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Unfair Prejudice, § 904.03 – Misconduct Evidence, Child Sexual Assault

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson


¶23      Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident. Given the obvious probable prejudice to the defendant, the probative value of the evidence to prove a legitimate fact of consequence—which is not proof of the defendant’s character—should be strong indeed.  The slim reeds of probative value identified above crumble here under the weight of prejudice to the defendant.


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