OTHER ACTS EVIDENCE IN SEX ASSAULT CASES IN WISCONSIN

In March 2015, Craig Mastantuono was invited to speak at a training seminar sponsored by the Wisconsin Association of Criminal Defense Lawyers (WACDL), the state's largest association of practicing defenders, on the subject of other act evidence in sex assualt cases involving children. This is a highly specialized area of trial practice of vital importance for attorneys defending people accused of these serious charges. Craig shared his thoughts on the subject with his colleagues, based upon his years of experience in sexual assault trials in Waukesha County and Milwaukee County, and southestern Wisconsin.  His written outline for the presentation is re-published below.

My Case Stinks, or Does It?Confronting “Other Acts” Evidence Head On.Craig Mastantuono | Mastantuono & Coffee SC | Milwaukee, WIWACDL Seminar | Zealous Advocacy in Sex Crimes | Milwaukee, 2015

The Problem: Prior Act Evidence, or, Fighting Character Evidence to Prove Propensity.==> Propensity – What does it mean?Propensity: Merriam-Webster def. 1: an often intense natural inclination or preference.Propensity (prosecution): “He Did It Before, He’s That Kind of Guy (insert character trait here: creepy, molester, pervert, pedophile), He Did It Here. And, He’ll Do It Again if You Don’t Convict.” The defendant has a propensity to act wrongfully.

==> General Legal Rule: All jurisdictions: evidence of a prior act to show a person’s character is not admissible to show that he acted in conformity therewith on a particular occasion, subject to exceptions.

==> Real Life Practice Rule: Bad acts come in to show your client is bad. Prior acts come in to show bad character, and propensity to act in conformity with that bad character. In sexual assault of a child cases, even more so: “He’s a molester, and once a molester, always a molester.” Therefore, greater latitude to admit prior acts.

==> When that happens, here’s what we’re up against:

                              Cartoon - jury.otheractevidence

or, as the famous and oft-quoted jurist John Henry Wigmore stated, "the problem is not that evidence of other bad acts has no probative value, it's that it has too much."

==> In Wisconsin Sex Crime Cases:The Greater Latitude Rule for admitting other act evidence in child sexual assault cases:“Child exploiters take advantage of a child's physical and emotional vulnerability in order to give gratification to their warped and perverted ‘propensities’ and ‘leanings.’ It is this scheme or plan to achieve sexual stimulation or gratification from the young, the most sexually vulnerable in our society, that allows trial courts in the exercise of discretion to admit evidence of past similar acts to show scheme or plan to exploit children.”State v. Friedrich, 135 Wis. 2d 1, 29, 398 N.W.2d 763, 775-76 (1987).Wis. Stat. § 904.04(2)(b) (Greater Latitude Rule codified; 2013 WI Act 362)

  1. In a criminal proceeding alleging a violation of s. 940.302 (2)[human trafficking] or of ch. 948[crimes against children], alleging the commission of a serious sex offense, as defined in s. 939.615 (1) (b) or of domestic abuse, as defined in s. 968.075 (1) (a), or alleging an offense that, following a conviction, is subject to the [domestic abuse] surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.
  2. In a criminal proceeding alleging a violation of s. 940.225 (1)[first degree sexual assault] or 948.02(1) [first degree sexual assault of a child], sub. (1) and par. (a)[generally prohibiting propensity character evidence] do not prohibit admitting evidence that a person was convicted of a violation of s. 940.225 (1) or 948.02 (1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person's character in order to show that the person acted in conformity therewith.

Effect of § 904.04(2)(b): Provides that evidence of similar acts may be admissible without regard to whether the victim of the crime is the same as the victim of the similar act in criminal proceedings for any of the following:

  • Human trafficking.
  • Any offense against a child.
  • A serious sex offense.
  • Domestic abuse.
  • Any offense that is subject to a domestic abuse surcharge.

==> Challenge: How do we get a jury to avoid a bad character/propensity conclusion? Our courts and legislature use the greater latitude rule to admit prior act evidence in those cases deemed more grotesque than others, child sex assault cases, human trafficking, etc. Given this, how do we get the moral shock and fear of the molester out of our case at trial?

==> The “Good Prosecutor Rule”: If you need the prior bad act, it’s a bad case – don’t pursue it.

