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COA rejects attempt to use plain error doctrine to challenge hearsay evidence in 51 appeal

Portage County v. D.P.W.O., 2023AP1975, 3/7/24, District IV (one-judge decision; ineligible for publication); case activity

In yet another appeal challenging the use of hearsay statements contained within an examiner’s report, COA rejects D.P.W.O.’s attempt to use the plain error doctrine to prove that this unpreserved error merits reversal of the extension order.

At D.P.W.O.’s extension hearing, the County moved the examiner’s report into evidence, without objection from counsel. (¶4). The expert witness, Dr. Opaneye, recounted some of the specific acts alleged to be dangerous described in that report, although he also admitted he had no personal knowledge and was only restating what he had learned from reviewing treatment records. (¶7). The circuit court relied on those statements–about leaving lit cigarettes around the home and walking outside without proper clothing–in finding D.P.W.O. dangerous. (¶8).

After a brief discussion and clarification of the case law governing dangerousness at an extension proceeding (and after rejecting the County’s mistaken beliefs about how those dangerousness standards function given SCOW’s decision in D.J.W.), COA addresses D.P.W.O.’s only argument on appeal: That the trial court’s reliance on hearsay testimony was plain error meriting reversal. (¶16). The County, for its part, concedes that the controverted statements from the report are hearsay, but argues that D.P.W.O. forfeited his evidentiary challenge and that the plain error doctrine does not apply. (¶16). COA agrees with the County.

COA begins by acknowledging that “[a]ppellate courts do not normally address forfeited issues.” (¶17). The forfeiture doctrine is designed to facilitate effective and timely resolution of evidentiary challenges in the circuit court while also preventing the “sandbagging” of opposing counsel. (Id.). While litigants can get around the forfeiture rule in some cases via the plain error doctrine, COA has been instructed by SCOW to use that doctrine “sparingly.” (¶19). To succeed, litigants must therefore prove that the challenged error is “fundamental, obvious, and substantial.” (¶20). D.P.W.O. fails to meet that burden here for the following reasons:

  1. “D.P.W.O. cites no case in which mere admission of hearsay, unaccompanied by other more compelling errors, constituted plain error.” (¶21). COA is not surprised by this “dearth of authority” as hearsay is a common feature in circuit courts and litigants often make the strategic choice not to object to hearsay, perhaps because they feel that this “weaker” testimony is preferable to the alternative, live testimony by the out-of-court speaker. (Id.).
  2. The hearsay in this case was “cumulative of other evidence introduced earlier in the commitment proceedings.”(¶23). Thus, while COA does not hold that testimony at a prior hearing can necessarily be relied on “where not reintroduced,” it nonetheless holds that “because the challenged hearsay evidence was cumulative of evidence that had already been admitted in the same case [at an earlier probable cause or final hearing] before the same judge, this weighs against a conclusion that the error was fundamental, obvious, and substantial.” (¶23).
  3. D.P.W.O. has not identified any “constitutional rights implicated by the circuit court’s reliance on hearsay.” (¶24). Thus, while Lessard v. Schmidt repudiated, as unconstitutional, a commitment procedure which permitted hearsay evidence, COA distinguishes this case. “That D.P.W.O. failed to exercise the procedural rights available to him does not render his recommitment proceeding constitutionally infirm.” (¶25).

Moreover, because the recommitment statute explicitly contemplates consideration of “the subject individual’s treatment record,” COA holds that accepting D.P.W.O.’s arguments would mean that “it is difficult to envision a scenario in which the admission of hearsay in a Wis. Stat. ch. 51 proceeding is not plain error.” (¶26). This would contravene the policy of applying the doctrine sparingly. (Id.). Finally, COA also rejects D.P.W.O.’s reliance on a medley of practical concerns present in 51 appeals, including the real risk that by pursuing litigation in the circuit court, the clock may run out before effective relief can be obtained (given the short lifespan of such orders). (¶27). These concerns, however, are simply irrelevant to COA’s plain error analysis. (¶28). COA therefore affirms. (¶30).

The resolution of this case tracks the outcome of yet another recent unpublished and citable case, Walworth County v. E.W.  Yet, because this is a 51 appeal, there is of course a wrinkle. At least two other recent decisions have held that circuit courts cannot rely on hearsay when making their required findings under D.J.W. (Here and here). As our post on D.E.S. highlighted, there’s a lot of favorable authority establishing that reliance on such “evidence” is categorically inappropriate. If D.P.W.O. had framed his issue differently–as a sufficiency or D.J.W. factual findings argument–would it have fared better? Should it have? We admit that these cases, as usual in 51 land, often point appellate practitioners in contradictory directions. Perhaps we are left with the only real takeaway from this and similar cases: To, whenever strategically feasible, try and preserve such evidentiary challenges with a timely objection below.

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