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Particular Examples of Misconduct, § 904.04(2) — “Reverse” Misconduct — 3rd-party similar crime as exoneration of defendant

State v. Daniel G. Scheidell, 227 Wis.2d 285, 595 N.W.2d 661 (1999), on reconsideration, State v. Scheidell, 230 Wis.2d 189, 601 N.W.2d 284 (1999), reversing State v. Scheidell, 220 Wis.2d 753, 584 N.W.2d 897 (Ct. App. 1998)
For Scheidell: Mitchell E. Cooper, SPD, Madison.

Holding: Scheidell sought to introduce evidence that, while he was in jail awaiting trial on this sexual assault-related case, someone else committed a similar assault; the idea, of course, is that this was “reverse-Whitty” evidence to show that the 3rd party likely committed the charged assault. This sort of evidence is tested for admissibility under a three-step process.

  • First, permissible purpose under Wis. Stat. § 904.04(2) (here, identity, which is certainly permissible).
  • Second, relevance, comprised of two sub-steps. (A) relation to a consequential fact or proposition (here, identity again, which passes this test); (B) probative value, which turns on nearness in time, place, etc. (and in practice probably turns on sufficient similarities between charged and extrinsic crime). Similarities don’t have to be strong enough to amount to “signature,” but do have to establish “more than conjecture or speculation.” The court disdains generalization, except to belabor the obvious: the greater the similarity, complexity, distinctiveness and frequency, the greater the case for admissibility.
  • Third, “the court must balance the probity (sic) of the evidence, considering the similarities between the other act and the crime alleged, against the considerations contained in Wis. Stat. § 904.03. …” The court acknowledges a laundry list of similarities in this case but says that they aren’t “so distinctively similar as to support the inference that some unknown third party, and not Scheidell, committed the charged crime.” Therefore, the evidence is deemed inadmissible.


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