But, since most prosecutors and judges don’t follow this rule, how do we help a jury to accept the good prosecutor rule? How do we deal with propensity in front of a jury?

==> The Jurors: An important consideration: your jurors are not your prosecutor, and they are not your judge – they can be more impartial, more unbiased, and more fair – they may accept arguments your prosecutor and judge will not.

As advocates, we typically fear bad information coming before the jury, and we are right to have this reaction. Our obligation as defense counsel requires us to think this way, to object to admission of prior act evidence.

This can cause us to think all is lost – or that our case stinks – if the judge admits the evidence. But once it’s in, we must suspend that thought, and expose the prosecution’s reliance on other act evidence as evidence of their weak case.

The Strategy:==> Pre-Trial: Run away from the prior act evidence, because this is what you must do. Out-maneuver through investigation, move to disclose and exclude, stipulate the issue away.

==> Trial: If you can’t avoid it pre-trial, run at it at trial, and neutralize it. Make it not count, because this is what you must do.

  • Expose the prosecutor’s attempt to cloud the issue of whether there is sufficient evidence to prove guilt beyond a reasonable doubt on this charge.
  • Bring the narrative back to your defense.
  • Flip the prior act evidence, or at least fold it in to your defense.
  • Let the jury know that the prosecutor is being unfair, and the judge is letting him.

The Potential Tactics:Pre-Trial:Out of CourtInvestigate. Both for the current allegation and the prior act.

  • Once the compliant is filed, the prosecution is finished investigating their case. Now it is our turn to create. Focus on what the police investigation did not do, then go and do it. Get the school or other records that they didn’t bother to get, talk to the witnesses they didn’t talk to, review the email or online accounts they didn’t look at, do something, anything really, that they didn’t do and that involves relevant evidence in your case. Jurors appreciate this hard work when they are being asked to do a critical task. Bring this mentality to every stage of the investigation process.
  • Client’s record, social history, releases & confidential information, prior orders, abuse investigations, and also all pro-social activity regarding parenting, employment, etc.
  • Client’s version of the relationships involved and the context or origin in which this allegation and/or any other prior allegation was made.
  • To client: who’s going to say something bad about you? Who has ever said you did something? Who should we interview or talk to?
  • Let the client assist the investigation: obtain access to their social media accounts and passwords, email, etc. Look at it all.
  • Site inspection. Physical inspection of place and objects central to prosecution.
  • Background on the accuser(s), mental health, school, family relationships, activity and employment records, and Facebook, Instagram, Twitter, etc.
  • Work the social workers and police. Call them, talk to them in the hallway at court proceedings. Perhaps they think there is a flaw in the investigation or that this sexual assault “wasn’t so bad” (as only criminal justice practitioners can put it). Discuss their training, experience, seminars, materials, protocol (particularly in interviewing and avoiding suggestive methods or circumstances).
  • Start to formulate your theory of prosecution and defense for both the current allegation and the prior act.

==> Avoid reacting solely to the allegation. Don’t settle on theory of defense during this stage. Engage extensive “case-talk therapy” with client. At first, keep client from settling on a firm explanation of the allegation. Talk about that, but through all other facets of the case without first starting off with a conclusion, such as “she’s lying” or “I didn’t do it.” Give client time and ability to become comfortable revealing things to you. We often accuse police and prosecutors of having tunnel vision, but sometimes it is hard to avoid ourselves. When we start with the conclusion, we risk doing the same thing, making all evidence fit our theory, and ignoring evidence that doesn’t.

  • What is the origin of the allegation and any coinciding events, revelations, relationship occurrences, difficulties, or anything that could involve motive?
  • Discuss feelings, details of surrounding events or life occurrences. For jurors, the truth is often in the details, sometimes even the seemingly innocuous details surrounding an event, rather than the event itself.

In Court

  • Demand any prior conduct evidence as early as possible, wait for the State, then oppose motion to admit, or move to exclude. Bring research, but also the ability to factually distinguish the prior act from the current allegation, and the ability to discuss the actual facts of the precedent cases.
  • Even if the Greater Latitude statute Wis. Stat. § 904.04(b) applies, admission is still not automatic. The three-step analysis in State v. Sullivan, 216 Wis. 2d 768 (1998), applies for determining whether admission is appropriate:
  1. is the prior act evidence offered for a permissible purpose [not character/ propensity] under Wis. Stat. § 904.04(2)(a);
  2. is the prior act evidence relevant under Wis. Stat. § 904.01; and
  3. is the probative value of the prior act evidence substantially outweighed by unfair prejudice under Wis. Stat. § 904.03.

