis. Stat. § 908.01(1), and thus was not hearsay.

¶48. The State, therefore, was not prohibited by the rule against hearsay from asking the jury to draw from it the inference that Elizabeth feared Daniel would harm her and that he did….

Hearsay, Definitions – “Statement,” § 908.01(1) – Truth of Matter Asserted
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was a hearsay “statement,” as defined in § 908.01(1), i.e., offered for the truth of the matter asserted.
Holding:
¶36. There is no dispute that an out-of-court instruction to do something is not hearsay when offered to prove that the instruction was given and, accordingly, to explain the effect on the person to whom the instruction was given…. Therefore, the trial court correctly ruled that the instruction was not hearsay when used to show why her mother began looking for her at 3:45 p.m. However, we do agree with Daniel that the State sought to offer and did offer Elizabeth's mother's testimony for purposes in addition to establishing why she went looking for her daughter when she did. Although that is the only purpose the prosecutor expressly acknowledged when asked by the trial court, the prosecutor's other comments suggest the State viewed Elizabeth's instruction to her mother as also relevant-"highly relevant"-to Elizabeth's concern for her own safety. We understand the State's position to be that, because Elizabeth's utterance was in the form of an instruction, it was not hearsay when used either to prove that she said it (and thus to prove what her mother did in response) or to prove Elizabeth's view's of Daniel, and the State could therefore use the instruction for both purposes. The court's ruling appears to accept this position, because it allowed the parties to "argue the inferences that can be drawn therefrom."

¶37. Our examination of the record at trial shows the State did in fact use Elizabeth's instruction for a purpose other than to explain why her mother went looking for her when she did. Her instruction to her mother was mentioned three times in the State's closing argument, and one of those references was clearly used to convey that Elizabeth feared Daniel might do something to harm her and that he did. We therefore address Daniel's contention that Elizabeth's instruction to her mother was hearsay when used in this way.

Hearsay -- Statement -- Truth of Matter Asserted -- Probative Value
State v. Michael A. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998)
For Sveum: Robert T. Ruth
Issue/Holding: Where the defendant sought admissibility of a statement by a non-testifying declarant on the basis that it was not offered for its truthfulness, but the statement would have probative value only if offered for truth of the matter asserted, it was inadmissible hearsay.
Prior Inconsistent Statement -- Foundational Requirement, §§ 906.11(1), 906.13(2)(a)2
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue: Whether, as a foundational requirement for introducing a witness's prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.
Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn't been excused from testifying:
¶13. Thus, the trial court was clearly wrong in ruling that Smith had not established a proper foundation in order to introduce the alleged inconsistent statements under Wis. Stat. § 906.13(2)(a)2. A prior inconsistent statement is admissible under Wis. Stat. § 906.13(2) without first confronting the witness with that statement. Under § 906.13(2)(a)2 and 3, extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case, or if the interest of justice otherwise requires its admission. See Ruiz v. State, 75 Wis. 2d 230, 232-33, 249 N.W.2d 277 (1977). In the instant case, because Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim - inconsistent with testimony that the victim had previously given - who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2.
Nor does the trial court's broad discretion to control presentation of evidence, § 906.11(1) allow the court to override the specific mandate of § 906.13(2)(a)2. ¶14. (The court suggests, however, somewhat confusingly, that a trial court may use § 904.03 as a basis for exclusion in this context. ¶16. The court then goes on to find the error harmless -- not because of § 904.03, but because the discrepancies embodied by the prior inconsistent statements were minor.)
Prior Consistent Statement, § 908.01(4)(a)2
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the alleged victim's entire testimony at prior proceedings was properly admitted into evidence, under prior consistent statement or rule of completeness rationales.
Holding:
¶25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat. § 908.01(4)(a)2; and (2) the testimony could be admitted for the sake of completeness. We agree with Meehan that the trial court's decision was erroneous under either theory. The general rule is that prior consistent statements are not admissible because they are hearsay. Section 908.01(4)(a)2 provides an exception to the general rule under certain circumstances. Here, the State failed to demonstrate that Nickolas's entire testimony was an admissible prior consistent statement under § 908.01(4)(a)2. Some of Nickolas's prior testimony was consistent with his trial testimony, some of it was inconsistent, and some of it covered material that Nickolas did not address during the trial. Moreover, prior consistent statements are admissible only when offered to rebut an express or implied claim of recent fabrication or improper influence or motive. See State v. Peters, 166 Wis. 2d 168, 176, 479 N.W.2d 198 (Ct. App. 1991). There was no such claim in this case.

¶26. Similarly, the entire prior testimony cannot be admitted under the rule of completeness. The rule of completeness requires that a statement be admitted in its entirety "'when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact, or to ensure a fair and impartial understanding of the admitted portion.'" State v. Sharp, 180 Wis. 2d 640, 653-54, 511 N.W.2d 316 (Ct. App. 1993) (citation omitted). There is no indication that admitting Nickolas's entire prior testimony somehow satisfies this standard. See United States v. Wright, 826 F.2d 938, 946 (10th Cir. 1987) ('It would be puerile to suggest that if any part of a statement is [to] be admitted the entire statement must be admitted.'). The State needed to show how portions of the statement that have been admitted would tend to mislead the jury if additional portions of the statement were not admitted. Sharp, 180 Wis. 2d at 653. The State failed to do so.

Prior Consistent Statement, § 908.01(4)(a)2
State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda
Issue: Whether a prior consistent statement is admissible where the declarant hasn't been specifically cross-examined about his/her prior statement.
Holding: The requirement in § 908.01(4)(a) that the prior consistent statement declarant be subject to cross-examination concerning the statement requires only the opportunity for cross-examination, and not an actual inquiry into the area. ¶42.
Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5., Definition
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding: ¶32, n. 4:
A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection commonly are analyzed as hearsay and termed hearsay “exceptions.” See, e.g., State v. Webster, 156 Wis. 2d 510, 522, 458 N.W.2d 373 (Ct. App. 1990) (stating that a statement of a coconspirator “falls within a firmly-rooted hearsay exception as a matter of law”), and Caccitolo v. State, 69 Wis. 2d 102, 108, 230 N.W.2d 139 (1975) (discussing the change in the statutory language regarding the admissibility of a “hearsay statement of a coconspirator”). The same is true of the terminology used in discussing its federal counterpart, Fed. R. Evid. 801(d)(2)(E). See, e.g., Bourjaily v. United States, 483 U.S. 171, 182-83 (1987) (stating that no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception and the coconspirator exception is firmly rooted enough to warrant foregoing the reliability inquiry).
Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5., Admissibility
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding: Non-testifying coconspirator’s statement, made during drug transaction resulting in charge against defendant, held admissible:
¶16      An out-of-court statement made by a coconspirator in furtherance of the conspiracy is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04); State v. Blalock, 150 Wis.  2d 688, 699, 442 N.W.2d 514 (Ct. App. 1989). A statement is made “in furtherance of the conspiracy” when the statement is part of the information flow between conspirators intended to help each perform his or her role. United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997). [3] A statement of a coconspirator that is not hearsay as provided by § 908.01(4)(b)5. may be used as evidence against another member of the conspiracy.  Blalock, 150 Wis.  2d at 699. The trial court’s determination to admit this evidence represented a proper exercise of its discretion.

¶33      We hold that Vongrasamy’s casual statement to an acquaintance about getting a pack of cocaine, which statement was overheard by someone the declarant did not know was a police informant, does not bear the hallmarks of formality necessary to render it “testimonial” within the meaning of Crawford. We affirm the trial court. 


 [3]    United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997), addressed Fed. R. Evid. 801(d)(2)(E), the identical counterpart of Wis. Stat. § 908.01(4)(b)5. See State v. Patino, 177 Wis.  2d 348, 372, 502 N.W.2d 601 (Ct. App. 1993).
(Recurrent problem of excited utterance in form of anonymous 911 call discussed above.)
Excited Utterance – Report of Robbery/Battery
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School
Issue/Holding:

¶54      We agree with the State's position that Price's out-of-court statements were properly admitted under the excited utterance exception to the hearsay rule. Id.  In talking to Officer Langendorf, Price was describing a startling event——his encounter with Mayo, during which he claimed that he was robbed and battered. Price testified that he spoke with Officer Langendorf only a few minutes after the event occurred. According to Officer Langendorf, Price was visibly upset and bleeding. Therefore, it is reasonable to conclude that Price made the statement while "under the stress of excitement caused by the event. . . ." Wis. Stat. § 908.03(2).

