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Other Acts Case Analysis

By: dmc-admin//March 19, 2003//

Other Acts Case Analysis

By: dmc-admin//March 19, 2003//

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The decision in this case, combined with the decision in Wolfe, invariably will mandate that what traditionally is called "other acts evidence" is admissible in Chapter 980 actions.

Nevertheless, the decision in this case, if published, will create a conundrum for prosecutors and judges in dealing with respondents’ Rule 904.04(2) objections.

Even the terminology to be used will be problematic. For example, Judge Fine pointedly avoided even using the term, "other acts evidence."

In a footnote, he wrote, "I use the phrase, ‘evidence of things that Franklin has done in his life’ rather than ‘other acts evidence’ because I believe that using the term ‘other acts evidence’ clouds the analysis because of its association with Wis. Stat. Rule 904.04(2)."

In Wolfe, the court stated, "Wolfe offers no argument as to why the Wis. Stat. sec. 904.04 analysis should apply. … The State was obligated to establish that Wolfe suffered from a mental disorder…" The court in Wolfe then considered the evidence solely in view of Rule 904.01 (relevance) and Rule 904.03 (unfair prejudice).

The other two judges in Franklin, however – Schudson and Curley – both engaged in some Rule 904.04(2) analysis, even though Schudson stated he agrees with the essence of Fine’s concurring opinion. Inexplicably, however, Curley’s opinion does not even cite the decision in Wolfe, or its dispositive holding that Rule 904.04(2) analysis is inapplicable in Chapter 980 proceedings.

Thus, when a respondent in a Chapter 980 proceeding raises a Rule 904.04(2) challenge to evidence, prosecutors and trial judges are faced with a problem.

Links

Wisconsin Court of Appeals

Related Article

Other acts admissible in predator action

They could, consistent with the decision in Wolfe and Fine’s concurrence, say that the rule does not even apply in such proceedings, period. That is the binding law that the panel in this case was and is obligated to follow until the Supreme Court says otherwise.

Should Franklin be published as recommended, however, it would be prudent for judges and prosecutors to protect the record for appeal by applying Rule 904.04(2), even though it has no application and the result invariably will be that the evidence is not barred by it.

Ultimately, although the three opinions in this case may be useful to a law professor teaching the intricacies of Rule 904.04(2) in an evidence course, the case law would be far better served if this case was not published. Publication would only cloud the holding in Wolfe that Rule 904.04(2) is simply inapplicable in Chapter 980 proceedings – a holding that is both clear and correct.

– David Ziemer

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David Ziemer can be reached by email.

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