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BENCH BLOG: Cumulative evidence and a new form of recantation

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

In State v. McAlister a majority of the Wisconsin Supreme Court struggled to appropriately define cumulative evidence and introduces a contrived definition of recantation. In contrast, the dissent offers a clear, logical exposition of the majority’s analytic errors.

Accomplices point to McAlister

Three men robbed Wisconsin Auto Title Loan in Racine in December 2004. A few months later, two of the men were arrested. They admitted their involvement but fingered David McAlister as the ringleader who planned the robbery, carried the gun and was the getaway driver.

At trial, the two accomplices testified against McAlister. They were vigorously cross-examined about the favorable plea bargain being offered by the state in exchange for their testimony, and also about lying to the police.

The jury gave credence to their testimony and found McAlister guilty of armed robbery.

Jailhouse affiants

About eight years later, McAlister filed a sec. 974.06 motion for postconviction relief on the grounds that he had newly discovered evidence. The evidence came in the form of three affidavits from prisoners who each had been housed together with one or the other accomplice while they were incarcerated.

In one affidavit a prisoner averred a conversation between himself and the first accomplice, who told the prisoner that he had lied to police about McAlister’s involvement and had written to the other accomplice to tell him what to say to police.

The second prisoner averred a conversation with the second accomplice, who told him that the first accomplice “had instructed him on exactly what to say regarding their pending charges … so that they could receive a shorter sentence.” When the prisoner later heard McAlister say that two men had framed him, he approached McAlister to tell him about his conversation with the second accomplice.

The third prisoner asserted that the second accomplice told him that only he and the first accomplice robbed the Title Loan but that he had an “out” – “a plea deal if he testified against someone he said was not involved in the robbery.”

The attestations on the three affidavits were made during a stretch of time coming between five and seven years after the initial conversations.

Trial court and court of appeals

Racine County Circuit Judge Emily Mueller denied the motion without holding an evidentiary hearing to assess the affiants’ credibility. She opined that the affidavits were “inherently not believable” and had “limited credibility.”

McAlister appealed. The issue on appeal was whether a circuit judge can make credibility determinations without having held an evidentiary hearing.

But the court of appeals, merely producing an unpublished order, bypassed the issue. It concluded that the affidavits were nothing more than an attempt to retry the credibility of the two accomplices, “whose credibility was well aired at trial.”

Cumulative evidence

The majority of the Supreme Court decided that its task was to determine whether the affidavits constituted cumulative evidence of the trial evidence attacking the accomplices’ credibility.

Notably, the state conceded that the evidence was not cumulative. But the court rejected the concession, admonishing the state for having made it.

Struggling to define cumulative evidence, the court cited a U.S. Supreme Court case from 1853 stating that it is “additional evidence of the same general character, to some fact or point, which was subject of proof before.”

The majority then adopted a very broad definition established by an 11th circuit case from 1987 by stating: “Where the credibility of a prosecution witness was tested at trial, evidence that again attacks the credibility of that witness is cumulative.”

After a strained, combined application of these two standards in Wisconsin, the court determined that the affiants’ averments were cumulative because they concerned the accomplices’ credibility and therefore were “of the same general character, and to the same point for which testimony was elicited at trial.”


Although the court found that its conclusion about cumulative evidence was sufficient to affirm the court of appeals, it unfortunately did not stop there and proceeded to deal with what it viewed as recantation.

Recantation usually occurs when a witness gives one statement under oath and subsequently gives another statement entirely inconsistent with the first. Because the statements are diametrically opposed, recantation is considered inherently incredible and the law requires corroboration of the recantation.

Here, there is not a classic recantation of the accomplices’ testimony. First, this case presents three inmates’ statements about what the accomplices told them. Second, the accomplices’ statements were made before they testified at trial about their intent to lie at trial.

The majority acknowledges this problem:

“The evidence here differs from classic recantation testimony in the temporal sense described above and also because there was no formal or public renunciation of [the accomplices’] testimony. Instead, the statements allegedly were made while [the accomplices] were incarcerated with one or more of the affiants, who relayed the statements. There is no writing signed by either [accomplice.]”

Nonetheless, the court continues: “However, the affidavits bear a similarity to recantation evidence in that they use what is claimed to be [the accomplices’] own words to allege they lied at trial.”

Since the affidavits constitute a form of recantation, they required corroboration with other newly discovered evidence about both the motive for the accomplices’ testimony at trial and indicia of the recantation’s trustworthiness.

Here, the motive to lie – a favorable plea bargain – was already explored at trial. And affidavits from inmates, particularly when they come from two men who are serving life sentences without the possibility of parole and who are faced with no effective consequence for perjury, lack trustworthiness.

Accordingly, the court concluded that no evidentiary hearing was required.


“The issue in this case is not whether McAlister’s conviction should be vacated, or whether he should receive a new trial. It is merely whether he should be afforded the opportunity for an evidentiary hearing on his postconviction motion.”

Instead, asserted the dissenters, the majority made three mistakes.

elephant-and-antThe first was ignoring established case law holding that the standard for reviewing this postconviction motion is to regard the averments in the affidavits as true in determining whether McAlister is entitled to an evidentiary hearing at which the credibility of the affiants can be tested.

Third, it created “a false equivalency between recantation evidence and the alleged newly discovered evidence at issue here.”

In a concise and beautifully rendered piece of writing, the dissent then laid out the reasoning underlying its criticisms.


From a trial judge’s perspective, the dissent’s analysis is more compelling than the majority’s.

Although there have been problems with the number of affidavits from inmates who have nothing to lose if they falsify an affidavit, the court’s decision is an elephant stamping on an ant. All that was needed here was an evidentiary hearing to assess the affiants’ credibility.

It’s vexing that the majority’s new definition of cumulative evidence came despite the state’s concession that the evidence was not cumulative.

Rather than accepting that stipulation, the majority instead created a sweeping expansion of what constitutes cumulative evidence combined with a peculiar expansion of what constitutes recantation.

At a practical level, this means it will be nigh on impossible for a defendant to get an evidentiary hearing on a motion for postconviction relief based on newly discovered evidence.

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