On Point: 15. Evidence

OLR v. John Kenyatta Riley, 2016 WI 70, 7/15/16; case activity (including briefs)

Leaving us with another splintered decision as the current term comes to its end, a majority of the supreme court votes to publicly reprimand an attorney for “offering” false testimony from his client and then failing to take reasonable measures to correct the testimony. The precedential value of the opinion is uncertain, and perhaps nil, as there’s no majority rationale for the decision and it involves a previous version of the relevant ethical rule; nonetheless, every lawyer who calls witnesses should be aware of it and contemplate what it might portend.

State v. Giancarlo Giacomantonio, 2016 WI App 62; case activity (including briefs)

This is Wisconsin’s first published decision about how parties are to authenticate photographs of text messages so that they are admissible at trial.  The answer is the same way they authenticate other kinds of evidence–via §909.01 and §909.015. Nothing more is required.

Unity Bayer v. Brian D. Dobbins, M.D., 2016 WI App 65; case activity (including briefs)

We note this decision in a civil case because it involves the application of the Daubert test, a still relatively undeveloped area of law, and may assist practitioners in making arguments for (or against) the admission of expert evidence.

Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)

Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?

State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)

This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.

State v. Daniel L. Schmidt, 2016 WI App 45; case activity (including briefs)

The court of appeals rejects three challenges to Schmidt’s jury-trial conviction of two homicides.

Lawyers tracking how Wisconsin’s appellate courts are interpreting Wis. Stat. § 907.02(1), governing the admissibility of expert testimony, might be interested in this development. Seifert v. Balnik, the first Daubert case to reach SCOW was on track to be decided this term. It was twice listed for, and twice removed from, the oral argument schedule. According to the clerk’s office, SCOW has finished oral arguments for this term. The argument in Seifert has been pushed off to next term.

State v. Andrew G. Chitwood, 2016 WI App 36; case activity (including briefs)

In theory, Wisconsin’s new test for the admissibility of expert testimony “is flexible but has teeth.” State v. Giese, ¶19. In practice, it’s flexible and has dentures. Literally every Daubert challenge litigated on appeal since Wis. Stat. §907.02 became effective has failed. The court of appeals has held that expert testimony regarding the retrograde extrapolation of a person’s blood alcohol concentration passes Daubert (See Giese). So does a doctor’s testimony based solely on his personal experience with prenatal and delivery case (see Seifert). So does a social worker’s testimony based solely on her observations of behavior in child abuse victims (see Smith). And now with Chitwood so does expert testimony by a drug recognition evaluator.

State v. Luis Calderon-Encarnacion, Jr., 2014AP2252-CR, 04/12/2016 (not recommended for publication); case activity (including briefs)

Calderon was found guilty at trial of shooting up the house of his child’s mother. The evidence against him included the fact that he was pulled over 20 minutes after the shooting in a vehicle matching an eyewitness description of the shooter’s, with a silver-and-black revolver containing five spent casings concealed in the fuse panel.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.