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State v. Falk6/29/2000
ving the question whether that test is the appropriate standard for introduction of third-party evidence offered to prove something other than motive. See Scheidell, 227 Wis. 2d at 297 n. 9.
. Richard contends that Scheidell supports his argument that, on constitutional grounds, the Denny legitimate tendency test may not be used to exclude the evidence of Shannon's prior acts, and the rules of evidence should be relaxed to permit their admission. In Scheidell the court did not apply the Denny legitimate tendency test, as the State there urged. The court decided that where the alleged perpetrator of the prior act is unknown, it would be "virtually impossible for the defendant to satisfy the motive or opportunity prongs of [the test]"; a defendant could not show an unknown person had a motive or the opportunity to commit the charged offense. Id. at 296. The court also rejected the standard this court adopted to resolve Scheidell's appeal, which limited the circuit court's role to determining whether a jury could reasonably find that the prior crime occurred and did not require the court to analyze the similarities and differences between the prior act and the charged offense. Instead, the court concluded that
when a defendant proffers other acts evidence committed by an unknown third party [on the issue of identity], the court ... must balance the probity of the evidence, considering the similarities between the other act and the crime alleged, against the considerations contained in Wis. Stat. Sec. 904.03 [utilizing the Whitty/Sullivan framework]. Scheidell, 227 Wis. 2d at 311.
However, the court also stated that the similarities between the two acts need not be as great when the defendant seeks to admit evidence of a prior act to prove the identity of a third person, as when the State seeks to admit such against the defendant: the defendant, unlike the State, need not show "imprint" or "signature," but must show similarities that do more than raise conjecture or speculation. See id. at 304-05. The court then applied the Whitty/Sullivan framework and concluded that the proffered evidence was irrelevant and, therefore, properly excluded. See id. at 306-10.
. We agree with Richard that Scheidell countenances an examination of the legitimate tendency test to determine whether it fits in fact situations that differ from those in Denny, and we conclude it does not fit in this case. In this case-and in most if not all cases where child abuse is the charged offense-there are only a few persons who could possibly have committed the crime besides the accused, because only a few persons have the necessary opportunity: the parent or parents, the babysitter or caregiver, and a limited number of other relatives or friends. Therefore, the need to prevent evidence showing that large numbers of others had a motive to commit the crime is not a concern as it was in Denny. In addition, direct evidence connecting one of those few persons to the particular abuse charged, such as witnesses other than the child victim or physical evidence, will likely be lacking. In this case, for example, only four persons had the opportunity to injure Laura given the parameters established by the medical testimony. We therefore conclude that the Denny legitimate tendency test is not applicable in this case, and to the extent the trial court relied on it in excluding the proffered evidence, it erred.
. However Scheidell does not suggest, as Richard does, that simply because the legitimate tendency test is not applicable, the proffered evidence regarding a third party is admissible. Rather, the court adopted the Whitty/Sullivan framework as the better method for analyzing the admissibility of t
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