Issue (composed by On Point)
Does Wis. Stat. § 972.11(2)(b)1. bar evidence of prior consensual sexual activity between a defendant and complainant in a case involving alleged forcible criminal conduct because the consensual conduct is not relevant to a material fact in the case?
Petitions for review are not electronically filed, so the issue above is based on what looks to be the most significant legal question raised by the parties’ arguments in, and the decision of, the court of appeals. The court of appeals ordered a new trial, holding the circuit court erroneously excluded Sarfraz’s proffered evidence about prior sexual conduct with the complaining witness after concluding it did not meet the three-part test for admissibility under Wis. Stat. § 972.11(2)(b). See also State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), and State v. Jackson, 216 Wis. 2d 646, 575 N.W.2d 475 (1998).
As noted in our prior post on this case, the court of appeals said the trial court was wrong to believe the evidence had to be of “the same type and nature” as the alleged criminal conduct in order to satisfy the second part of the test–whether the prior sexual conduct is relevant to a material fact in the case. “Neither the language of Wis. Stat. § 972.11(2)(b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case.” (¶26). The court also held that the probative value of the evidence outweighs its potential prejudice. (¶30). A dissent by Judge Brennan argued Sarfraz’s evidence was not material because it didn’t add to the argument he was already making about the complainant’s motive to lie; the basic fact of the romantic relationship between Sarfraz and the complainant was in evidence, making the details of their sexual conduct unnecessary. (¶¶34-37). For the same reasons, the dissent thought the probative value of the evidence was outweighed by its prejudice. (¶39). The supreme court’s decision in this case, then, could mean a narrowing of the materiality prong of the three-part test. Even if that part of the test isn’t narrowed, the decision will be important as another example for trial courts to consider when exercising discretion under § 972.11(2)(b).