The greater latitude more liberal standard for admission applies to each prong of the Sullivan analysis. See State v. Marinez, 2011 WI 12, 331 Wis. 2d 568 (2011), for step-by-step analysis of greater latitude rule and admission of other acts evidence.

  • Scare the judge with what (s)he really cares about: proof issues/trial within a trial, lots of extra witnesses, court time, testimony, objections to form of evidence on the prior allegation.
  • Don’t pitch prejudice as unfair – pitch it as grounds to be overturned, or as a waste of time
  • Judge, my client will get convicted on this = good to judge.
  • Judge, you’ll get overturned on this or take more time on this trial = bad to judge.
  • Consider a strategic stipulation to the particular exception on which the prosecution’s motion to admit rests, e.g., mistake, identity, etc. “This did not happen, but if it did, it would not have been a mistake or unintentional touching.”

If we lose, how do we deal with the prior act evidence if admitted?

  • Refer to investigation and theory of defense above; this process does not stop at any point pre-trial.
  • There are no consistent magic tricks here – this is hard. We now have two allegations (or sets of allegations) to deal with. At some point, we have to work up and focus on our theory of defense while incorporating the prior act. The investigation process should assist in providing that angle.
  • Focus on relevant inquiries:
  • Are the current and prior allegations related?
  • Are they being made by the same person(s)? If so, is there a motive or scheme among the accusers?
  • Does the prior allegation provide evidence of a motive, plan or intent for the other?
  • If the prior allegation involved a different accuser, what are the differences in allegation, time, age, circumstances, etc.
  • Examine every facet of the prior allegation’s resolution. Was it uncharged? Charged, convicted, dismissed? Why? Who and what was involved in that determination?

Trial:Evidence Presentation Considerations:

  • ⋅ Avoid being so mad at the pre-trial ruling that you lose focus on how the evidence comes in.
  • ⋅ Don’t give up once the evidence is ruled admissible – control it: pre-trial orders, stipulations, and jury instruction.
  • ⋅ Even though the defense lost in opposing the admission of the prior act, the judge is empowered to streamline the testimony and minimize unfair prejudice. This pruning process may take the form of limiting the number of witnesses and restricting their testimony by excluding inflammatory details. Argue for these limitations at every step. If the prosecution presentation on the prior act is sufficiently limited, their presentation can seem anemic or random to the jurors. If your efforts to limit the presentation fail and the judge allows them to overdo it, their presentation can seem cumulative, overdone, wasteful of time, and confusing of the issues. Either way, take advantage of this in your contrasting presentation.
  • ⋅ Other act evidence must be accompanied by a limiting instruction or an admonitory instruction, since it is being offered for a limited purpose. Instructions should be tailored specifically to the purpose – and only that purpose – for which the evidence is offered. Patrol this, and adherence to the law during opening and closing arguments, carefully. Watch the witness presentations for back-door references. Ask the judge to remind the prior act witnesses and counsel, outside the presence of the jury, of the limited nature of the testimony.
  • ⋅ What is the burden of proof for the jury to consider the prior act? How does the instruction on that issue instruct the jury? Is there a need for a special or tailored instruction?

Potential trial themes/theories. Characterize the Prior Act:

  • ⋅ The prior allegation is false. Prior accuser is lying, mistaken, piling on late, not credible.
  • ⋅ The prior allegation has nothing to do with the present allegation. The more the prior alleged act is different than the present alleged act, or remote in time, the better this theme works.
  • ⋅ Turn propensity conclusion on its head. Does the prior allegation make your client an easier target for the current allegation? If this fits the defense theory of certain witnesses, consider it.
  • ⋅ The prior allegation is a product of the current prosecution, which we will demonstrate is flawed during our defense. In other words, this prior allegation, long forgotten or resolved, became the focus of tunnel vision police and prosecutors conducting a flawed investigation.

