WITNESSES


Credibility -- witness's mental condition.
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Diagnosis of multiple personality disorder, to impeach witness: evidence of mental impairment does not, without more, affect witness's credibility. Without evidence that this condition affected the witness's recall ability, it is irrelevant.
Cross-examination -- Bias -- Interplay with Fifth Amendment
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness's "real and appreciable apprehension" of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony. ¶¶51-52. (No error found here, because the inhibited inquiry would have been largely cumulative. ¶54.)
(See also US v. Terrance McClurge and Reneiko Carlisle, 311 F.3d 866 (7th Cir. 2002):
While the Sixth Amendment confrontation right may be limited by a witness's invocation of his Fifth Amendment right against self-incrimination, a court must exercise vigilance so as not to emasculate the right of cross-examination. See United States v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989). When determining the constitutional implications of a witness's refusal to answer questions, courts have properly drawn a distinction between cross-examination questions that are directly related to the witness's direct testimony and cross-examination questions that are merely collateral to the witness's direct testimony, such as "credibility." Zapata, 871 F.2d at 624.)
Cross-examination -- Bias -- Pending Charges
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding A witness's pending criminal charges are relevant to bias, even absent promises of leniency. ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury's presence that there were none. Any error on the inhibition of confrontation was therefore harmless. Additionally, there was no prohibition on asking the witness whether he had any pending charges; though counsel didn't pursue that inquiry, there was no error, because confrontation requires only the opportunity for effective cross-examination, not its actualization.
(See also US v. Chandler, 3rd Cir. No. 01-2572, 4/14/03, to effect that cross-examination as to witness's expectation of sentencing benefit re: pending charge may not be unduly restricted; court notes split of authority as to whether defendant categorically entitled to delve into precise, "concrete details" of witness-agreement with government, but court doesn't reach that issue.)
Cross-examination - Impeachment of Defense Witness with Parole Eligibility Date
State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding
Issue: Whether a defense witness was properly impeached with evidence that he was serving life in prison with no prospect for parole.
Holding: The witness's attempt to admit the crimes and exonerate the defendant would have misled the jury absent revelation of his functional immunity stemming from his parole status: "where no practical, penal consequence could accrue, a jury would be misled were it not informed of the witness's no-risk status." ¶26.
Cross-examination - in camera inspection of mental health records.
State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999).
For Ballos: Robert N. Myeroff.
Issue: Whether the trial court should have ordered production of the state's witness's mental health records, for in camera inspection, upon showing that the witness had been hospitalized for depression and was obsessed with bomb-building, and where the theory of defense was that the witness rather than defendant committed the crime.
Holding: The defense satisfied the preliminary showing necessary for mental health record production, but the trial court's erroneous refusal to order production was harmless.
Analysis: To obtain in camera inspection of records, the defense must show their materiality. Ballos satisfied that test, given the witness's hospitalization less than three months before the charged arson, and his obsession with bombs. The error, though, was harmless in light of overwhelming evidence of guilt.
Expert -- Qualifications -- Lay Expert -- Probation/Parole Officer, Opinion as to Likelihodd of Sexual Violence
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue/Holding: Fact that probaiton/parole agent wasn't mental health specialist didn't preclude him offering lay expert opinion on likelihood of ch. 980 respondent re-offending. Lay expertise may be found under § 907.02, based on relevant experience, education, and/or training.
Expert -- Qualifications
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.
Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29. The error, however, was harmless: The witness was allowed to testify to all but the ultimate opinion, and another witness was allowed to give an ultimate opinion in Sprosty’s favor. ¶30.
(Note: The social worker’s qualifications are mentioned only in passing, namely that “she provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release.” ¶11. The harmless error analysis is wrong on its face: “because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court’s decision, we conclude the error was harmless[.]” ¶ 30. This exactly inverts the burden, which is, instead, that the state show beyond reasonable doubt that the error didn’t contribute to the result.)
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Expert -- Recantation and Interview Techniques
State v. Bradley Alan St. George, 2002 WI 50, reversing unpublished court of appeals decision
For St. George: Donald T. Lang, SPD, Madison Appellate
Issue: "Was the circuit court's exclusion of the testimony of the defendant's expert witness an erroneous exercise of discretion, or alternatively, a deprivation of the defendant's constitutional right to present evidence, as the defendant asserted?" ¶2
Holding: The trial court's rejection of the expert was based on his lack of extensive experience in the area; however, in considering only the expert's qualifications and not the defendant's constitutional right to present a defense, the trial court erroneously exercised discretion. ¶48. A two-part inquiry must be undertaken.
