On Point blog, page 6 of 11
Jury Selection – Batson; Privileged (Mental Health) Records – In Camera Review; Evidence – Relevance; Expert Witness
State v. Britney M. Langlois, 2011AP166-CR, District 4/1, 3/6/12
court of appeals decision (not recommended for publication); for Langlois: Philip J. Brehm; case activity
The court of appeals upholds a trial court finding that the prosecutor’s explanation for striking an African-American juror (recent conviction for disorderly conduct) was non-discriminatory:
¶33 After reviewing the record, we are satisfied that the trial court properly applied the Batson test.
Expert Testimony; Impeachment – Prior Convictions
State v. Olu A. Rhodes, 2009AP25-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication), on remand from, 2011 WI 73; for Rhodes: John J. Grau; case activity
Expert witness qualification rests in the sound discretion of the trial court; here, it was well within that discretion to allow the following testimony:
¶4 Marchant, who described herself as a “criminal intelligence analyst” working for the Department of Justice,
Hearing-Impaired Juror: Inability to Hear Certain Testimony; Evidence: Haseltine “Vouching” Testimony – Harmless Error
State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity
Hearing-Impaired Juror – Inability to Hear Certain Testimony
A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers.
Cross-Examination – Limitations – Witness’s Mental Health; Inadequate Argumentation – Loss of Argument
State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11
court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity
Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,
Witness Sequestration Order, § 906.15(3): Authority to Bar Access to Transcript
State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity
Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority,
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2); Comment on Truthfulness; Self-Incrimination – Waiver – Examination by Expert
State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally
¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection.
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 78For 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,
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 Haseltineviolation.