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SCOW holds video of child admissible; talks about forfeiture but makes no law

State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)

Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.

The court of appeals majority opinion noted the forfeitures but elected to address Mercado’s claims anyway, saying forfeiture is a doctrine of judicial administration it can decline to apply. The state tried to persuade SCOW that, though the court of appeals may consider forfeited claims by way of plain error, interest-of-justice review, and ineffective assistance of counsel, it lacks the power simply to ignore forfeiture of evidentiary issues in its discretion. The state based this claim on Wis. Stat. § 901.03, which says that error can’t be predicated on an evidentiary ruling without “a timely objection or motion to strike” (or plain error). That statute, as the amicus points out, was created by the supreme court and not the legislature; the court notes in a footnote that it codifies the common law. And the common law, of course, is full of statements that forfeiture (or waiver) are rules that appellate courts may decline to apply. See, e.g., Roseliep v. Herro, 206 Wis. 256, 239 N.W. 413 (1931). So though the unanimous opinion seems to look askance at the court of appeals’ decision to ignore waiver in this case (saying the lower court “believed the rule to be one of judicial administration” and also that courts “generally” are limited to the three forfeiture exceptions noted above) it doesn’t come out and say that § 901.03 forbids the court of appeals to ignore waiver. Though in fairness it doesn’t quite say the opposite, either. Perhaps ambiguity was the price of unanimity. Or, as the amicus put it (quoting Hayes v. State, 46 Wis.2d 93, 105, 175 N.W.2d 625 (1970)), perhaps the court found it better “to be able to settle a matter right with a little uncertainty than to settle it wrong irrevocably.”

Now to the merits. Mercado first claims that the circuit court erred by deciding to admit the videos without first viewing them in their entirety. Wis. Stat. § 908.08(2)(b) says a court considering admitting a video of a child “shall view the statement.” The court of appeals said this meant a court had to view the entire statement (a natural enough reading). But the supreme court rejects this view, saying the command must be viewed in light of the decisions the trial court needs to make: that the video is an accurate recording, that the statement was made under oath or age-appropriate equivalent, that it was made under circumstances tending to show trustworthiness, and that its admission will not cause unfair surprise or inability to rebut. (¶¶45-46 (citing § 908.08(3))). How much of the video need be seen to decide these things will be left, SCOW says, to the discretion of the trial judge.

The supreme court also rejects Mercado’s argument that Wis. Stat. § 908.08(5)(a), which permits either party to call the child after a video is played at trial, forbids a child to testify before the showing of the video. The court says the statute doesn’t say anything about what can happen at trial before a video is played: it’s about what happens after. So, a circuit court’s usual power to reasonably control the “mode and order of … presenting evidence” permits the child’s testimony before the video if it is reasonable. (¶¶50-53).

Having rejected Mercado’s procedural claims, the court finally determines that the substance of the videos also did not preclude their admission. It doesn’t proceed under the standards in Wis. Stat. § 908.08(3)–having held Mercado’s arguments on that point forfeited–but looks instead to § 908.08(7). That subsection permits admission of a video of a child’s statement if it falls within an exception to the rule against hearsay. The court holds that these videos do fall within the residual hearsay exception of § 980.03(24): that the circumstances of the children’s reports and the conduct of the interviews provide “circumstantial guarantees of trustworthiness.” Along the way, it faults the court of appeals for importing the rules of § 908.08(3) into its § 908.08(7) analysis: it says there is no requirement under the latter provision that a statement be under oath, and that the “trustworthiness factors” (found in State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988)) are a set of circumstances that must be considered together and balanced, not a set of criteria that all must be met. (¶¶57-67).

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