This “he said, she said” case resulted in a verdict finding Maday guilty of child sexual assault. Catherine Gainey, the social worker who conducted a “cognitive graphic interview” of K.L., the alleged victim, testified at trial that there “was no indication” that K.L. had been coached or was being dishonest. Maday claimed ineffective assistance of counsel because his lawyer did not object to this Haseltine evidence. SCOW, voting 5-1-2, nixed that claim. The majority, written by Gableman, says Haseltine does not bar “observations of indications of coaching and deceit” that a social worker makes during the course of a forensic interview. It only bars an expert’s subjective opinions about a child’s truthfulness. So expect prosecutors to invoke the magic word “indications” early and often. If you feel like shouting “mayday! mayday!” don’t. The majority may have slammed a door on certain objections to Haseltine evidence, but it has unwittingly flung open a window for defense lawyers.
“Under Wisconsin law, a witness may not testify ‘that another mentally and physically competent witness is telling the truth.” State v. Jensen, 147 Wis. 2d 240, 249, 432 N.W.2d 913 (1988) (quoting State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984)). Applying this rule, State v. Krueger, 2008 WI App 162, 314 Wis. 2d 605, 762 N.W.2d 114 held that the following testimony by a social worker/expert was not admissible:
I did not get a sense from this child that she demonstrated a level of sophistication that [she] would be able to maintain some sort of fabricated story, for lack of a better way of describing it. She did not appear to me to be highly sophisticated so that she could maintain that kind of consistency throughout unless it was something that she had experienced. Krueger, ¶5.
Here, in contrast, SCOW finds that the following social worker/expert testimony is admissible:
[Prosecutor:] Was there any indication that [K.L.] had been coached in any way during her interview?
[Prosecutor:] Was there any indication that [K.L.] was not being honest during her interview with you?
The majority says the difference is obvious:
¶39 . . .The prosecutor did not ask Gainey for an opinion of whether K.L.’s testimony “was the product” of suggestibility or coaching but, rather, asked Gainey about observable indications of coaching or dishonesty. Further, Gainey did not testify that K.L. could only maintain the consistency of her allegations “unless it was something that [K.L.] had experienced.” Rather, Gainey provided testimony grounded in her training as a forensic interviewer by limiting her testimony to the indications she is trained to look for and, by testifying to a lack of any indications of coaching or dishonesty, Gainey avoided giving an opinion as to whether K.L.’s allegations were, in fact, true.
¶40 . . . [I] is at least possible that Gainey, as a trained forensic interviewer, was able to assist, as opposed to usurp, the jury in its role as the sole judge of credibility of the witnesses. As the reasoning of Jensen makes clear, and as we recognize, juries are free either to make use of such testimony or disregard it and rely solely on their own collective wisdom and experience, in accord with the instructions provided to them by the circuit court. See id.
Because the social worker’s testimony did not violate Haseltine, trial counsel’s failure to object to object to it did not amount to ineffective assistance, says the majority. ¶55
Justice R.G. Bradley filed a concurrence making 2 points. First, she faulted the majority for addressing the Haseltine standard at the outset of its opinion rather than under the “deficient performance” prong of Maday’s ineffective assistant of counsel argument. This “unnecessarily lengthens the opinion and may lead to problematic consequences,” she wrote. “The bar might assume incorrectly that unobjected to errors can be decided on the merits.” How odd. There’s little chance of such confusion. The majority opinion states point-blank that it has to determine whether a Haseltine violation even occurred before it can decide deficient performance. ¶26. So 4/5ths of her concurrence was unnecessary. Her second, 1-page point is that the majority should not have stated that the social worker’s testimony would assist the jury since that is not part of the Haseltine test; it’s part of the test for the admissibility of expert testimony. ¶68. Actually, Haseltine did say that expert testimony should assist the jury, but only in order to stress that assisting the jury is different from usurping the jury’s role. Haseltine, at 120 Wis. 2d at 96.
Justice A.W. Bradley (joined by Abrahamson) filed a dissent, which is definitely worth reading if you are working in this area of law. She accuses the majority of misreading Haseltine and its progeny, Krueger and Jensen, so that the few, carefully crafted exceptions now swallow the Haseltine rule. She notes that the social worker in this case was never even qualified as an expert under Daubert, the “cognitive graphic interview technique” has never been determined to be reliable science, and in the only case that mentions it, the conviction was reversed because the defendant had been denied the chance to challenge it. ¶88 n.1. Bradley argues that the majority reads Haseltine as only barring expert testimony about the truthfulness of a witness if the expert uses the words “in my opinion” but not if she uses the words “I see no indication.”
As for expert testimony on “coaching,” A.W. Bradley agrees that this is admissible under Krueger provided that the necessary foundation has been laid. That is, the expert first has to explain what the signs of coaching are. Here, the Gainey simply testified “I saw no signs of coaching.” Three times at oral argument the AAG conceded that the foundation needed for coaching testimony had not been laid. ¶108. “By gones,” says the majority.
Finally, here’s the majority’s gift to defense lawyers. Quite a few Wisconsin circuit courts have, applying Daubert, allowed false confessions experts to testify, but some prohibit it. Wisconsin’s appellate courts have not yet addressed the issue. However, it is front and center in this pending appeal. Every one of the majority’s sweeping pronouncements about why experts should be permitted to testify about indications that a witness is telling the truth or lying apply with equal force to an expert testifying about whether a he sees signs that defendant’s confession was coerced.