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Introducing Evidence Doesn’t Waive Challenge to Admissibility Where Trial Court Ruled Evidence Admissible on Motion In Limine

State v. Gary M.B., 2004 WI 33, affirming 2003 WI App 72, 261 Wis. 2d 811, 661 N.W.2d 435
For Gary M.B.: T. Christopher Kelly

Issue: Whether defendant’s introduction of his/ her prior criminal record, after objection to its admissibility was overruled, waived the objection.


¶11. Under the doctrine of strategic waiver, also known as invited error, “[a] defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal.” Vanlue, 87 Wis. 2d at 460-61. Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin’s strategic waiver rule:

prevents a party from counterattacking with otherwise inadmissible evidence when he has deliberately chosen not to object with the aim of using the otherwise inadmissible evidence to his own advantage. . . . The flip side of this coin is that a party who does object to the use of inadmissible evidence by his opponent does not forgo his right to claim error on appeal merely because he makes an effort to use the same or similar evidence in a defensive fashion after he has failed in his effort to exclude the evidence.

1 Wigmore, Evidence § 15, at 733 n.3 (Tiller’s rev. 1983)(emphasis in original) (citing Vanlue, 87 Wis. 2d at 460-62). Thus, there is a distinction between a party’s use of objected to evidence for his own benefit and the use of such evidence purely for defensive purposes. Id., § 18, at 836-38 & n.37 (citing Vanlue, 87 Wis. 2d at 460-62).¶14. Vanlue is directly on point with the present case. However, the State argues that we should overrule the court of appeals’ holding in Vanlue regarding strategic waiver in light of Ohler v. United States, 529 U.S. 753 (2000); and State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198.

¶17. This court is not bound to follow Ohler. … While decisions of the Supreme Court interpreting the Federal Rules of Evidence may be persuasive authority, they are not binding on this court. State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App. 1989). Ohler involved a judicial formulation of the strategic waiver rule to be used in federal courts; the Court’s ruling did not involve a question of federal constitutional law or a construction of the Federal Rules of Evidence. The Court’s formulation of the strategic waiver rule in Ohler is contrary to the approach Wisconsin courts have utilized. Finally, as the dissent recognized in Ohler, the majority’s holding is against the great weight of academic authority. See Ohler, 529 U.S. at 762-63 (Souter, J., dissenting)(collecting authority).

¶18. … Therefore, we conclude that the court of appeals’ formulation of the strategic waiver doctrine in Vanlue was correct and hold that under Wisconsin law, a defendant does not commit strategic waiver when he unsuccessfully objects to the introduction of evidence and preemptively introduces the evidence in an attempt to mitigate its prejudicial effect.

To date, Wisconsin decisions typically have followed federal decisions, especially the Supreme Court, interpreting FRE. After all, our evidence code was adopted from FRE. That alone makes this decision interesting. Federal decisions no doubt remain “persuasive,” but there’s now some wiggle room. Whether that’s a good thing in any given case remains to be seen, but this particular case is a fine example of federalism, one state choosing to go its own way. (Now, if federalism fever would only spread to search and seizure doctrine … )

Also note: The seminal case in this area, U.S. v. Luce, 468 U.S. 38 (1984), holds that a defendant must testify in order to preserve a challenge to an in limine ruling allowing impeachment with prior convictions; that holding was cited with approval in State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198. Our court obviously deemed that situation distinguishable from Gary M.B.’s. But the cautious practitioner will be sensitive to the possibility of the extension of Ohler into other areas; see discussion, for example, in People v. Boyd, MI SCt No. 118021, 7/1/04 (extending rule so that “to preserve for appellate review a challenge to a trial court’s ruling in limine allowing into evidence a defendant’s exercise of his Fifth Amendment privilege, the defendant must testify at trial”).


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