Dane County v. D.F.B., 2022AP1852, District 4, 05/11/2023 (1-judge opinion, ineligible for publication); case activity

A jury found D.F.B. dangerous under the second standard, which required evidence of a “substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” See Wis. Stat. § 51.20(1)(a)2.b. At trial, two witnesses testified about threats D.F.B. allegedly made by email to a University of Wisconsin-Madison employee. The circuit court overruled D.F.B.’s objection that the testimony was not the “best evidence” of the contents of the emails. The court of appeals disagrees, holding that the circuit court admitted testimony about the contents of D.F.B.’s alleged emails contrary to Wis. Stat. § 910.02 and that the error was not harmless. (Opinion, ¶¶ 1-2).

While D.F.B. raised multiple challenges to his commitment, the court of appeals concludes the circuit court’s failure to apply Wisconsin’s best evidence rule is dispositive. Over D.F.B.’s objection, a police officer and a county crisis worker testified that D.F.B.’s emails to the employee included threatening statements, including that the employee was “a little bitch who needs their throat slashed.” (Op., ¶¶7-8). On appeal, the county argued that the testimony about D.F.B.’s emails were not offered to prove the contents (i.e., the recent threats to do physical harm to the employee), but rather to establish that D.F.B. admitted to sending the emails. D.F.B. responded that this was a distinction without a difference, and the court agreed: the county used the testimony about D.F.B.’s emails as the primary evidence that D.F.B. recently made threats that satisfied the second standard of dangerousness. (Op., ¶¶16, 24-25).

Having concluded that the circuit court erred, the court turns to whether the error was harmless. After noting that the county’s harmless error argument was undeveloped and rejected on that basis, the court proceeds to explain why the record simply does not support any harmless error argument. (Op., ¶¶32-33). Of note, the court explained that while “sufficient evidence” may have existed absent the inadmissible evidence, without this evidence the experts disagreed about D.F.B.’s dangerousness and the other evidence available would have amounted to “vague testimony characterizing the emails as threatening,” which would have left the jury to speculate about D.F.B.’s dangerousness. (Op., ¶34).

Moreover, the county’s harmless error argument appears to have focused on the “purpose” of Wisconsin’s best evidence rule, which the county argued was to “prevent fraud upon the trier of fact, depriving it of the benefit of the original document.” The court refuses to consider the argument because the county failed to “explain why it could not or chose not to offer the original emails as evidence.” (Op., ¶¶36-39).