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State v. Falk6/29/2000
no right, constitutional or otherwise, to present irrelevant evidence. See id.
. In Denny we considered the standard for relevancy in the context of a defendant's attempt to present evidence that a third party had a motive to commit the crime of first-degree intentional homicide. Denny, 120 Wis. 2d at 622. The trial court excluded that evidence as irrelevant, and Denny appealed, contending he had a constitutional right to present evidence as part of his defense because it was relevant. See id. at 621-22. We examined the general rule established in other jurisdictions-that the motive of a third party to commit a crime may be excluded when there is no other proof directly connecting that person with the offense charged-in light of the definition of relevancy in Wis. Stat. § 904.01. See Denny, 120 Wis. 2d at 622-23. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Section 904.01. We rejected the standard of other jurisdictions, according to which the evidence of a direct connection must be "substantial," and adopted a less strict standard: there must be a "legitimate tendency" that the person could have committed the crime. See Denny, 120 Wis. 2d at 623-25.
. This test, we explained, "asks whether the proffered evidence is so remote in time, place or circumstances that a direct connection cannot be made between the third person and the crime." Id. at 624. We reasoned that evidence that "simply affords a possible ground of suspicion against another person should not be admissible." Id. at 623. Otherwise "a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the [victim]-degenerating the proceedings into a trial of collateral issues." Id. at 623-24. We concluded:
Thus as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances, the evidence should be admissible. Id. at 624.
Applying this standard, we concluded that the evidence Denny sought to admit did not meet this standard because, although it may have established motive for a third person, it did not show opportunity or direct connection to the crime. See id. at 625.
. Although Denny dealt with evidence of a third party's motive, we have applied it since to exclude other types of evidence offered to show that a third party committed the charged offense. See State v. Avery, 213 Wis. 2d 228, 570 N.W.2d 573 (Ct. App. 1997) (evidence that a law enforcement officer in the course of investigation was informed that a person in another county matched the victim's description of her assailant); State v. Jackson, 188 Wis. 2d 187, 191-92, 525 N.W.2d 739 (Ct. App. 1994) (evidence that the victim, after identifying the defendant in a line-up as the gun man "probably about 80 percent sure," identified another man in another line-up as "a possibility").
. The supreme court has held that the Denny legitimate tendency test is not applicable to evidence that a third party has framed the defendant, while expressly reserving the question whether the legitimate tendency test is an appropriate standard for the introduction of evidence that a third party committed the crime. See State v. Richardson, 210 Wis. 2d 694, 705 n.6, 563 N.W.2d 899 (1997). Most recently the supreme court has held the Denny legitimate tendency test is not applicable when the defendant seeks to admit evidence of a prior act committed by a third unknown person, while expressly reser
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