1) Voir Dire:Find potential jurors who can’t get over the prior act now. Get them off now:You’re going to hear (insert prior act). When I heard that, I have to be honest, it made me feel (insert particular shock, prejudice, etc. here) toward Mr. Client. How do you feel about that? Did it cause a reaction in any of you? What reaction?If Negative:How does that make you feel? Are you certain in your belief? Why? Fair to say you had these opinions/beliefs/feelings prior to coming to court today? Strongly held belief? One you couldn’t put aside? Even if the judge told you so?Move for cause. If unable, strike peremptory.

Give the jury what you expect from them: disclosure, bonding, candor, and questions:Disclosure: What is your fear? How do you get over it?I fear that we don’t really believe in what we say is fair – that the defendant deserves a fair trial on this allegation, rather than on what someone said in the past, or about him.That when we hear someone say, well, he’s been accused before, so he’s guilty now, that we agree. That’s my fear. Who else agrees with that? Who else shares that fear?Bonding: We all agree that no one, including children, should be a victim. None of us, myself included, wants any child to be a victim. And, no one wants to believe that children lie.Candor: I have these fears. I worry about this. I believe children shouldn’t be victims and that most don’t lie. These are my biases.Questions: So my question is, we are biased in favor of children to begin with, and you believe, as I do, that most children are honest, but this is a case where that will be questioned, where you have to decide if a child is telling the truth or a lie. So can you make room for the possibility that there are children who don’t fit that mold? How many of you could make room for that possibility – that children can lie? Why? Why not?Discuss – as much as possible.

2) Opening Statement:Decide whether you wish to address the prosecutor’s prior act allegation at opening. Determine whether your prosecutor will so do, and how (s)he will do so. Then, focus on your statements about the allegation. Cut right to the heart of the prior act allegation and characterize it right away – false, mistaken, non-issue, a distraction, part of the flawed prosecution scheme, etc. Re-characterize it consistently at subsequent stages.

Introduce the prosecutor’s reliance on the prior allegation – what can you say about it? Why is it a distraction? Why is it unfair? Why is the prosecutor wasting jurors’ time and energy by asking them to focus on it? Don’t react, act: what does his reliance on an allegation that was resolved (one way or the other) say about the prosecutor’s current case? Is he trying to appeal to your (our) fear, or prejudice, rather than to your duty as jurors to reach verdict on the current allegation?

==> One possibility: Educate jurors about the propensity rule. Tell them what the prosecution is doing. Tell them why the Judge let it in. Tell them your fear that they will use the evidence as propensity, or call/question the prosecution tactic, that the prior uncharged act is before them to distract from the real issue and is simply an effort to tar your client.

3) Crossing Witnesses:All witnesses are either witnesses to the prior alleged conduct, or they’re not.

Those who aren’t: What can we get out of them?Who doesn’t know about this who had access to the prior complainant? Expose this. And the details of it. Who never heard about this who should have, due to access to the defendant or the current or prior complainant? What details surround these people and these allegations that tend to refute the conclusion that the allegation(s) are truthful?

Those who are: How do we attack, define, marginalize, or neutralize them? What battles do we want to win with them? What goals can we accomplish? Do it, and get out.

All witnesses – Don’t lose our regular cross techniques.Keep control. Short leading questions. Expose inconsistencies. Address prior inconsistent or relevant statements. Examine bias. Take advantage of opportunities to bring forth evidence corroborating any facet of defense, including our characterization of the prior act evidence.

Carefully select mode of confrontation and tone, for each witness. What adverse witnesses are adverse through no fault of their own? Treat them with decency and respect. What adverse witnesses have a more malevolent intent? Why? Can we attack this? If so, sharpen your tone here.

4) Direct of the Client:What is the thing the jury wants to hear most? Address that right away.Where do we deal with the prior act?

One possibility for placement: After denial of the current allegation, after telling the client’s story and establishing trust, and before wrapping up. This is important enough that we must of course address it, but not central to the defense (or relevant to the current allegation).

What is the emotional crisis or prevalence for the client? How do we communicate that? Is the client the best person to do this, or someone else? Or both? What demonstrates that, rather than just reciting it, i.e., what evidence shows your client’s emotional state or toll, rather than (s)he just saying what it is?Don’t ignore prior consistent statements on redirect.

