Another Wisconsin judge misunderstands hearsay

In State v. Yost (decision here, On Point summary here), the defendant allegedly committed disorderly conduct, inside a jail, by his manner of speech, i.e., a speech crime.  One jailhouse inmate testified the defendant said X.  The defendant called his own eyewitness to the crime, another jailhouse inmate, who was prepared to testify that he was there at the time and didn’t hear the defendant say X.

Wisconsin’s post-Trammell burden of proof: links, strategies, and updates

This is a reminder to Wisconsin’s criminal defense lawyers to continue to litigate the JI 140 issue, even after SCOW’s decision in Trammell.  Although SCOW refused to reverse defendant Trammell’s conviction, the Trammell majority was very clear: “The circuit court has the authority to modify the language [of JI 140], and the comment to the jury instruction even provides optional language.” Trammell, ⁋ 23.  Consistent with SCOW’s reminder, trial judges throughout the state are, in fact, continuing to modify JI 140, even post-Trammell. 

                                                                                             

Toward that end, I have drafted a request to modify JI 140 that I use in all of my trials.  It includes, as Exhibit A, a proposed, modified instruction that eliminates the truth-not-doubt mandate.  It also includes, as Exhibit B, an alternative proposal which is less than ideal but still better than the current JI 140.  All Wisconsin lawyers are free to use parts of it or the entire document—no attribution is necessary as far as I am concerned.  Just go to the JI 140 resource page and scroll to the very bottom.  It is in MS Word format and is titled “POST-TRAMMELL request to trial court to modify JI 140.”