"¶54. In the first part of the inquiry, the defendant must satisfy each of the following four factors through an offer of proof. The defendant must show:
1) The testimony of the expert witness met the standards of Wis. Stat. § 907.02 governing the admission of expert testimony.
2) The expert witness's testimony was clearly relevant to a material issue in this case.
3) The expert witness's testimony was necessary to the defendant's case.
4) The probative value of the testimony of the defendant's expert witness outweighed its prejudicial effect.
"¶55. After the defendant successfully satisfies these four factors to establish a constitutional right to present the expert testimony, a court undertakes the second part of the inquiry by determining whether the defendant's right to present the proffered evidence is nonetheless outweighed by the State's compelling interest to exclude the evidence."
The test was satisfied; exclusion of the expert was improper. (The merits are fact-intensive. At the risk of oversimplification: The state presented a witness who testified to the percentage of recantations that were ultimately reaffirmed, and a witness who used what he described as a nationally accepted interview technique employing non-leading questions. ¶¶31-32. The excluded expert would have refuted both these claims. ¶34. See also concurrence, ¶¶79-81.)
False Testimony
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue:: Whether an expert witness’s testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background, and had committed misconduct, causing him to be fired.
Holding: “¶33. We cannot conclude that the circuit court's refusal to strike Thomalla's testimony was improper. While Thomalla's past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law. See In re Spengler, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) (holding that court of appeals may not reverse circuit court's determinations regarding credibility unless the witness is credible or incredible as a matter of law). First, we agree with the circuit court that although Thomalla may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there is no dispute that he is a licensed psychologist or that he has experience evaluating sexually violent persons. Second, we are not convinced that Thomalla's dishonesty regarding his curriculum vitae suggests his opinion regarding the likelihood that Sprosty will reoffend is similarly unreliable.” Nor did belated revelation of these matters deny Sprosty effective cross-examination: The possibility that the witness thought he could save his job by giving favorable testimony to the state is speculation; and, there was no prejudice from being unable to cross-examine on inaccuracies in the witness’s curriculum vitae. ¶37.
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Involuntary Statement -- Procedure for Challenging
State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565
For Samuel: Robert A. Henak
Issue/Holding: "¶35. Under Velez, first the defendant must bring a motion to suppress, alleging facts sufficient to show that a statement was involuntary under Clappes and that the police misconduct at issue is egregious such that it produces statements that are unreliable as a matter of law. See Velez, 224 Wis. 2d at 18. If the motion alleges facts which, if true, would entitle the defendant to relief, then the circuit court must hold an evidentiary hearing. Id.; see also State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion does not allege sufficient facts, the circuit court has the discretion to deny an evidentiary hearing upon a finding that any one of the following circumstances is present: (1) the defendant failed to allege sufficient facts in the motion to raise a question of material fact; (2) the defendant presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Velez, 224 Wis. 2d at 17-18.
"¶36. Even where the defendant has not met this initial burden of production and the circuit court has the discretion to deny an evidentiary hearing, in order to properly exercise that discretion, it must 'carefully consider the record, the motion, counsels' arguments and/or offers of proof, and the law.' Velez, 224 Wis. 2d at 17 (quoting State v. Garner, 207 Wis. 2d 520, 534-35, 558 N.W.2d 916 (Ct. App. 1996)). Moreover, when there is a reasonable possibility that the defendant will establish the factual basis at an evidentiary hearing, the circuit court must provide the defendant with the opportunity to develop the record. Id. at 18.
"¶37. In other words, there will be cases where the court cannot properly exercise its discretion in denying an evidentiary hearing without first holding a nonevidentiary hearing on the defendant's motion to suppress. See Velez, 224 Wis. 2d at 17. The facts that the defendant must establish and the determinations the circuit court must make will be informed by the standard and factors we have identified."
The state bears the burden of persuasion, by preponderance of the evidence. ¶39.
Involuntary Statement -- Test
State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565
For Samuel: Robert A. Henak
Issue/Holding: "¶30. With due process as our touchstone, we conclude that when a defendant seeks to suppress witness statements as the product of coercion, the police misconduct must be more than that set forth in Clappes. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically 'egregious' police misconduct that offends due process. Our concern is with police misconduct that, by its nature, undermines confidence in the reliability of a witness's statements. Witness statements obtained by police methods that induce lying have no place in our system of justice because a conviction based on unreliable evidence undermines the fundamental fairness of a defendant's trial. In short, due process demands that the State not marshal its resources against an accused in a manner that results in a conviction based on unreliable evidence obtained through egregious police practices.
