On Point blog, page 1 of 1
SCOW approves exclusion of DNA evidence and admission “other acts” evidence in child sexual assault case
State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)
In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.
SCOW to review erroneous exclusion of defense DNA evidence
State v. David Gutierrez, 2017AP2364-CR, petition for review of a published court of appeals decision granted 11/13/19; case activity (including briefs)
Issue (based on the State’s Petition for Review):
1. Did the court of appeals violate the standard of appellate review of trial court evidentiary rulings by holding the trial court erred in deciding to exclude evidence offered by the defendant that DNA from other men was found on the clothing of the complainant in a child sexual assault prosecution?
2. Did the court of appeals improperly apply Wis. Stat. § 972.11(2)(b), Wisconsin’s rape shield law, when it held the defendant was not offering the DNA evidence as evidence concerning the victim’s prior sexual conduct?
Defense win: circuit court erred in excluding DNA evidence
State v. David Gutierrez, 2019 WI App 41, petition for review granted, 11/13/19, reversed in part and affirmed in part, 2020 WI 52; case activity (including briefs)
The circuit court allowed the state to admit testimony that Gutierrez’s DNA wasn’t found after testing of relevant evidence state as well as testimony about why his DNA might not be found; it did not, however, allow Gutierrez to admit evidence that the DNA of other men had been found. This was error.
§ 904.01, relevance – 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.