5) Direct of Other Witnesses:How do we use propensity evidence for us? Who has had any prior dealings or been subject to any prior acts of the client that say something good about the client. Find them, and get them in front of the jury to show that the client has a propensity to do good. Use the judge’s ruling on the other act admission for leeway here.

Who is close to or trusts the client? Character witnesses. Occurrence witnesses of any potentially relevant circumstance regarding the prior allegation (I worked with him at the time and this never came up, he never acted consistent with the prior allegation, etc.).

For all witnesses, cross or direct: Decide which witnesses are enemies, allies, or neutral. Liars, truthful, or mistaken. Gossips, historians, or educators. Adjust questioning tone accordingly for each.

6) Closing:Address the strong points again, but within your overall theme of defense. Reference your consistent characterization of the prior alleged act.

Ask the jury to ask the prosecutor very particular “winning” questions about the prior act, and its lack of relevance to the current allegation, why there was no prosecution/arrest/conviction, why it was not brought up sooner, why, if the prosecution case was strong, it is asking the jury to consider a separate act from x years ago, etc. Be careful here – either be certain that the prosecutor can’t answer the questions you pose, or be certain that you will like the answers that you get.

Hammer away at putting the prosecutor on the defense about their flawed attempt at proving their case. Ask/tell the jurors to be more fair than the prosecutor. Install your faith in them, as the fair judges, in contrast with the prosecutor and judge who sought to admit and admitted the prior act evidence.

Other Trial Considerations:Placement: Don’t make neutralizing the prior act central to your defense. You are in trial, so you have (hopefully) a viable defense. Don’t lose sight of that. Dealing with the prior act is just an aspect of that, not the whole tomato.

Timing and placement of addressing the prior allegation within all areas and witnesses in the case must be addressed. But again, don’t overdo it.

Once you’re in trial and the prior act is admitted, you must overcome your fear factor of it. Remember, it’s in, the jurors are going to hear about it. Control how it comes in, deal with it, and neutralize it. At best, you may even out the playing field again, and get back to the trial on the merits of the current allegation. If you accomplish this, you’re back on your territory.

Conclusion:

Your connection with both the evidence and the jurors can always make up for other weak areas in your case. If you put time and effort into real connection, not pandering, you will almost always out-lawyer, out-communicate, and out-connect with jurors over the prosecutor and judge. The jury will give you and your client points for this. They want to vote with the side they like best, that they think worked the hardest, and that they think is focused on the right issues at hand, rather than trying to distract them or cater to their fears.

Once other act evidence is admitted in these cases, it’s hard, but don’t lose sight of your defense, your trial preparation and technique, and your need to appeal to fundamental fair play and sobriety in finding the path to a just result. Your jurors, if so enabled, just may be better than the government and the judge in your case.

Mastantuono & Coffee SC219 N. Milwaukee St., Suite 5BMilwaukee, WI 53202cmast@cmrc-law.commilwaukeecriminallawyers.com

The Law:Wisconsin904.04 Character evidence not admissible to prove conduct; exceptions; other crimes.(1) Character evidence generally. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:(a) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;(b) Character of victim. Except as provided in s. 972.11 (2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;(c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09.(2) Other crimes, wrongs, or acts.(a) General admissibility. Except as provided in par. (b) 2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.(b) Greater latitude.1. In a criminal proceeding alleging a violation of s. 940.302 (2)[human trafficking] or of ch. 948[crimes against children], alleging the commission of a serious sex offense, as defined in s. 939.615 (1) (b), or of domestic abuse, as defined in s. 968.075 (1) (a), or alleging an offense that, following a conviction, is subject to the [domestic abuse] surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.2. In a criminal proceeding alleging a violation of s. 940.225 (1)[first degree sexual assault] or 948.02 (1)[first degree sexual assault of a child], sub. (1) and par. (a)[generally prohibiting propensity character evidence] do not prohibit admitting evidence that a person was convicted of a violation of s. 940.225 (1) or 948.02 (1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person's character in order to show that the person acted in conformity therewith.

