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Criminal Procedure — right to present defense

By: WISCONSIN LAW JOURNAL STAFF//October 18, 2011//

Criminal Procedure — right to present defense

By: WISCONSIN LAW JOURNAL STAFF//October 18, 2011//

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — right to present defense

Where the defendant’s DNA matched semen found at the scene of a sexual assault, the court did not deny his right to present a defense by excluding evidence that his DNA in the convicted-felon data bank was not a match.

“Every defendant in a criminal case has the right under the Sixth Amendment to present his or her defense. Washington v. Texas, 388 U.S. 14, 18–19 (1967). The evidence the defendant seeks to introduce, however, must be ‘both material and favorable to his defense.’ United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). This is where Ward’s contention breaks down: simply put, Dorothy S.’s inability to identify Ward as her attacker despite the presence of his DNA is not ‘material’ to the issue before Ward’s jury—whether Ward assaulted Enesha D. Stated another way, Dorothy S.’s inability to identify Ward does not make it less likely that Ward assaulted Ms. D. because it has no bearing on whether Ward left his DNA on Ms. D.’s leg. See WIS. STAT. RULE 904.01 (‘“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’). By the same token, the initial non-match of the DNA recovered from Ms. D.’s leg with the DNA profile that the convicted-felon data bank mistakenly listed for Ward also does not make more or less probable that the ultimate match, which, significantly, Ward does not challenge, was correct. The trial court did not err in preventing Ward from confusing the jury with evidence that was simply not material to whether he was guilty or not guilty of raping Ms. D. See WIS. STAT. RULE 904.03 (‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’). Here, of course, as noted, the evidence excluded by the trial court was not relevant as that term is used by WIS. STAT. RULE 904.01, so, technically, the balancing required by RULE 904.03 does not even apply.”

Affirmed.

Recommended for publication in the official reports.

2010AP2552-CR State v. Ward

Dist. I, Milwaukee County, McMahon, Martens, JJ., Fine, J.

Attorneys: For Appellant: Lamb, Kaitlin A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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