"¶31. Upon an examination of the case law and the parties' arguments, we glean several factors to consider in determining whether police misconduct is egregious such that it produces statements that are unreliable as a matter of law. These factors include (1) whether a witness was coached on what to say; (2) whether investigating authorities asked questions blatantly tailored to extract a particular answer, see Gonzales, 164 F.3d at 1289; (3) whether the authorities made a threat with consequences that would be unlawful if carried out, see United States v. Tingle, 658 F.2d 1332, 1335-36 (9th Cir. 1981); (4) whether the witness was given an express and unlawful quid pro quo; (5) whether the State had a separate legitimate purpose for its conduct, Tingle, 658 F.2d at 1337; and, (6) whether the witness was represented by an attorney at the time of the coercion or statement, see Merkt, 764 F.2d at 269. The presence of the first four factors weighs in favor of suppression while the presence of the second two factors weighs against it. Application of these and other relevant factors will help to ensure that it is unreliable evidence that is suppressed. It will also help to guarantee that the State does not obtain convictions based on practices that offend fundamental fairness.
"¶32. In cases where an application of the factors results in a determination that witness statements at issue will not be suppressed, the defendant nevertheless retains the ability to test the credibility of the witness statements through, among other approaches, cross-examination before the jury. See Nerison, 136 Wis. 2d at 45. Cross-examination is an essential tool for "sifting the conscience of the witness" and thereby protecting a defendant's rights at trial. State v. Bauer, 109 Wis. 2d 204, 208 n.3, 325 N.W.2d 857 (1982) (citing Mattox v. United States, 156 U.S. 237, 242-43 (1895)). The jury, of course, has the duty to scrutinize and weigh the testimony of witnesses and to determine the effect of the evidence as a whole. See Hampton v. State, 92 Wis. 2d 450, 462, 285 N.W.2d 868 (1979); Wis JI--Criminal 300.5 These safeguards--cross-examination and the jury's role in weighing the evidence--help ensure a fair trial where due process does not require the suppression of witness statements."
Self-Incrimination -- Defendant’s Right to Refuse to Testify at NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal, ¶¶10-11. Nor does it matter that this is an NGI trial:
“¶13. Contrary to the State's arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ McConnohie, 121 Wis. 2d at 69 (citation omitted). ‘The privilege is not only intended to protect a defendant when his answers would lead to a conviction ... but is intended to protect a defendant when the defendant “apprehends a danger from a direct answer.’” Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one's liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach's liberty, either through commitment to a mental hospital or imprisonment.”
Sequestration -- Expert
State v. Aaron Evans, 2000 WI App 178, 238 Wis.2d 411, 617 N.W.2d 220
For Evans: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether the trial court erroneously exercised discretion in preventing a DNA expert from sitting at counsel table.
Holding: "|10 We are satisfied that, on this record, the circuit court did not erroneously exercise its discretion in denying Evans's request that Friedman be exempted from the sequestration order. Evans has not shown that Friedman's presence in the courtroom was 'essential to the presentation of [his] cause' within the meaning of WIS. STAT. ? 906.15(2)(c). Helpful, perhaps, but not so essential that his attorney could not effectively function with Friedman in the hallway, rather than sitting next to him in the courtroom. Backes's statements to the circuit court, and Evans's assertions on appeal are characterized by generalization and vagueness. Friedman's qualifications in the field of DNA testing were never established, and Evans has not detailed any specific way in which Friedman would have assisted him with respect to the DNA evidence. Finally, as we have noted above, the circuit court kept the door open for defense counsel to make a more specific showing as to the necessity for Friedman's presence-an offer Evans never took up."
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Sequestration -- Prosecutor Talking to Witness During Break
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding:
¶40. Green contends that the prosecutor, not the witness, violated the sequestration order by conversing with the witness during trial.... Green has not provided any support for the contention that a prosecutor violates a sequestration order by merely talking to his or her witnesses. There are no allegations that Haack heard testimony of other witnesses in the courtroom, that Haack discussed her testimony with other witnesses, or that the prosecutor discussed the testimony of other witnesses with Haack. We find no violation of the order in this case.
Street Clothes Rather than Jail Garb -- No Right to Appear in
State v. Cornelius R. Reed, 2002 WI App 209, PFR filed 7/16/02
For Reed: Stephanie G. Rapkin
Issue/Holding: The trial court has discretion to deny a defense request that a witness be allowed to testify in street rather than jail clothes. That discretion was properly exercised here: allowing the witnesses to change in bullpens would have created a security risk, ¶8; in contradistinction to a defendant, a witness has no presumption of innocence that risks impairment, ¶9; jail attire informs a jury of something they are already permitted to know, that the witness has been convicted of a crime, ¶¶10-11.