On Point blog, page 6 of 7
Defenses – Issue Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge
State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth
Issue/Holding: Issue preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew:
¶22. In the second action, the facts were different in that Miller already had a copy of the expert’s summary.
Defenses – Claim Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge
State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth
Issue/Holding: Judicial estoppel didn’t prevent admissibility of evidence excluded as discovery sanction in prior, dismissed but then reissued action, where judge who dismissed prior action after imposing sanction contemplated that the excluded evidence would not be barred in a new proceeding, ¶¶31-33.
Constitutional Defenses – Bear Arms – Fundamental Right, Under Wis. Const. Art. I, § 25 – Necessary Showing
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶86. In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.39 A defendant who challenges on constitutional grounds a prosecution for carrying a concealed weapon will be required to secure affirmative answers to the following legal questions before he or she is entitled to raise a constitutional defense.
Common Law Defenses – Causation, Homicide – “Year and a Day” Rule
State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski
Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.
Holding:
¶5. We disagree with the circuit court and hold that the defendant’s conviction in this case is barred by the common-law year-and-a-day rule.
Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations
State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis.
Defenses – Issue Preclusion – Defensive Use Against Non-Party to Prior Case
Michael S. Johnson v. Berge, 2003 WI App 51
Issue/Holding: Review of issue preclusion is governed by Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 Wis. 2d 370 (1999). The record isn’t sufficient to review the issue. ¶¶13-14.
For discussion on preclusive effect of state court suppression ruling on federal court dealing with same evidence, see U.S.
Constitutional Defenses – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Defenses – Claim/Issue Preclusion — Prior Dismissal — SVP Proceeding
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.
Holding:
¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin,
Due Process – Right to Present Defense — Rape-Shield Bar
State 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,
Constitutional Defenses – Selective Prosecution
State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett
Issue1: Whether Kramer established a prima facie case for selective prosecution.
Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic.