On Point blog, page 4 of 7
Right to Present Defense – Hearsay Testimony; “Shiffra” Disclosure; Judicial Bias
State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11
court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity
Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony,
Preservation of Issue: Motion in Limine; Ineffective Assistance: Client’s Failure to Reveal Information to Counsel; Harmless Error Review: Cf. IAC-Prejudice; Evidence: § 905.05 Marital Privilege & 3rd-Party
State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Preservation of Issue – Motion in Limine
Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.
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court of appeals decision (1-judge, not for publication); for Jenny L. G.-J.: Theresa J. Schmieder; case activity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],
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,
In Camera Inspection, Shiffra/Green Material
State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.
Milw. Dep’y. Sh. Assoc. and Kuhtz v. City of Wauwatosa, No. 2009AP1924, District I, 6/15/10
court of appeals decision; BiC; Resp.; Reply
Confidentiality – § 51.30(4) – Emergency Detention Statement
Release by a police department of a statement of emergency detention, occasioned by a deputy sheriff’s threat to kill superior officers, violated the § 51.30(4) prohibition on release of “treatment records”; and was not justified by the public policy exception that imposes on psychiatrists the duty to warn potential targets of threats made by patients.
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,
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,
Postconviction Procedure – Discovery – Privileged Material – Insufficient Showing for In-Camera Inspection of Victim’s Toxicology Report
State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz
Issue/Holding:
¶8 A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis. 2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion.
Privileges – Honesty Testing, § 905.065(1)): “Totally Discrete” Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23 Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event;