Additional Relevant Wisconsin Cases

Proper v. State, 85 Wis. 615 (1893).Early Wisconsin case allowing other act evidence in a sex assault case. Admission of prior sex assault attempts at trial for sex assault affirmed, despite recognition of the general rule prohibiting propensity evidence. “The conduct on this occasion was corroborative of the evidence of the prosecutrix in respect to other indecent or criminal assaults … and would tend to sustain and render more credible her evidence of other such occurrences. … The rule on this subject may, in substance, be stated that when facts and circumstances amount to proof of another crime than that charged, and there is ground to believe that the charged crime grew out of it, or was in any way caused by it, such facts and circumstances may be proved to show the quo animo of the accused.” (quoting In Com Ferrigan, 44 Pa. St. 386).

Whitty v. State, 34 Wis. 2d 278, 149 N.W.2d 557 (1967).Seminal Wisconsin case on admitting prior bad acts. Defendant prosecuted for taking “indecent liberties” with a 10-year-old girl after luring her into a basement using the ploy that he needed her help finding a black and white rabbit; at trial prosecution introduced testimony of another girl who defendant also lured into a basement using the same rabbit ploy. WISC held prior act evidence was admissible for purpose of proving identity. Court also warned that prior act evidence should be used sparingly and involves a calculated risk that could violate defendant’s right to a fair trial.

State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).Wisconsin Supreme Court creates a three-step analytical process for admission of prior act evidence pursuant to § 904.04(2), Wis. Stat. First, the trial court must determine whether the evidence is offered for a proper purpose, or exception to the general rule barring character evidence. Second, the trial court must determine whether the evidence is relevant under § 904.01, Wis. Stat. Third, the court must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under § 904.03, Wis. Stat.

Hendrickson v. State, 61 Wis. 2d 275, 212 N.W.2d 481 (1973).Wisconsin Supreme Court introduces what would become the greater latitude rule. In an incest trial, the court ruled that testimony by defendant’s daughters regarding prior instances of intercourse with defendant was admissible and relevant to general scheme/plan and motive/intent. Court – citing Proper – recognizes and explains policy rationale behind admitting prior acts in child sex assault cases and greater latitude in exceptions to the general rule barring admission of prior act evidence: “a greater latitude of proof as to other like occurrences … is not so much a matter of relaxing the general rule” prohibiting prior bad act evidence, but “is a matter of placing testimony concerning other acts or incidents within one of the well-established exceptions to such rule, as noted in Whitty.”

State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606.Wisconsin Supreme Court expands greater latitude rule; evidence of prior sex assault conviction ten years earlier for sexual contact with a child while drinking from a church water fountain admitted in trial for sexual assault where defendant accused of giving his niece wine and assaulting her in a camper while she slept during a family camping trip. Court stretches in explaining similarities, settling on vulnerability of the two victims, exposure to risk of getting caught in both cases, and the unlikely locations of both the church and the camper. Note: when asked by trial court to explain what purpose the evidence could serve at trial “other than to show that the defendant, in fact, did it again”, prosecutor responded the evidence should be admitted “not to show that he did it before, he did it again, but [because] who would believe a person would do something like this. What is their motive; what is their motive to do something like that?” Prior act evidence ultimately admitted to show motive, plan, or scheme, with cautionary instruction. Supreme Court concludes that greater latitude rule applies to the entire three-step Sullivan admissibility analysis (offered for proper purpose, relevant, and not unduly prejudicial) in sex assault cases, especially those involving children. In dissent, Justice Bradley, joined by Chief Justice Abrahamson, notes that the greater latitude rule is “a thinly veiled endorsement of the unrestricted use of propensity evidence.”

State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399.Wisconsin Supreme Court allows admission of prior act evidence for the purposes of identity and context; prior act evidence was conviction of the defendant for burning the complaining witness’s hands referenced in a recorded interview of same child alleging subsequent sexual assault. Decision provides a useful roadmap for analysis of greater latitude rule assessments in these cases.

FederalFRE 404, Character Evidence; Crimes or Other Acts(a) Character Evidence.(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.. . . .(b) Crimes, Wrongs, or Other Acts.(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

FRE 413, Similar Crimes in Sexual-Assault Cases(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:(1) any conduct prohibited by 18 U.S.C. chapter 109A;(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

FRE 414, Similar Crimes in Child Molestation Cases(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:(1) “child” means a person below the age of 14; and(2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;(B) any conduct prohibited by 18 U.S.C. chapter 110;(C) contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;(D) contact between the defendant’s genitals or anus and any part of a child’s body;(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E).

FRE 415, Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.


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