EvidenceProf Blog

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

Tuesday, December 11, 2012

My Reincarnation: Court Of Appeals Of Wisconsin Deems Reincarnation Belief Evidence Inadmissible Character Evidence

Similar to its federal counterpart, WIS. STAT. § 906.10 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.

Now, consider the facts of State v. Jennings, 819 N.W.2d 563 (Wis.App. 2012):

Kami L. Jennings was charged with misdemeanor theft—party to a crime, contributing to the delinquency of a child, and receiving stolen property after she allegedly told her nine-year-old daughter Genesis to steal from her ex-husband's wife, Cynthia Troha. Cynthia gossiped to the prosecutor that she heard from Jennings' other daughter, Jade, that Jennings believed her ex-husband's family had persecuted her in previous lives and burned her at the stake. The prosecution bit on the gossip, but never disclosed it to the court or the defense before raising it three times during the trial: during cross-examination of Jennings, during recross-examination of Jennings, and during its closing argument. A jury convicted Jennings of all three counts.

Was the use of this reincarnation evidence proper? According to the court in Jennings, the answer is "no," but not because of § 906.10.

After Jennings was convicted, she moved for a new trial, claiming, inter alia,

that her testimony regarding her belief in reincarnation should have been excluded under § 906.10....The circuit court denied the motion, stating that Jennings' belief that she had been persecuted in a prior life was relevant to the issue of her motive

Jennings then filed a motion for postconviction relief, again claiming, inter alia, that the evidence relating to her belief in reincarnation violated § 906.10. The circuit court granted the motion, prompting the State to appeal to the Court of Appeals of Wisconsin.

That court then agreed with the circuit court but on different grounds. According to the appellate court,

While the parties did not brief the issue, we hold that Jennings' testimony should have been excluded as inadmissible character evidence under WIS. STAT. § 904.04(1)....Section 904.04(1) provides that "[e]vidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion...." The exception, as it pertains to an accused, is when an accused offers evidence of his or her character, or when the prosecution offers evidence in rebuttal. § 904.04(1)(a). The prosecution may not lead with evidence about the accused's character....That is what happened here. The State argues that it needed to elicit Jennings' belief in reincarnation as a way to explain her "bias against Mr. Troha and his family" after Jennings testified that Bradley was controlling and abusive during their marriage. Evidence of Jennings' belief in reincarnation, though, is irrelevant to the crimes charged against her. Furthermore, Jennings' marriage to Bradley was not on trial. As Jennings never raised the issue of her belief in reincarnation on direct examination, the State was not permitted to elicit this highly prejudicial gossip during cross-examination.

I'm not sure whether evidence of Jennings' beliefs should have been admissible, but I don't see how they were inadmissible under § 904.04(1). First, I don't see how those beliefs were evidence of her character or trait of character. Second, I don't see how the prosecution was using those beliefs as propensity character evidence. Instead, as the court initially found, the prosecution was using those beliefs to prove motive. Now, it may be, as the appellate court found, that evidence of those beliefs was irrelevant, but that is a separate issue from the issue of whether they were propensity character evidence.



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