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§ 904.01, Relevance – “Profile Character” (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)

State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow

Issue: Whether Richard A.P. evidence — that the defendant lacks the psychological characteristics of a sex offender and, therefore, was unlikely to have committed the charged offense — is admissible.


¶15. We conclude that a blanket restriction on Richard A.P. evidence is unwarranted. Discretion to admit or exclude such evidence remains with the circuit court. We agree with the conclusions reached by the court of appeals in Richard A.P. and specifically adopt its reasoning.

(State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).)

¶18. Davis’s expert will allegedly testify to the general character traits of sexual offenders, the tests used to determine whether an individual possesses such character traits, his findings on whether Davis possesses such character traits, and, based on these results, the likelihood that Davis committed the sexual assault. Such traits regarding the defendant’s propensity to commit sexual assault are pertinent traits of his character. This evidence relates to a consequential fact, that is, whether the defendant committed sexual misconduct with a child. Further, this evidence has probative value in sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Such profile evidence may be extremely important to the defense. Such testimony may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant’s innocence.

The court distinguishes Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980) (expert psych testimony inadmissible on intent) as “a narrow holding” and seems to limit it to its facts. ¶25. Though the court largely acknowledges broad-based admissibility of expert testimony in Wisconsin, it does exhort trial judges to “carefully scrutinize” admissibility. ¶21. Note, additionally, the defendant’s obligation to disclose information, and the consequential self-incrimination waiver. ¶¶40-41.

UPDATE: Also see State v. Steven G. Walters, 2004 WI 18, ¶42 (“Thus, we determine that there is neither a blanket restriction of Richard A.P. evidence nor is it compelled. Rather, courts must scrutinize such evidence on a case-by-case basis to assess admissibility.”).

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