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SCOW: Circuit courts may admit “other acts” evidence using a “greater latitude”/Sullivan analysis in new range of cases

State v. Anton R. Dorsey, 2018 WI 10, 1/25/28, affirming a per curiam court of appeals opinion, case activity (including briefs)

On Point has posted extensively about this case here regarding the court of appeals’ two opinions and here regarding Dorsey’s petition for review. This post focuses on the bottom line for trial lawyers because the majority opinion cements a change in Wisconsin law. Under common law, the “greater latitude rule” allows for the more liberal admission of “other acts” evidence in cases of sexual abuse particularly those involving children. Opinion ¶32. In 2013, the legislature amended §904.04(2)(b)1, and according to the majority, thereby extended this rule to a range of cases beyond child sexual abuse, including domestic abuse.  Specifically :

In a criminal proceeding alleging a violation of s. 940.302(2) or of ch. 948, alleging the commission of a serious sex offense, as defined in s. 939.615(1)(b), or of domestic abuse, as defined in s. 968.075(1)(a), or alleging an offense that, following a conviction, is subject to the surcharge in s. 973.055, 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. Wis. Stat.  §904.04(2)(b)1.

The State charged Dorsey with four crimes relating to domestic violence toward his girlfriend, CB. Before trial, it moved to admit “other acts” evidence in the form of testimony by Dorsey’s prior girlfriend about other acts of violence that he had committed against her a few years earlier. The circuit court held that amended §904.04(2)(b)1 allowed the admission of this evidence.

In SCOW, Dorsey argued that the circuit court should have applied a straight Sullivan analysis. Sullivan, you will recall, permits the admission of “other acts” evidence if: (1) it is offered for a permissible purpose under §904.04(2)(a), (2) it is relevant under 904.01, and (3) its probative value is not substantially outweighed by the risk of unfair prejudice under §904.03. Opinion ¶8 (citing State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)).

The State argued that §904.04(2)(b)1  should be interpreted as affording circuit courts greater latitude to admit other, similar acts of domestic abuse under either a Sullivan analysis or a plain language interpretation of the statute. According to the State, the plain language of §904.04(2)(b)1 allows the admission of other, similar acts of domestic abuse without requiring a permissible purpose under §904.04(2)(a) (i.e., the 1st prong of Sullivan).

The majority opinion, written by Justice Ziegler, rejected Dorsey’s argument because it would render the legislature’s amendment of §904.04(2)(b)1  meaningless. Instead, it chose the State’s first option:

¶35 In sum, we conclude that Wis. Stat. § 904.04(2)(b)1. permits circuit courts to admit evidence of other, similar acts of domestic abuse with greater latitude, as that standard has been defined in the common law, under Sullivan, because it is the most reasonable interpretation in light of the context and purpose of the statute. See Kalal, 271 Wis. 2d 633, ¶46 (“[S]tatutory language is interpreted in the context in which it is used . . . and reasonably, to avoid absurd or unreasonable results.”). As a practical matter, not only does our analysis afford due respect to the words of this legislation, but maintaining the well-established Sullivan analysis, with greater latitude in domestic abuse cases, also provides a framework for litigants and our courts to create a thorough record of the arguments and rulings concerning other-acts evidence.

Next the majority applied the new statute to the facts of Dorsey’s case. It held that: (1) The State appropriately offered Dorsey’s “other acts” involving his prior girlfriend to establish his intent and motive to cause bodily harm to C.B. (his victim in this case) and to control her within a domestic relationship. (2) Dorsey’s intent was at issue in this case, his “other acts” were similar to his conduct in this case, and the “other acts” just 2 years earlier. And (3) the probative value of Dorsey’s “other acts” was not outweighed by the danger of unfair prejudice because the circuit court had given a cautionary instruction to ensure the jury used the “other acts” evidence only to evaluate Dorsey’s motive and intent. Opinion ¶¶40-55.

Justice R.G. Bradley, joined by Justice Kelly, filed a concurring opinion which would affirm based upon the plain language of  §904.04(2)(b)1. She would hold that for cases not specifically enumerated in (b)1, courts should apply the Sullivan analysis. For crimes listed in (b)1, “other acts” evidence may be admitted without showing a permissible purpose. Opinion ¶71. If you find statutory interpretation scintillating or you need to pick up 2 votes for a plain language interpretation of a statute that you are analyzing, be sure to read the concurrence. R.G.B. accuses the majority (Ziegler) of engaging in a method of statutory interpretation called “consequentialism”–rejecting the plain language in favor of a sensible and desirable result “since that is surely what the legislature intended.” Opinion ¶76. Ouch! Ziegler scoffs that the concurrence “reveals a troubling lack of recognition of the practical effect that such a simplistic interpretation will have in courtrooms across the state.” Opinion ¶28 n. 23. Then R.G.B. declares: “Even if our rationales had enjoyed universal acclamation from the beginning of time, still they would have no standing against the legislature’s decision to change this policy.” Opinion ¶75. Easy to say when you like the party controlling the legislature. 🙂

Note: Justice Abrahamson did not participate in this decision.

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{ 3 comments… add one }
  • Tom Aquino January 26, 2018, 10:34 am

    So, let me see if I get this straight: The concurrence would read the statute as allowing propensity evidence in these cases, while the majority says that the statute allows courts “greater latitude” in pretending that prior acts are being admitted for “motive” and “intent” when really they are being introduced to show propensity.

  • Andrew M Morgan January 26, 2018, 11:49 pm

    It can now fairly be called, “the greater lassitude rule.”

    The origins of this rule arose from the perception that juries may have a difficult time believing the stories of sex assault victims, in cases in which there’s often little other evidence, in an age when such matters were not openly discussed in public. That’s absolutely a valid concern, and we keep finding out we’re not as enlightened as we think. The question is, what’s a logical way to address it? The greater latitude rule does this by loosening the restrictions on character evidence. So now less relevant evidence may be admitted. More prejudicial evidence may be admitted. Proper purposes may be less proper. How does this increase our assurance that juries discover the truth?

  • Peter R Heyne January 28, 2018, 1:32 pm

    So per the concurrence, substantive rules of evidence are just creatures of legislative will, subject to the variable winds of power politics, and as purely political issues reflecting policy preferences, thus non-justiciable?

    Thus, if tomorrow the legislature wanted to either give greater latitude or simply strike down a rule like 906.09  (Impeachment by evidence of conviction of crime or adjudication of delinquency), then there is no pesky problem with something like due process and a fair trial. It’s perfectly fine for a prosecutor to rattle off to a jury, in detail, a defendant’s entire rap sheet going back to when he or she was just a juvenile.

    After all it’s just a rule of evidence that the legislature created, and what the lord giveth the lord can taketh away.

    Well I suspect that the state doesn’t really want to have all their witnesses so embarassed, especially their accusing alleged victim.

    (So maybe the legislature will never change this particular statute because it deals evenly with all the witnesses both offense and defense. Unlike of course the greater latitude other acts law, which applies only against the defendant…)

    Maybe just maybe Rules of Evidence are not just a snapshot of the political party that happens to control the levers of legislative power at any given moment. Maybe instead they are codifications of long-established common law that ultimately safeguards due process and a fair trial and as such are constitutional issues….So the courts can and should make sure the statutes pass constitutional muster…

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