Tuesday, May 17, 2011

OWI Appeal - Wisconsin Video Can't Beat Judges Eyes

In State of Wisconsin v. Walli, Slip Copy, 2011 WL 1775995 (Wis.App.), an officer equipped with an in-squad video camera stopped the defendant for crossing the centerline. The cop claimed the video accurately established what happened. A review of the tape by the parties and the judge presented differing views of whether the driver crossed the centerline. On appeal, the appellate court first needed to determine what standard of review should be applied to video evidence - 'de novo' or 'clearly erroneous'. "We therefore decide that when evidence in the record consists of disputed testimony and a video recording, we will apply the clearly erroneous standard of review when we are reviewing the trial court's findings of fact based on that recording." The court left for another day the issue of what standard applies when the ONLY evidence is a video.

Since a blind justice may defer to the trooper instead of a video, the court refused to rule in favor of the defendant. "In conference, we viewed the video recording from Munnik's squad car and conclude that the trial court's finding that Walli crossed the center line is not clearly erroneous."

NOTE: Given the need for the court to decide the standard on review here, it is obvious to this writer that the decision about whether the video supported or contradicted the cop was not unanimous.

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