On Point blog, page 38 of 68
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court of appeals decision (3-judge, not recommended for publication); for Williams: Bradley J. Wochowicz; case activity; Williams BiC; State Resp.; Reply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decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity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court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply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.
Speedy Trial – Belated Disclosure of Exculpatory Evidence
State v. Daniel W. Kohel, 2010AP1057-CR, District 2, 1/12/11
court of appeals decision (1-judge, not for publication); for Kohel: Andrew Mishlove; case activity; Kohel BiC; State Resp.; Reply
Prosecutorial delay, measuring at least 2 years and perhaps longer, in disclosing potentially exculpatory evidence violated Kohel’s right to speedy trial and therefore supports dismissal with prejudice of the pending charge.
Blood Test Admissibility – Lab Tech Qualifications, Blood Draw
State v. Craig A. Erickson, 2010AP1763-CR, District 2, 1/12/11
court of appeals decision (1-judge, not for publication); for Erickson: Kirk B. Obear; case activity; Erickson BiC; State Resp.; Reply
Laboratory assistant, acting under direction of pathologist and following laboratory procedures, is qualified under § 343.305(5)(b) to draw blood. State v. Penzkofer, 184 Wis.
Other-Acts Evidence
State v. Jonathan A. Meenen, 2009AP3107-CR, District 3, 1/11/11
court of appeals decision (3-judge, not recommended for publication); for Meenen: Donna L. Hintze, SPD, Madison Appellate; case activity; Meneen BiC; State Resp.; Reply
On a charge of 1st-degree sexual assault of a (5-year-old) child, evidence of Meneen’s prior juvenile adjudication for sexual contact with an 8-year-old was admissible:
- Acceptable purpose.
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,