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Evidence bearing on witness credibility discovered post-trial doesn’t require new CHIPS trial

State v. M.T.W., 2021AP420-FT, District 2, 8/11/21 (one-judge decision; ineligible for publication); case activity

Information that goes to a witness’s character for truthfulness doesn’t meet the standard under § 48.46(1) for newly discovered evidence that warrants a new trial.

At the trial in a CHIPS proceeding relating to M.T.W.’s child, a witness named Polewczynski testified she had seen the child suffer injuries, neglect, and malnourishment while in M.T.W.’s care. After trial, M.T.W. discovered a newspaper article reporting that Polewczynski admitted she lied about a recall petition drive she was involved in and that Polewczynski had long-ago prior convictions for forgery and worthless checks. (¶¶4, 6).

There’s no case law on the standard for determining newly discovered evidence under § 48.46(1), so the court of appeals looks to other contexts for the standard and finds one common factor—the evidence must be “material” to an issue in the prior proceeding. “In other words, the alleged new evidence must relate to a material fact at issue in the prior proceeding.” (¶7). And the info M.T.W. presents doesn’t get there:

¶7     …. The newspaper article does not relate to material facts at issue at trial—for example, that C.M.R.-W. was malnourished and neglected, or to any other facts supporting the jury’s verdict that the child was in need of protection or services. As the circuit court aptly noted, the reported statements were “unrelated and irrelevant to the case.” Rather, the statements were made about politics and not a child welfare case in which Polewczynski testified under oath and pursuant to a penalty of perjury.

To M.T.W.’s argument that the information impeaches Polewczynski’s credibility and so goes to her character for truthfulness, the court says that doesn’t meet the standard either:

¶8     …. M.T.W. fails to point to any authority for the notion that information allegedly undermining Polewczynski’s credibility, but wholly unrelated to the facts and legal issue in the trial, is appropriately considered newly discovered evidence warranting a new trial. To the contrary, “[o]ur supreme court has held that ‘[e]vidence which merely impeaches the credibility of a witness does not warrant a new trial on this ground alone.’” State v. Machner, 92 Wis. 2d 797, 806, 285 N.W.2d 905 (Ct. App. 1979) (alteration in original) [quoted source omitted]. ….

¶9     Furthermore, … extrinsic evidence is not admissible to attack a witness’s character for truthfulness, although the subject matter may be explored on cross-examination if the witness testified to his or her character for truthfulness. See Wis. Stat. § 906.08(2). M.T.W. fails to develop any argument that, even if the newspaper article had been available at the time of the trial, it would have been admissible to attack Polewczynski’s character for truthfulness. ….

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