On Point: 15. Evidence

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)

When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”

Issue:  “Is the time for determining “plainness” the time when the error is committed,

Robert Dietrich v. Smith, 7th Cir No. 12-1672, 12/4/12

seventh circuit decision, on habeas review, affirming 2011C117 (E.D. Wis 2/23/12); prior history: State v. Dietrich, Wis. App. 2008AP1697-CR

After the trial court denied his request for an in camera inspection of the sexual assault victim’s mental health records, State v. Green, 2002 WI 68,

State v. Joel Steinhauer, 2012AP189-CR, District 3, 11/27/12

court of appeals decision (not recommended for publication); case activity

When the State fails to articulate the specific other acts testimony it seeks to adduce, the trial court acts within its discretion in ruling the testimony inadmissible without performing the 3-step analysis of State v. Sullivan, 216 Wis. 2d 768, 771–73, 576 N.W.2d 30 (1998).

La Crosse Co. DHS v. Kristle S., 2012AP2005, District 4, 11/21/12

court of appeals decision (1-judge, ineligible for publication); case activity

The parent was given a meaningful opportunity to cross-examine the social worker with respect to conditions for the children’s return, in that the trial court permitted extensive questioning on these issues before instructing counsel to pursue a different line of questioning:

¶17      Our review of the record also demonstrates that Kristle had a meaningful opportunity to impeach Simmons’ credibility.

on review of unpublished decision; case activity

Issues (composed by On Point) 

1. Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records.

2. Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony.

The implications for the administration of State v.

Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Probable Cause – PBT, § 343.303

¶11      At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),

State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12

court of appeals decision (not recommended for publication); case activity

Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” 

State v. Curtis L. Jackson, 2011AP2698-CR, District 1, 10/10/12; court of appeals decision (not recommended for publication), petition for review granted 2/11/13, affirmed, 2014 WI 4 (1/22/14); case activity

Waiver (Lack of Objection), Generally – Jury Instructions

¶8        … To obtain relief based on a jury instruction to which no objection was made, Jackson must show that “considering the proceedings as a whole,

County of Marathon v. Paul R. DeBuhr, District 3, 2011AP2959, 10/2/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶13      At the outset, we observe that DeBuhr was given the opportunity to raise his concerns about Hackworthy’s testimony and retrograde extrapolation in the circuit court but failed to do so.  DeBuhr never responded to the County’s brief in support of admitting the testimony and never offered any argument in support of his earlier assertion that he believed retrograde extrapolation was “not proper science.”  As a result,

Buffalo County Department of Health & Human Services v. Jennifer C., 2012AP1564, District 3, 9/25/12

court of appeals decision (1-judge, ineligible for publication); case activity

Though not “independently admissible,” a long list of damaging items related to Jennifer’s background (such as theparent’s father’s sexual abuse of his daughters, and Jennifer’s own emotional and sexual abuse by her adoptive parents) was admissible to show the basis for an expert’s opinion that Jennifer was unlikely to meet conditions for return of her children:

¶16      Wisconsin Stat.