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Only the state’s evidence is admissible

State v. Daniel A. Griffin, 2019 WI App 49; case activity (including briefs)

Someone killed a young child in Griffin’s home. Both Griffin and the child’s mother were present at the time. What evidence was the jury allowed to hear about who committed the crime? If you guessed “any remotely relevant evidence implicating Griffin” (whom the state had charged) and “no evidence implicating the mother” (whom it had not) then you are a scholar of Wisconsin evidentiary law.

In fairness, per the briefing there was some decent (though not unassailable) evidence that Griffin is guilty. But, you wouldn’t know it from the soon-to-be-binding opinion here. The court of appeals holds that the circuit court properly applied the Denny test to keep out evidence of the mother’s prior violence toward the child–and also correctly applied the Sullivan other-acts rule to let in a video showing Griffin’s perhaps startling, but not violent, conduct toward him.

So, evidence that the mother whipped, kicked, and “cracked” the hand of the child, and that she made self-incriminating statements to the police? Out. (¶3). Evidence that Griffin “yell[ed] extremely loud, causing [the child] to flinch”? In. (¶18).

These two holdings juxtaposed betray a rather large thumb on our supposedly balanced scale: the prosecutor’s decision to charge one of two plausible perpetrators means that evidence of his guilt becomes nearly per se admissible, but evidence of another‘s guilt–that is, evidence of the defendant’s innocence–is excluded unless he can clear a set of arbitrary (and arbitrarily high) evidentiary hurdles. He must show motive, opportunity, and a “direct connection” (whatever that may mean) to the crime–none of which the state need show to put in its own evidence. For a persuasive argument that this latter rule–which we call “Denny” in Wisconsin and which other jurisdictions call the “direct connection” doctrine–is nonsensical and unconstitutional, see this UW Law Review article. But, for now, it’s the law; our supreme court has shown little interest in the notion that it’s unfair to hold the defendant to a higher evidentiary burden than the prosecution.

UPDATE: Thanks to all our commenters. See below for some valuable suggestions on working around or surmounting the presumption-of-guilt that is the Denny rule. Holmes is a case that defense attorneys would do well to study; it’s applicable here and also more broadly.

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{ 4 comments… add one }
  • Peter Rotter August 28, 2019, 5:36 am

    If the defendant is presumed guilty then all evidence of innocence would tend to confuse the jury. Presumption of innocence by our courts is seen primarily in the breach.

  • Michael Cicchini August 28, 2019, 7:48 am

    It won’t be suitable in every case, but defense lawyers should also consider using an alternative to the wrong-person (third-party guilt / Denny) defense. In many cases, this alternative defense and basis for admissibility can be advanced along with the Denny / Sullivan evidence. https://img1.wsimg.com/blobby/go/f955aadf-0011-4845-8db8-2b9972b1d361/downloads/georgemason1.pdf?ver=1565923312733

    I dread Denny because of its near impossible standard. I dread Sullivan because of the double standard: the state’s motions are nearly always rubber-stamped, and defendants’ motions are nearly always denied. It would be laughable if defendants’ liberty wasn’t at stake.

  • Paul Ksicinski August 28, 2019, 8:24 am

    It is the height of arbitrariness when “the government refuses, after the fact, to play by its own rules” Carmell v. Texas, 529 U.S. 513, 533 (2000), and deprive a person of fair warning, Weaver v. Graham, 450 U.S. 24, 28 (1981), so as to allow the government to pick and choose risking arbitrary government action that occurs out of the feelings of the moment. Stogner v. California, 539 U.S. 607, 611 (2003); Fletcher v. Peck, 10 U.S. 87, 137-38 (1810)

  • Paul Ksicinski August 28, 2019, 9:06 am

    PS This case should be reversed based on Holmes v. South Carolina, 547 U.S. 319 (2006) (trial court commits reversible error when it excludes defense evidence that a third party committed crime because prosecution has strong evidence of guilt)

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