On Point blog, page 22 of 68
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.
Audiovisual recording of child victim’s forensic interview was properly admitted
State v. Beverly Reshall Holt, 2013AP2738-CR, 3/8/16, District 1 (not recommended for publication); case activity (including briefs)
The trial court did not err in admitting the audiovisual recording of the forensic interview of Caleb, one of the child victims, at Holt’s trial for child sexual assault.
Dying declaration properly admitted
State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)
The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.
Circuit court erred in excluding field sobriety test evidence
State v. Robert A. Schoengarth, 2015AP1834-CR, 2/11/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erroneously exercised its discretion when it ordered that police could not testify about Schoengarth’s performance on field sobriety tests.
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?
No safe harbors for “mandatory reporter” of child abuse
State v. Trista J. Ziehr, 2015AP994-CR, 1/13/16, District 2 (one-judge opinion, ineligible for publication); case activity, including briefs
There isn’t much case law on Wisconsin’s “mandatory reporter” requirement, and this opinion makes no attempt to fill the gaps. Ziehr ran a daycare center and thus had a mandatory duty to report child abuse to the proper authorities whenever she had reasonable cause to suspect that such abuse had occurred. Wis. Stat. §48.981(2) & (6). A jury convicted her of failing to report abuse by her son. On appeal she argued primarily that: (1) the trial court erroneously instructed the jury; (2) the State’s complaint was duplicitous, and (3) the trial court erroneously admitted “other acts” evidence. She lost on all issues.
Testing the EDTA evidence in Steven Avery’s case
Some interesting posts on this subject have popped up around the blogosphere. In this “introductory post” on EDTA testing, evidence professor Colin Miller explains the flaw in the State’s contention that the FBI’s EDTA testing proved that the blood in Halbach’s car did not come from the tube of Avery’s blood that someone tampered with. And in this post, he discusses cases addressing the admissibility (or inadmissibility) of EDTA testing.
No severance, no ineffective assistance, no suppression, no in camera review of mental health records
State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs
This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.
Erroneous exclusion of expert testimony about false confession merits new trial
United States v. Antonio West, 7th Circuit Court of Appeals Case No. 14-2514, 12/30/15
The trial court erroneously excluded expert evidence that West sought to admit regarding factors that made him susceptible to making an unreliable confession to a crime.
Counsel ineffective; failed to challenge credibility in swearing contest
State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)
Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.