On Point blog, page 5 of 5
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.
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/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,
§ 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.
§ 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.”
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State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals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’
Cross-examination – Impeachment of Defense Witness with 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,