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A. General provisions, Ch. 901

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011) When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled… Read More

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State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11 court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as… Read More

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State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity Confrontation – Dying Declaration, § 908.045(3) ¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline… Read More

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State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply Newly Discovered Evidence – Test – Generally ¶14      In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence… Read More

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Plain Error

State v. Erik B. Hudson, 2010AP000780-CR, District 3, 8/10/10 court of appeals decision (1-judge, not for publication); for Hudson: George S.Pappas, Jr.; BiC; Resp. While “better practice” would have been to strike and give a curative instruction following a witness’s non-responsive testimony, the trial court’s failure to do so wasn’t plain error… Read More

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Plain Error, § 901.03 – Generally

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09 For Lammers: Amelia L. Bizzaro Issue/Holding: ¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App… Read More

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State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09 For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error: ¶12      As… Read More

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State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09 For Winters: Ralph Sczygelski Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his… Read More

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