On Point blog, page 45 of 68
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State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision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,
§ 901.03, Plain Error – Generally
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶21 Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. [3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78,
Plain Error, § 901.03(4) – Prosecutor’s Closing Argument as Violating Confrontation
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶39 Jorgensen’s right to confrontation was also violated during the prosecutor’s closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She “testified” that Jorgensen was a “chronic alcoholic” who did not acknowledge his problem,
Particular Examples of Misconduct, § 904.04(2) – Recognizance Bond as Documentary Proof of Defendant’s Connection to Place Where Drugs Founds – Criminal History Generally Inadmissible
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decisionFor Harris: Ralph J. Sczygelskis
Issue/Holding: A document, identified to the jury as “recognizance of bond in a criminal case … by the defendant,” found in the same room as a controlled substance and meant to show his connection to the drug, was inadmissible:
¶82 Criminal History Generally Inadmissible. Ordinarily evidence of a defendant’s criminal history is not admissible because when such evidence is admitted,