• Construction of Evidence Code, Generally
• § 901.03, Objection/Offer of Proof
• § 901.03(4), Plain Error
• § 901.07, Completeness Doctrine

• Misconduct in Public Office
• Receipt of Mail

          § 904.01 -- Relevance, Generally

• Consciousness of Guilt
• Consciousness of Innocence
• Demonstrative Evidence
• Failure to Identify Defendant and Suggestiveness of Line-Up
• Field Sobriety Test
• Gun Possession, Chrage of Drug Trafficking
• Hand-Swabbing Results
• Marijuana Use (Negligent Homicide)
• "Profile Character" (Richard A.P.)
• Refusal, OWI
• Silence

§ 904.03 -- Prejudice

• § 904.04(1)(a):
  • Pertinent Trait of Defendant
• § 904.04(1)(b), Character of Victim:
  • "McMorris"/Self-Defense
• § 904.04(2):
  • Applicability to SVP (Ch. 980)
  • Burden of Proof
  • Inadequate Trial Court Discretion, Remedy
  • "Sullivan" Analysis/Particular Examples:
    • Bias, Prosecution Witness
    • Bond
    • Context
    • Victim's State of Mind
    • Opportunity and Motive
    • "Reverse Misconduct"
    • Miscellaneous
  • Greater Latitude Rule
  • Waiver

§ 904.10 -- Plea Bargaining Statements

• Honesty Testing
• Spousal
• Confidential Informant
• Attorney-Client
• "Shiffra" Material
• Psychotherapist-Patient
• Counselor-Patient
• Comment on / Inference from Claim of Privilege

• Bailiff
• False Testimony
• Impeachment
  • Bias
  • Gang Affiliation
  • Deferred Prosecution
  • Motive to Lie
  • Parole Eligibility Date
  • Pending Charge
  • Prior Convictions
  • Silence
• Involuntary Statement (not Defendant's)
• Comment on Truthfulness
• Interrogation by Judge
• Silence -- Post-Miranda

• Generally
• Battered Woman Syndrome
• Based on Hearsay
• Daubert
• ID
• On Issue of Law
• "Jensen" Testimony / "Maday" Exam
• Memory and Suggestibility of Child Witness
• Mental Disorder
• Physician's Desk Reference
• "Profile Character" ("Richard A.P.")
• Qualifications
• TPR
• Truthfulness of Another Witness
• Ultimate Fact

• (General note on confrontation)
• 911 Calls
• Authentication of Document
• Unavailability of Hearsay Declarant: Here
• Narrative Statement, Multiple Assertions
• § 908.01(1), Definitions ("Statement"; "Assertion")
• § 908.01(4)(a)1, Prior Inconsistent Statement
• § 908.01(4)(a)2, Prior Consistent Statement
• § 908.01(4)(b)5, Co-Conspirator's Statement
• § 908.03(2), Excited Utterance
• § 908.03(3), State of Mind
• § 908.03(6), Business Records
• § 908.03(8), Public Reports
• §§ 908.03(24) / 908.045(6), Residual Exceptions
• § 908.045(1), Former testimony
• § 908.045(2), Recent Perception
• § 908.045(4), Against-Interest Statement
  • Penal Interest: Exculpating Defendant
  • Penal Interest: Inculpating Defendant
  • Social Interest
• § 908.06, Attacking / Supporting Credibility of Hearsay Declarant
• § 908.08, Videotaped Statements of Children
• Exculpatory Evidence: See Here

• Applicability
  • Sentencing
• Bank Records Authentication, § 891.24
• Confidentiality of Juvenile Records
• Confidentiality of (Defense-Prepared) Presentence Report: Go here
• Confessions
  • Corroboration Requirement
  • Juveniles -- Recording Requirement
• Legislative Privilege, § 13.96
• Rebuttal
• Witness List Violation

¶31      The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis. Stat. § 906.13(2)(a), and therefore waived that issue. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 ("It is a fundamental principle of appellate review that issues must be preserved at the circuit court."). The State contends that Nelis' objection that the oral statements of Steve Stone were hearsay was insufficient to preserve Nelis' claim now that the statements were inadmissible under § 906.13(2)(a). We agree with the State's argument that Nelis' objection to the oral statements was not specific enough to preserve his claim that the admission of Steve Stone's oral statement contravened § 906.13(2)(a). An objection is sufficient to preserve an issue for appeal, if it apprises the court of the specific grounds upon which it is based. In Interest of Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998). A general objection that does not indicate the specific grounds for inadmissibility of evidence will not suffice to preserve the objector's right to appeal. State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999).

…

¶34      During the direct examination of Police Chief Stone, Nelis' counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis. Stat. § 908.04(1)(c), claiming that Steve Stone was unavailable, thus not "subject to cross-examination," and that the statement violated Nelis' confrontation right under Crawford, 541 U.S. 36. Nelis' counsel did not, however, object on the ground of Wis. Stat. § 906.13(2)(a). We are satisfied that, because Nelis did not object to the admissibility of Steve Stone's oral statements on the ground of § 906.13(2)(a), such argument was waived for failure to state it with sufficient specificity before the circuit court. State v. Givens, 217 Wis. 2d 180, 195, 580 N.W.2d 340 (Ct. App. 1998).