Excited Utterance -- General
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding:
¶48 Here, Adams’ statements were properly admitted under the excited utterance hearsay exception. Adams spontaneously made the statements, without police prompting, under the stress of watching her cousin being taken into custody at gunpoint. It was only one to two minutes after Searcy’s arrest that Adams emerged from the crowd that had gathered to witness the arrest and yelled, “[T]hat’s my cousin, you can’t do that.” She then told officers that Searcy had been staying with her “from time to time.” According to Sorenson, she was “excited.” She simply did not have the opportunity or capacity to review the situation and calculate the likely impact of her statements.
§ 908.03(2), Excited Utterance
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue: Whether the declarant’s statement to another relating a threat by the defendant was admissible as an excited utterance, § 908.03(2).
Holding:
¶65. We agree with the State that the first two elements of this exception are met: Daniel's threat to Elizabeth is a startling event and her statement to Bobholz certainly relates to it. However, we cannot agree that a reasonable trial judge on this record could conclude that when Elizabeth told Bobholz the next morning of Daniel's threat, she was still under the stress of the excitement from the night before. There is no basis for inferring that, from the time of the threat the night before until she related it to Bobholz, Elizabeth had no time to reflect and no break in the stress caused by the excitement of the threat. The State does not provide us with any case that applies the exception in a similar fact situation, and we have been able to locate none.38
38 The special considerations when a child is the declarant are not involved. See Huntington, 216 Wis. 2d at 682-83. For adults, an event of an extreme nature that has a severe effect on the declarant has been found to justify a lapse of a few hours. See State v. Boshcka, 178 Wis. 2d 628, 640-41, 496 N.W.2d 627 (Ct. App. 1992) (statements made within a few hours after declarant suffered a repeated and aggravated sexual assault and threat of death should she report it, made to the first people she talked to after the incident). Here we have a longer time lapse and less extreme circumstances.
§ 908.03(3), State of Mind
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue: Whether statements made by the declarant to others describing various threats made by the defendant were admissible under the state-of-mind hearsay exception, § 908.03(3).
Holding: The federal approach is followed, namely restriction “in construing this rule to admit a declarant's statement of his or her feelings to prove only how the declarant feels and not to admit a declarant's statements of the cause of those feelings to prove certain events occurred.” ¶60. Thus, the trial court erred in admitting the statements under the state-of-mind exception to prove that the threats they related had in fact been made. ¶62. (State v. Jackson, 187 Wis. 2d 431, 435-36, 532 N.W.2d 126 (Ct. App. 1994) limited and distinguished, ¶¶59-60.)
State-of-Mind, § 908.03(3) -- Offer to Take DNA Test
State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg
Issue: Whether the defendant's statement offering to take a DNA test was inadmissible hearsay.
Holding: "Moreover, Santana-Lopez's statement is, if as represented, admissible under the state-of-mind exception to the rule against hearsay. Wis. Stat. Rule 908.03(3)." ¶6 n.4.
Business Record Exception, § 908.03(6) -- Crime Lab Report
State v. Luther Williams, III, 2002 WI 58, reconsideration denied 2002 WI 118; on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a crime lab report is admissible under the business records exception, § 908.03(6).
Holding:
¶48. There can be little question that when state crime labs generate reports like those at issue here, they are acting as an arm of the State in assisting it to prevail in litigation and secure a conviction of the defendant. The state crime lab exists in large part to facilitate the investigation and prosecution of crimes.
¶49. Thus, considering the statutory scheme and the rule that records prepared in anticipation of litigation generally do not fall within the business records exception to the hearsay rule, we determine that the state crime lab report prepared for Williams' prosecution was erroneously admitted as a business record under § 908.03(6).
The court cautions that where the testifying analyst lacks independent recall, a crime lab report "would be admissible under Wis. Stat. § 908.03(5), the hearsay exception for recorded recollection." ¶49 n. 8. But in that instance there has been an opportunity for cross-examination, sufficient to satisfy confrontation; for more general confrontation concerns in this evolving area, go here.
Public Records/Reports, § 908.03(8) -- DOT pamphlet
Malvern Sullivan v. Waukesha County, 218 Wis.2d 458, 578 N.W.2d 596 (1998), on certification
For Sullivan: William A. Denny
Holding: A DOT training pamphlet, explaining physical and mental impairment as the level of alcohol concentration increases, is held admissible under the sec. 908.03(8) (public records and reports) exception to the hearsay rule. The court stresses that the pamphlet's data "are factual and were made pursuant to the department's duty to administer and enforce the laws...." The court also ratifies decisions by the court of appeals in State v. Hinz, 121 Wis. 2d 282, 288-89, 360 N.W.2d 56 (Ct. App. 1984); and Lievrouw v. Roth, 157 Ws. 2d 332, 459 N.W.2d 850 (Ct. App. 1990).
Residual Exception, § 908.03(24): Videotaped Statements of Children
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A child’s videotaped statement may be admitted under the residual exception, § 908.03(24), without satisfying all the requirements of § 908.08. ¶40. The trial court properly applied the trustworthiness test of State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), ¶41. Moreover, a prior appeal involving the same evidence admitted at a different trial affirmed admissibility, ¶42, citing State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196.
"Residual" Exception, § 908.45(6)
State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999).
For Petrovic: Robert B. Rondini
Holding: While executing a search warrant at Petrovic's home, a detective talked to her 5-year old daughter, who gave him information about 39 marijuana plants growing outside. She ended up being tried with and convicted of manufacturing THC. Petrovic challenges admissibility of daughter's hearsay statements to the detective, and to evidence showing her affiliation with the Outlaws motorcycle gang. The daughter didn't testify due to age and lack of memory; she was therefore "unavailable" as a witness. Admissibility hinges on the "residual hearsay exception," § 908.45(6) which, as the COA acknowledges, applies only to novel or unanticipated hearsay categories. Two prior cases converge: State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988) (five-factor test for residual-exception hearsay statement of child victim), and State v. Stevens, 171 Wis. 2d 106, 490 N.W.2d 753 (Ct. App. 1992) (residual-exception inapplicable to hearsay statement of nonvictim child witness). This case seems to fall within Stevens, since it involves a nonvictim child witness, but the COA places it within Sorenson: "forcing Tanya to testify against her mother in criminal court is an exigency sufficiently similar to forcing a child sexual assault victim to testify[.]" ("would present an exigency similar to psychological scarring of a child victim"). For fact-specific reasons, the court finds both the Sorenson and confrontation clause reliability factors satisfied.
Residual Exception, § 908.045(6)
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶59 We agree with the State that while Krnak's statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception....

¶60 We conclude that Ellifson's testimony bears sufficient indicia of trustworthiness because "the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed." Id. (quoting 5 Wigmore, Evidence § 1423, at 254 (Chadbourn rev. 1974)). The testimony at issue here arises from two coworkers who were engaged in an intimate conversation about problems they were experiencing with their adult sons....

¶61 Moreover, Krnak became visibly upset when relating this story, so much so that his face was red and he began shaking. Krnak appeared so distressed that Ellifson herself became upset upon hearing the story. Thus, Krnak was clearly under a great deal of stress when recounting his son's attempt to do away with him. Also of significance is the fact that the conversation between Krnak and Ellifson appears to have been spontaneous....

¶62 ... While Krnak's statement does not technically qualify as an excited utterance because of the lack of evidence regarding when the attack occurred, the statement does demonstrate that it was made spontaneously under a great deal of stress caused by a startling event. The fact that the statement was made under circumstances similar to those forming the basis for the excited utterance exception weighs heavily in favor of its admissibility.

Residual Exception -- Child Sexual Assault Victim
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue/Holding: Child-sexual-assault-victim's hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
Former Testimony, § 908.045(1) -- Co-Defendant's Testimony, Separate Trial
State v. Glenn H. Hale, 2003 WI App 238, overruled in pertinent part, 2005 WI 7
Note: Former-testimony analysis / caselaw is now outmoded. The summaries will remain posted, but caution in applying them is strongly advised. Because hearsay analysis in this area has been supplanted by confrontation developments, check here, and scroll down through individual summaries.
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether the prior testimony of a witness who testified at the co-defendant’s trial was admissible at Hale’s subsequent trial when the witness became unavailable.
Holding:
¶15. Hale contends that the trial court erred when it concluded that Sullivan's testimony at Jones's trial was admissible under the former testimony exception to the hearsay rule because he and Jones did not share a similar motive and interest in cross-examining Sullivan about his alleged delivery of the murder weapon to Hale. Hale observes that while Sullivan's testimony may have linked Hale to the crime, his testimony did not directly implicate Jones. He contends that, unlike him, Jones's strategy at trial was not so much to discredit Sullivan or to question him in more detail concerning the alleged delivery of the gun but, rather, to disassociate himself from Hale.

¶16. This case is akin to State v. Barksdale, 160 Wis. 2d 284, 466 N.W.2d 198 (Ct. App. 1991). There, two defendants, Barksdale and Allen, were tried separately for first-degree reckless homicide, party to a crime. Id. at 286-87. At his trial, Allen cross-examined an eyewitness in an apparent attempt "to focus the blame on Barksdale and minimize Allen's role in the incident." Id. at 288. In between the trials, a key eyewitness died, and his testimony from Allen's trial was admitted at Barksdale's trial. Id. at 287. In affirming the trial court's decision to admit the eyewitness's testimony, we noted that the two defendants' interests in cross-examining the witness, while not identical, were very similar because the two had been charged as parties to a crime and, thus, it was immaterial who actually did the killing. Id. at 288-89.

¶17. The same can be said for Jones and Hale. Because they were both charged as parties to a crime, it was irrelevant whether it was Jones or Hale who actually fired the gun. Bernhardt identified Jones as one perpetrator, other witnesses placed Jones and Hale together shortly before the crimes and the police later found Hale with the murder weapon. Thus, it was in Jones's interest, as well as Hale's interest, to discredit any link between Hale and the murder weapon. As Barksdale teaches, the interests need not be identical, they need only be similar. See State v. Hickman, 182 Wis. 2d 318, 327, 513 N.W.2d 657 (Ct. App. 1994). The trial court therefore did not erroneously exercise its discretion in admitting Sullivan's testimony pursuant to the former testimony hearsay exception of Wis. Stat. § 908.045(1).

Former Testimony, § 908.045(1)
State v. Paul J. Stuart, 2003 WI 73, on certification
For Stuart: Christopher W. Rose
Issue/Holding: Preliminary hearing testimony was admissible at trial under § 908.045 where the witness was unavailable because he invoked his right to remain silent at trial; and the defendant “was able to challenge the witness’s veracity on cross-examination” at the preliminary hearing. ¶¶34-35.
Former Testimony, § 908.045(1)
State v. Robert Bintz, 2002 WI App 204, habeas relief denied, Bintz v. Bertrand, 7th Cir No. 04-2682, 4/7/05
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue: Whether a preliminary hearing transcript, containing the codefendant's incriminatory statement to a prison cell-mate, was inadmissible hearsay, where the cell-mate died prior to trial.
Holding:
¶17. First, we agree with the trial court's resolution of the double hearsay issue. David was unavailable and his statement would tend to subject him to criminal liability. Further, the trial court correctly ruled Swendby was unavailable and properly admitted his former testimony. We are not persuaded by Robert's claim his limited cross-examination of Swendby at the preliminary hearing was inadequate. Preliminary hearing testimony is presumed to be reliable. See State v. Bauer, 109 Wis. 2d 204, 216, 325 N.W.2d 857 (1982). Simply because the hearing is limited to the issue of probable cause does not make preliminary hearing testimony inadmissible. Id. at 218. Our supreme court, citing United States, ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir. 1981), noted "the Supreme Court has never said that the opportunity for cross-examination afforded at the preliminary hearing must be identical with that required at trial." Id.

¶18. Robert also argues the admission of Swendby's trial testimony was improper because Swendby's cross-examination by David's attorney had a different purpose and goal than Robert's would have. Robert argues because his defense was he had nothing to do with Lison's murder and David argued he saw the murder, but was not involved, David's interest in cross-examining Swendby was not similar enough to comply with Wis. Stat. § 908.045(1). We disagree. Robert's and David's interests must only be similar, not identical. See State v. Hickman, 182 Wis. 2d 318, 327, 513 N.W.2d 657 (Ct. App. 1994).

(This last comment is somewhat odd, simply because it appears (the opinion isn't entirely clear) that there was a joint preliminary hearing -- which means that Robert had an opportunity to cross-examine Swendby. Hickman is bad enough, but at least in that case the prior testimony was from a trial. The court's attempt to extend Hickman to a preliminary hearing is probably dicta.)
Former Testimony, § 908.045(1)
State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
For Tomlinson: John J. Gray
Issue: Whether a witness who invoked the fifth amendment at trial was unavailable for purposes of introducing his preliminary hearing testimony.
Holding: Although the witness didn't properly invoke the fifth (relying on fear of physical harm rather than self-incrimination), all that is required for unavailability is persistent refusal to testify, a condition that this witness satisfied. ¶¶43-44. And, because the defendant was given the opportunity at the preliminary hearing to develop the witness's testimony, both requirements of § 908.045(1) were fulfilled. ¶45.
Hearsay – Statement of Recent Perception, § 908.045(2)
State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding1 [general principles]:
¶29      … As this court summarized in Weed, for a statement to fit recent perception exception, it must pass the following three criteria:
(1) the statement was not made in response to the instigation of a person engaged in investigating, litigating, or settling a claim and was made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party; (2) the statement narrated, described, or explained an event or condition recently perceived by the declarant; and (3) the statement was made while the declarant's recollection is clear. [6]
Weed, 263 Wis. 2d 434, ¶14 (citation and quotations omitted).  Only the first criterion is at issue here.

