Wisconsin's greater latitude rule is unconstitutional as a due process violation because it not only admits propensity evidence, but it also fails to exclude evidence when its undue prejudice substantially outweighs its probative value. First, the greater latitude rule is unconstitutional under a theory based on the reasoning of Crawford v. Washington, which struck down hearsay rules that conflicted with the original meaning of the Sixth Amendment. Using Crawfords originalist reasoning, the greater latitude rule conflicts with the original meaning of due process. Second, the rule also interferes with the modern conception of due process, which requires procedures that produce accurate, reliable means of adjudicating criminal cases. By analogy to persuasive authority, the rule should be unconstitutional under the reasoning of federal appeals courts that have dealt with similar issues. I advocate a return to Wisconsin's traditional approach to admitting propensity evidence, which would accord with the United States Constitution and other jurisdictions' rules. This approach would also provide a basis for effective appellate review.