¶17      First, at the very least, trial counsel’s objection should have led the court to Wis. Stat. §  904.08, which in turn would have brought Wis. Stat. §  904.10 to the court’s attention. Counsel used the phrase “offer to compromise” in framing her objection, and § 904.08 contains virtually identical language. See State v. Corey J.G., 215 Wis. 2d 395, 407 & n.7, 572 N.W.2d 845 (1998) (stating that although an objection must be sufficiently specific to apprise the trial court of the grounds on which it is based, it is not necessary for counsel to cite the precise statutory section at issue). Section 904.10 lies on the facing page to this statute directly in the reader’s field of vision in the current version of our statutes. Moreover, § 904.10 is directly on point. It categorically mandates the exclusion of plea offers. See State v. Mason, 132 Wis. 2d 427, 432-33, 393 N.W.2d 102 (Ct. App. 1986) (holding that “is not admissible” language in § 904.10 intended a prohibition “for any purpose”). Under the circumstances, § 904.10 was simply too conspicuous not to notice.

¶18      Second, one could reasonably conclude that Norwood ’s trial counsel did adequately preserve an objection based on Wis. Stat. § 904.10. Although it may not have been technically correct to characterize Norwood ’s letter as an “offer of settlement,” counsel appears to have used the term loosely to refer to the ultimate disposition of a case. …

¶19      Third, if we apply waiver to this case, Norwood would probably have grounds to claim ineffective assistance of counsel.  Counsel performs ineffectively when his or her performance is deficient and prejudices the client’s defense. …

¶15 The court in Milenkovich did not say, and we do not say now, that every offer of proof should be accompanied by a question and answer format. There are cases in which the evidentiary problem posed is easily resolved by statements of counsel. Other considerations, such as concerns of or for the alleged victim, may well encourage the court to resolve the matter without the question and answer format. Nevertheless, in a close case we encourage the circuit courts to engage in the question and answer format.

¶21      Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. ^[3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party's failure to object.  State v. Mayo, 2007 WI 78, ¶29, 301 Wis.  2d 642, 734 N.W.2d 115. See also 7 Daniel D. Blinka, Wisconsin Evidence § 103.7 (2d ed. 2001). Plain error is "'error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.'" State v. Sonnenberg, 117 Wis.  2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be "obvious and substantial." Id. Courts should use the plain error doctrine sparingly. Id. For example, "'where a basic constitutional right has not been extended to the accused,'" the plain error doctrine should be utilized. Id. (citing Virgil v. State, 84 Wis.  2d 166, 195, 267 N.W.2d 852 (1978) (Beilfuss, C.J., concurring); " Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule." State v. King, 205 Wis.  2d 81, 91, 555 N.W.2d 189 (Ct. App. 1996) (citing to a number of Wisconsin cases applying the plain error doctrine).

¶22      However, "'the existence of plain error will turn on the facts of the particular case.'" Mayo, 301 Wis.  2d 642, ¶29 (citing Virgil, 84 Wis.  2d at 190-91). …

¶23      If the defendant shows that the unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless. ^[4] Id. (citing King, 205 Wis.  2d at 93). …

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 ^[4]  "It is also consistent with federal case law for us to use a harmless error analysis in determining whether to invoke the plain error doctrine." State v. King, 205 Wis.  2d 81, 92, 555 N.W.2d 189 (Ct. App. 1996). See also United States v. Olano, 507 U.S. 725, 734 (1993). However, unlike the state of Wisconsin where the State holds the burden, in the federal system the burden is on the defendant to show that the error was harmless. King, 205 Wis.  2d at 93. The concurrence advocates for stating the specific language that federal courts use in their plain error doctrine analysis. Instead, the majority decision today incorporates existing Wisconsin case law on that issue in order to clarify Wisconsin's plain error doctrine. See ¶¶21 and 22 of this opinion. While the concurrence questions what would qualify as fundamental and substantial error under the majority's test, the federal doctrine, as espoused by the concurrence, raises the same question. The concurrence also asks whether a fundamental and substantial error can be harmless. Under our analysis, any error that satisfies the first prong of our plain error doctrine, i.e., any error that is fundamental, obvious, and substantial, must then undergo the second prong of whether that error is nonetheless harmless. Today we find that the errors constitute plain error. In this case, we are not presented with facts that satisfy the first prong but are harmless under the second prong. In a future case, however, an error may satisfy the first prong but nonetheless be deemed harmless under the second prong's seven factor test, and thus, the error would not constitute plain error.

¶29      Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party’s failure to object properly or preserve the error for review as a matter of right. This court has not articulated a bright-line rule for what constitutes plain error, acknowledging that there is no "hard and fast classification" relative to its application. Virgil v. State, 84 Wis. 2d 166, 190-91, 267 N.W.2d 852 (1978). Rather, the existence of plain error will turn on the facts of the particular case. Id. Of particular importance is the quantum of evidence properly admitted and the seriousness of the error involved. Id. The burden is on the State to prove that the plain error is harmless beyond a reasonable doubt. State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (1996).

