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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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§ 908.03(2), Excited Utterance
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue: Whether the declarant’s statement to another relating a threat by the defendant was admissible as an excited utterance, § 908.03(2). Holding: ¶65. We agree with the State that the first two elements of this exception are met: […]
§ 908.03(3), State of Mind
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue: Whether statements made by the declarant to others describing various threats made by the defendant were admissible under the state-of-mind hearsay exception, § 908.03(3). Holding: ¶60 Since there are no Wisconsin cases that have resolved this issue, […]
Videotaped statement of Child, § 908.08(3)
State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03 For Snider: Timothy J. Gaskell Issue: Whether a child-victim’s videotaped statement must satisfy all the conditions in § 908.08, or may instead satisfy the residual exception. Holding: ¶12. We agree with the State that the plain language of Wis. Stat. § 908.08(7) permits the admission of a child’s […]
Hearsay – Recent Perception, § 908.045(2) — Generally; Aural Perception of Private Statement
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue/Holding1: ¶51. The recent perception exception is similar to the hearsay exceptions for present sense impression and excited utterances, but was intended to allow more time between the observation of the event and the statement in cases where […]
§ 904.01, relevance – Failure to Identify Defendant as Bearing on Suggestiveness of Lineup
State v. Robert Jamont Wright, 2003 WI App 252 For Wright: Ann Auberry Issue/Holding: ¶43. Wright argues that Lomack’s testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is […]
§ 904.01, Relevance – Demeanor – Evincing Guilt
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03 For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning Issue/Holding: ¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the […]
Defenses – “Statutory Double Jeopardy,” § 939.71 – As Compared with § 961.45
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03 For Swinson: Pamela Pepper Issue/Holding: Greater statutory double jeopardy protection afforded drug prosecution under § 961.45 than non-drug prosecution under § 939.71 doesn’t violate equal protection: ¶55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We […]
Competency: Evidence – Attorney-Client Privilege: Counsel’s Impressions
State v. Jeffrey J. Meeks, 2003 WI 104, overruling State v. Jeffrey J. Meeks, For Meeks: Christopher T. Van Wagner Issue: Whether the trial court, in ruling on competency, improperly relied on its perceptions of the defendant’s attorney in a prior case, in stressing that that attorney hadn’t raised competency. Holding: ¶1 … At issue […]
Binding Authority – Law of the Case – Effect of Summary Affirmance
State v. Paul J. Stuart, 2003 WI 73, on certification (subsequently reversed on other grounds, State v. Paul J. Stuart, 2005 WI 47) For Stuart: Christopher W. Rose Issue/Holding: Supreme court disposition of an earlier appeal via summary order is law of the case as to subsequent appeal; the order resolved a question of law despite failing to state […]
Binding Authority – Wisconsin Case Law, Subsequently Reversed “On Other Grounds”
State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33 For Gary M.B.: T. Christopher Kelly Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13. The court […]
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