On Point: 6. Vouching for Other Witness

State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10

court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply

Expert Opinion – “Jensen” Testimony – Failure to Object

An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,

State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply

Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)

Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,

State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply

Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally

¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection.

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding:

¶35      The first three alleged instances of misconduct are similar. In each instance, the prosecutor sought to demonstrate the possible unreliability of one witness’s recollection by using seemingly inconsistent recollections of another witness. For example, in one instance the prosecutor asked: “So if all other witnesses said that at 11:00 your mom was already home … that would be wrong?” We see no Haseltine problem with these three instances because the prosecutor was not asking a witness to opine as to whether another witness was telling the truth.¶36      The fourth alleged instance does appear to have involved a Haseltineviolation.

State v. Bryan James Krueger, 2008 WI App 162
For Krueger: Bradley J. Lochowicz

Issue/Holding:

¶15      Here, Mason was asked whether she had formed an opinion as to whether or not S.B. “was the product of any suggestibility or any coaching.” … Signs of coaching or suggestion could fall into the realm of knowledge that is outside that of a lay-person jury. [10]

¶16      However,

State v. Victor K. Johnson, 2004 WI 94, affirming unpublished decision of court of appeals

Issue: Whether the State impermissibly cross-examined the defendant about the truthfulness of another witness.

Holding:

¶2. We conclude that the purpose and effect of the prosecutor’s cross-examination of Johnson was to impeach Johnson’s credibility, not to bolster the credibility of another witness, because both Johnson and the other witness were testifying to their personal observations about the same events.

State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen

Issue/Holding: A defendant may be asked whether another witness offering contradicting testimony “is lying,” ¶11.

The seminal case is State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984): one witness may not give an opinion as to whether another witness is telling the truth.

State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding:

¶8. After reviewing these cases, we can discern some general rules: (1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; (2) the testimony can include opinions regarding symptomatology common to child sexual assault victims; (3) the testimony can include a description of the symptoms exhibited by the victims;

State v. David C. Tutlewski, 231 Wis.2d 379, 605 N.W.2d 561 (Ct. App. 1999)
For Tutlewski: Dianne M. Erickson

Issue: Whether one witness’s opinion that state’s witnesses were incapable of lying invaded the jury’s province.

Holding: This testimony violated the rule that one witness may not testify to the credibility of another witness.

The alleged sexual assault victim and her roommate are cognitively disabled.