¶30      According to 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence, § 8045.2 at 710 (2d ed. 2001), the statement of recent perception exception "mainly focus[es] on the declarant's mental state at the time the statement was made."  Because the exception is based on unavailability, however, the exception’s criteria "must be inferred from the statement itself and the surrounding circumstances."  Id.

Issue/Holding2 [applied to facts]:
¶31 With regard to the specifics of the first criterion, we first note that Stamps’ statements were not made in response to the instigation of a person engaged in investigating, litigating, or settling a claim. Stamps made his statements to his girlfriend two days after the shooting, just before they went with their son to a motel in Sun Prairie. The trial court ruled that Rhodes' testimony formed the basis for Stamps' comments about what had occurred and for their behavior afterwards. There simply is no evidence that Stamps' comments were made in response to the instigation of Rhodes, and it is clear that she was in no way investigating, litigating, or setting a claim.

¶33 … Thus, the trial court essentially found that there was no indication the statement was made in bad faith and was not made in anticipation of litigation. We cannot conclude this assessment was unreasonable.

Stamps, in other words, made several statements to his girlfriend Rhodes about a shooting he had witnessed and Rhodes told the police what Stamps had said. Stamps took the 5th at trial, and was therefore an unavailable declarant. Rhodes testified, but denied remembering anything. Note that court’s recitation of facts in ¶31 is misleading: Stamps did not make the statements two days after the shooting; rather, he made them several hours afterward (see ¶1 [“Shortly after the incident”]; and 2004 WI App 111, ¶3 [“on the night of the shooting”]). Why harp on this? The point of the recent perception exception is to allow greater lapse of time between described event and description than would be accommodated by its better-pedigreed cousins, present sense impression and excited utterance, see ¶28. Several hours is plenty long as it is; two days is something else.

Worth noting, too, the reference to Dan Blinka’s treatise, which in the past year alone has been cited approvingly by the supreme court for some evidentiary proposition or another no fewer than 9 times (by rough count). If Blinka isn’t the most highly regarded commentator on the Wisconsin evidence code then it’s hard to say who would be. Regardless, the court’s reliance is quite clear, so that if you’ve got an evidence problem his treatise is one of the first resources to consult.

Recent Perception, § 908.045(2) -- Generally; Aural Perception of Private Statement
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding1:
¶51. The recent perception exception is similar to the hearsay exceptions for present sense impression and excited utterances, but was intended to allow more time between the observation of the event and the statement in cases where the declarant is unavailable and the evidence would otherwise be lost. State v. Weed, 2003 WI 85, ¶15, ___ Wis. 2d ___, 666 N.W.2d 485. Given the longer lapse of time allowed between the declarant's perception and description of the event, the exception contains safeguards to insure trustworthiness and accuracy: (1) the event or condition must be recently perceived in relation to the declarant's describing it; (2) the statement must be made while the declaration's recollection is clear; and (3) the statement must not be in response to the instigation of a person engaged in investigating, litigating, or settling a claim and must be made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party. Id., ¶¶14-15. The trial court has wide discretion in deciding whether the time lapse is sufficiently short and whether the statement was made in good faith without contemplation of anticipated litigation. See Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 63-64, n.13, 252 N.W.2d 81 (1976). In Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis. 2d 806, 813-15, 422 N.W.2d 874 (Ct. App. 1988), the court held that a time lapse of eight to ten weeks between the event and the statement describing constituted a "recent" perception.
(Various statements upheld as recent perceptions, where it was reasonable to infer that the declarant was relating conduct that had occurred within the prior day or two, and there was no indication she lacked clear recall. ¶52. The possibility of the declarant’s lack of “good faith” was factored into the trial court’s ruling. ¶53. And, “the existence of corroboration is not a general requirement under Wis. Stat. § 908.045(2).” ¶54.)
Issue/Holding2:
¶63. The State contends that these six statements are admissible under the recent perception exception because the evidence showed that Daniel had made the threats to her a short time before she related them to others, there is corroboration, and the other conditions of the rule are met. However, as we have stated above, in Stevens, 171 Wis. 2d at 119, we held that the exception "does not apply to the aural perception of an oral statement privately told to a person." The State's reading of Stevens -- that "event or condition" may include a private oral statement aurally perceived if there is corroboration -- is not viable after Weed, 666 N.W.2d ¶21 n.6. See supra ¶54. While there may be good arguments for construing "event or condition recently perceived" by the declarant to include an oral statement heard by a declarant, we conclude we are bound by Stevens as interpreted by Weed.
Recent Perception, § 908.045(2)
State v. Matthew J. Knapp, 2003 WI 121, on certification
For Knapp: Robert G. LeBell
Issue/Holding:
¶184. We find no clear error in the circuit court's determination that the third-party hearsay evidence in item 21(a) of Knapp's offer of proof comes within the recent perception exception under Wis. Stat. § 908.045(2),29 to the hearsay rule. Farrell's inability to recall, 12 years after the fact, exactly when Borchardt made the statements to her does not undermine the requirements of the exception. The focus should be on the circumstances when the statement was originally made.30 Further, the lack of clarity as to timing is almost certainly due to the failure to prosecute this case earlier.
(Details of the statement are a bit fuzzy; maybe that’s because the statement was itself fuzzy. But the court may have been persuaded by Knapp’s equitable points:
¶169. Knapp states that the lack of specificity as to when Borchardt made his statement is a product of the State's failure to interview Borchardt before his death, and the State had ample opportunity to do so. Knapp points out that the circuit court found that the lack of specificity was due to the failure to interview Borchardt and the conscious decision of the police not to prosecute Knapp until 12 years had passed and critical witnesses had died.
Couple that with the court’s own perception that “the evidence is critical” to the defense because it establishes a “direct link, in time and proximity, between Brunner” and the murder, and you’ve got a winning, if highly fact-specific argument. ¶192. But there’s broader principle, which the dissent identifies: “the majority not only broadly applies the exception, but it also completely ignores a foundational requirement: the event or condition must be recently perceived…. because the timing of the conversation between Borchardt and Farrell is uncertain, it is impossible to determine if the statement was made recently after the event.” ¶¶216, 218.)
Recent Perception, § 908.045(2)
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding:
¶16. Weed argues that the circuit court erroneously exercised its discretion in admitting Michael's statement regarding unloading the .357 because the statement did not meet the statutory requirements for admissibility under Wis. Stat. § 908.045(2). Weed principally argues that Michael's statement was inadmissible under the exception due to the lack of a proper foundation; specifically, that the Fuerbringers could not testify as to the day Michael unloaded the gun. We are not persuaded.

¶17. First, we note that Michael's statement was not made in response to any pending or anticipated investigation or litigation and appeared to be made in good faith. Michael's comment was made to his good friend, Fuerbringer, and Fuerbringer's son after Weed attempted to engage in dangerous behavior; namely, driving while intoxicated.

¶18. Second, Michael's statement described an event--taking the bullets out of the .357--that was recently perceived by Michael. Both Fuerbringer and his son testified that they thought the reason Michael stated that he took the bullets out of the gun was because of Weed's recent suicide attempt. … Thus, even though the Fuerbringers could not testify as to the exact date Michael allegedly took the bullets out of the gun, it appears that it would have been within, at the most, eight days….

¶20. Third, the statement appears to have been made when Michael's recollection was clear….

(The majority disputes the concurrence’s contention that it is overruling State v. Stevens, 171 Wis. 2d 106, 450 N.W.2d 753 (Ct. App. 1992). ¶21 n. 6. Nonetheless, the point of the concurrence is that corroboration is necessary for a statement of recent perception, while the majority specifically rejects that idea: “We further note that corroboration in and of itself does not determine the admissibility of a hearsay statement under the recent perception exception.” Id.)
Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding:

¶23. The central issue in this case is the extent of corroboration required under Wis. Stat. § 908.045(4) for statements tending to expose the declarant to criminal liability and offered to exculpate the accused. We addressed this issue at length in Anderson, holding that the standard for corroboration under Wis. Stat. § 908.045(4) is "corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true." Anderson, 141 Wis. 2d at 662.

¶24. Thus, under Anderson, Wis. Stat. §§ 908.045(4) and 901.04(2) together permit the admission of an out-of-court statement against penal interest by a declarant who is unavailable if: 1) the statement when made tended to expose the declarant to criminal liability; and 2) the statement is corroborated by evidence that is sufficient to enable a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. Id. If a statement satisfies these specific conditions, a court may still exclude it on the general grounds that its probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Wis. Stat. § 904.03; Anderson, 141 Wis. 2d at 664.

¶32. The test for corroboration established in Anderson is intermediate and flexible, striking a balance between the need for exculpatory evidence and the "countervailing concern for the exclusion of untrustworthy statements." Anderson, 141 Wis. 2d at 663. It neither prescribes nor limits the type or source of acceptable corroboration under Wis. Stat. § 908.045(4). Application of the Anderson standard specifically does not involve an evaluation of the credibility or weight of the statement against penal interest itself; this is to "maintain[] the jury's role of assessing credibility and determining weight while properly limiting the judge's role to a threshold admissibility determination." Id. at 665. The Anderson standard tests the sufficiency of the corroboration by evaluating its tendency to lead a reasonable person to conclude that the hearsay statement against penal interest could be true.

¶34. To the extent that Johnson is interpreted as always requiring corroboration "independent" of the statement against penal interest itself, it is inconsistent with Anderson, which placed no such limitation on the nature of the corroboration required under Wis. Stat. § 908.045(4). Although corroboration will usually be contained in evidence that is external to the statement itself, a requirement that corroboration must always be "independent" would be arbitrary. That a declarant's confession is repeated to more than one witness may well be sufficient, in light of all the facts and circumstances, to permit a reasonable person to conclude that it could be true, even in the absence of corroboration that is "independent" of the confession itself. In this sense, the statement against penal interest may be sufficiently "self-corroborating," under the circumstances, by virtue of having been repeated in substantially the same form to a second or third witness. There may well be other circumstances in which a statement against penal interest is sufficiently self-corroborating as to meet the Anderson standard for admissibility under Wis. Stat. § 908.045(4), a possibility specifically recognized in Johnson.

