On Point blog, page 2 of 3
Testimony that 90% of child sexual assault reports are true didn’t clearly vouch for victim’s credibility
State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)
The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.
State v. Stanley J. Maday, Jr., 2015AP366-CR, petition for review granted 2/11/16
Review of a per curiam court of appeals decision; case activity (including briefs)
Issue (copied from the State’s petition for review):
No witness, expert or otherwise, may give an opinion at a trial that another mentally and physically competent witness is telling the truth. Here, the social worker who interviewed a child regarding her claim that she had been sexually assaulted testified that there was no indication that the child had been coached and no indication that the child was not being honest during the interview. Did the social worker’s testimony constitute a prohibited opinion that, during this interview, the child was telling the truth?
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
References to victim’s truthfulness, parochial schooling don’t merit new trial
State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)
Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.
Police had reasonable suspicion to do a protective sweep of car for weapons; officer’s trial testimony didn’t vouch for another witness
State v. Terrance L. Ware, 2014AP378-CR, District 1, 12/30/14 (not recommended for publication); case activity
The totality of the circumstances surrounding the investigative stop of Ware’s car gave the police reasonable suspicion that Ware or his passenger was dangerous and might have access to a weapon hidden in the car, justifying a protective search of the car for weapons. In addition, a police officer wasn’t vouching for another state’s witness by saying the witness “told the truth” after additional questioning.
Failure to impeach witness with mental health condition. Failure to request WIs. J.I.-Criminal 245 on accomplice testimony. Interrogation — Miranda custody; interrogator’s comments on truthfulness
State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity
Trial counsel’s failure to impeach witness with mental health condition was not prejudicial
Trial counsel was not ineffective for failing to impeach the credibility of a witness who testified that Bernard told her “I think I killed a boy.” Bernard argued the witness suffers from a mental condition that affects her perceptions and recollections and that trial counsel should have requested access to the witness’s mental health records and used the records to impeach her.
New trial ordered due to erroneous evidentiary rulings that excluded school disciplinary records relevant to impeaching the complainant and admitted Haseltine-type evidence
State v. Gene A. Echols, 2013 WI App 58; case activity
Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.
Erroneous ruling excluding complainant’s school disciplinary records
A fifteen-year-old student alleged that Echols,
Haseltine “Vouching” Rule: Inapplicable to Pre-trial Interrogation; Closing Argument: Waiver of Objection (Prosecutor Terming Defendant Liar)
State v. Andre L. Miller, 2012 WI App 68 (recommended for publication); for Miller: Jeffrey J. Guerard; case activity
Haseltine “Vouching” Rule
The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant as lying.
Hearing-Impaired Juror: Inability to Hear Certain Testimony; Evidence: Haseltine “Vouching” Testimony – Harmless Error
State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity
Hearing-Impaired Juror – Inability to Hear Certain Testimony
A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers.