Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault
In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998). Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488. Jones was convicted and appealed.
There was no physical evidence tying Jones to the alleged sexual assaults at issue. So this case boiled down to a credibility battle between Jones and the 2 alleged victims. Jones argued that the exclusion of the expert witness denied his constitutional right to present a defense. The court of appeals found no error because failure to comply with the §971.23(7m)(a) means the trial court “shall” exclude the evidence (unless one of the exceptions applies, which was not the case here).
Jones also argued that trial counsel’s failure to comply with §971.23(7m)(a) amounted to ineffective assistance. Everyone agreed that counsel’s conduct satisfied the “deficient performance” prong of Strickland. But the court of appeals held that the error was not “prejudicial” because exclusion of Jones’s expert did not “undermine our confidence in the jury’s conclusions.” Slip op. ¶5. The jury simply chose to believe the victims.
This holding seems at odds with Richard A.P. Strickland‘s “prejudice” test requires a showing that but for counsel’s unprofessional errors the result of the proceeding would have been different. There, the court of appeals held that the exclusion of expert testimony that the defendant was unlikely to commit child sexual assault resulted in harmful error. Actually, the court of appeals said that there was “a reasonable probability that the exclusion of [the expert’s] testimony contributed to Richard’s conviction.” 223 Wis. 2d at 797. In Richard A.P., the defense had succeeded in introducing a lay witness who testified along the lines of the excluded expert. Jones had no back-up lay witness, so his claim of prejudice would seem to be stronger.
Admission of testimony about other allegations of sexual assault
Jones sought to admit evidence that the two victims had made prior untruthful accusations of sexual assault. Under State v. Ringer, 2010 WI 69, ¶36, 326 Wis. 2d 351, 785 N.W.2d448, such evidence is admissible if it passes a three-part test. One part is that the circuit court must first conclude from the proffered evidence that a jury could reasonably find the alleged victims made prior untruthful allegations of sexual assault. Slip op. ¶13. According to the court of appeals, Jones did not prove that the victims’ prior accusations were untruthful. He only proved that they were unsubstantiated. Thus the trial court properly excluded the evidence. For more–a lot more–on Ringer and prior untruthful allegations of sexual assault, click here.
Jones also argued that trial counsel was ineffective for eliciting testimony that Jones was under investigation for other allegations sexual assaults. Four times an investigating officer referred to a different case of sexual assault and counsel did not clarify that the officer was referring to one of the two victims at issue in this very trial. Jones said that this created the impression that he had sexually assaulted a third victim. The court of appeals found no deficient performance because trial counsel’s strategy was reasonable–he was just trying to prove that the two victims here had made sexual assault allegations against other men. Also, the court of appeals saw no confusion. Slip op. ¶14.