The decision in this case will be difficult for the State to distinguish in future cases.
Consider two ends of a spectrum. On one end, a police officer is sued, successfully, in a Section 1983 action that alleged false arrest. A defendant later arrested by that officer seeks to introduce evidence of that incident as other acts evidence.
At the other end, there are only uncorroborated allegations by a person who was arrested and pleaded guilty or was convicted of whatever he was arrested for.
In the former case, the other acts evidence would clearly be admissible, while in the latter, a trial court could reasonably view the evidence with some suspicion.
The other acts evidence in the case at bar is far closer to the latter scenario than the former, and yet, the court of appeals held it must be admitted.
The trial court listed a number of reasons for not allowing the evidence: witness Scull pleaded guilty in one of the two incidents of misconduct by Officer Mucha, and intended to assert the Fifth Amendment as to the second. The trial court also noted the absence of any corroboration for the allegations. However, the court of appeals did not even mention these considerations in its analysis of the issue.
In addition, there is a difference between the allegations of the defendant, Missouri, and those of the witness, Scull. Missouri claims that the officers put a baggie of cocaine into his mouth, and then arrested him for it, in addition to physically assaulting him. Scull only claimed abuse.
In contrast, some of the other four witnesses whose allegations Missouri used to seek a new trial based on newly discovered evidence assert claims more similar to those of Missouri. Green, Murry, and Barnes all claimed that Officer Mucha planted cocaine on them, and Green and Barnes both also claimed to have been assaulted by the officers.
The opinion does not state whether these men were tried and convicted, or pleaded guilty. Nor does the opinion state whether the allegations of the witnesses are corroborated in any way.
Missouri was tried for both resisting arrest, and possession of cocaine with intent to deliver. Suppose, however, that he was charged only with resisting arrest, or only possession of cocaine. Would allegations of assault be admissible in a trial where only possession is charged? Would allegations of an officer planting cocaine on a suspect be admissible if only resisting arrest is charged?
In light of the courts decision, these considerations are apparently irrelevant. The court wrote, it is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the fact finder.
Later, the court wrote, The defense is entitled to present its best defense.
Thus, the relevant consideration appears to be only that the allegations attack the officers credibility, not the similarity of the allegations.
Furthermore, although the court does not mention the case, defendants seeking to introduce evidence of this sort should be familiar with State v. Richardson, 210 Wis.2d 694, 563 N.W.2d 899 (1997).
Richardson sets forth Wisconsin law when a defendant seeks to introduce evidence that he was framed. Id., 563 N.W.2d at 903-904. Evidence that a police officer has previously framed persons for crimes is arguably admissible pursuant to Richardson, as well as Rule 904.04(2).
Finally, although the court does not address the issue, defense counsel should argue, in addition to arguing the rules of evidence, that the defendants constitutional right to present a defense requires admission of evidence of this sort.
If the defendants whole defense is, the officer framed me, evidence that the officer has framed other people is probably essential to the defense, even if, for whatever reason, the evidence may not fit neatly into traditional other acts analysis.
– David Ziemer
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David Ziemer can be reached by email.