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§904.04 – Greater Latitude Rule

State v. Edward A. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629, on certification, habeas denied, Hammer v. Karlen, 342 F. 3d 807 (7th Cir. 2003)
For Hammer: Rex Anderegg

Issue: Whether, in a trial for sexual assault of several adolescent males while staying at defendant’s parents’ home, evidence that defendant fondled an adult male, 5-7 years earlier while a guest at his home in Ohio, was admissible.

Holding: Applying the greater latitude rule (see State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606), the evidence was admissible to show modus operandi, through which the assailant’s identity may be proved. ¶24. The evidence was also admissible to show motive and absence of mistake. ¶¶27-28. The charges, keep in mind, included allegations that Hammer touched a penis with his hand, then sucked on it and asked the person if he’d “remember this in the morning.” ¶12. So, assuming the jury believes the allegation, it will apparently need guidance on the motive for fondling and sucking on someone’s genitals; or whether a penis happened to find its way into the defendant’s mouth by virtue of some big mistake.

As the dissent points out, there is an intolerable tension between the greater latitude rule and the requirement “that proof of identity through other acts evidence requires a more stringent standard of admissibility.” ¶52. That’s because the other act must be so unique that it establishes the actor’s “signature,” hence identity. But if the standard’s lowered via the greater latitude rule, then where’s the rationale for establishing identity? As the dissent points out, the “more stringent standard for proof of identity” is “nullifie(d).” ¶62. On a less abstract level, the dissent observes, as it did in Davidson, that admissibility of misconduct evidence is now automatic:

¶59 In each of the three steps of its other acts analysis, the majority explains that it is applying the greater latitude rule, citing to Davidson, 2000 WI 91, ¶51. Engaging in such a nuanced approach to the greater latitude rule seems unnecessary because the bottom line is that, whether for one step or for all three, the majority will admit other acts evidence in child sexual assault cases. To apply the rule separately to each step simply lengthens the majority’s discussion to arrive at the predictable conclusion that prior acts have been admitted properly under Wis. Stat. § (Rule) 904.04(2).


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