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Particular Examples of Misconduct, § 904.04(2) — Prior Juvenile Offense — Probative Value

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue: Whether evidence that the defendant committed a burglary at the age of 13 was admissible as extrinsic evidence to impeach his testimonial denial, on cross-examination, of intent to steal.

Holding: § 906.08(2) expressly prohibits using extrinsic evidence of specific instances of conduct to attack a witness’s credibility, ¶33. Nor is this evidence relevant under § 904.04(2), under the following analysis. Proof of the prior burglary relates to intent to steal and, because the defendant was currently charged with burglary and robbery — both of which contain the intent-to-steal element, this evidence relates to a fact of consequence, ¶36. However, it must also have probative value:

¶38. We must also take into consideration, however, the fact that Collins was thirteen years old when the prior acts allegedly took place. The difference between a thirteen year old and a twenty year old is much more significant than the difference between someone who is thirty-three and someone who is forty. Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult. See Roberts v. State, 634 S.W.2d 767 (Tex. Crim. App. 1982); Edward J. Imwinklried, Uncharged Misconduct § 8.08 at 27 (1999).

Nor was there a strong similarity between the incidents. Other than the fact that both involved intent to steal from a residence, no similarities were shown. ¶39. The rule on misconduct evidence is one of exclusion. ¶40. Therefore, because the prior misconduct was remote in time and lacked similarity in relation to the charged offenses, it lacked probative value and should have been excluded. ¶41. (The error, however, is deemed harmless.)

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