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[T] In re Commitment of Franklin3/11/2003
eading to the conclusion that Wis. Stat. § 904.04(2) does not preclude the other-acts evidence in this case.
I.
. In many trials, it is not uncommon for attorneys to argue that evidence should be excluded because it is "prejudicial" or "unduly prejudicial," or because its probative value is outweighed by its prejudicial effect. Wisconsin Stat. § 904.03, however, allows for no such argument; in part, it provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." (Emphasis added.)
. In many appeals, attorneys repeat these same dead-end arguments. Unfortunately, appellate courts sometimes use the same misleading language. For example, in Wolfe, this court, stating that " he appropriate inquiry is whether the evidence is relevant and whether its probative value is outweighed by the risk of undue prejudice," id., 2002 WI App 136 at (emphasis added), echoed two common errors.
. These differences are far more than semantic. Wisconsin Stat. § 904.03, as written but not as misquoted, correctly recognizes that, of course, relevant and highly probative evidence often is "prejudicial" and, in the estimation of the protesting party, may seem "unduly prejudicial." But the evidence also may be fair. And § 904.03, as written but not as misquoted, correctly recognizes that if the balance between probative value and unfair prejudice is close, the evidence is admissible (assuming, of course, that "confusion of the issues, or misleading the jury, or ... considerations of undue delay, waste of time, or needless presentation of cumulative evidence" is not involved) because its probative value is not "substantially outweighed by the danger of unfair prejudice." See Wis. Stat. § 904.03 (emphasis added).
II.
. Wisconsin Stat. § 904.04(2) in part provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." (Emphasis added.) In this case, the challenged evidence-Franklin's juvenile record, non-sexual adult criminal record, and institutional conduct reports-was not introduced to show that Franklin "acted in conformity" with his juvenile delinquency or adult non-sexual criminal conduct, or that he "acted in conformity" with his institutional behavior. The evidence was admissible because it was relevant, as Judge Fine explains, because its probative value was not substantially outweighed by the danger of unfair prejudice, and because it was not precluded by Wis. Stat. § 904.04(2), given that it was "offered for other purposes," see § 904.04(2)-purposes clearly relevant to the issues in a chapter 980 action.
. Accordingly, I respectfully concur.
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