Is the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases codified by § 904.04(2)(b)1., which applies to admission of other acts evidence in cases involving an array of crimes in addition to child sex offenses?
Is evidence of a defendant’s criminal acts committed against a person other than the victim admissible under § 904.04(2)(b)1. to show a generalized motive or purpose by a defendant to “control” a person with whom he is in a relationship?
You’ll want to keep an eye on this case. The supreme court could make it even easier than it is already for the state to get other-acts evidence admitted by extending the “greater latitude” rule far beyond the child sexual assault cases to which that rule has hitherto been limited.
Dorsey was charged with the usual complement of domestic violence offenses (strangulation, battery, DC) against his girlfriend. The state sought to admit evidence that he had battered a prior girlfriend, arguing the other acts showed Dorsey’s “intent and motive to cause bodily harm” to control his girlfriend. The trial court let the other-acts evidence in after concluding that § 904.04(2)(b)1., which was created by 2013 Wis. Act 362, requires application of the “greater latitude” rule in a host of new cases—namely, any crime charged under ch. 948; serious sex offenses defined in § 939.615(1)(b); domestic abuse as defined in § 968.075(1)(a); offenses subject to the domestic abuse surcharge under § 973.055; and human trafficking prosecutions under § 940.302(2).
The court of appeals initially issued a recommended-for-publication decision agreeing with the trial court that § 904.04(2)(b)1. codified the “greater latitude” rule and extended it to the prosecutions covered by the statute. Dorsey filed a petition for review that didn’t expressly challenge the court’s codification conclusion, but instead claimed that, “greater latitude” rule or not, the admission of the other-acts evidence here was merely propensity evidence masquerading as “intent” or “motive” evidence, contrary to prior cases, e.g., State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, and that the evidence wasn’t relevant to any issue in the pending case. Interestingly, the court of appeals then withdrew its opinion. (The withdrawn opinion is reproduced in the state’s response to Dorsey’s petition, Appendix pages 110-18.) A few months later the court issued a new per curiam decision rejecting its earlier conclusion on “greater latitude” codification, but holding that the other-acts evidence in the case was still properly admitted under the three-part test established by State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). After the per curiam was issued, the state responded to Dorsey’s still-pending petition and asked the supreme court to accept review to address what § 904.04(2)(b)1. means. It doesn’t explicitly assert the statute codifies the “greater latitude” rule, but it does claim the statute allows the admission of evidence of similar acts against another person even, apparently, if the evidence is more about propensity than intent or motive.
As we explained in our post on the per curiam decision, the court of appeals was right to retract its first opinion regarding codification of the “greater latitude” rule, as that conclusion was based entirely on the title of the statute (§ 904.04(2)(b)) rather than its text, and the title isn’t part of the statute. The supreme court will now decide whether, despite its failure to say so clearly, the legislature intended to codify the “greater latitude” rule in § 904.04(2)(b)1. And even if the court holds the statute doesn’t codify the “greater latitude” rule, it will address whether other-acts evidence offered to show “motive” or “intent” in a domestic abuse case must be narrowly tied to an element of a charged offense in order to be relevant as anything other than propensity evidence, as Dorsey argues, or whether can be used to show a general motive to “control” another person without running afoul of the proscription against propensity evidence. The case will be argued and decided next term.