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Defense of Self, § 939.48(1) – Violent Acts of Victim – Generally

State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt


¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.”  State v. Wenger, 225 Wis. 2d 495, 507, 593 N.W.2d 467 (Ct. App. 1999) (quoting McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973)); see also Wis. Stat. §§ 904.04 and 904.05(2).  It is also well established that admissibility of evidence proffered to show the reasonableness of the self-defense claim is within the circuit court’s discretion.  State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  As with any “other acts evidence,” the evidence is subject to the application of the balancing test involving the weighing of probative value against the danger of unfair prejudice, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Wis. Stat. § 904.03.  Assuming its probative value outweighs such considerations, we have in previous cases established the defendant’s right to put on such evidence once a factual basis has been set forth for a self-defense claim, and also established the circuit court’s responsibility to vet the evidence prior to admission to be sure it is valid McMorris evidence.  See, e.g., McAllister v. State, 74 Wis. 2d 246, 246 N.W.2d 511 (1976).  The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence’s admissibility can be weighed not only prior to admission, but also prior to trial.


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