by admin
on February 13, 2002
State v. Michael L. Veach, 2002 WI 110, reversing 2001 WI App 143
For Veach: Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether, on charges of sexually assaulting a 7-year old girl, evidence that the defendant had sexually assaulted his 9-year old daughter approximately 11 years earlier was properly admissible.
Holding:
- 1). The evidence was offered for an acceptable purpose, namely intent, motive, and absence of mistake or accident. ¶58.
- 2a). The evidence was relevant, the court rejecting Veach’s argument that an element must be disputed before extrinsic evidence may be deemed relevant to that element. ¶77. (Note: The court therefore devotes much of the opinion to discussing an irrelevancy — the idea that Veach didn’t really concede intent. ¶¶60-76.)
- 2b). The incidents were sufficiently similar to have probative value: young girl, father(-like) relationship. ¶¶79-82. Acknowledged dissimilarities, and lengthy passage of time, are overcome by the idea that the prior incidents “obviously had at least some probative value” — to show motive and absence of mistake/accident. ¶¶83-84.
- 3). The other acts were “graphic, disturbing, and extremely prejudicial,” but the danger of unfair prejudice didn’t outweigh probative value, especially given the greater latitude rule (relaxed admissibility for extrinsic acts in child sexual assault cases).
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by admin
on February 13, 2002
State v. Brian D. Seefeldt, 2002 WI App 149, affirmed, 2003 WI 47
For Seefeldt: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶23. We are satisfied that the reference to the outstanding warrants is not classic “other acts” evidence invoking Wis. Stat. § 904.04(2) analysis. Rather, the existence of the warrants is “part of the panorama of evidence” that directly supports Seefeldt’s defense and sits at the heart of his right to present exculpatory evidence. See Johnson, 184 Wis. 2d at 349, 354 (Anderson, P.J., concurring). Therefore, Carroll’s remarks did not cause the jury to hear any information that would have rendered the proceedings unfair to the State.
Admissibility was really subsidiary to the main issue, whether defense counsel’s mentioning outstanding warrants for Seefeldt’s girlfriend established the latter’s motive to flee in their car created a manifest necessity for mistrial. As the quote above suggests, the court of appeals held that this reference didn’t involve “classic ‘other acts’ evidence” and therefore no manifest necessity existed for mistrial. On the question of manifest necessity, the supreme court affirmed, and its handling of the subsidiary question of admissibility is consistent with the court of appeals, ¶39 (this evidence would have been admissible on the issue of the girlfriend’s motive for engaging in a high speed chase, and also her bias to curry favor for subsequent incriminaiton of Seefeldt).
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by admin
on February 13, 2002
State v. Eugene P. Opalewski, 2002 WI App 145, PFR filed 6/6/02
For Opalewski: Lorinne J. Cunningham
Issue/Holding: On charges of first degree sexual assault of a child and incest, evidence of the defendant’s past sexual abuse of his two daughters and the children of a prior girlfriend was admissible under the three-step test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).
- Similarity: The prior acts were similar to the charged act, especially in that “(i)n each instance, a child within a familial or quasi-familial setting was sexually assaulted.” ¶18.
- Remoteness in time: Though the prior acts occurred 15-25 years earlier, they weren’t remote (court stresses the repetitive nature and similarities of the acts, i.e., “a pattern of consistent activity”). ¶¶21-22.
- Prejudice: The prior acts weren’t unfairly prejudicial: testimony challenged as unduly prejudicial was either unobjected-to and self-inflicted (i.e., brought out on cross without objection) and therefore waived, ¶25, citing United States v. Ohler, 529 U.S. 753, 755 (2000); or wasn’t of such nature as to “provoke hostility and revulsion.” ¶27.
And, certain other challenges to closing argument as exacerbating prejudicial effect are held waived by lack of objection. ¶29.
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by admin
on February 13, 2002
State v. Marc Norfleet, 2002 WI App 140
For Norfleet: Alan D. Eisenberg
Issue/Holding: Once the trial court reasonably determines that disclosure of an informant’s identity is required, there is no need to hold an in camera hearing, ¶¶13-14.
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by admin
on February 13, 2002
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: The attorney-client privilege shields statements from attorney to client, such as billing records only to the extent that disclosure would “reveal[] the substance of lawyer-client communications.” ¶40. The undisputed record here shows that the sought billing records “contain detailed descriptions of the nature of the legal services rendered to [the client]. Producing the attorney billing records would, therefore, reveal the substance of lawyer-client communications between [client] and [counsel]. Accordingly, we conclude that the attorney billing records are protected by the lawyer-client privilege.” ¶41.
The court specifically “declines(s) to establish a broad rule that all attorney billing records are protected by the lawyer-client privilege.” Id. And, indeed, foreign authority seems to be to like effect, Chaudry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999): “Typically, the attorney-client privilege does not extend to billing records and expense reports.” See also id. for brief description of what does comes within privilege. See also Slusaw v. Hoffman, 2004 PA Super 354, 9/13/04, ¶13 (“The subpoenaed invoices are not privileged documents to the extent that they do not disclsoe confidential communications which Slusaw disclosed to Attorneys Wallitsch and Reich. If the invoices contain any references to such confidential communications, those references can be redacted from the invoices.”).
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by admin
on February 13, 2002
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: A former officer and director of a corporation is not entitled to waive the corporation’s attorney-client privilege, even with regard to information generated during the person’s corporate tenure. Under the “entity rule,” the privilege belongs solely to the corporation, and only the corporation may waive it. ¶¶33-35.
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by admin
on February 13, 2002
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: Although a mere allegation is insufficient, the burden for establishing a prima facie case of the attorney-client crime-fraud exception is low — reasonable cause (i.e., more than suspicion but less than preponderance-of-evidence) to believe that the attorney’s services were utilized in furtherance of the ongoing unlawful scheme. ¶50, quoting United States v. Chen, 99 F.3d 1495, 1503 (9th Cir. 1996). “Once the circuit court determines the prima facie case has been established, an in camera review is the proper procedure to determine if the crime-fraud exception to the lawyer-client privilege applies.” ¶55. The decision to hold an in camera review is discretionary, as informed by the factors outlined in United States v. Zolin, 491 U.S. 554, 572 (1989). ¶56.
The court requires an in camera inspection in this case but doesn’t really say why, except: “”Only by reviewing the documents at issue is the circuit court able to determine whether [counsel’s] legal services were rendered in furtherance of fraud.” Id.
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by admin
on February 13, 2002
Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification
Issue/Holding: Work-product is a “qualified privilege” to refuse disclosure of materials generated by counsel in anticipation of litigation that only gives way upon showing of substantial need along with undue hardship in obtaining the substantial equivalent through other means. ¶61. The trial court erroneously exercised discretion in simply rebuffing the claim of privilege without finding the existence of substantial need preparation in anticipation of litigation. An in camera inspection is ordered on remand. ¶62.
Lane describes in some detail in the cited paragraphs the showing necessary to find a work product privilege. As the court notes, this privilege is codified in § 804.01(2)(c); and, because FRCivP 26(b)(3) is “the federal analogue to “this statute, “federal decisions construing the federal counterpart” are relevant.
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