On Point blog, page 7 of 11
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.
Defense of Self, § 939.48(1) – Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26 Given the limited nature of the evidence covered in this order——that is,
Expert Opinion Testimony re: Truthfulness of Complainant, as to Signs of Coaching or Suggestion
State v. Bryan James Krueger, 2008 WI App 162
For Krueger: Bradley J. Lochowicz
Issue/Holding:
¶15 Here, Mason was asked whether she had formed an opinion as to whether or not S.B. “was the product of any suggestibility or any coaching.” … Signs of coaching or suggestion could fall into the realm of knowledge that is outside that of a lay-person jury. [10]
¶16 However,
Bailiff as Potential Witness
State v. William Troy Ford, 2007 WI 138, affirming unpublished decisionFor Ford: Ralph J. Sczygelski
Issue/Holding Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:
¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk,
Witness – Impeachment – Gang Affiliation of Witnesses – Irrelevant in Absence of Evidence Defendant Was Gang Member
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding: Testimony by a “gang expert” as to the gang-affiliation of certain witnesses, in an effort to explain their motive to testify as they did, was irrelevant in the absence of any evidence that the defendant was himself a gang member:
¶14 Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v.
Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶14 Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio,
Self-Incrimination – Impeachment with Post-Miranda Silence – Generally: Partial Exercise of Rights
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶16 Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.
Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶31 … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,
Particular Examples of Misconduct, § 904.04(2) – Bias of Prosecution Witness
State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen
Issue: Whether evidence of police officer Mucha’s mistreatment of a 3rd-party (Scull) in an otherwise unrelated but similar instance was admissible to further defendant Missouri’s claim that Mucha was untruthful in denying physical abuse against and planting evidence on Missouri.
Holding: This evidence satisfied the three-part test of State v.
Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.