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§ 904.04 – Greater Latitude Rule in Sexual Assaults

State v. Dale H. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, reversing State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 38
For Davidson: Jerome F. Buting & Pamela Moorshead

Issue: Whether, on a charge of sexually assaulting a 13-year old niece while on a camping trip, evidence of the defendant’s conviction ten years previous for sexually assaulting a 6-year old girl in a church basement was admissible.

Holding: Applying the three-step analysis of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) “together with the greater latitude rule that is well established in Wisconsin law, the admission of evidence of Davidson’s prior conviction did not constitute an erroneous exercise of discretion,” ¶5.

Sullivan mandates consideration of three factors: acceptable purpose under § 904.04(2); relevance under § 904.01; unfair prejudice under § 904.03, ¶35. However, this generally applicable other-crimes test is modified in sexual assault cases, “particularly cases that involve sexual assault of a child, [where] courts permit a ‘greater latitude of proof as to other like occurrences,'” ¶36. The court squarely rejects the idea that the greater latitude rule applies only to the first Sullivan step:

¶51 We conclude that in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant’s other crimes was properly admitted at trial. The effect of the rule is to permit the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child.

The court notes in a casual aside that this doesn’t mean automatic admissibility, ¶52, but in its proceeding analysis the court appears to be on automatic pilot. ¶¶53-80 (though these are quite obviously very different incidents, the court says that they’re strikingly similar, etc.) The majority’s approach stimulates an unusually arch dissent, which explicitly accuses the majority of being result-oriented:

¶107 This court now has an established pattern of admitting prohibited propensity evidence. In a rare exception to this established pattern, the court recently approved the exclusion of other acts evidence in a sexual assault case. However, predictably it was in a case in which the defendant, not the State, sought to introduce the evidence. See State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999). The majority reached this conclusion notwithstanding its acknowledgement that a less stringent standard for admissibility applies when a defendant offers prior acts for purposes of exoneration. Id. at 304.

The dissent bluntly accuses the majority of being less than “honest and forthright” in its adherence to the “artifice” of § 904.04(2); and exhorts the majority to “simply lay all its cards on the table and acknowledge that it is sanctioning the blanket use of propensity evidence in child sexual assault cases.” ¶¶109-110.

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