(If there is an overarching lesson, it is probably in the primacy assigned the jury’s fact-finding function. This, in turn, revolves around § 901.04(2), admissibility conditioned on finding of relevant fact. See ¶22. The trial judge, of course, determines whether the condition has been satisfied, and if the test is too stringent, then the litigant is deprived of jury determination of the relevant fact. The court of appeals has allowed the screening of 908.045(4) statements to be too fine, and the supreme court now rights the balance. If you need to distill the lesson into one, well-crafted sentence, this would be it, ¶42: “There is sufficient evidence here to permit a reasonable person to conclude, in light of all the circumstances, that Daniel's self-inculpatory statement could be true, and that is all the corroboration standard requires.” Key words: “reasonable person” (typically a jury question); “could be true” (a very low threshold). Specifically, the court rejects the more stringent test of State v. Johnson, 181 Wis. 2d 470, 510 N.W.2d 811 (Ct. App. 1993) (statement inadmissible if corroboration “merely debatable”) and restores the more forgiving test of State v. Anderson, 141 Wis. 2d 653, 660, 416 N.W.2d 276 (1987), ¶35. On the merits, two against-interest statements by defendant’s brother inculpating himself and exculpating defendant are held “corroborated and therefore admissible,” ¶36. Although the court isn’t quite explicit as to the details of the corroboration, given the lengthy discussion quoted in part above the statements were probably viewed as “self-corroborating.” See, also, ¶38 n. 6: “Each statement is corroborative of the other ….” But the “considerable detail” provided by at least one of the statements, ¶36; and the similarity “in certain important respects” to victim’s and defendant’s versions, ¶42, surely factored into the conclusion as well. Existence of “some discrepancies” between the statements and the victim’s and defendant’s own testimony, don’t mean a lack of corroboration but, rather, goes “to the jury’s evaluation of the weight and credibility of Daniel’s admissions,” ¶¶40-42.)

§ 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding:

¶20 Although finding that Natisha Watkins was unavailable as a witness because it permitted her to assert her Fifth Amendment right, the trial court excluded what Natisha Watkins told Papka because it determined that her statement that Carlos Williams and not Jackson handled the gun was not against her penal interest. Other than a passing contention that the trial court’s determination conflicted with the trial court’s assessment that Natisha Watkins could invoke her Fifth Amendment right to not testify, Jackson’s appellate brief does not argue why the trial court’s analysis was wrong. Indeed, the trial court was correct. See Williamson v. United States, 512 U.S. 594, 600–601 (1994) (Rule 804(b)(3) of the Federal Rules of Evidence, the federal analogue to Wis. Stat. Rule 908.045(4), “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.”).

Against-Interest Statement, § 908.045(4) -- Exculpating Defendant
State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray's statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray's statements attempted to exculpate Tucker without inculpating himself. For example, in McCray's statements of "I'm fittin' to go to the penitentiary," and that Tucker was not involved with the drugs, McCray never actually took responsibility for the drugs. The court noted that nowhere in Kollath's memo did McCray ever explicitly state that the drugs belonged to him; rather, his statements were only aimed at exculpating Tucker. With respect to McCray's response of "yeah, right" when asked whether the drugs belonged to him, the court realistically interpreted the statement as meaning "yeah, right, as if I would ever admit to that." This is a reasonable interpretation in light of the fact that the overriding concern throughout Kollath's memo was that McCray did not want to be incarcerated regardless of what happened to Tucker. Therefore, the court concluded that McCray's statements were not clearly against his penal interest, nor were they sufficiently trustworthy to be admissible under the residual exception....

¶34. Upon independent review of the trial transcripts and the postconviction hearing, we agree with the circuit court's determination that Tucker was not denied the constitutional right to a fair trial. We conclude that the circuit court demonstrated a rational process in making a reasonable evidentiary ruling on the admissibility of McCray's out-of-court statements. Accordingly, we hold that the circuit court did not err by refusing to admit McCray's out-of-court statements under either the exception for statements against penal interest or the residual exception to the hearsay rule.

Against-Interest Statement Exculpating Defendant, § 908.045(4) -- Declarant Unavailable, Due Diligence to Locate
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant's against-interest hearsay statement exculpating the defendant, § 908.045(4).
Holding: Unavailability is determined by § 908.04(1)(e), and requires a "good-faith effort" and due diligence" in attempting to secure the declarant's presence. ¶62. The proponent has the burden of showing unavailability, and a mere assertion of good-faith is insufficient. ¶63. 
¶66. Due diligence is not a standard that lends itself well to bright line rules. Nonetheless, given that there was at least some reason to believe that Winston was from Chicago, due diligence required that Williams make at least some minimal attempt to check in Illinois. Because Williams did not establish that he made any such attempts, he failed to carry his burden to establish due diligence.
Against-Interest Statement Exculpating Defendant, § 908.045(4) -- Right to Present
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: The exclusion of hearsay evidence proffered by the defense is tested under the "two-part framework" of State v. St. George, 2002 WI 50, ¶51, or "whether the proffered evidence was 'essential to' the defense, and whether without the proffered evidence, the defendant had 'no reasonable means of defending his case.'" ¶70. In this instance, the jury heard other pieces of evidence supporting the theory embodied by the excluded evidence, hence the right to present a defense wasn't violated by that exclusion. ¶¶71-73.
Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the pretrial statement of defendant's sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).
Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts. The first -- that the defendant "wasn't there" -- isn't self-inculpatory; merely saying that the defendant didn't commit a crime doesn't expose the declarant to criminal liability. ¶19. The second statement -- that a named 3rd party committed the crime and the declarant was in the get-away car -- presents a closer question. However, the statement implies that yet another individual was the driver, hence effectively absolving the declarant of responsibility for the crime. ¶¶19-20. (Otherwise -- the opinion is terse -- the declarant was presumably a mere bystander; or more literally, a mere passenger.) Consideration of a postconviction affidavit, tending to incriminate the declarant by explicitly stating that she drove the car, was procedurally barred, because it in effect sought to introduce new evidence without satisfying the test for new evidence. ¶¶21-23, the court stressing that the proffer in this affidavit wasn't "explicitly" made during the trial.
(Oddly, however, the court proceeds to say that even this more explicit statement wasn't "against ... penal interest -- indeed, it was consistent with her societal and family interest." ¶23. In other words, this entire discussion, from start to finish is dicta, because the statement doesn't come in regardless. It doesn't matter who was the get-away driver. Or is it that one family member can never make an against-interest statement that clears another? Who knows? But dicta or not, splitting this statement in two seems pretty arbitrary: the declarant could only know that the defendant wasn't there if the declarant was. No matter. Just remember, next time the state wants a "multi-part" statement admitted, that the methodology should be the same.)
Offered on Behalf of Defendant -- Against-Interest Statement, § 908.045(4) -- Corroboration Rule
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court improperly excluded an affidavit in which the affiant purported to take "full responsibility" for evidence attributed to Malcom.
Holding: The affiant was unavailable, and admissibility is therefore governed by § 908.045(4), which allows admissibility of a statement against penal interest to exonerate the defendant if "corroborated." Corroboration, however, must be more than "merely debatable." In this case, sufficient corroboration is lacking, given the undisputed evidence of Malcom's involvement in possessing the drugs. Therefore, corroboration of the claimed acceptance of "full responsibility" was "merely debatable" and inadmissible. ¶18.
Against-Penal Interest Statement Inculpating Defendant, § 908.045(4)
State v. Robert Bintz, 2002 WI App 204, habeas relief denied, Bintz v. Bertrand, 7th Cir No. 04-2682, 4/7/05
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue: Whether the codefendant's noncustodial statement to the police -- which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene -- was admissible against the defendant as a statement against penal interest.
Holding: Although the Supreme Court held, in Williamson v. United States, 512 U.S. 594 (1994), that the against-interest hearsay exception doesn't countenance "nonself-inculpatory statements made in generally self-inculpatory narratives," this statement doesn't fall in that rule:
¶10. Here, Robert argues the parts of the statement placing him at the scene of the murder were inadmissible under Williamson. We disagree. Although Williamson says while nonself-inculpatory statements are generally inadmissible, it does not establish a hard and fast rule. The court noted, "Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Id. at 603. The trial court admitted the whole statement because it saw no attempt by David to shift the blame to Robert. We agree. David's statement is self-inculpatory. It places him at the scene of the murder, gives him a possible motive, and admits his threat to blow up the bar. At the time he gave the statement, however, David was not under arrest, nor was he told he was a suspect in the murder investigation. He did not attempt to blame his brother for anything, and nothing suggests he was trying to curry favor with the police. These circumstances suggest David was more likely to have been truthful about Robert's being at the bar that night. We cannot say the trial court erred by admitting David's statement under Wis. Stat. § 908.045(4).
(Emphasis supplied.)

Though the court barely emphasizes it, the key fact is undoubtedly that the declarant was not in custody. Had he been, then the rule of Bruton v. United States, 391 U.S. 123 (1968) should have been triggered. But whether the suggestion in Bintz -- that an in-custody statement may be admissible hearsay against another -- remains to be seen.
UPDATE: Whatever the merits of the court's hearsay analysis, admissibility of David's statement to the police is highly suspect as a matter of confrontation clause analysis, in light of the subsequently decided Crawford v. Washington (confrontation clause violated if extrajudicial testimonial statement is admitted against defendant unless the witness is unavailable and defendant had prior opportunity to cross-examine the witness -- David may have been unavailable because he pleaded the Fifth, but Robert had no prior opportunity to cross-examine him).

Against-Social Interest Exception, § 908.045(4)
State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted, Edward A. Murillo v. Frank, No. 04-2202, 4/1/05
For Murillo: Craig Albee
Issue: Whether a statement implicating defendant in a homicide and made by his brother and fellow gang member while in police custody satisfied the against-social-interest hearsay exception, § 908.045(4).
Holding: The against-social-interest exception is based on the assumption that a declarant will not make a personally damaging statement unless satisfied for good reason that it is true (¶11). The court must employ a test that is both objective and subjective: that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true, and also that the declarant's actual state of mind shows an awareness that the statement undermined his/her interest. ¶¶12-16. Both parts of the test are satisfied.
Analysis: Eddie was convicted of homicide after the state was allowed to introduce his brother Luis's pretrial inculpatory statement. Luis was in custody at the time. (Curiously, the court doesn't say why he was arrested, chastely observing only that the "(p)olice arrested Luis and questioned him." ¶3.) Luis initially denied any knowledge, but after the police said his story didn't hold up, he "became increasingly upset and ... was crying, pacing, praying and collapsing." ¶4. So, was this because he was concerned about having the case pinned on him? Or about having been caught for obstructing a homicide? Or because he was afraid of being disloyal to his brother and their gang? The last, says the court, stressing Luis's histrionics. ("¶19 These are not the actions of a person who is about to lie. These are the actions of a person who is torn between telling the truth and risking the disgrace of family and gang members or keeping quiet. The trial court was able to gain insight into Luis's actual mental state and so have we....")

UPDATE: The grant of habeas relief casts severe doubt on this result, in particular the court's derision of "Wisconsin’s 'social interest' exception to the hearsay rule is itself unsupported by any data of which we are aware."

