¶ 57. (dissenting).
The issue presented is whether Burns is entitled to a new trial in the interest of justice when (1) the circuit court barred Burns from presenting evidence *762that the accuser's post-assault behavior and loss of virginity were caused by her having been sexually assaulted by her grandfather rather than by Burns; and (2) the State's closing argument misleadingly stated that no explanation existed for the accuser's post-assault behavior other than Burns' guilt. I conclude that Burns should be given a new trial under these circumstances.
¶ 58. Applying the totality of the circumstances test, I conclude that the real controversy of the case is whose story was more credible, the accuser's or Burns'. This issue was not fully tried. Accordingly, I would grant the defendant a new trial.
¶ 59. The State's case focused on buttressing the credibility of the accuser, especially through expert testimony describing the reaction of a sexual assault victim. Burns' case relied heavily on impeaching the credibility of the accuser and presenting an alternative story for the events in the time period in question. Burns was not able to introduce evidence relating to the accuser's allegations of the grandfather's conduct that would have called into question the strength of the State's case.
¶ 60. The prosecutor exacerbated the defendant's inability to introduce evidence by inviting the jury to infer that there was nothing other than Burns' conduct that "went on in her life at that period of time that would explain those behaviors . . . ." Majority op., ¶ 50.
¶ 61. But there was something else going on in the accuser's life that would explain those behaviors. The accuser was being sexually assaulted by her grandfather. And the prosecutor knew these facts even though he prevented the jury from knowing the facts.
¶ 62. Due process requires that the real controversy be fully tried, not merely tried to some extent. *763The State argues that the defendant was able to develop an effective defense strategy. The majority opinion concludes that because Burns was able to challenge the "she said" evidence on numerous points, the real controversy was fully tried. I disagree. Burns was able to go to trial with only "half a story"; he could not present the other half, namely the grandfather's alleged assault.
¶ 63. I conclude that the prosecutor's closing statements are more than merely "troublesome," as the majority understates. The prosecutor exploited evidence that was excluded from trial at the prosecutors' request.1 The prosecutor asked the jury to infer a fact that the prosecutor knew was false. "Prosecutors may not ask jurors to draw inferences that they know or should know are not true. That is what occurred here and it is improper."2
¶ 64. The majority "understands why" the prosecutor's statements in closing argument are "troublesome," majority op., ¶ 51, but concludes that the prosecutor's comments did not "muddle the jury's understanding of the evidence," majority op., ¶ 52, and did not "infect the trial with unfairness," majority op., ¶ 53.
¶ 65. And how does the majority support its conclusions? Because, says the majority, the prosecutor said he was talking about what was in the "record." The *764majority places a great deal of weight on that one word, "record." Nowhere is the word "record" defined for the jury. It is a word with special meaning to law-trained people.
¶ 66. As a result of the exclusion of evidence and the prosecutor's closing argument, the controversy was not fully tried. The case violates a basic rule of criminal law: "To maintain the integrity of our system of crimi-
nal justice, the jury must be afforded the opportunity to hear and evaluate such critical, relevant, and material evidence, or at the very least, not be presented with evidence on a critical issue that is later determined to be inconsistent with the facts."3
¶ 67. Because the jury did not hear evidence central to the determination of whose story was more credible and in his closing statement the prosecutor invited the jury to make an inference he knew was incorrect, I conclude that the real controversy was not fully tried.4
¶ 68. For the reasons set forth, I dissent.
¶ 69. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
"Counsel may not, in closing, 'exploitQ the absence of evidence that had been excluded at his request.' Such exploitation of absent, excluded evidence is 'fundamentally unfair' and 'reprehensible.' '[A] party's success in excluding evidence from the consideration of the jury does not later give that party license to invite inferences (whether true or, as in this case, false) regarding the excluded evidence.'" Commonwealth v. Harris, 443 Mass. 714, 732, 825 N.E.2d 58 (2005) (internal citations omitted).
State v. Weiss, 2008 WI App 72, ¶ 15, 312 Wis. 2d 382, 752 N.W.2d 372.
State v. Hicks, 202 Wis. 2d 150, 171, 549 N.W.2d 435 (1996).
Two recent court of appeals decisions support my reasoning. See State v. Weiss, 2008 WI App 72, ¶ 17, 312 Wis. 2d 382, 752 N.W.2d 372; State v. Bvocik, 2010 WI App 49, 324 Wis. 2d 352, 781 N.W.2d 719.