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SVP – Trial: Evidence – Hearsay: Letters from DSM-IV Committee

State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes

Issue: Whether letters from DSM-IV committee members, regarding the impact of an assault on a diagnosis of pedophilia, were properly admitted.

Holding: A basis for an expert opinion, otherwise hearsay, is admissible if of “a type reasonably relied upon by experts in the particular field…. The letters relied on here, although authored by members of the DSM-IV committee, are isolated opinions given in response to hypothetical questions. Therefore, we conclude that the letters do not satisfy the standard enunciated above, and therefore should not have been admitted. However, we conclude that admission of the two letters constituted harmless error.” ¶29.

¶30 The standard of review under which we determine harmless error ‘is not whether some harm has resulted but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than the purportedly inadmissible evidence, that would convict the defendant beyond a reasonable doubt.’ State v. Van Straten, 140 Wis. 2d 306, 318-19, 409 N.W.2d 448 (Ct. App. 1987). There is sufficient evidence in the record here to sustain the jury’s determination that Pletz is a sexually violent person, even without the inadmissible letters.

It is been settled that the harmless error test is whether there is a reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222 (1985). The conviction must be reversed unless the court is certain that the error did not influence the jury. Id. at 541-42. The state, as the beneficiary of the error bears the burden of proof. Id., at 547 n. 11. The court of appeals appears to have relied on the prior, much more lax test: “(E)ven if the letters were excluded, the jury would still have been able to find that Pletz was a sexually violent person beyond a reasonable doubt.” ¶32. But that only inverts the proper question, whether the state can show beyond reasonable doubt that the error did not contribute to the verdict, thus putting into question whether this result is reliable.

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