§ 908.06 – Admissibility of One Hearsay Statement to Attack Credibility of Declarant Following Admission of Different Hearsay Statement
State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski
Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.
Holding:
¶10      The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….

¶11      A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant. Smith was warned by the trial court, and he could have chosen not to put into evidence Nunn’s out-of-court statements. Smith ignored the trial court’s warnings, and will not be permitted by this court, in hindsight, a second kick at the cat.

For discussion of confrontation implications, see summary here.
Audiovisual Recording, § 908.08(1) – Transcription by Court Reporter Required
State v. Pablo Ruiz-Velez, 2008 WI App 169
For Ruiz-Velez: Melnda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether audiovisual recordings of statements made by alleged victims and admitted into evidence under § 908.08(1) must be transcribed by the official court reporter.
Holding:
¶4        Wisconsin Stat. Rule 885.42(4) provides: “At trial, videotape depositions and other testimony presented by videotape shall be reported.” As we have seen, the postconviction circuit court determined that this Rule did not apply because the recordings were received as “exhibits” and were not “sworn testimony.” [3] We disagree.

¶5        The recorded “oral statement of a child who is available to testify,” made admissible by Wis. Stat. Rule 908.08, is the testimony of that child, supplemented by in-court testimony as provided for by Rule 908.08(5), irrespective of whether that “oral statement” is “sworn.” … See also State v. Anderson, 2006 WI 77, ¶103, 291 Wis. 2d 673, 720, 717 N.W.2d 74, 98 (Statements made and admitted under Rule 908.08 have “the effect of a direct examination.”) (“[T]he videotape [admitted under Rule 908.08] was the testimony of a single witness.”). …

¶6        Significantly, and reinforcing our analysis, SCR 71.01(2) requires that “[ a] ll proceedings in the circuit court shall be reported,” with exceptions not material. [6]  (Emphasis added.) “‘Reporting’ means making a verbatim record.” SCR 71.01(1). Supreme Court Rule 71.01(2)’s all-encompassing command ends our analysis.  The postconviction circuit court erred in denying Ruiz-Velez’s motion to have the official court reporter transcribe the audiovisual recordings received into evidence under Wis. Stat. Rule 908.08. We reverse and remand with directions that the recordings be transcribed by the official court reporter.

Videotaped Statements of Children, § 908.08 – Constitutionality
State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose
Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.

This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination, with defense opportunity for live cross-examination. This procedure satisfies Crawford v. Washington, 541 U.S. 36 (2004) confrontation clause requirements, which mandate only that the declarant be present and subject to full cross-examination at trial, ¶¶10-11. Nor does “the order of evidence prescribed in the statute” violate the separation of powers doctrine: by limiting the amount of time a child must spend on the witness stand, the statute eliminates a great deal of emotional strain, ¶18; and, it “does not determine the result of any case and therefore leaves the judiciary’s authority fully intact with respect to its most important function,” ¶20.

Also note authority, though not raised by these facts, for the idea that a child-witness, even though unresponsive or inarticulate, is considered “available” where testifying by remote, closed circuit technology, U.S. v. Kappell, 6th Cir No. 04-1333, 8/9/05.

Videotaped statement of Child, § 908.08(3)
State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03
For Snider: Timothy J. Gaskell
Issue: Whether a child-victim’s videotaped statement must satisfy all the conditions in § 908.08, or may instead satisfy the residual exception.
Holding:
¶12. We agree with the State that the plain language of Wis. Stat. § 908.08(7) permits the admission of a child's videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. Section 908.08(1) permits the admission of a "videotaped oral statement of a child who is available to testify, as provided in this section" (emphasis added). The remaining subsections of the statute provide two ways for the statement to be admitted "as provided in this section." The first is by meeting the various requirements set forth in subsections (2) and (3). If these requirements are met, the court "shall admit the videotape statement," § 908.08(3), and it need not consider any other grounds for admitting the statement. Alternatively, a court "may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception the hearsay rule." Wis. Stat. § 908.08(7) (emphasis added). This language can only be read to mean that, if a child's videotape statement is admissible under one of the hearsay exceptions set forth in Wis. Stat. § 908.03, the requirements listed in the preceding subsections of § 908.08 are inapplicable.

¶18. In applying the Sorenson factors to the videotaped statement, the trial court noted that the victim was ten years old at the time the statement was made and that her statements did not appear to be the product of adult manipulation because she demonstrated knowledge appropriate to her age and did not want to talk about certain areas of the male or female body. The court also noted the victim thought of Snider as an uncle and was concerned about whether he would see the video. Finally, the trial court concluded there were no signs of deceit or falsity on the video, and that the videotaped statement was consistent with the statement the victim had made to the guidance counselor five hours earlier, and in many details, with the statement subsequently given to the detective by Snider himself.

¶19. We conclude the trial court applied the correct legal standard to the facts of record and articulated a reasonable basis for its decision to admit the statement under the residual hearsay exception. See Huntington, 216 Wis. 2d at 680-81. Accordingly, we conclude the trial court did not erroneously exercise its discretion in admitting the videotape.

Videotaped Interview, § 908.08(3) -- Satisfying Requirement Child Understands "False Statements Are Punishable"
State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196.
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue: Whether the state sufficiently showed that the child understood that false statements were punishable so as to justify admissibility of her videotaped interview under § 908.08(3).
Holding: The admissibility statute, § 908.08(3), was satisfied, even though compliance wasn't express.
Analysis: Defendant argues that the state failed to establish a threshold requirement imposed for admissibility of a videotaped statement by a child under § 908.08(3), namely that the child understand that "false statements are punishable." Because "the only evidence on this question is the videotape itself," the court of appeals is as capable of reaching a conclusion as the trial court, and review is de novo. ¶39. The court agrees that the child must know "that there are consequences in failing to tell the truth." This requirement was satisfied, despite the lack of the express words found in the statute, largely because the child was informed that it was important to tell the truth. ¶40-45. In any event, "the videotape was, in effect, duplicative," and its admission in evidence therefore harmless. ¶49.
Videotaped Statements of Children, Order of Presentation, § 908.08(5)
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: By express grant of statutory authority, § 908.08(5), a child may be called to testify “immediately after” a videotaped statement of the witness has been shown to the fact-finder, ¶23 (rejecting claim that counsel was obligated to object to just such a sequence of events).
Videotaped Statements of Children, and Confrontation § 908.08(5)
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Pretrial videotaped statement, § 908.08(5), doesn’t violate confrontation when the person actually testifies, ¶24.

Ch. 909 -- AUTHENTICATION & IDENTIFICATION
Authentication & Identification, § 909.01: Chain of Custody
State v. Walter William McCoy, 2007 WI App 15
For McCoy: Andrea Taylor Cornwall
Issue/Holding:
¶18   ... We start by acknowledging that the chain of evidence in this case is not perfect. There are substantial time gaps as pointed out by McCoy. Nonetheless, the chain of custody evidence was sufficient to support the trial court’s conclusion that it was admissible. The standard for the admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed.”  Moore, 425 F.3d at 1071 (citation omitted). This standard was satisfied here. Several witnesses testified that the physical evidence was what it purported to be and Nurse Kelly positively identified it as the same evidence she had packaged on the date of the crime.

¶19   Provided that standard is satisfied, gaps in the chain of evidence “go to the weight of the evidence rather than its admissibility.” Id. (citation omitted). ...

¶20   Thus, we conclude that the witnesses who testified for the State provided sufficient foundation and authentication to convince this court that the evidence in question “is what its proponent claims” it is. See WIS. STAT. § 909.01. The chain of custody was sufficient to allow its admissibility. The markings and seals personally placed on the evidence by all four of the witnesses who handled the evidence allowed them to each positively identify the evidence and independently recall what they did with the evidence. The absence of any additional markings or initials indicates that no one else handled this evidence between October 1995 and the trial. Moreover, the testimony from these four witnesses provided the jury, acting reasonably, with a sufficient basis to conclude that the tampon fragments introduced into evidence at trial were the same, and in substantially the same condition, as the fragments retrieved in October 1995 from the victim. Accordingly, the trial court did not erroneously exercise its discretion in admitting this evidence. Any basis for challenging the time gaps in the chain of custody was relevant to the weight of the evidence––not its admissibility.

Authentication, § 909.01
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: Testimony of a court employee that she had examined a certified copy of a foreign court order and that the exhibit to be admitted into evidence was a copy of that order sufficiently authenticated the exhibit, ¶¶29-32.
Authentication of Document
State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
(See above discussion of authentication requirement in terms of hearsay rule.)
Foundation -- Videotape -- Same Requirement as Still Photo -- Expert Unnecessary
State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
The State provides no authority to support the trial court's imposition of a requirement that, as a matter of law, expert testimony is necessary to establish a foundation for video images, and we are aware of none. Wisconsin case law does not impose such a requirement for the admission of still photographs. In State v. Sarinske, 91 Wis.2d 14, 44, 280 N.W.2d 725, 739 (1979), the court held that for still photographs, the photographer's testimony that the pictures accurately portray what they purport to portray is a sufficient foundation under §§ 909.01 and 909.015(1), Stats. ...

We see no reason to require a more stringent foundation for videotapes than photographs. ...

A second reason the trial court determined that the foundation for the videotape was inadequate was the judge's opinion that, based on his personal experience on the river at night, "you can certainly see a lot more than that video represents." ...

A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual. Hoeft v. Friedli, 164 Wis.2d 178, 189, 473 N.W.2d 604, 607-08 (Ct. App. 1991). ... We conclude that the court erroneously exercised its discretion in doing so.

Authentication -- Voice on Tape
State v. Gary Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998)
For Curtis: Arthur B. Nathan
Issue/Holding:
Next, Curtis claims that the tapes admitted into evidence at trial were not properly authenticated. At trial, Poivey, a party to the conversations on the tapes, testified that the voices on the tapes were his and Curtis'. This type of voice identification is a valid avenue of authentication. See United States v. Carrasco, 887 F.2d 794, 803 (7th Cir. 1989). In Carrasco, a man who bought falsified green cards from the defendant identified the defendant's voice and his own in the recorded conversations. See id. at 796, 803. The Seventh Circuit held that tapes are properly identified and authenticated when a party to the recorded conversation identifies the defendant's voice and testifies that the tapes accurately depict the conversations. See id. at 803. We adopt the reasoning of Carrasco and apply it to this case. Poivey's identification of Curtis' voice on the tapes was adequate authentication of the tapes.
Ch. 910 -- CONTENTS of WRITINGS, RECORDINGS, PHOTOS
§ 910.02: Original of Surveillance Tape Required But if Destroyed without Bad Faith, Testimony of Contents Allowed, § 910.04(1) – “Unplayable” Tape Tantamount to Destroyed
State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski
Issue/Holding: A surveillance tape that became unplayable was “destroyed” within the meaning of § 910.04(1), and its contents could be testified to by pre-destruction viewers:
¶68 We are satisfied that where a tape is damaged and unplayable, the proponent of the evidence makes reasonable efforts to restore the tape to playability, and those reasonable efforts fail, the tape is destroyed within the meaning of § 910.04(1). We find persuasive the reasoning of a treatise on the federal counterpart of § 910.04(1):
"Destroyed" usually signifies that the item no longer exists. However, an item may be destroyed for purposes of this rule even if it is not completely obliterated. Writings become unreadable, recordings become inaudible, and photographs fade. In addition, the contents of such items can be intentionally and irreversibly altered. The best-evidence doctrine is all about proving the contents of such items. Thus, so long as the contents can no longer be discerned, it makes sense to conclude that the item is destroyed for purposes of Rule 1004(1) even if the medium on which those contents were recorded still exists. Similarly, partial destruction may be sufficient under Rule 1004(1) to permit the admission of secondary evidence concerning the portion destroyed.
Charles Alan Wright & Victor James Gold, 31 Fed. Prac. & Proc. Evid. § 8014 (2007).

