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2010AP1256-CR & 2010AP1257 State v. Walli

By: WISCONSIN LAW JOURNAL STAFF//May 11, 2011//

2010AP1256-CR & 2010AP1257 State v. Walli

By: WISCONSIN LAW JOURNAL STAFF//May 11, 2011//

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Criminal Procedure
Judicial review; video recordings

When evidence in the record consists of disputed testimony and a video recording, the court of appeals must apply the clearly erroneous standard of review when reviewing the trial court’s findings of fact based on that recording.

“As the supreme court has explained: The court of appeals is by the Constitution limited to appellate jurisdiction. Art. VII, sec. 5(3), Wis. Const. This precludes it from making any factual determinations where the evidence is in dispute. This is a power reserved to trial courts or to the supreme court under appropriate procedures in the exercise of its constitutional grant of original jurisdiction. The court of appeals has, of course, additional constitutional jurisdiction in respect to its supervisory authority over actions and proceedings in the trial court. This grant of jurisdiction does not confer the right to make findings of fact where the evidence is controverted. Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980). The constitutional limitations on our jurisdiction are acknowledged in Wis. Stat. § 805.17(2), which provides, in part: In all actions tried upon the facts without a jury … the court shall find the ultimate facts …. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Here, the trial court’s ruling involved not simply the review of the video, the court also evaluated the credibility of the officer and weighed all of the evidence.”

Affirmed.

Recommended for publication in the official reports.

2010AP1256-CR & 2010AP1257 State v. Walli

Dist. II, Sheboygan County, Van Akkeren, J., Anderson, J.

Attorneys: For Appellant: Lanning, Chad A., West Bend; For Respondent: Stock, Christopher W., Sheboygan; Weinstein, Warren D., Madison

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