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§ 904.03, Balancing Test – Richard A.P. Evidence

State v. Steven G. Walters, 2004 WI 18, reversing 2003 WI App 24
For Walters: David A. Danz


¶16. … The term “Richard A.P. evidence” comes from a decision of the court of appeals in which a defendant accused of molesting a child sought to introduce character evidence through the testimony of a psychologist. State v. Richard A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674 (Ct. App. 1998). The testimony was intended to demonstrate that the defendant did not exhibit character traits consistent with a sexual disorder such as pedophilia. Id. … Additionally, the expert would testify that absent such a diagnosable disorder, it was unlikely that such a person would molest a child. Id.

¶25. Richard A.P. evidence, like other expert evidence, is subject to the requirements of the rules governing the admissibility of evidence. These include not only the rules governing character evidence and expert testimony, but also Wis. Stat. § 904.03, the rule governing the exclusion of otherwise relevant evidence.

¶36. [T]he record supports the circuit court’s conclusion that the minimal probative value of Walters’s proffered expert testimony was substantially outweighed by the danger that the issues would be confused and the jury would be misled. …

¶37. Here, due to the victims’ late reporting, there was a six-year gap between the first alleged assault and Wakefield’s evaluations. During the time frame when the assaults occurred, Walters had a drinking problem. However, when Wakefield evaluated him, he told her that he was no longer drinking and no longer believed that he had a problem with alcohol. At the offer of proof hearing, Wakefield testified that the tests administered assess personality, and that personalities are generally consistent, but can be altered by the consumption of alcohol. She indicated that her test results did not take into account whether the alleged assaultive behavior was triggered by alcohol consumption. This circumstance further minimized the probative value of the expert testimony.

¶42. Thus, we determine that there is neither a blanket restriction of Richard A.P. evidence nor is it compelled. Rather, courts must scrutinize such evidence on a case-by-case basis to assess admissibility. Such evidence has probative value in sexual assault cases where there often is no neutral witness to the assault and seldom any physical evidence implicating the defendant.Davis, 254 Wis. 2d 1, 18. Moreover, it may be of special importance to the jury by helping it to determine whether the defendant committed the crime, by showing circumstantial evidence of the defendant’s innocence. Id.

A § 904.03 inquiry is necessarily fact-specific. In this instance, perhaps the single most important fact is that the expert “would not have offered any conclusions as to Walters’s propensity to commit sexual assault,” ¶38. Moreover, the expert’s testimony would have been quite lengthy (the offer of proof “consumed approximately 165 pages of transcript over three days of hearing”) in comparison to the “testimonial portion of Walter’s trial (one day), ¶40 – which created a significant risk of juror confusion, ¶41.


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