¶69 Thus, because the surveillance tape was destroyed, and Ford has made no argument that the State destroyed the tape in bad faith, [7] the testimony regarding the contents of the tape is admissible under § 910.04. We therefore determine that the circuit court appropriately exercised its discretion in admitting testimony regarding the contents of the tape.


RAPE-SHIELD, § 972.11(2)
Semen Swab Not Linked to Defendant
State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse.
Holding:
¶16      … The statute lists three types of evidence that are exceptions to the rape shield law: (1) evidence of the complainant’s past conduct with the defendant; (2) evidence of specific instances of sexual conduct used to show the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered; and (3) evidence of prior untruthful allegations of sexual assault made by the complainant.  Wis. Stat. § 972.11(2)(b). The evidence that Booker sought to introduce does not fall within any of the exceptions. 

¶17      We next analyze the evidence in light of the judicial exception to the rape shield law first codified in Pulizzano.  …

¶18      … Booker has failed to satisfy all five of the Pulizzano factors. The prior acts do not closely resemble the allegations in this case. Here, S.M.R. claimed Booker sexually assaulted her by touching her—she never claimed that Booker had sexual intercourse with her. Whether S.M.R. engaged in sexual intercourse with other men does not impact her complaint that Booker sexually assaulted her. His claim that S.M.R. is lying and conspiring with Donta to harm Booker is pure speculation. … Thus, because there was no hard evidence of improper motive for the accusation, the semen evidence was rightfully ruled inadmissible.

Prior False Claim of Assault
Jessie L. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001), granting habeas relief in unpublished opinion of Wis COA
For Redmond: Howard B. Eisenberg
Issue/Holding: Complainant's prior, demonstrably false claim of sexual assault does not come within rape-shield law.
Assault by 3d Party -- Alternative Source of Sexual Knowledge
State v. Richard Dodson, 219 Wis.2d 65, 580 N.W.2d 181 (1998), unpublished decision below.
For Dodson: Michael J. Backes
Issue/Holding: Applying the test of State v. Pulizzano, 155 Wis. 2d 633, 647-48, 456 N.W.2d 325 (1990), "evidence of prior sexual assaults is necessary to the defendant's case to rebut the logical and weighty inference that the victim gained sexual knowledge because the defendant committed the acts charged." ¶30. This evidence is as relevant to contact as intercourse, because "it is impossible to conceive of sexual intercourse which does not involve [contact]." ¶26.
Complainant's Prior Sexual Conduct -- Alternative Source of Sexual Knowledge
State v. Bradley Alan St. George, 2002 WI 50, reversing unpublished court of appeals decision
For St. George: Donald T. Lang, SPD, Madison Appellate
Issue: "Was the circuit court's exclusion of the defendant's proffered evidence of the child victim's prior sexual contact with another child a denial of the defendant's constitutional right to present evidence?" ¶2.
Holding: Application of § 972.11 to deprivation of the defendant of his constitutional rights is a question of "constitutional fact" that the appellate court determines independently. ¶16. The defendant claims that the prior conduct would show an alternative source of sexual knowledge. The defendant must satisfy a two-part inquiry:
¶19. In the first part of the inquiry, the defendant must satisfy each of five factors through an offer of proof that states an evidentiary hypothesis bolstered by a statement of fact sufficient to justify the conclusion or inference the court is asked to accept. The five factors are:
1) The prior act clearly occurred.
2) The act closely resembles that in the present case.
3) The prior act is clearly relevant to a material issue.
4) The evidence is necessary to the defendant's case.
5) The probative value outweighs the prejudicial effect.

¶20. After the defendant successfully satisfies the five factors to establish a constitutional right to present evidence, a court undertakes the second part of the inquiry by determining whether the defendant's right to present the proffered evidence is nonetheless outweighed by the State's compelling interest to exclude the evidence.

The defendant's offer of proof failed the last three sub-parts of the first inquiry:
¶26. We conclude that the testimony that Kayla claimed to have been touched on the vagina does not show such precocious sexual knowledge that a jury would believe that some sexual contact with the defendant must necessarily have occurred. Without this inference by the jury, there is no reason for the defense to show that Kayla could have acquired sexual knowledge from prior sexual encounters. No inference, in this case, equals little if any relevance. Without the reasonable possibility that a jury would make the inference the defendant asserts, the defendant has not met factor three, relevance.

¶27. Because we conclude the evidence was not relevant, factors four and five cannot be met. The evidence cannot be considered necessary to the defendant's case (factor four), and the probative value of the evidence cannot outweigh any prejudicial effect (factor five).

Prosecutorial Door-Opening
State v. Charles A. Dunlap, 2002 WI 19, reversing 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398
For Dunlap: Jack E. Schairer, SPD, Madison Appellate
Issue: "(W)hether a defendant who is charged with sexual assault should be allowed to present evidence of sexual behavior exhibited by the child complainant prior to the alleged assault, even though the evidence would normally be barred by the rape shield law, because the State has introduced expert testimony to explain the complainant's reporting behavior."
Holding: Door-opening, known as "the curative admissibility doctrine," is approached in three steps: 1) whether the excluded evidence was in fact inadmissible (here, by the rape shield law); 2) if so. Whether any exception to inadmissibility applies; 3) whether the state opened the door, to make this otherwise inadmissible evidence admissible. ¶15. Applying these steps:
  • 1) The rape shield law applies (the excluded behavior included allegations of masturbation and touching men's genitals, ¶8). ¶16.
  • 2) The judicial exception to the rape shield law, State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), isn't satisfied, because the excluded acts don't closely resemble those on trial:
    ¶27. In the present case, the acts that Dunlap seeks to admit are not even close to the type of act he is accused of committing. Dunlap is alleged to have committed an act of finger-to-vagina sexual contact with possible digital penetration. The prior behaviors that Dunlap seeks to introduce--that the complainant had touched men in the genital area, writhed on men's laps, masturbated, and "humped the family dog"--bear very little similarity to the acts at issue in the present case.
  • 3) Expert testimony that the complainant's behavior was consistent with sexual assault victims doesn't alone open the door to evidence otherwise barred under the rape shield law. ¶33. Nor did this testimony cross a line and amount to comments by the expert on the credibility of the complainant. ¶¶39-30.
Go To (COA) Brief
General
State v. Edward A. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629, on certification, habeas denied, Hammer v. Karlen, 02-3921 (7th Cir. 9/5/03)
For Hammer: Rex Anderegg
Issue/Holding: The rape shield statute will be overcome if the five-part test of State v. Pulizzano, 155 Wis. 2d 633, 656, 456 N.W.2d 325 (1990) is met. ¶44. In this case, the circuit court's determination that only one of those factors was satisfied, and that the evidence was therefore inadmissible, is sustained as a proper exercise of discretion. ¶¶45-49.

NEWLY DISCOVERED EVIDENCE
Standard of Review: Newly Discovered Evidence
State v. Douglas J. Plude,  2008 WI 58 reversing  unpublished decision
For Plude: Stephen D. Willett
Issue/Holding:
¶32 In order to set aside a judgment of conviction based on newly-discovered evidence, the newly-discovered evidence must be sufficient to establish that a defendant's conviction was a "manifest injustice." State v. Krieger, 163 Wis.  2d 241, 255, 471 N.W.2d 599 (Ct. App. 1991). When moving for a new trial based on the allegation of newly-discovered evidence, a defendant must prove: "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." McCallum, 208 Wis.  2d at 473. If the defendant is able to prove all four of these criteria, then it must be determined whether a reasonable probability exists that had the jury heard the newly-discovered evidence, it would have had a reasonable doubt as to the defendant's guilt. Id.  

¶33 "A reasonable probability of a different outcome exists if 'there is a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant's guilt.'" State v. Love, 2005 WI 116, ¶44, 284 Wis.  2d 111, 700 N.W.2d 62 (citation omitted). A court reviewing newly-discovered evidence should consider whether a jury would find that the newly-discovered evidence had a sufficient impact on other evidence presented at trial that a jury would have a reasonable doubt as to the defendant's guilt. McCallum, 208 Wis.  2d at 474. This latter determination is a question of law. See id. Manifest injustice has been shown and a new trial must be ordered when: (1) the four factors of newly-discovered evidence are established; and (2) a court determines that had a jury heard the newly-discovered evidence, it would have had a reasonable doubt as to the defendant's guilt. See Krieger, 163 Wis.  2d at 255.

“Manifest injustice”? That’s a plea-withdrawal benchmark; and, indeed, Krieger is a plea-withdrawal case. No matter: in the court’s view, as set forth above, if you’ve satisfied all requirements of the test for newly discovered evidence, you’ve necessarily established a “manifest injustice.”
Newly Discovered Evidence - Reasonable Probability of Different Result: Expert Lied About Credentials
State v. Douglas J. Plude,  2008 WI 58 reversing  unpublished decision
For Plude: Stephen D. Willett
Issue/Holding:
¶36 We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on "circumstantial evidence," there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude's guilt. Our conclusion is based on Shaibani's testimony as a quasi-medical expert notwithstanding his lack of a medical education and on the link that Shaibani's testimony provided to other critical testimony that related to the manner of Genell's death. 

...

¶46 In sum, with the exception of Dr. Kalelkar's opinion, which was exculpatory of Plude, the medical expert opinions with regard to Genell's manner of death were inconclusive. Dr. Kalelkar concluded to a reasonable scientific certainty that Genell drowned from pulmonary edema; Dr. Sullivan concluded that it was likely, but not a reasonable scientific certainty, that Genell drowned from pulmonary edema; Dr. Huntington concluded that it was likely, but not a reasonable scientific certainty, that Genell drowned from inhaling toilet bowl water. Shaibani affirmed Dr. Huntington's opinion and linked Plude to Genell's inhalation of toilet bowl water. Therefore, Shaibani's testimony was a critical link in the State's case.

