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

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

Holding: The trial court reversibly erred in refusing to allow an expert psychologist to testify that defendant “did not show any evidence of any diagnosable sexual disorder. … [and] that absent a diagnosable disorder, it is unlikely that such a person would molest a child.”

This evidence was relevant: “[Psychologist] Lodl’s testimony may well have assisted the jury in determining whether Richard, who maintained that the child had misinterpreted his actions, committed the charged offense. Lodl’s expert testimony was admissible under § 907.02, STATS.”

Nor is that the only basis for admissibility: “Moreover, the evidentiary code expressly recognizes a defendant’s right to present evidence of a pertinent character trait. Section 904.04(1)(a), STATS. …” That is, evidence of a defendant’s “pertinent [character] trait” is admissible under § 904.04, when presented through reputation or opinion testimony per § 904.05.

“Character profile” evidence, in sum, is admissible when supported by competent underlying expert testimony.

Caution: A defendant’s character profile evidence is not admissible unless defendant offers it; then, the state can, “by way of rebuttal evidence, introduce countervailing evidence. Thus, any risk associated with the presentation of character evidence by the State is triggered by the defendant.”

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