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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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Expert Testimony – Memory and Suggestibility of Child Witness
State v. Steven G. Walters, 2003 WI App 24, reversed on other grds., 2004 WI 18 For Walters: Jenelle L. Glasbrenner, David A. Danz Issue/Holding: ¶28. Again, the admissibility of expert testimony is committed to the discretion of the trial court. Friedrich, 135 Wis. 2d at 15. At the offer of proof hearing, Walters’s proposed […]
Hearsay, Definitions – “Assertion,” § 908.01(1) – Expression of Fact, Condition or Opinion
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue/Holding1: “(W)e conclude that ‘assertion,’ as used in § 908.01(1) means an expression of a fact, condition, or opinion.” ¶38. And, the speaker must intend the utterance to be an “assertion” as thus defined, because “when a speaker […]
Hearsay, Definitions – “Statement,” § 908.01(1) – Truth of Matter Asserted
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was a hearsay “statement,” as defined in § 908.01(1), i.e., offered for the truth of the matter […]
§ 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 […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.