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§ 904.01, Relevance – Consciousness of Guilt — as Distinct from Misconduct Evidence

State v. Michael R. Bauer, 2000 WI App 206, 238 Wis. 2d 6887, 617 N.W.2d 902
For Bauer: Thomas Voss

Issue: Whether evidence that the defendant, while awaiting trial, solicited the murders of people who were going to testify against him was admissible.


¶2            Bauer argues that the solicitation evidence was other acts evidence which was improperly admitted pursuant to Wis. Stat. § 904.04(2) (1997-98).[1]  The State responds that the evidence was not other acts evidence, but rather was evidence of consciousness of guilt, which was properly admitted.  Alternatively, the State argues that even if it was other acts evidence, it was properly admitted because it was offered to prove intent.  The trial court held that the evidence was other acts evidence which was admissible because it was offered to prove intent or motive.  We agree with the trial court that this evidence was admissible, but not because it was other acts evidence.  Rather, it was admissible because it was evidence of a criminal act of the accused intended to obstruct justice or avoid punishment which can be used to prove consciousness of guilt.

The holding should be self-explanatory. In fact, the court says that the outcome is controlled by a prior case, State v. Neuser, 191 Wis. 2d 131, 144, 528 N.W.2d 49 (Ct. App. 1995) (threat to witness/victim not other acts evidence but simply evidence of consciousness of guilt). ¶6. Why, then, publish a redundant case? The court expresses concern about a perceived “trend in criminal cases,” in which consciousness-of-guilt evidence is wrongly classified as other-acts evidence, and issues the following caution: “the first question the lawyers and the trial court should ask is ‘what is the purpose of the State’s intention to admit the evidence?’ If it’s not to show a similarity between the other act and the alleged act, then perhaps the parties should entertain the question of whether it is ‘other acts’ evidence at all.” ¶7 n. 2. This admonition, by the way, is contained in a relatively lengthy footnote — cf. State v. Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918, ¶6 n. 4 (“We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review”).

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