On Point blog, page 38 of 68
TPR – Therapy Privilege, § 905.04(1)(b)
Winnebago County DHS v. Jenny L. G.-J., 2009AP2956, District 2, 2/23/11
court of appeals decision (1-judge, not for publication); for Jenny L. G.-J.: Theresa J. Schmieder; case activity
The privilege attaching to interactions under direction of a family therapist, § 905.04(1)(b), doesn’t apply to information obtained by “dispositional staff” providing services under § 48.069.
¶11 Wisconsin Stat. § 48.069(1) defines a dispositional staffer as a member of “[t]he staff of the department [of children and families],
Evidence – Other-Acts – “Sullivan” Analysis; Prosecutorial Misconduct
State v. Miguel E. Marinez, Jr., 2011 WI 12, reversing unpublished decision; case activity; prior post; for Marinez: Ralph J. Sczygelski
Evidence – Other-Acts, § 904.04(2) – “Sullivan” Analysis
¶19 To guide courts in determining whether other-acts evidence is admissible for a proper purpose under Wis. Stat. § 904.04(2)(a), we developed a three-prong test. Sullivan,
State v. David W. Domke, No. 2009AP2422-CR, review granted, 2/8/11
decision below: unpublished; case activity
Issues (formulated by On Point):
Whether Domke was denied effective assistance of counsel by trial counsel’s: failure to object to inadmissible hearsay in the form of a social worker’s testimony reciting the complainant’s recitation of the alleged sexual assaults; producing, without first interviewing her, the complainant’s mother as a defense witness who proceeded to testify that she believed the complainant “100 percent.”
Harmless Error; Hearsay – Medical Treatment/Diagnosis
State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply
Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless.
Right to Present Defense – Prosecutorial Intimidation of Witness; Comment on Guilt
State v. Jevell Williams, 2010AP1266-CR, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Williams: Bradley J. Wochowicz; case activity; Williams BiC; State Resp.; Reply
Right to Present Defense – Prosecutorial Intimidation of Witness
The prosecutor didn’t violate Williams’s right to present a defense by raising the possibility that his alibi witness had potentially violated a no-contact order by contacting a State’s witness on Williams’s behalf.
2011 Wis Act 2 (Daubert)
Join Mr. Badger in Welcoming Daubert to the Badger State
2011 Wis Act 2 (Senate Bill 1, Special Session Jan. 2011) brings Wisconsin into line with FRE 702 (“Daubert” rule). The Act was signed into law 1/27, but won’t take effect until published (which will be no later than 2/10). A potential sea change in expert witness admissibility is in the offing; see, e.g., State v.
Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping
State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply
Request for New Counsel
An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,
State v. Gregg B. Kandutsch, No. 2009AP1351-CR, review granted 1/11/11
decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity
Issues (formulated by On Point):
Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.
Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.
Kandutsch, while under electronic monitoring,
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,
Pre-“Daubert” Expert-Opinion Caselaw
Caselaw prior to amendments to §§ 907.01-.03 may be found: here. These sections were amended by 2011 Wis Act 2 (eff. date 2/1/11), as follows:
907.01 Opinion testimony by lay witnesses. (intro.) If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally all of the following:
(1) Rationally based on the perception of the witness and helpful.