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State of Wisconsin v. Alan Keith Burns, Wis SCt review grant, 5/13/10

decision below: unpublished (2009AP118); for Burns: David R. Karpe


Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?

The rape-shield law, § 972.11(2)(b), bars evidence of a complainant’s prior sexual conduct subject to narrow exceptions, none of which apply here. Burns allegedly had sex with his young niece and wanted to introduce evidence that her grandfather (his father) had assaulted her. A complainant’s false accusation of sexual assault is a rape-shield exception, and there’s a nice summary why in Jessie L. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (“The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct.”) But as the court of appeals indicates, “Burns is not contending that the allegations against her grandfather were false but that they are true,” slip op., ¶17. Burns therefore can’t rely on an exception. Caselaw provides a safety valve where strict application of the rape-shield law prevents the jury from hearing evidence necessary to the defense, State v. Pulizzano, 155 Wis. 2d 633, 656-657, 456 N.W.2d 325 (1990). It’s a species of the constitutional right to present a defense notwithstanding mechanistic application of a rule of evidence, in a particular context with an accompanying set of specific ground-rules. See generally Rock v. Arkansas, 483 U.S. 44, 58 (1987), and Chambers v. Mississippi, 410 U.S. 284 (1973). So the question here seems to be (petitions for review aren’t posted, which makes guesswork required if hazardous) whether exclusion of the niece’s true accusations against her grandfather interfered with Burns’ constitutional rights to confrontation and present a defense. And that would appear to turn on whether, as the Issue-statement puts it, the assaults were accomplished by the grandfather rather than Burns. The court of appeals thought not, slip op., ¶26, which makes this case one that applies settled law to discrete facts. This raises an unanswerable question: why did the court grant review? To breathe new life into Pulizzano? Or to bury it?

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