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SCOW to address mistrials and curative instructions

State v. Eric J. Debrow, 2021AP1732-CR, petition for review of an unpublished COA opinion granted 12/15/22, reversed, 2023 WI 54; case activity (including PFR, Response, and COA briefs)

Issue presented (from the State’s petition):

Did the court of appeals apply the proper legal standard to its review of the circuit court’s decision to deny Debrow’s motion for a mistrial when it considered the adequacy of the curative instruction given by the circuit court and, if not, did the circuit court properly exercise its discretion in denying the motion for a mistrial?

Debrow was convicted of child sexual assault in 2004. In 2020, he was tried for child sexual assault again. This time the alleged victim’s brother testified and made a reference to having looked him up on CCAP. Debrow objected, moved to strike, and moved for a mistrial. He said the jury would wonder what was on CCAP that caused the brother to be so vigilant. No curative instruction could correct this error. The circuit court denied the mistrial and gave the curative instruction.

As noted in our prior post, the court of appeals reversed because the curative instruction did not ameliorate the prejudicial effect of the brother’s testimony.  The State urged SCOW to take the case because allegedly it presents a recurring legal issue. SCOW should clarify whether the circuit court must first decide whether a mistrial is necessary and then separately determine whether a curative instruction can correct the problem. The State’s PFR says the court of appeals conflated the two analyses. However, the State does not identify any other case where this has occurred.

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