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Witness – Rebuttal

State v. Richard N. Konkol, 2002 WI App 174
For Konkol: Brian Hough

Issue/Holding: The proper test for admissibility of rebuttal evidence isn’t whether it could have been admitted in, or would have been useful to, the state’s case-in-chief, but whether it meets new facts put in by the defendant. ¶¶18-19.

¶18      Thus, the only other basis for barring the witness would be that she was not a bona fide rebuttal witness.  The trial court has considerable discretion in controlling evidence to be admitted in rebuttal.  King v. State, 75 Wis. 2d 26, 42, 248 N.W.2d 458 (1977).  We determine, however, that the trial court erred as a matter of law when it stated that the expert witness was “not really rebuttal” and “could have been proffered during the case in chief.”  Whether evidence could have been admitted in the State’s case is not the test of admissibility of rebuttal evidence.  The proper test under Lunde is whether the expert’s testimony only became necessary and appropriate when Konkol presented his case-in-reply.  Lunde, 85 Wis. 2d at 91-92; see also King, 75 Wis. 2d at 42 (rebuttal evidence should meet new facts put in by defendant).

¶19      We are convinced that the State satisfied that test in this case.  The expert’s testimony was proper rebuttal because it directly answered an issue introduced by Konkol’s defense—that he could not have been intoxicated after only one drink.  It should have come as no surprise to Konkol that the State would seek to defuse his “only one drink” theory with evidence that a man of his size would have had to consume five drinks to blow 0.12%.  This is not trial by ambush; it is simply the State’s response to an issue Konkol raised in his defense.  The fact that the expert’s testimony would have been useful in the case-in-chief does not preclude its use in rebuttal.  Because the trial court should have let the expert testify, it follows that the trial court’s alternate procedure of allowing the State to use the blood alcohol chart was not error.[7]

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