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Appellate Procedure – Harmless Error Test – Confrontation

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose

Issue/Holding: Confrontation error deemed harmful, where the following evinced the tainted evidence’s impact: prosecutor’s litigation strategy, ¶51; jury’s reaction (which included repeated requests to have tainted testimony read back; and return of verdict very shortly after such reading), ¶¶51-52; judge’s remark that case wasn’t “close” after this reading, ¶53. And given, too, that the State’s witnesses, though superficially very incriminating, were significantly impeached, ¶¶45-50, and that the defense theory of innocence “was certainly plausible,” ¶56.

Harmless-error analysis is necessarily fact-specific. This one’s a bit unusual, in that there was a seemingly impressive array of incriminating State’s witnesses. The decisive factor may well have been that the State took the highly unusual step of halting the trial mid-stream, when the judge initially ruled the challenged evidence inadmissible, seeking and losing “emergency” interlocutory review in the court of appeals and then carrying the fight successfully to the supreme court. The term “estoppel” doesn’t appear in the opinion, but it might as well be read into it. It just doesn’t look right when the prosecution induces an admissibility ruling by saying that the evidence has earth-shattering significance and then turns around and says, “Hey, it was no big deal after all.” Hard to imagine the supreme court wanted to be used quite that way.

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