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State v. Hammer7/11/2000
ht by improperly touching them; 2) that the victims were of the same sex; 3) that they were between the ages of fourteen and twenty; 4) that both incidents occurred at a home; and 5) that Hammer knew the victims. Without acknowledging the higher standard of admissibility to prove identity, and by applying instead the greater latitude rule, the majority concludes that these similarities suffice for the admission of Hammer's prior act.
. The facts surrounding the prior act in this case are unfortunately all too common in sexual assaults and do not demonstrate Hammer's unique imprint as required by the higher standard of admissibility based on identity. Whether it be the time of night, place of private residence, or circumstance involving victims of the same sex, age range, and familiarity with Hammer, these facts fail to reveal a nearness that would constitute a particular "quirk" or imprint of the defendant to prove his identity.
. In each of the three steps of its other acts analysis, the majority explains that it is applying the greater latitude rule, citing to Davidson, 2000 WI 91, . Engaging in such a nuanced approach to the greater latitude rule seems unnecessary because the bottom line is that, whether for one step or for all three, the majority will admit other acts evidence in child sexual assault cases. To apply the rule separately to each step simply lengthens the majority's discussion to arrive at the predictable conclusion that prior acts have been admitted properly under Wis. Stat. § (Rule) 904.04(2).
. There are times when the admission of other acts evidence is appropriate. However, these acts must be specific as to the particular purpose for which they are offered, and the proponent of such evidence must clearly articulate the purposes for which it is intended. In delivering its cautionary instruction, a court should be careful to advise the jury of the specific statutory purpose for which the other act has been introduced rather than reciting the laundry list of purposes set forth in Wis. Stat. § (Rule) 904.04(2).
. The dangers underlying the admission of other acts evidence are well established. In Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967), this court noted the dangers that result from the inadequate balancing of the probative value of prior acts evidence against the harm to the defendant, including: 1) the overwhelming tendency to presume the defendant guilty because he is a person likely to commit such acts; 2) the tendency to condemn not because of the defendant's actual guilt but because he may have escaped punishment for previous acts; 3) the injustice in attacking a person who is not prepared to show that the evidence used for attack is fabricated; and 4) the confusion of issues that may result from the introduction of other crimes. Id.
. The majority's result underscores that it seemingly matters little whether the greater latitude rule applies to the first prong, second prong, third prong, or to all three prongs of the other acts analysis. It matters little whether it is a rule of greater latitude or higher altitude or enhanced longitude, or any other rule. Even when the rule is inconsistent with another evidentiary principle or requirement, the prior act is allowed into evidence. The application of the greater latitude rule in this case seemingly nullifies a more stringent standard for proof of identity. Accordingly, I dissent.
. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE WILLIAM A. BABLITCH join this dissent.
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