On Point: 15. Evidence

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson

Issue/Holding:

¶20      We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim,

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶35      … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. 

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:

• The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely.

State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen

Issue: Whether the defense should have been allowed to cross-examine the arresting officer about an instance of misconduct between the officer and a third party which was assertedly very similar to the defense theory that the officer mistreated the defendant and planted evidence on him.

Holding:

¶20      Moreover, WIS.

State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman

Issue/Holding: Trial court’s refusal to admit expert testimony on factors influencing witness’s ability to identify a stranger during a lineup procedure, in particular the distorting effect of a simultaneous as opposed to sequential procedure, was not an erroneous exercise of discretion:

¶15     In 2002,

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding:

¶48 Here, Adams’ statements were properly admitted under the excited utterance hearsay exception. Adams spontaneously made the statements, without police prompting, under the stress of watching her cousin being taken into custody at gunpoint. It was only one to two minutes after Searcy’s arrest that Adams emerged from the crowd that had gathered to witness the arrest and yelled,

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: Where the defendant’s brother testified that the non-testifying complainant had recanted, the prosecution could impeach the brother with the possibility that the complainant was motivated by fear due to the brother’s gang affiliation, ¶31: “A witness’s motive (whether testifying ‘live’ or by admission of his or her out-of-court assertions) is never collateral, 

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding:

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore,

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment,