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In re Commitment of Franklin4/1/2004
. § 904.03 provides that, " lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The question whether the probative value of otherwise admissible evidence is substantially outweighed by the danger of unfair prejudice, like relevance, rests in the discretion of the circuit court.
. The circuit court did not exercise its discretion by performing the necessary balancing test in this case. The circuit court conflated relevance, hearsay, and the balancing test without clearly articulating its basis for overruling the defendant's objections to the evidence. The circuit court ruled as follows in admitting the probation and parole agent's testimony about the defendant's prior non-sexual misconduct:
ut based on what I know about the [expert witnesses] and what I've heard from you guys, it is relevant and it is probative and, you know, it does get by the hearsay based on all those various sections [the assistant district attorney has] indicated . . . . And obviously the definition of being probative is making an issue more likely than not to the trier of fact . . . . So I guess all I can say is it's one of those cases that yes it does come in for all those reasons . . . . For all those reasons and based on the fact that the Court has considered the balancing of the relevance versus probative value versus prejudicial effect.
. In this case, the probative value of the evidence is nonexistent or minimal at best. Dr. Doren did not testify that he relied on any non-sexual misconduct in his diagnosis of paraphilia. The non-sexual offenses play a minimal role in the risk assessment tools relied on by Dr. Doren to predict the defendant's proclivity for future sexual violence. To the extent that these risk assessment tools do take into account prior non-sexual misconduct, they do not distinguish between 4 offenses and 400. Therefore, when the jury heard testimony about the defendant's numerous prior acts of misconduct, it was hearing far more than what was needed to understand the risk assessment tools being used by the experts.
. After examining the probative value of the non-sexual prior misconduct, which was minimal at best in the present case, a circuit court must determine whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. The mere fact that evidence proves or strengthens the State's case at trial does not make it unfairly prejudicial, however. In order to demonstrate unfair prejudice, the defendant must show that "the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case."
. The defendant in this case asserts that the admission of his juvenile record, his adult criminal record for crimes unrelated to sexual misconduct, and Department of Corrections conduct reports for violations unrelated to sexual acts contributed to the almost unavoidable conclusion that he is a recidivist criminal and an unpleasant, difficult, and dangerous person generally. This evidence could arouse in jurors a sense of horror, provoke their instinct to punish, or otherwise cause a jury to base its decision on something other than t
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