State v. Richard A. Brown III, 2004 WI App 33, reversed on other grounds, 2005 WI 29
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether, at a § 980.08 supervised release hearing, an expert’s report filed under § 980.08(3) may be introduced into evidence, though hearsay and though the author does not testify.
¶14. …. Generally, where a party secures the services of a psychologist or other professional in support of an action, that party knows that the professional will be subject to scrutiny through the adversarial process. But where, as we see in Wis. Stat. § 980.08(3), the court “shall appoint” a professional to “furnish a written report” providing guidance for the court’s consideration of the ultimate issue, it would be absurd to conclude that admissibility was not “provided … by statute.” Wis. Stat. § 908.02; see State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 109, 499 N.W.2d 657, 660 (1993) (court should interpret a statute to avoid an absurd result). The report and its author, of course, still may be subjected to adversarial testing (and here, as Brown concedes, he could have called Dr. Kotkin as a witness). But the fact that a party may decline to call a witness should not deprive the court of the very advice the statute required it to obtain. Accordingly, we conclude that Dr. Kotkin’s report was admissible hearsay “as provided … by statute,” under §§ 908.02 and 980.08(3).
Despite reversing on other grounds, the supreme court says that it “need not and do[es] not address the hearsay and confrontation issues” raised by this problem, ¶59, and under a quirk in Wisconsin caselaw, the court of appeals’ holding quoted above is therefore arguably left intact. See State v. Gary M.B., 2003 WI App 72, ¶13, affirmed on other grounds (but of course!), 2004 WI 33 (court of appeals’ holding in a case reversed by the supreme court on other grounds, so that holding is neither “overruled, withdrawn, or modified,” continues to bind the court of appeals). The supreme court concurrence in Brown would reach the hearsay issue, ¶¶95-101, and goes on to make what ought to be the commonsensical point that the rules of evidence apply to all proceedings, discrete and inapplicable exceptions aside. (“Ought,” because the court of appeals and three dissenting supreme court justices disagree, seemingly taking the view that ch. 980 is one big exception to the rules of evidence.) This is obviously worrisome, because the votes may not be there to overrule the court of appeals’ hearsay holding, besides which it remains viable unless and until overruled.
Granting that, because ch. 980 is civil, a confrontation argument probably isn’t available, there is an explicit grant of statutory right to “cross-examine witnesses” at 980 hearing, § 980.03(2)(c) (subject to specified exceptions), and there is at least an argument to be made that the right of cross-examination is synonymous with confrontation. Neither the supreme court concurrence nor dissent in Brown discuss confrontation. The court of appeals explicitly says that it was not addressing confrontation, though it gratuitously goes on to say, “Brown ignores the obvious: he concedes that he could have called Dr. Kotkin as a witness, thus assuring confrontation.” 2004 WI App 33, ¶14 n. 6. If the court wasn’t addressing the issue, then there’s obviously no holding. To the extent that the court is saying that the possibility you can call an adverse witness satisfies confrontation (or, to say the same thing, cross-examination), then a couple of (related) points should be made: 1) the court of appeals’ decision was issued before Crawford v. Washington, which for that reason alone suggests the need for reexamination (so to speak, in the 980 context); and, 2) there is already authority for the idea that under Crawford you can’t impose on the defendant the burden of producing a non-testifying witness, State v. Cox, 876 So.2d 932, 938-39 (La. App. 3d Cir. 2004):
Finally, the State contends that Defendant waived his right to object to the introduction of the Sykes statement because the court had offered him the right to subpoena Sykes as a witness. This begs the issue. Calling Sykes as a witness, in and of itself, would hardly render the statement admissible. Defendant should not be required to call Mrs. Sykes as a witness simply to facilitate the State’s introduction of evidence against the Defendant. Moreover, there could be a whole host of reasons why Defendant would not want to call Mrs. Sykes as a witness. Simply stated, if the State needed to have Mrs. Sykes’ testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.
And, Bratton v. State, 156 S.W.3d 689 (TX App 2005):
… Although the record does not reflect why neither the State nor Bratton called Curl and Ward to testify, the State argues that Bratton chose not to call them as a matter of trial strategy. And, because he chose not to call them as a matter of trial strategy, he cannot complain he was denied his right to confront them. However, the State provides no authority for this contention, and we find nothing in Crawford or elsewhere suggesting that a defendant waives his right to confront a witness whose testimonial statement was admitted into evidence by failing to call him as a witness at trial. See Tex. R. App. P. 38.1(h); see also State v. Cox, 876 So.2d 932 (La. Ct. App. 2004) (specifically rejecting this argument and noting that if State needed to have witness’s testimonial statement admitted into evidence, State could have called witness to testify). In fact, as the party seeking to admit Curl’s and Ward’s statements, it was the State’s burden to show their statements were admissible, that is, that Curl and Ward were unavailable and that Bratton had been afforded a prior opportunity to cross-examine them. See Crawford, 124 S. Ct. at 1374; Snowden v. State, 846 A.2d 36, 47 n.31 (Md. Ct. Spec. App. 2004) (State did not satisfy Crawford foundational requirements where it failed to show declarant of testimonial hearsay unavailable to testify), aff’d, 2005 WL 275752 (Md. 2005); see also Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994) (op. on reh’g) (proponent of statement against penal interest bears burden of showing its admissibility); Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) (same-co-conspirator’s statement). By the State’s own admission though, Curl and Ward were available to testify, and nothing in the record suggests, nor does the State contend, that Bratton was afforded a prior opportunity to cross-examine them. As such, the statements were inadmissible, and the trial court erred in not excluding them. See Crawford, 124 S. Ct. at 1364-65.
“Confrontation” aside, the court’s analysis remains problematic as a purely statutory matter, given the right to “cross-examine witnesses” afforded by § 980.03(2)(c). Maybe you could say that Kotkin wasn’t a witness because he didn’t testify, but that exalts form over substance; once his report was admitted into evidence he was a witness. He testified via written word, yet he couldn’t be cross-examined: why doesn’t this violate the plain terms of the statute? Sure, he could have been produced by Brown and then cross-examined, but that sort of eradicates a fundamental notion of cross-examination, doesn’t it? And what of the idea trumpeted by the decision that the court appoints the expert who then files his/her report? This procedure seems largely borrowed from NGI procedure, § 971.16(3), and an NGI report is not admissible hearsay. Nor is there anything in the text of § 980.03(2)(c) that says the report is admissible hearsay; the court of appeals simply begs the question by asserting that this statute “provide(s)” admissibility. Note, too, how the court characterizes the purpose of the appointment, as “providing guidance for the court’s consideration of the ultimate issue.” Maybe – but neither that language, nor anything approximating it, appears on the face of the statute. Consider that § 980.08 (petition for supervised release) and § 980.09 (petition for discharge) are interconnected, see, e.g., State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263. More particularly, a petition for supervised release is by default a petition for discharge without secretary’s approval, State v. Ray A. Schiller, 2003 WI App 195, ¶2. And, a petition for discharge triggers a non-evidentiary, paper review, id., n. 3. So, if you’re looking for one possible purpose to filing the report, there it is.