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Other acts admissible in predator action

Curley

“The evidence was not offered to show Franklin’s character trait in order to draw the inference that he acted in conformity with that trait on a previous occasion. Rather, the evidence was offered to prove an element of the State’s case — that Franklin was a sexually violent person.”

Judge Patricia S. Curley
Wisconsin Court of Appeals

The admission of other crimes, wrongs, or acts in a Chapter 980 hearing does not violate sec. 904.04(2), a fractured Wisconsin Court of Appeals held on March 11.

In March 1998, the State filed a petition alleging that Gregory J. Franklin was a sexually violent person. The petition further alleged that Franklin had a mental disorder – specifically, schizophrenia, disorganized type, as well as alcohol abuse and other substance abuse – which affected his emotional or volitional capacity and predisposed him to engage in acts of sexual violence.

At trial, the State introduced several presentence investigation reports compiled for sentencing in unrelated crimes by Franklin. The reports included information that Franklin made coffee in his toilet bowl in prison, that he reported hearing voices, and that he confessed he was not in control when he sexually assaulted his victims.

Franklin’s entire juvenile and adult criminal record were also admitted.

The jury found him to be a sexually violent person, and he was committed. He appealed, but the court of appeals affirmed in a decision by Judge Patricia S. Curley. Judges Ralph Adam Fine and Charles B. Schudson each wrote a concurring opinion.

Curley’s Opinion

Section 904.04(2), which governs the admission of other acts evidence, and which Judge Curley found applicable, states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Noting that other acts evidence may be admitted where the character of a party to the case is an essential element of the case, Curley concluded, “Franklin was not being prosecuted for a crime. Rather, the State sought to have him committed because … the State believed him to suffer from a mental disorder that predisposed him to engage in acts of sexual violence and that predisposition made it substantially probable that he would engage in future acts of sexual violence. Moreover, this evidence was not admitted to show that Franklin suffered from a mental disorder, that he was convicted of sexually violent crimes, or that he was likely to engage in future sexually violent crimes. Consequently, the evidence was not offered to show Franklin’s character trait in order to draw the inference that he acted in conformity with that trait on a previous occasion. Rather, the evidence was offered to prove an element of the State’s case – that Franklin was a sexually violent person.”

Curley also rejected Franklin’s argument that the other acts evidence was unduly prejudicial and irrelevant. Curley wrote, “Expert witnesses were required in order to accurately assess whether Franklin had a mental disorder or the predisposition to commit acts of sexual violence. These witnesses were obligated to examine Franklin’s entire psychiatric history and his criminal past in order to render an intelligent expert opinion as to Franklin’s current mental health and to assess the future risk he posed to the public. Thus, all of Franklin’s criminal and psychiatric past was relevant to such a determination.”

Curley added, “the jury was entitled to know the basis for the experts’ opinions. Franklin’s past psychiatric and criminal history were very pertinent to the question to be answered by the jury.”

What the court held

Case: In re the Commitment of Gregory J. Franklin: State of Wisconsin v. Gregory J. Franklin, No. 00-2426.

Issue: Is evidence of other crimes, wrongs, or acts admissible in a Chapter 980 proceeding?

Holding:
Yes. Such evidence does not prove the respondent’s character, but proves a necessary element of the State’s case — that the respondent is a sexually violent person.

Counsel: Jack E. Schairer, Madison, for appellant; Robert D. Donohoo, Milwaukee; Sally L. Wellman, Madison; Diane M. Welsh, Madison, for respondent.

Fine’s Opinion

Judge Fine wrote separately, stating, “Rule 904.04(2) has nothing to do with this case, other than being raised by Franklin in an attempt to overturn his commitment.”

Fine quoted extensively from the court of appeals’ decision in State v. Wolfe, 2000 WI App 136, 246 Wis. 2d 233, 255-256, 631 N.W.2d 240, 251, for the proposition that the Rule is inapplicable in Chapter 980 cases.

In Wolfe, the court stated, “As trial counsel testified at the posttrial hearing: ‘For the most part, the sec. 904.04 analysis applies more appropriately to a strictly criminal situation. It’s designed to prevent convictions based on past behavior and the identity of the current offense to that past behavior. That [ch.] 980 trial is a different situation than civil. It’s not looking at a particular specific behavior at that moment in trying to decide if somebody did it or didn’t. It’s a forward looking, is he likely to offend in the future type situation, and that – and when you get reports from the experts that, unfortunately, open the door to that type of evidence, it’s likely that you’re going to have to deal with it in some fashion. The probative, prejudicial cumulative waste of time analysis is the appropriate I think.’ We agree. The appropriate inquiry is whether the evidence is relevant and whether its probative value is outweighed by the risk of undue prejudice.”

Adding to the court’s conclusion in Wolfe that sec. 904.04(2) is inapplicable, Fine wrote in a footnote, “Rule 904.04(2) also recognizes that evidence of other acts might be admissible for a purpose other than showing propensity. Thus, the non-exclusive list: ‘This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ The phrase ‘other purposes’ includes only evidence not used to prove propensity. To read the phrase ‘other purposes’ as a backdoor entry to propensity evidence, however, … would, in my view, obliterate the rule. But where propensity is the focus of the action – as it is here – Rule 904.04(2) simply does not apply, and we should not resort to sleight-of-hand to make it fit. That is Wolfe’s teaching.”

Schudson’s Opinion

Judge Schudson wrote separately both to note incorrect terminology in the Wolfe decision, and to discuss the application of Rule 904.04(2).

Schudson noted that Rule 904.03 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (emphases in original).”

Schudson also noted, however, that both attorneys and courts frequently neglect the term “substantially” and speak of “undue prejudice” or merely “prejudice,” rather than “unfair prejudice.”

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Wisconsin Court of Appeals

Related Article

Case Analysis

Schudson observed, “For example, in Wolfe, this court, stating that ‘[t]he appropriate inquiry is whether the evidence is relevant and whether its probative value is outweighed by the risk of undue prejudice. (emphasis in original),” echoed two common errors.”

Discussing the difference, Schudson stated, “These differences are far more than semantic. Wisconsin Stat. sec. 904.03, as written but not as misquoted, correctly recognizes that, of course, relevant and highly probative evidence often is “prejudicial” and, in the estimation of the protesting party, may seem “unduly prejudicial.” But the evidence also may be fair. And sec. 904.03, as written but
not as misquoted, correctly recognizes that if the balance between probative value and unfair prejudice is close, the evidence is admissible…”

Schudson then went on to discuss Rule 904.04(2), finding, “the challenged evidence – Franklin’s juvenile record, nonsexual adult criminal record, and institutional conduct reports – was not introduced to show that Franklin ‘acted in conformity’ with [that conduct]. The evidence was admissible because it was relevant, as Judge Fine explains, because its probative value was not substantially outweighed by the danger of unfair prejudice, and because it was not precluded by Wis. Stat. sec 904.04(2), given that it was ‘offered for other purposes,’ … clearly relevant to the issues in a chapter 980 action.”

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David Ziemer can be reached by email.

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