by Rex Anderegg

New evidentiary rules have spawned as much litigation as that which allows the prosecution to use, under certain circumstances, other bad acts of a criminal defendant. The use of such evidence has generated controversy not because it has no appreciable probative value, but instead, as Wigmore once mused, because "it has too much." ¹ Indeed, in the state's quest to erase reasonable doubt from the jurors' minds, proof the defendant committed similar acts on previous occasions is singularly powerful, and prosecutors have been using such proof, when available, for more than a century. There is a particularly strong tradition of allowing other acts evidence when a defendant is charged with sexual misconduct with children. Over time, this tradition has solidified to form the so-called "greater latitude rule," which holds that a greater latitude of proof of like occurrences is allowed in sex crimes, particularly those involving children or incest.

The greater latitude rule has always had its share of detractors. In a 1987 dissenting opinion, Chief Justice Heffernan lamented that whenever employed, "the 'greater latitude' concept is merely stated as a conclusion fitting the predilection of the court."² More recently, the court of appeals complained that supreme court decisions appeared to sanction the use of other acts to prove the defendant acted in conformity therewith, noting that such an inference is precisely the reason section 904.04(2) of the Wisconsin Statutes generally excludes such evidence.³ Accordingly, when the Wisconsin Supreme Court picked up the gauntlet during its last term by taking up four cases presenting various aspects of the other acts rule, all involving sex crimes against children, there was speculation the court might trim back a few degrees of latitude from the rule, or perhaps withdraw it entirely.

It can now be said such speculation was not well-founded. Not only has the greater latitude rule emerged from the most recent supreme court term fully intact, it is more robust than ever. In a society where the sexual misuse of children has become a growing (or at least more visible) problem, a thin majority of the court would apparently disagree with Wigmore that there is such a thing as proving "too much" in cases of this nature.

Origins of the Other Acts Rule in Wisconsin

The other acts rule first appeared in Wisconsin law in 1893 and fittingly, the case involved sexual misconduct with a child. In Proper v. State,⁴ Mr. Proper was convicted of sexually assaulting a 10-year-old girl. At trial, key testimony was provided by another 10-year-old who claimed the defendant also had intercourse with her. When Proper appealed, arguing it was error to allow the second girl to testify, the Wisconsin Supreme Court acknowledged the question was a difficult one given the general rule prohibiting the use of a criminal defendant's prior offenses. Nonetheless, the high court hastened to craft an exception to the rule, perhaps spurred on by the shocking nature of the case. Ruling that "[a] greater latitude of proof as to other like occurrences is allowed in cases of sexual crimes," the court held the other assault admissible not only to corroborate the victim's testimony, but also to show the quo animo of the accused.

The rule announced by Proper reappeared sporadically in Wisconsin jurisprudence over the next 80 years, though it oftentimes was limited to evidence of prior assaults upon the same person.⁵ By 1967, however, the year the Wisconsin Supreme Court issued its landmark decision in Whitty v. State,⁶ the rule had grown to encompass sexual acts perpetrated upon third parties as well. Thomas Whitty had taken indecent liberties with a 10-year-old after luring her to a basement with the ruse that he needed help finding a little black and white rabbit. When Whitty made "identity" an issue at trial by mounting an alibi defense, the phantom black and white rabbit reappeared when another child testified that Whitty also had enlisted her assistance to search for the rabbit before taking indecent liberties with her. Following conviction, Whitty appealed, contending the second girl's testimony was so prejudicial it deprived him of a fair trial and violated the Due Process Clause of the Fourteenth Amendment.

The Wisconsin Supreme Court was mindful of the historic concerns underlying the character rule excluding prior crimes evidence: 1) an over-strong tendency to believe a defendant guilty merely because he is a person likely to commit such acts; 2) a tendency to condemn not because of guilt on the present charge but because a defendant escaped punishment from other offenses; 3) the injustice of attacking one not prepared to demonstrate the attacking evidence is fabricated; and 4) the confusion of issues the prior acts evidence could cause. The court noted, however, that despite these concerns, it had permitted such evidence to show intent, an element of the crime, identity, or a system of activity. The court further observed that such evidence need not be in the form of a conviction. Then, reasoning the second girl's testimony did not create undue prejudice, confuse the issues, mislead the jury, or unfairly surprise the defendant, the court held the evidence admissible to prove identity.

