On Point blog, page 4 of 5
SVP – Trial – Jury Selection – Number of Peremptory Challenges
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether a respondent is entitled to the number of peremptory challenges prescribed by § 972.03, because of the potential for life-long custody.
Holding: Because an SVP respondent is entitled to periodic review, the analogy to a life sentence fails, and peremptory challenges are regulated by § 805.08(3) (three challenges,
SVP – Trial: Venue – County of Predicate Offense
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
Issue/Holding:
¶14. Wisconsin Const. art. I, § 7, grants criminal defendants the right to a trial “by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.” Tainter claims this provision conflicts with Wis. Stat. § 980.02(4) and (5),
SVP – Trial: Witnesses – Lay Expert – Probation/Parole Officer
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether a probation and parole agent was properly allowed to give an opinion regarding the likelihood of the respondent reoffending.
Holding:
¶29. The fact that Kittman was not a psychologist or mental health specialist did not preclude his testimony. Under Wis. Stat. § 907.02 (1997-98), relevant experience,
SVP- Trial: Evidence — Actuarial Instruments
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter to cross-examine on the instruments). ¶20. In Wisconsin, trial courts have a limited “gatekeeper”
SVP – Trial: Evidence – Other Crimes
State v. David J. Wolfe, 2001 WI App 136, 246 Wis.2d 233, 631 N.W.2d 240, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether evidence of the respondent’s arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.
Holding:
¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct.
SVP – Jury Waiver – Advisal of Right to Jury Unanimity
State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 29.
For Denman: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.
Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases,
SVP – Trial: Witnesses – Expert – 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.
SVP – Trial: Expert Witnesses – Psychologist: Licensure
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.
Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge,
SVP – Trial: Evidence – Hearsay: Letters from DSM-IV Committee
State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes
Issue: Whether letters from DSM-IV committee members, regarding the impact of an assault on a diagnosis of pedophilia, were properly admitted.
Holding: A basis for an expert opinion, otherwise hearsay, is admissible if of “a type reasonably relied upon by experts in the particular field…. The letters relied on here,
SVP Commitments – Evidence – Misconduct, § 904.04(2) – Proof of, Reliance on by Expert
State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: An SVP expert may rely on the respondent’s unproven prior misconduct in deriving his or her opinion. The § 904.04(2) “preliminary relevance” requirement, State v. James E. Gray, 225 Wis.2d 39, 59-61, 590 N.W.2d 918 (1999); State v. Landrum, 191 Wis. 2d 107,