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SCOW to review erroneous exclusion of defense DNA evidence

State v. David Gutierrez, 2017AP2364-CR, petition for review of a published court of appeals decision granted 11/13/19; case activity (including briefs)

Issue (based on the State’s Petition for Review):

1. Did the court of appeals violate the standard of appellate review of trial court evidentiary rulings by holding the trial court erred in deciding to exclude evidence offered by the defendant that DNA from other men was found on the clothing of the complainant in a child sexual assault prosecution?

2. Did the court of appeals improperly apply Wis. Stat. § 972.11(2)(b), Wisconsin’s rape shield law, when it held the defendant was not offering the DNA evidence as evidence concerning the victim’s prior sexual conduct?

Though the PFR’s statement of the issues differs in how it breaks down the issues and in its tone (which betrays a certain amount of umbrage about the court of appeals decision), these are the two central primary issues in this case. As one can see, there’s not much law development potential here, and the grant looks more like error correction (the error being the grant of a new trial) in a very fact dependent case. For those facts you can read our post on the court of appeals decision. There was a dissent in the court of appeals, written by now-Justice Hagedorn, who presumably will recuse himself from deciding this case.

That said, this case could wreck some havoc on the application of the rape shield law. According to the state (PFR at 14-16), the majority opinion “does violence to” and “undermines” the rape shield law by telling trial judges that, when in doubt, they should admit evidence that might cause the jury to speculate about the victim’s sexual history even if it was offered for another purpose. This ignores the basic problem with applying § 972.11(2) here. The evidence isn’t about the alleged victim’s sexual conduct at all, but only about the fact other DNA was found on her clothing, which undermined the state’s theory about why Gutierrez’s DNA was not found–namely, that it was washed off. Put another way, the mere presence of DNA isn’t evidence of sexual conduct. The state’s notion that the statute excludes any evidence that allows a jury to speculate that the victim may have engaged in sexual conduct with someone is a wholesale expansion of the law ungrounded in the statutory text, and it flatly disregards the rule that the jury will follow the standard instruction that it base its decision on the evidence, not on speculation.

As for deferential review of a trial court’s evidentiary decision, even that deferential standard requires the discretionary decision to be reasonable based on the facts of the case. The heart of the court of appeals decision was that the sum total of the trial court’s evidentiary rulings wasn’t reasonable because it deprived Gutierrez the right to rebut the state’s theory about why his DNA was not found. Pretty much par-for-the-course application of the standard of review, really. And it shows that despite the state’s sneer (PFR at 12), there’s no need to “remind” the court of appeals to defer to the circuit court’s evidentiary rulings—unless by “defer” the state means “not review at all.”

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