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  • WisBar News
    February 05, 2018

    Greater Latitude Rule Applies to Other Acts Evidence in DV Case, Court Says

    Joe Forward

    Property Tax

    Feb. 5, 2018 – The Wisconsin Supreme Court has upheld domestic violence-related convictions, including aggravated and misdemeanor battery, despite the defendant’s argument that the court improperly admitted “other-acts evidence."

    A jury convicted Anton Dorsey of domestic violence crimes after a trial in which the jury heard testimony from the victim, his most recent ex-girlfriend, and a former ex-girlfriend who testified that Dorsey engaged in acts of domestic violence against her years earlier.

    The state had filed a motion to admit other-acts evidence, which allowed the former ex-girlfriend to testify in Dorsey’s trial. In granting the motion, the circuit court interpreted Wis. Stat. section 904.04(2)(b)1., which the legislature amended in 2013.

    Subtitled “greater latitude,” section 904.04(2)(b)1 says “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” in criminal proceedings alleging sex and domestic abuse crimes.

    The circuit court ruled that the new provision allows admission of other-acts evidence with greater latitude under State v. Sullivan, 2016 Wis. 2d 768, 576 N.W.2d 30 (1998), which established a three-prong test for the admissibility of other-acts evidence.

    Under Sullivan, the other-acts evidence must be offered for a permissible purpose, must be relevant, and its probative value cannot be substantially outweighed by the risk of unfair prejudice to the defendant. Under the Sullivan analysis, applied with greater latitude, the circuit court allowed the testimony from Dorsey’s former ex-girlfriend.

    The judge instructed the jury to consider the other-acts evidence on the issue of motive and intent only, not to conclude he was acting in conformity with a character trait. The jury returned a verdict of guilty on three of four domestic violence counts charged.

    An appeals court affirmed but concluded that the new statute does not provide for greater latitude, even though the subtitle of the provision is “greater latitude,” because the text controls and says nothing about greater latitude for other-acts evidence.

    In State v. Dorsey, 2018 WI 10 (Jan. 25, 2018), the supreme court affirmed (6-0). Four justices concluded that the recently amended statute, section 904.04(2)(b)1, “allows admission of other-acts evidence with greater latitude under a Sullivan analysis” and the trial court properly admitted the other-acts evidence under this standard.

    Justice Rebecca Bradley concurred, with Justice Daniel Kelly, but concluded the new provision is independent of a Sullivan analysis and a plain meaning interpretation should apply. That is, the provision permits “similar acts” evidence if it meets a relevance test, under section 904.01, and an unfair prejudice test, under section 904.03.

    The majority rejected this plain language interpretation because it would allow “similar acts” without a permissible purpose, which is required under Sullivan.

    “In the context of its title, ‘Greater latitude,’ we interpret [§ 904.04(2)(b)1.] as adopting the common law greater latitude rule to permit the admission of other, similar acts of domestic abuse with greater latitude,” wrote Justice Annette Ziegler for the majority.

    “Thus, for the types of cases enumerated under Wis. Stat. § 904.04(2)(b)1., circuit courts should admit evidence of other acts with greater latitude under the Sullivan analysis to facilitate its use for a permissible purpose,” Justice Ziegler wrote.

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