Despite allowing the evidence on the facts before it, Whitty cautioned that other acts should be used sparingly, only when reasonably necessary, and that such evidence normally carries a calculated risk.⁷ The court then ruled that when confronted with such evidence, trial courts should balance its relevance against the danger of prejudice to ensure a procedurally and evidentially fair trial without unfairly limiting the state's ability to prosecute. Interestingly, while greatly standardizing the application of the other acts rule, Whitty neither relied upon nor even mentioned the greater latitude rule.

In 1973, the Wisconsin Supreme Court largely codified its ruling in Whitty by adopting section 904.04(2) of the Wisconsin Statutes:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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."

Once again, the court omitted any reference to the greater latitude rule when crafting the new statutory language. However, any illusion that the greater latitude rule had fallen by the wayside soon vanished when that same year, the supreme court's opening salvo in Hendrickson v. State⁸ echoed a familiar refrain: "[a] greater latitude of proof as to other like occurrences is allowed in cases of sexual crimes."⁹ In a prosecution for incest, Hendrickson approved the use of prior acts of incest to demonstrate both "plan" and "motive."

Whittling Away at Whitty

The next quarter century witnessed a great proliferation in the use of other acts in criminal litigation, perhaps not coincidentally because of the concomitant increase in prosecutions for sex crimes against children. As one decision after another broadened the landscape upon which other acts were deemed permissible, the limited set of circumstances in which Whitty suggested other acts would be permitted methodically expanded and began to dramatically encroach upon the general rule excluding their use. While too numerous to allow for a comprehensive examination, three of these decisions are especially illustrative of this trend.

In 1987, the Wisconsin Supreme Court agreed to examine the propriety of other acts evidence used to convict a defendant for sexually assaulting his 14-year-old niece while she babysat his children. In State v. Friedrich,¹⁰ the state was allowed to present testimony from two women, both of whom claimed the defendant had inappropriate sexual contact with them years earlier when they were 10 and 13 years old, respectively. Forcefully reaffirming the greater latitude rule, Friedrich held the evidence admissible to show the defendant's scheme or plan and reasoned that such evidence is needed to overcome the average juror's reluctance to imagine a person motivated by a sexual appetite for children. Following Friedrich, it seemed that in any case presenting the sexual assault of a child, the prosecution would be free to use any prior sex acts with children to show the defendant's "plan" to sexually gratify himself with children.

A second milestone in the march toward liberalizing the use of other acts in sex cases was reached in 1992 following Gary Plymesser's conviction for fondling his friend's 13-year-old daughter. In State v. Plymesser,¹¹ the state introduced testimony from two women who claimed that nearly 13 years earlier, when both were under age 12, Plymesser had engaged in sexual intercourse with them. The state also was allowed to present testimony from a psychiatrist who testified that during a 1976 session, Plymesser confessed a long history of sexual involvement with young girls. Plymesser vigorously argued these other acts should not be allowed to show motive because his defense was not that an innocuous motive underlaid his sexual contact with the complainant, but instead, that there had been no sexual contact at all. Therefore, Plymesser reasoned, "motive" was not an issue in dispute at trial.

The Wisconsin Supreme Court rejected Plymesser's argument, characterizing as "too narrow" his contention that a proper use of other acts to prove motive would be, for example, evidence that a defendant committed a robbery to prove his motive for subsequently shooting a policeman. Most significantly, Plymesser ruled that because the state must prove all the elements of a crime beyond a reasonable doubt, even if the defendant does not dispute them all, evidence relevant to motive is admissible, even if the defendant does not dispute motive.

Following Plymesser, it appeared that in all sexual assault prosecutions where motive or intent constituted an element of the crime, the prosecution had been granted carte blanche to introduce any other acts of a similar nature. Indeed, in an article that offers an excellent national perspective of the etiology and evolution of the greater latitude rule, Plymesser is cited as exemplary of how courts often use "motive" to justify admission of other sex acts when the real purpose is to show the defendant's lustful disposition and therefore, his proclivity to commit such acts.¹²

The following year, the Wisconsin Supreme Court decided State v. Speer.¹³ While the holding in Speer was rather unremarkable - that a prior burglary was properly admitted to show "identity" in the prosecution for a subsequent burglary - its discussion of balancing prejudice and probativeness sent out shock waves. In a declaration seemingly contrary to Whitty's statement that other acts evidence carries a calculated risk and should be used sparingly, Speer announced there existed no presumption against admission of other acts evidence. Then, by ruling that other acts evidence is inadmissible only if its prejudicial effect substantially outweighs its probative value, Speer further established that if the balancing process is a close call, the evidence must be admitted. Finally, by declaring the balancing act squarely within the trial court's exercise of discretion under well-established rules of evidence, Speer placed this facet of a lower court's ruling virtually beyond appellate review.

