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Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice

State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10

court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply

Expert Opinion – “Jensen” Testimony – Failure to Object

An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s, but only if and to the extent necessary to help the jury understand the complainant’s “reactive behavior,” ¶20, discussing State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988). Because the complainant exhibited no behavior requiring explanation – she immediately reported the assaults to her mother while visibly upset – expert Jensen testimony wasn’t necessary. Therefore, counsel’s (non-strategic) failure to object to such testimony amounted to deficient performance, ¶¶21-22.

Comment on Another Witness’s Truthfulness – Failure to Object

Jensen testimony is further limited by the stricture that no witness, including an expert, may comment on the truthfulness of another witness, State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984). The expert’s testimony here, describing the victim’s behavior in light of certain “sexual indices” used in determining whether sexual abuse has occurred, contravened Jensen by telling the jury that, according to the indices, the victim was telling the truth. Counsel’s failure to object to this testimony on the proper ground (comment on truthfulness) separately amounted to deficient performance, ¶¶23-26.

Two other witnesses (detective and nurse) also arguably violated Haseltine: the detective by expressing doubt the victim really knows the seriousness of what happened to her; and the nurse, by referring to her as “a victim of assault,” ¶¶27-30. However, counsel’s failure to object to this testimony was tactical rather than deficient (objection would have drawn more attention to the testimony than ignoring it), ¶31.

Counsel’s deficient performance wasn’t prejudicial: although there was no physical evidence corroborating the victim’s version, her testimony “was detailed and specific,” and she “told a consistent story over time.” Her credibility was also bolstered by her “accurate description of Black’s bedroom,” and the absence of any motive to fabricate, ¶¶39-40. On the other hand, “Black’s alibi defense was weak,” ¶40.

¶41      We conclude, upon our independent review of all of the evidence, that the jury had a sufficient basis for its verdict even without the purported Jensen testimony.  Black has thus failed to show that the result of the trial would likely have been different but for counsel’s deficient performance.  Strickland, 466 U.S. at 694.

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