¶47 Wisconsin law has long held that impeaching evidence may be enough to warrant a new trial. Birdsall v. Fraenzel, 154 Wis. 48, 142 N.W.2d 274 (1913). In commenting on the discovery that a trial witness could read and write English after he testified to the contrary, we stated: "It may well be that newly discovered evidence impeaching in character might be produced so strong as to constitute ground for a new trial; as for example where it is shown that the verdict is based on perjured evidence." Id. at 52 (emphasis added).

State v. Sprosty, 2001 WI App 231, distinguished, ¶48:
In Sprosty, the court of appeals concluded that there was no reasonable probability that false testimony by a witness, who misrepresented his credentials, would lead to a different outcome because the witness maintained his expertise in spite of the false testimony and another expert corroborated his substantive testimony. Sprosty, 248 Wis.  2d 480, ¶34. Here, Shaibani's credentials were not maintained subsequent to his misrepresentation and no expert corroborated his substantive testimony.
Interesting concurrence would reverse in the interest of justice rather than newly discovered evidence, ¶58 ("Shaibani's reprehensible misrepresentations lead me to conclude that the real controversy was not fully tried, and it is in the interest of justice that the matter be retried. "). Nothing in the majority opinion excludes the possibility of relief on this rationale.
Newly Discovered Evidence – Renewed Effort, Based on Changes in Medical Opinion, Not Barred
State v. Audrey A. Edmunds, 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence, a recent revision in symptomatology of shaken baby syndrome isn’t procedurally barred notwithstanding a previous such effort:
¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …

¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

Newly Discovered Evidence – Change in Medical Opinion with Respect to Shaken Baby Syndrome – Probability of Different Result
State v. Audrey A. Edmunds, 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Edmunds was convicted over a decade ago of causing the death of a baby in her charge; death was attributed to shaken baby syndrome. The State’s theory, adduced through a number of experts, was that a “lucid interval” was impossible for such trauma; when the baby was dropped off at Edmunds’ she appeared to be fine; therefore, Edmunds must have caused her death. Edmunds, however, now presents a number of experts to say that that there is at least a significant debate in the medical opinion on the matter of a “lucid interval,” so that what would have been at the time of trial a fringe view in support of the theory of defense is now much more accepted. The State challenged this view with experts to say that nothing has changed. The trial court determined that the State’s experts were more credible and therefore that Edmunds hadn’t met her newly discovered evidence burden of showing a probability of a different result. The court of appeals reverses:
¶18      Here, the circuit court expressly found that Edmunds’s new evidence and the State’s new evidence were both credible. The court then weighed the evidence and concluded that the State’s evidence was stronger. Under McCallum, the court applied the wrong legal standard. After determining that both parties presented credible evidence, it was not the court’s role to weigh the evidence. Instead, once the circuit court found that Edmunds’s newly discovered medical evidence was credible, it was required to determine whether there was a reasonable probability that a jury, hearing all the medical evidence, would have a reasonable doubt as to Edmunds’s guilt. This question is not answered by a determination that the State’s evidence was stronger. As explained in McCallum, a jury could have a reasonable doubt as to a defendant’s guilt even if the State’s evidence is stronger.

¶22      … [O]ur only clear guidance comes from how the court described a reasonable probability in McCallum, 208 Wis. 2d at 474: “The correct legal standard when applying the ‘reasonable probability of a different outcome’ criteria is whether there is a reasonable probability that a jury, looking at both [the old and the new evidence], would have a reasonable doubt as to the defendant’s guilt.” Under this test, the dispute as to whether a defendant needs to show that confidence in the outcome of the trial is undermined or make an outcome determinative showing becomes a very fine distinction. …

¶23      The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds’s trial as to the cause of the types of injuries Natalie suffered. We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie’s injuries arose, and that the new evidence does not completely dispel the old evidence. Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds’s trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence. At trial, and on Edmunds’s first postconviction motion, there was no such fierce debate. Thus, the State was able to easily overcome Edmunds’s argument that she did not cause Natalie’s injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds’s guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds’s guilt. Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds’s guilt. Accordingly, we reverse and remand for a new trial.

Assessment of Pre-Existing Information not "Newly Discovered" -- Sexually Violent Persons Proceeding
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence, § 805.13, ¶11; but:
¶16. There is absolutely no new information contained in the periodic re-examination report. The report is simply Dal Cerro's assessment of pre-existing information, the same information utilized by Lytton [expert at § 980.08 proceeding]. Merely recycling and reformulating existing information into a new format does not generate new evidence. Newly discovered evidence does not include a 'new appreciation of the importance of evidence previously known but not used.' State v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted).

¶17. Our holding here is supported by a recent case, State v. Slagoski, 2001 WI App 112, where we held that the existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. Id. at ¶11. As we stated in Slagoski, a contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. Id. The State has failed to differentiate the psychiatric evidence available at the time of Lytton's report from Dal Cerro's report. Dal Cerro's report was nothing more than the newly opined importance of existing evidence."

(Note: The court goes on to also find a lack of diligence stressing WRC's refusal to cooperate with the expert on the release petition:
¶21. The State and WRC staff seem to forget that at a hearing for supervised release, the burden of proof lies with them, not Williams. Williams does not have to prove that he is cured; the State must prove that Williams continues to be a sexually violent person and that it is substantially probable that he will engage in acts of sexual violence if he is not continued in institutional care. Wis. Stat. § 980.08(4). The refusal of WRC to cooperate with the independent evaluation by Lytton perhaps frustrated the State's objectives. In any event, if WRC wanted the trial court to be aware of Dal Cerro's opinion, WRC staff should have cooperated with Lytton. Again, the test to determine if evidence is newly discovered is not what counsel knows or is aware of, but what the client, here WRC, is or should be aware of. Kocinski, 147 Wis. 2d at 744. At the time of Lytton's evaluation, WRC had in its possession all of the information contained in Dal Cerro's report. It cannot slide this information in the back door after it refused to contribute to Lytton's § 980.08 evaluation. Wisconsin Stat. § 805.15(3) cannot be used as a cure for inadequate preparation. Kocinski, 147 Wis. 2d at 744.)
Clarification of Witness's Testimony not "Newly Discovered"
State v. Paul K. Shanks, 2002 WI App 93, PFR filed 4/11/02
For Shanks: Steven A. Koch
Issue/Holding: Purported clarification of witness's testimony doesn't, under particular facts, satisfy test for newly discovered evidence. ¶¶16-21.
Trial Court Credibility Finding that Proffered Newly Discovered Evidence "Incredible"
State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999).
For Carnemolla: Robert T. Ruth
Issue/Holding: Carnemolla loses a newly discovered evidence claim. After a hearing, the trial court found Carnemolla's new-evidence witness "incredible." This, the court of appeals holds, is a proper exercise of discretion, and "the equivalent of finding that there is no reasonable probability of a different outcome on retrial."
This is an expansive and therefore problematic reading of State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997) and State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999). Those cases deal with recantation evidence, which by its very nature is a separate species of newly discovered evidence: the trial court has to decide whether a retraction of an earlier statement is worthy of belief. Even so, Kivioja supports a relatively narrow interpretation, that the trial court is limited to determining whether "a reasonable jury could believe the recantation," [not that is, whether the trial court believes it]. ¶54. No doubt, a trial court has authority to find a witness "incredible"; but that determination will virtually by definition occur at the margins. If by "incredible," the court simply means, the trial judge doesn't believe the witness, then significant problems arise, because the judge will then potentially invade the jury's province. To make this point concrete, consider this more detailed statement of the test (emphasis supplied), U.S. v. Rouse, 8th Cir No. 04-1468, 6/8/05:
To receive a new trial, the movant must show that “the newly discovered evidence is of such a nature that, in a new trial, [it] would probably produce an acquittal.” United States v. Papajohn, 212 F.3d 1112, 1118 (8th Cir. 2000) (quotation omitted). When the claim of newly discovered evidence is based on a recantation, the district court must first determine whether the recantation is credible. In this regard, “the real question . . . is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it.” Grey Bear, 116 F.3d at 350. Our review of this credibility finding for clear error is extremely deferential. See Grey Bear, 116 F.3d at 351. We review the denial of the new trial motion for a clear abuse of discretion. See Papajohn, 212 F.3d at 1117-18.

MISCELLANEOUS
Applicability of Code to Sentencing
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue/Holding: The evidence code is generally inapplicable to sentencing, ¶24 n. 7:
Under the heading of a due process challenge to inaccurate information, Lynch refers to the evidentiary rule regarding judicial notice, Wis. Stat. § 902.01. We agree with the State that this rule is not applicable at sentencing. See Wis. Stat. § 911.01(4)(c) (Wis. Stat. chs. 901 to 911, with certain exceptions that do not include § 902.01, do not apply at sentencing). For the same reason, the cases he cites holding a fact finder may not find facts based on evidence outside the record are not applicable here. See, e.g., State v. Peterson, 222 Wis. 2d 449, 457-58, 588 N.W.2d 84 (Ct. App. 1998); Solberg v. Robbins Lumber Co., 147 Wis. 259, 265, 133 N.W. 28 (1911); State v. Sarnowski, 2005 WI App 48, ¶16, 280 Wis. 2d 243, 694 N.W.2d 498.
Bank Records Authentication, § 891.24: Notice
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: There is no notice requirement in § 891.24; notification by the State three days before trial of intent to introduce bank records authenticated by affidavit rather than live testimony sufficed to satisfy the statute’s requirement that the records be “open to inspection,” ¶¶32-35.
The “plain text” of the more general authentication provision, § 909.02(12), contrastingly “does contain a notice requirement,” ¶33. The court also stresses that on the facts Doss did have access to the records, ¶34.
Confidentiality of Juvenile Records (CHIPS Petition)
State v. Teresa L. Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 1998)
For Bellows: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
Sections 48.78(2)(a) and 48.396, Stats., 1993-94, mandate confidentiality as a general principle and disclosure as the exception in this discretionary determination regarding the release of juvenile records. ...

The most comprehensive discussion on this topic of confidential records is found in State ex rel. Herget v. Circuit Court, 84 Wis.2d 435, 448-51, 267 N.W.2d 309, 315-16 (1978). ...

The Herget court first noted that an order of the juvenile court is required before records can be released. ...

We hold that where the State seeks to use information obtained from a juvenile file and an objection is made to the procedure that was employed to obtain the information, the trial court is under an obligation to determine whether there is record support for a finding that the juvenile court complied with the statutory guidelines and the considerations outlined in Herget.

Evidence -- Sufficiency – Corroboration of Confession -- Morphine in Body of Deceased as “Significant Fact” on Delivery Charge
State v. Edward Bannister, 2007 WI 86, reversing 2006 WI App 136
For Bannister: Craig S. Powell, Byron Lichstein
Issue/Holding: Presence of morphine in deceased’s body is a “significant fact” (on delivery of controlled substance) for purposes of corroborating the defendant’s admission that he gave morphine to the deceased:
 

¶36      Bannister contends that a significant fact must be a more meaningful and particularized fact. In supporting his contention, Bannister points out that both his own confession and the State's corroborative evidence lacks detail. He proffers that had details of the delivery of the morphine been part of the confession or corroborative evidence, his conviction might have been sustainable.

