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§ 904.01, Relevance – Demeanor – Evincing Guilt

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning


¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such. See Paulson v. State, 118 Wis. 89, 106, 94 N.W. 771 (1903) (“Conduct of a suspected person after the crime is a legitimate subject for consideration, as bearing upon the probability of his guilt….”). Thus, the trial court correctly permitted the witness to testify to his observations of Silva’s guilt on the day of the crime.

It’s not exactly clear just why sitting = sinning (“again”). Take it as given that a suspect’s conduct is a legitimate subject for scrutiny, but that still doesn’t explain how the insolubly ambiguous act of sitting evinced guilt. Maybe there was more to it in the record; maybe there’s a customary response to the preacher’s call that the judges all know about.

For an otherwise unrelated case of defendant’s demeanor, but ruled inadmissible at the defendant’s behest to show innocence, see State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999) (evidence of defendant-parents’ “profound shock and grief” would have confused the jury), affirmed on habeas review, Audrey A. Edmunds v. Deppisch, 313 F.3d 997 (7th Cir 2002) (latter court suggesting that expert explanation might be necessary: “Edmunds might have tried to introduce expert evidence that the parents’ demeanor indeed fit a pattern that reputable research has shown to be indicative of lack of grief and consciousness of guilt”). Apparently no expertise was required to understand Silva’s behavior.

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