¶35      … See Wis. Stat. § 901.03(4) (2003-04) (court may consider plain errors affecting substantial rights even where not brought to the attention of the trial court). A “plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). …

¶34      "'The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'" State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; ^[10] Wis. Const. art. I, § 7. ^[11] By reading the November 10 hearing transcript at Jorgensen's criminal trial, which essentially provided the jury with the judge's and the prosecutor's conclusions about Jorgensen's guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.

¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen's alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

¶36      The circuit court's commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court's observations. …

¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially "testified" against the defendant without being subject to confrontation. …

¶39      Jorgensen's right to confrontation was also violated during the prosecutor's closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She "testified" that Jorgensen was a "chronic alcoholic" who did not acknowledge his problem, that on November 10 she smelled a strong odor of intoxicants from him, and that she knew Jorgensen was drunk that day in court.

¶25      Here, as in Eugenio, the defense essentially argued that the victim “engaged in a systematic pattern of lying about the events.” Id. at 363 (footnote omitted). This is a “sufficient reason” to permit the State to introduce other portions of the victim’s previous statements to rebut that theory. See id. Thus, we are satisfied that the underpinnings for the doctrine of completeness were established and the trial court properly exercised its discretion in permitting the State to introduce the evidence.

We hold that when a defendant in a criminal case objects to testimony of his out-of-court statement as incomplete, or attempts to cross-examine the witness on additional portions of the defendant's out-of-court statement and the State objects, the court should make the two-part discretionary determination required by Eugenio without regard to whether the defendant intends to testify. Once the court has determined that any additional portion of the statement is necessary under the Eugenio standard, it must permit the presentation of that additional portion, although the timing of that presentation is discretionary: it may occur during the State's case or when the defense recalls the witness during its case. Fairness to the State does not require that the additional portion necessary under the completeness rule be excluded unless the defendant testifies, because the Eugenio test is sufficiently narrow to insure that only the additional portion necessary to avoid distortion is admissible. On the other hand, it would be unfair to the defendant to force him or her to choose between giving up the constitutional right not to testify and correcting a distorted impression of his or her prior statement presented by the State.

After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion, we elect to take judicial notice of this document, which is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. § 902.01(2)(b) (2003-04).

¶13. Trial courts may take judicial notice in limited areas-"fact[s] generally known within the territorial jurisdiction of the trial court," or "fact[s] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. Rule 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point "an opportunity to be heard." Rule 902.01(5).¹ Further, a judge may not take "judicial notice" of things that he or she knows unless that knowledge also falls within the rule. State v. Peterson, 222 Wis. 2d 449, 457-458, 588 N.W.2d 84, 87-88 (Ct. App. 1998) ("A trial court sitting as fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual.") (footnotes omitted).

A trial court sitting as fact-finder⁶ may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,⁷ but it may not establish as an adjudicative fact that which is known to the judge as an individual. Hoeft v. Friedli, 164 Wis.2d 178, 189, 473 N.W.2d 604, 607-08 (Ct. App. 1991). In Hoeft the trial judge knew, from personal experience, that the author of a particular letter in evidence had a sense of humor. Based on that personal knowledge, the court discounted the letter's evidentiary value. We held this was an erroneous exercise of discretion because the author's "sense of humor was neither part of the evidence nor a fact generally known." Id. at 189-90, 473 N.W.2d at 608. Similarly, here the trial judge's opinion of what one can see on the river at night is neither part of the record nor a generally known fact suitable for judicial notice. As we stated in Hoeft, "[w]e recognize that the trial judge's opinion was guided by good faith reliance upon his past experience and personal knowledge." Id. at 189, 473 N.W.2d at 608. However, the trial judge may not rely on his own experience on the river at night to determine whether the videotape was an accurate portrayal of the demonstration. We conclude that the court erroneously exercised its discretion in doing so.

¶9        In State v. Kuntz, 160 Wis.  2d 722, 736-37, 467 N.W.2d 531 (1991), the supreme court explained that:

A mandatory presumption instructs the jury that it must find the elemental fact if the state proves certain predicate facts.  A mandatory presumption that is irrebutable is conclusive.  Thus, a mandatory conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the state proves the predicate facts. 

(Citations omitted.)  Wisconsin Stat. § 903.03(2) limits the circumstances under which a judge may direct a jury to find a presumed fact against a defendant.  In the event that the judge gives such an instruction, § 903.03(3) requires that

the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so.  In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

¶10       Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element); ^[3] and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns….  Political activity includes any of the following:  Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties). ^[4]  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes. 

¶11      … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).

…

¶20      We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes.  The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another.  Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact).  This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes.  Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.

¶17      Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction.  In Dyess, the instruction directed the jury to find negligence on a finding of speeding.  Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes.  We fail to see a distinction. 

¶18      The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper.  The Dyess court rejected this argument. …

¶23      Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts.  See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper).  Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties.  Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury,^[6] whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury.  Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.

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 [6]   … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.