Standard of Review – Grant of New Trial

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Criminal

Supreme Court of Wisconsin

Standard of Review – Grant of New Trial

2013-AP-557-D State of Wisconsin v. Corey Kucharski

Appellant request for new trial granted by appellate court but reversed by Supreme Court due to court of appeals’ flawed standard of review.

“A reviewing court upholds the findings of fact by a trier of fact unless they are clearly erroneous. The determination of whether a party has met his or her burden is a matter of fact, not law. Therefore, unless it is clearly erroneous, the court of appeals is obligated to uphold the finding that Kucharski did not meet his burden of showing by the greater weight of the credible evidence that he was not mentally responsible for the crimes. . . . Applying the proper standard of review and not disturbing the factual findings of the circuit court concerning the burden of proof because they are not clearly erroneous, we conclude that the court of appeals erroneously exercised its discretion. In this case the only reason offered by the court of appeals for the new trial in the interest of justice was that court’s improper de novo weighing of the evidence concerning the burden of proof on the NGI plea of the defendant. When the evidence is reviewed under the proper standard, there is not a probability of a different result on retrial such that a new trial in the interest of justice is warranted.”

Reversed and remanded

N. PATRICK CROOKS, J

Dissenting: BRADLEY, J., joined by ABRAHAMSON, J. dissent (Opinion filed)

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Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.