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COA: child’s lack of memory didn’t cause confrontation problem with playing video of earlier interview

State v. Richard A. Boie, 2019AP520, 3/5/20, District 4 (not recommended for publication); case activity (including briefs)

Boie appeals his jury-trial conviction for repeated sexual assault of the same child and the denial of his postconviction motion. He raises issues arising from the videotaped interview of his accuser, admitted under Wis. Stat. § 908.08. On the video, the then-six-year-old described assaults occurring when she was four and five years old. At trial, though, the now-nine-year old testified she couldn’t remember some of the things she spoke about in the video. Boie argues the statutory guidelines for admission weren’t met, and separately that his lawyer was ineffective for not moving for mistrial once the memory problems became clear.

Boie first asserts that two of the statutory requirements for admitting such a video testimony weren’t met: that the court didn’t find the child “available to testify” or that he’d have a “fair opportunity to meet allegations made” in the video. § 908.08(1) & (3)(e).

The court of appeals concludes that the circuit court “implictly” made these findings. As to availability, the court rejects Boie’s argument that to be “available,” a child must remember the matters he or she testifies about. This argument relies on the definition of “unavailability of a witness” found in Wis. Stat. § 908.04(1)(c) (which concerns hearsay exceptions). That definition is met where a witness “[t]estifies to a lack of memory of the subject matter.” The court of appeals says the legislature didn’t mean to import this definition because it’s not expressly referred to in the child-video statute, and because the latter statute uses the phrase “as provided in this section” in describing admissibility.

This latter point is a stretch. Lots and lots and lots of statutory sections use that phrase; do they all thereby exclude definitions found elsewhere? In any case, the court says Boie didn’t, when opposing admission in trial court, present any concrete reason to think the child couldn’t or wouldn’t testify. It also says the state didn’t have any reason to think she couldn’t or wouldn’t, but says it would be “bad faith” for the state to fail to disclose such reasons if they existed (without actually saying what such “bad faith” would lead to exclusion). (¶¶23-28).

Regarding a “fair opportunity to meet allegations,” the court says § 908.04(1)(c) is an admissibility standard, and that decisions about admissibility can only be based on what’s known to the court at the time the decision has to be made; i.e. before the testimony actually happens. And, before the child testified, Boie provided the court only with “speculation” that the child wouldn’t or couldn’t testify about the allegations.

Bit of a Catch-22. How could Boie know what the child would testify to before the child testified? Perhaps an evidentiary hearing would have been in order, as it turned out Boie was at least partially right about the memory problems.

Boie also faults his counsel for not seeking a mistrial when, on cross-examination, the child said she couldn’t recall the assaults. The court rejects this claim on the ground that a mistrial wouldn’t have been granted. This is because, under State v. Rockette, 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, and the SCOTUS cases Rockette relied on, a witnesses’s lack of memory, real or feigned, doesn’t create a confrontation problem: only absence or refusal to answer questions does. (¶¶46-57). The court also turns back Boie’s argument that the child’s testimony revealed some malfeasance by the state; the court says there’s just no evidence of this. (¶¶58-61).

Judge Graham concurs. She says the majority is correct about the state of confrontation law, but that confrontation law ought to change. In a footnote, she cites some cases from other states that might be helpful in making the case for that change. The gist of her argument is that, while a witnesses’s real or feigned memory loss might sometimes actually work to the defendant’s benefit (by diminishing the witness’s credibility),

Not so here, as a result of the procedure set forth in WIS. STAT. § 908.08. Here, the video displayed to the jury, which was taken several years prior, depicts a younger version of B.H. giving detailed testimony about specific incidents of sexual assault. Video can be extremely compelling, and child victims of sexual assault will naturally arouse a jury’s sympathy. The videotaped testimony, which substitutes for a direct examination under § 908.08, allows the jury to observe the child’s demeanor and to hear the child’s accusations in her own voice. Boie did not have any opportunity to ask B.H. questions at the time the recorded statement was made. And by the time he did have the opportunity to question her at trial, B.H. testified that she didn’t remember much of anything about the substance of her allegations.

(¶68).

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