 

¶37      Adopting such a definition of significant fact would deviate from Wisconsin's well-established test for corroboration. Rather than permitting "any significant fact," or "some particulars," Bannister's proposed definition would require that the right or proper fact within the confession be corroborated. Requiring that specific aspects of the confession be corroborated, would require this court to abandon its test and adopt the one adopted in other jurisdictions. This court has repeatedly rejected the approaches of other jurisdictions when it comes to the corroboration rule. See Schultz, 82 Wis. 2d at 752-53.

 

¶38      The State presented evidence that Michael Wolk used morphine. That fact was significant because it gave confidence that Bannister delivered morphine to the Wolks. Accordingly, the State satisfied the corroboration rule.

 

Though the court “reject(s) the approaches of other jurisdictions,” it doesn’t say what those approaches might be, which makes the remark less illuminating than it should be. The “significant fact” test is, to be sure, a bit squishy but it is nonetheless clear that it mandates at least some independent corroboration of the charged crime. Note that the federal rule, as recently characterized by the Washington supreme court, merely requires “independent evidence sufficient to establish that the incriminating statement is trustworthy,” State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2007). In other words, Bannister doesn’t appear to go as far as the relaxed federal rule, and it remains to be seen just how relaxed our rule is. Did our court mean, for example, to reject the Washington rule (Brockob) which requires corroboration of the specific crime charged? Simply not clear.

Corroboration of Confession Rule, Generally
State v. Edward Bannister, 2007 WI 86, reversing 2006 WI App 136
For Bannister: For Bannister: Craig S. Powell, Byron Lichstein
Issue/Holding:

¶23      The corroboration rule ensures that a conviction does not stand when there is an absence of any evidence independent of the defendant's confession that the crime in fact occurred. Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). The corroboration rule functions as a "restriction on the power of the jury to convict." Smith v. United States, 348 U.S. 147, 153 (1954). A conviction will not stand on the basis of a defendant's confession alone. State v. Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978).

¶26      The present phrasing of the corroboration rule test requires that the State corroborate "any significant fact." …

¶31      A significant fact is one that gives confidence that the crime the defendant confessed to actually occur. A significant fact need not either independently establish the specific elements of the crime or independently link the defendant to the crime. Rather, the State must present at least one significant fact that gives confidence that the crime the defendant has been convicted of actually did occur.

Corroboration of Confession Rule
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: The common law rule that defendant's confession must be corroborated does not apply to statements made to a friend before the police began investigating. ¶26.
Juvenile Confession -- Recording Requirement
State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶58      … All custodial interrogation of juveniles in future cases shall be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. Audiotaping is sufficient to satisfy our requirement; however, videotaping may provide an even more complete picture of what transpired during the interrogation. [15]
[15] For many law enforcement agencies in this state, this practice will be nothing new.  At oral argument, the Assistant Attorney General indicated that there are approximately 50 law enforcement agencies in the state that do taping of some type under some set of circumstances.
Simple as that … or is it? What does the court mean by, “future cases”? Is this decision purely prospective, or does it apply to cases currently pending, whether at trial on appeal? More importantly: it’s hard to see how the holding ought not be extended to adult suspects; certainly, all the policy arguments, ¶¶44-58, apply equally to adults.
Hearsay Rule – Applicability – Reverse (Juvenile) Waiver, § 970.032(2)
State v. Corey Kleser, 2009 WI App 43, PFR filed 4/9/09
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
Issue/Holding:
¶46      Wisconsin Stat. § 970.032(2) makes no provision for the admission of hearsay at a reverse waiver hearing. Where a statute does not specifically authorize hearsay, it is generally prohibited, see Wis. Stat. § 908.02. It is true that an adult preliminary examination under Wis. Stat. § 970.03(11) permits hearsay in a few very limited circumstances, as to ownership of property or absence of consent, but counsel for Corey does not argue that any of those exceptions apply here.

¶47      The testimony of Dr. Beyer as to what Corey said happened during the offenses is clearly hearsay. There is no dispute about that from any party. Additionally, Corey does not attempt to justify the admission of that hearsay by any statute or rule. Corey admits the hearsay here would not be permitted at trial, but argues, without reference to any authority, that it is permissible at a reverse waiver hearing because this is not as significant a proceeding as a trial. While a reverse waiver hearing is certainly not as significant as a trial, it is nonetheless significant in that it determines jurisdiction. Corey argues that because the reverse waiver hearing is not a trial, there is no risk of hearsay being used improperly. But, as we have shown above, that is precisely what happened here. Accordingly, we conclude that the trial court erred in substantively relying on hearsay.

Legislative Privilege, § 13.96 – “Confidential” Distinguished from “Privileged”
Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65
Issue/Holding:
¶13. Wisconsin Stat. § 13.96 was created by 1997 Wis. Act 27, § 18m as a response to the legislature's ever-increasing reliance on computer-assisted communications. The LTSB serves legislators who belong to all political parties, and it warehouses data that the recipients and creators may deem confidential. Section 13.96 provides in relevant part:
The legislative technology services bureau shall be strictly nonpartisan and shall at all times observe the confidential nature of the data and information originated, maintained or processed by electronic equipment supported by it.
Wahl relies on the § 13.96 mandate of confidentiality as a connection to Wis. Stat. § 905.01, which addresses privileges. He asserts this mandate creates an "implicit" statutory privilege. …

¶14. However, just because data is to be kept confidential, it does not necessarily follow that Wahl has a legal privilege not to produce it. The concepts of "confidential" and "legal privilege" are very different.

¶15. "Confidential" data is that which is "meant to be kept secret." Black's Law Dictionary 294 (7th ed. 1999). Legal privilege is a broader concept. It includes having the legal right not to provide certain data when faced with a valid subpoena….

¶16. Additionally, privileges are the exception and not the rule; therefore, they are narrowly construed….

¶17. Furthermore, it is a "well-accepted legal principle, a fundamental tenet of our modern legal system, . . . that the public has a right to every person's evidence except for those persons protected by a constitutional, common-law, or statutory privilege." State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744 (1982). See United States v. Nixon, 418 U.S. 683, 709 (1974). Wisconsin Stat. § 905.01 reaffirms this fundamental legal principle, since it states that testimony and production of things requested is the general rule and provides exceptions only in very limited circumstances, as we have explained in Gilbert. See Gilbert, 109 Wis. 2d at 508. Furthermore, we agree with the reasoning stated in Nixon that "these exceptions . . . are not lightly created nor expansively construed, for they are in derogation of the search for truth." Nixon, 418 U.S. at 710. Accordingly, we conclude that the confidentiality requirement of Wis. Stat. § 13.96 does not create a privilege for Wahl to refuse to comply with the subpoena duces tecum of the John Doe judge.

All well and good, but simply doesn’t explain how or why the court managed to conflate confidentiality with privilege in the attorney-client context, State v. Meeks, 2003 WI 104, discussed above. Whether you agree or not with the result in Meeks is irrelevant: what the court said with respect to § 13.96 could as easily been said with respect to separating out SCR confidentiality from evidentiary privilege. But the court didn’t do that. Might simply be that the court is going to tread much more carefully in the area of attorney-client confidences than in other areas, and it might be wise to keep that in mind.
Rebuttal Witness – Test for “Bona Fide” Rebuttal
State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.
¶33   We are convinced that the State satisfied the law of Wisconsin in this case. Vela’s testimony was bona fide rebuttal evidence because it directly answered an issue introduced by Sandoval’s defense: that Sandoval did not have a gun in the car. Specifically, Sandoval offered Gryczawski’s testimony that she was in the car with Sandoval on the way to the party on Thor Avenue and no one in the car had a gun, and that specifically, she did not see a gun on Juan Sandoval. Sandoval himself testified that he had “never seen” a gun before; that the “[f]irst time” he saw or held a gun was after they exited the car and went into the party. It should have come as no surprise to Sandoval that the State would seek to defuse his proffered evidence that he did not have a gun in the car before the party. See id. Athough the specifics of the State’s evidence—Vela’s testimony that he saw Sandoval with a gun in his possession in the car before the party—may have been a surprise, it directly rebutted Sandoval’s own evidence: Gryczawski’s testimony that no one in the car had a gun and specifically, she did not see a gun on Sandoval; Sandoval’s testimony that his very first contact with a gun was in the Thor Avenue house when he grabbed and held one momentarily before relinquishing it. This is not trial by ambush; it is simply the State’s response to an issue Sandoval raised in his defense. See id. The fact that Vela’s testimony would have been useful in the case-in-chief does not preclude its use in rebuttal. See id.
In terms of the larger principle involved, the court largely reaffirms its prior holding in State v. Richard N. Konkol, 2002 WI App 174, ¶1 (“To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(1)(d).”). More particularly, the court rejects a test proffered by Sandoval, based on Wright v. State, 708 A.2d 316 (Md. 1998), which is whether the supposed rebuttal would have been inadmissible in the case-in-chief as irrelevant. Instead, per Konkol, the test is as noted above whether the evidence “only became necessary at rebuttal.” It may be worth recalling, if for no other reason than that Konkol stresses the point, ¶19 n. 7, that disclosure of the defendant’s statements is entirely something else.
Rebuttal
State v. Richard N. Konkol, 2002 WI App 174
For Konkol: Brian Hough
Issue/Holding: The proper test for admissibility of rebuttal evidence isn't whether it could have been admitted in, or would have been useful to, the state's case-in-chief, but whether it meets new facts put in by the defendant. ¶¶18-19.
Tape Recording, Appellate Objection to Court Reporter Failure to Take Down as Played to Jury Forfeited by Lack of Contemporaneous Objection
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14       As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___, 762 N.W.2d 449. [2] Huff did not object to the trial court’s decision to not have the tapes reported as they were played, and accordingly, the error was forfeited and we thus analyze the issue under an ineffective-assistance-of-counsel rubric. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42. [3]
Witness List Violation
State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney.
Issue: Whether the trial court properly excluded a defense witness who had not been timely named as a witness.
Holding:
¶22 The record supports the trial court's discretionary decision to exclude Rosado's testimony. Guzman was aware of this witness from the date of the incident. Counsel spoke with Rosado at least two weeks before notice of his testimony was provided to the State. Under these circumstances, it was reasonable for the trial court to exclude Rosado's testimony based on the fact that he was not disclosed as a potential witness until the third day of the second trial. 'Wisconsin has abandoned the concept of 'trial by ambush' where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts.' Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). The purpose of the rule is to avoid unfair surprise. A party who fails to timely disclose witnesses risks the consequence imposed here: exclusion of that witness's testimony.