By 1994, Whitty's pronouncement that other acts evidence should be used only sparingly seemed to ring hollow, especially in sexual assault cases. In addition to Friedrich, Plymesser, and Speer, other decisions further relaxed the rule by pointing out that section 904.04(2) did not set forth an exhaustive list of permissible purposes;¹⁴ that in gauging the prejudicial effect of other acts, it must be remembered such evidence will always be prejudicial;¹⁵ and that a well-formulated jury instruction will largely cure any prejudice to the defendant.¹⁶ Eventually, the number of decisions diluting the general rule excluding such evidence reached something of a critical mass and the court of appeals began to express dissatisfaction with how the rule had evolved.

In 1994, for example, one appellate court judge observed that courts routinely had been using such evidence "while mouthing Whitty's principles" and suggested his brethren cease writing appellate opinions that pretended to honor Whitty while actually offending it.¹⁷ In 1995, another appellate court opined that post-Whitty case law actually had produced a new rule that flouted section 904.04(2) by sanctioning the routine use of other acts evidence for the very purpose the statute excludes it - to prove a person's character to show the person acted in conformity therewith.

Then in 1996, in perhaps the boldest of these cases, another appellate court ruled that a defendant, who insists an alleged sex act never occurred but nonetheless offers to stipulate that if it had occurred, it would have been intentional and for the purpose of sexual gratification, can shift the calculus of relevance, probativeness, and prejudice in favor of exclusion. This approach, described in State v. Wallerman,¹⁸ came to be known as a Wallerman stipulation.

In 1998 the Wisconsin Supreme Court finally responded to the repeated requests to resurrect the rigor of Whitty. In State v. Sullivan,¹⁹ the court found a case that exemplified how far afield the prevailing view on other acts evidence had strayed from its original intent. Kevin Sullivan was charged with false imprisonment, battery, disorderly conduct, and intimidation of a victim, all arising out of a single domestic dispute with his girlfriend. At trial, the state was allowed to introduce evidence of an incident more than two years previous in which an intoxicated Sullivan verbally abused and threatened another woman and refused to leave her home. This other act did not really fit within any of the statutory exceptions. Nonetheless, by 1997 the other acts rule had become so antithetical to the principles enunciated by Whitty that the prosecutor seemed to argue, the trial court seemed to agree, and the court of appeals felt constrained to affirm, that the prior acts could be admitted to prove Sullivan's propensity to commit the crimes with which he was charged.

In a unanimous opinion, Sullivan reversed the ruling and reaffirmed the three-step analytical framework at the core of determining admissibility of other acts evidence:

1) Is the other acts evidence offered for an acceptable purpose under section 904.04(2)?

2) Is the other acts evidence relevant? and

3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice?²⁰

Then, to correct the superficial analysis under which prosecutorial requests to use "other acts" evidence seemed little more than a fait accompli, the court redirected prosecutors and trial courts to use great care when examining and explaining how the proposed other acts fit within this framework. As if to accentuate the dangers inherent in such evidence, Sullivan further expressed considerably less faith in the ability of a curative instruction to undo the prejudice to the defendant.

Over the following two years, the impact of Sullivan on sexual assault cases remained something of a mystery. One supreme court decision, State v. Gray,²¹ revealed that in a proper case, other acts evidence would continue to play a vital prosecutorial role. Nevertheless, like Sullivan, Gray did not involve a prosecution for sexual assault. Then, in State v. Scheidell,²² which did involve a prosecution for sexual assault, the supreme court ruled that the Sullivan test also controls when it is the defendant who seeks admission of other acts evidence. Still left unresolved, however, was the nagging question of what effect Sullivan would have, if any, on the prosecutorial use of other acts in crimes of sexual assault.

Next Page

Rex R. Anderegg, U.W. 1989, is a partner in Anderegg & Mutschler LLP, Milwaukee, practicing in appellate practice and procedure, criminal and traffic defense, and family law. He briefed and argued the Hammer case before the Wisconsin Supreme Court. The author thanks legal assistant Julie E. Guvernator, whose hard work and commitment made this article possible.