On Point blog, page 44 of 68
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.
§ 904.04, Self-Defense – “McMorris” Acts of Prior Violence by Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
Due Process – Defendant’s Right to Testify – Retraction of Waiver – Offer of Proof Required
State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski
Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion,
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,
Forfeited Issue – Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14 As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___,
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81 …
[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,
Plain Error, § 901.03(4) – Confrontation-Based Errors: Statements by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation,
Privileges – Honesty Testing, § 905.065(1): Voice Stress Analysis Admissibility
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶20 Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka,Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently,
Newly Discovered Evidence – Reasonable Probability of Different Result: Expert Lied About Credentials
State v. Douglas J. Plude, 2008 WI 58 reversing unpublished decision
For Plude: Stephen D. Willett
Issue/Holding:
¶36 We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on “circumstantial evidence,” there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude’s guilt.
Audiovisual Recording, § 908.08(1) – Transcription by Court Reporter Required
State v. Pablo Ruiz-Velez, 2008 WI App 169
For Ruiz-Velez: Melnda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether audiovisual recordings of statements made by alleged victims and admitted into evidence under § 908.08(1) must be transcribed by the official court reporter.
Holding:
¶4 Wisconsin Stat. Rule 885.42(4) provides: “At trial, videotape depositions and other testimony presented by videotape shall be reported.” As we have seen,