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Defense win: Circuit court erred in preventing impeachment of witness with prior false statement to police

State v. Dennis C. Strong, Jr., 2020AP1197-CR, District 3, 3/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

In a decision that provides a nice primer about using specific instances of a witness’s to attack the witness’s character for truthfulness § 906.08(2), the court of appeals holds the circuit court erroneously barred Strong from cross examining the complaining witness about a prior false statement she’d made to the police four months earlier in a different case.

The complaining witness (“Tara”) alleged Strong engaged in conduct amounting to battery and disorderly conduct; Strong denied the conduct, and none of the other state’s witnesses had witnessed the alleged conduct, so it was her word against his. (¶¶3, 8-10, 13).

On cross, Strong asked Tara about a specific instance of conduct bearing on her truthfulness: four months before this incident, in a wholly unrelated case, she gave a false statement to police at the behest of a friend, though she quickly recanted the statement and told the police she’d lied. (¶5). In response to Strong’s question, Tara denied telling the police she lied. Strong wanted to impeach her using a recording of testimony Tara gave under oath at a revocation hearing, where she admitted she had lied and then recanted, but the circuit court ruled before trial that he couldn’t introduce the recording. (¶¶6-7, 11-12). So Strong was stuck with her answer.

The circuit court was wrong to preclude Strong from using the recording. First, though the circuit court apparently understood the false statement was a specific instance of conduct probative truthfulness for purposes of § 906.08(2), it erred in concluding the statement was both “remote in time” and irrelevant because it didn’t involve Strong:

¶20     …[T]he circuit court noted that Wis. Stat. § 906.08(2) provides “no real guidance” as to the meaning of the phrase “remote in time.” The court then suggested that Tara’s false report was too remote in time to be admissible under § 906.08(2) because it occurred “five months” before Tara reported the events at issue in this case. We do not agree that the time lapse in this case, which was actually just over four months, rendered Tara’s prior false report “remote in time” under § 906.08(2). We have not located any case law holding that a delay as short as four months was “remote in time” under that statute. See, e.g., State v. Sonnenberg, 117 Wis. 2d 159, 170, 344 N.W.2d 95 (1984) (concluding incidents that occurred “over a year” after the charged conduct were remote in time under § 906.08(2)); State v. Missouri, 2006 WI App 74, ¶¶2, 5, 7, 21, 291 Wis. 2d 466, 714 N.W.2d 595 (concluding two incidents that occurred approximately six months and approximately two weeks, respectively, before the relevant conduct were not remote in time for purposes of § 906.08(2)).

¶21     The circuit court also concluded that evidence pertaining to Tara’s prior false report was not relevant because the November 19, 2016 incident did not involve Strong. Nothing in Wis. Stat. § 906.08(2) provides that specific instances of conduct are relevant to attack the witness’s character for truthfulness only when the witness’s prior untruthful conduct involved the same individuals or underlying factual circumstances as the witness’s trial testimony. …. Evidence that Tara was willing to lie to the police about a physical altercation in November 2016 has a tendency to make it more probable that Tara lied to the police when she reported Strong’s alleged conduct in March 2017. The evidence therefore relates to Tara’s credibility, and our supreme court has recognized that “[a] witness’s credibility is always ‘consequential’ within the meaning of Wis. Stat. § 904.01.” See State v. Marinez, 2011 WI 12, ¶34, 331 Wis. 2d 568, 797 N.W.2d 399 (citation omitted)

The court also rejects the state’s claim that there was no error because Strong got to ask Tara about her false statement but was bound by her her answer, as using the recording would be improper under § 906.08(2)’s bar on the use of extrinsic evidence to prove specific instance of conduct to attack a witness’s credibility. (¶22).

¶23     The State’s argument misapprehends the meaning of the term “extrinsic evidence,” as it is used in Wis. Stat. § 906.08(2).

Inquiry into specific instances [of conduct under § 906.08(2)] is limited to cross-examination. Extrinsic evidence of the conduct is not permitted; the cross-examiner must take the witness’s answer. This does not preclude the impeaching party from confronting the witness with a prior statement or document … referring to the specific instance in an attempt to get the witness to “back down” and admit the impeaching fact. If the witness finally relents and admits the fact, it is proven through the witness’s testimony, not “extrinsic” evidence.

7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 608.2 (4th ed. 2021) … (emphasis added; footnotes omitted). Accordingly, our supreme court has characterized “extrinsic evidence” as “testimony obtained by calling additional witnesses, as opposed to evidence obtained by the cross-examination of a witness.” Sonnenberg, 117 Wis. 2d at 168 (emphasis added).

¶24      Pursuant to these authorities, the audio recording of Tara’s prior testimony admitting that she had made a false report to the police did not constitute “extrinsic evidence” under Wis. Stat. § 906.08(2). As such, when Tara denied on cross-examination that she had made a false report, Strong should have been permitted to use the audio recording to “attempt to get [Tara] to ‘back down’ and admit the impeaching fact.”

The court goes on to determine that the probative value was not substantially outweighed by the danger of unfair prejudice (¶¶25-27) and that the error in precluding Strong from impeaching Tara was not harmless (in part because the state fails to develop an argument on this point) (¶¶28-29).

 

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