EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 7, 2009

Notice Me: Wisconsin Seemingly Makes Bad Analogy In Arguing For Pre-Trial Notice Requirement In Self-Defense Cases

I don't quite understand the logic of the State's appeal from State v. McClaren, 756 N.W.2d 802 (Wis.App. 2008) to the Supreme Court of Wisconsin.

In McClaren, Jason McClaren was charged with aggravated battery, attempted first-degree intentional homicide, and first-degree reckless injury in connection with an altercation with Conrad Goehl.  By pretrial motion in limine, McClaren sought a ruling regarding the admissibility of evidence of Goehl's dangerous character and prior acts of violence as they related to his claim of self-defense. At the hearing on the motion, the State conceded that there was a factual basis for McClaren to use this evidence to support a claim of perfect self-defense pursuant to McMorris v. State, 205 N.W.2d 559 (Wis. 1973), in which the Supreme Court of Wisconsin held that:

     "When the issue of self-defense is raised in a prosecution for assault or homicide and there is a factual basis to support such defense, the defendant may, in support of the defense, establish what the defendant believed to be the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident."

So, while McClaren was victorious on that front, he was dismayed by the court's conclusion that he had to

     "provide the State, before trial, with 'a [written] summary of all specific instances of the victim's violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred.'"

McClaren thus appealed, and the Court of Appeals of Wisconsin, which reversed, concluding, inter alia, that Wisconsin courts lack the power to enter such an order pursuant to either Wis. Stat. Section 971.23 or the rule laid down in State v. Miller, 151 N.W.2d 157 (Wis. 1967) and that the courts'

     "general authority to superintend a trial cannot be read to permit a court to require pretrial discovery that it would otherwise not be authorized to do under Wis. Stat. ยง 971.23 and the rule in Miller."

Now, I don't have the State's appeal before me, but articles have explained that the State has contended "that disclosure would be consistent with the federal rule of evidence, which requires the prosecution to provide pretrial notice of 'other acts' evidence committed by the defendant."  And I don't see how such an argument would make any sense.

Federal Rule of Evidence 404(b) indicates that:

     "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

First of all, this rule has nothing to do with defendants seeking to present evidence that they were aware of prior violent acts by the alleged victim to prove self-defense.  Second, the Rule only places a pre-trial notice requirement on the prosecution, not on criminal defendants.  And third, it only asks the prosecution to provide notice of "the general nature of any such evidence," whereas the trial judge ordered McClaren to produce "a [written] summary of all specific instances of the victim's violent conduct...."

Thus, to the extent that the State is raising this argument on appeal, I don't think that it will be successful.



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