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§ 904.01, Relevance – Consciousness of Innocence – Offer to Take DNA Test

State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg

Issue: Whether a sexual assault defendant’s pretrial offer to take a DNA test is relevant as consciousness of innocence.

Holding: “(A)n offer to undergo DNA analysis [is] relevant to the state of mind of the person making the offer — so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible.” ¶4. “Moreover, Santana-Lopez’s statement is, if as represented, admissible under the state-of-mind exception to the rule against hearsay. Wis. Stat. Rule 908.03(3).” ¶6 n.4.

Santana-Lopez was charged with and convicted of digital and oral penetration of a child. He told the police (probably when arrested; the opinion isn’t clear) that he’d take polygraph and DNA tests. The trial court refused to allow this evidence to come in, ruling that the defendant’s state of mind when he made the offer wasn’t relevant. ¶2. On appeal, Santana-Lopez pursues the DNA offer, abandoning the polygraph. The court of appeals holds that both sorts of offers are relevant, as reflecting “consciousness of innocence” no less than would be consciousness-of-guilt evidence, if the offerer believes the testing would be “possible, accurate, and admissible.” ¶4. The trial court’s “flatly” ruling that this evidence was irrelevant was an erroneous exercise of discretion. The remedy is procedural: remand to determine whether Santana-Lopez can satisfy the foundation noted above; if so, determination of whether exclusion would nonetheless be warranted under § 904.03; and, if necessary, determination of whether error was harmless. ¶7.

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