On Point: f. Limits on Cross

State v. Richard A. Boie, 2019AP520, 3/5/20, District 4 (not recommended for publication); case activity (including briefs)

Boie appeals his jury-trial conviction for repeated sexual assault of the same child and the denial of his postconviction motion. He raises issues arising from the videotaped interview of his accuser, admitted under Wis. Stat. § 908.08. On the video, the then-six-year-old described assaults occurring when she was four and five years old. At trial, though, the now-nine-year old testified she couldn’t remember some of the things she spoke about in the video. Boie argues the statutory guidelines for admission weren’t met, and separately that his lawyer was ineffective for not moving for mistrial once the memory problems became clear.

State v. Olu A. Rhodes, 2011 WI 73, reversing unpublished COA decision; for Rhodes: John J. Grau; case activity

Although the State’s theory of motive was that Rhodes intentionally shot and killed the victim in retaliation for beating Rhodes’ sister the day before, the trial court reasonably precluded cross-examination of the sister on a prior instance where the victim severely beat her without response from Rhodes.

Gordon Sussman v. Jenkins, 7th Cir No. 09-3940, 4/1/11

7th circuit decision, granting habeas relief in State v. Sussman, 2007AP687-CR; in chambers opinion on stay

Habeas – Confrontation – Rape Shield and Prior False Allegation

The state court unreasonably restricted Sussman’s cross-examination of his chief accuser, and thus violated his right to confrontation, by precluding him from inquiring into the complainant’s prior false allegations of sexual misconduct.

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,

decision below: unpublished; prior On Point post; for Rhodes: John J. Grau

Issue (from Table of Pending Cases):

Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.

Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.

7th circuit decision

Habeas – Limits on Cros-Examination

State court limitation on impeachment of a witness — so as to exclude that portion of a pre-trial conversation containing the defendant’s “self-serving,” thus inadmissible hearsay, statement — wasn’t an unreasonable application of controlling caselaw.

Determination of whether “state interests, including those reflected in the state’s evidentiary rules, may need to bend in order to ensure that defendants have the right to confront the witnesses against them …

State v. Olu A. Rhodes, No. 2009AP25, District I, 7/7/10; reversed, 2011 WI 73

court of appeals decision (3-judge; not recommended for publication), reversed, 2011 WI 73; for Rhodes: John J. Grau; BiC; Resp.; Reply

¶10      A defendant’s “right to confront and to cross-examine is not absolute[,]” however, and “‘trial judges retain wide latitude … to impose reasonable limits.’” Id.