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Defense win! COA holds mistrial was necessary where jury heard prejudicial, inadmissible testimony

State v. Juan J. Castillo, 2020AP983, 6/29/21, District 3 (not recommended for publication); case activity (including briefs)

Castillo was tried for the alleged sexual assault of his five-year-old cousin when he was sixteen. He wished to call an expert to testify about the factors that can affect the reliability of a child’s allegations of assault; the circuit court disallowed this testimony. The court of appeals upholds the circuit court’s ruling on that matter, concluding that the testimony didn’t “fit” the facts of this case. But the court does order a new trial, holding the circuit court should have granted the mistrial Castillo requested after the now-8-year-old alleged victim “blurted out” on the stand that Castillo had assaulted three other girls, and after his sister gave testimony suggesting he was incarcerated at the time of trial.

Regarding the expert testimony, the court of appeals relies heavily on State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609, which rejected a defendant’s attempt to put on expert testimony about the factors tending to produce false confessions. Basically, the court there held that because few if any of the factors were actually present in the facts of the case, this testimony did not adequately “fit” the evidence. Here, the court says, the factors identified by Castillo’s expert were mostly not present. (¶¶28-43).

This conclusion is a bit shaky. Castillo’s expert identified a few factors that clearly were present–repeated interviewing, negative attitudes of family members toward Castillo, less-than-ideal forensic interview tactics, and allegations that the alleged victim may have had other sexual experiences. As to each, the opinion critiques the expert’s offered opinion as not conclusive enough; basically, the expert offered probability rather than certainty. The strange implication is that his testimony would become admissible if he’d simply omitted the caveats and overstated his conclusions. Surely there’s room in a trial for nuance and intellectual honesty.

The court of appeals says, though, that Castillo must receive a new trial because the jury heard two pieces of damaging information it should not have. Pretrial, the circuit court had concluded that no unproved allegations about other assaults would be admitted; nor would it permit evidence that Castillo had served or was serving a criminal sentence.

But, the end of the direct examination of the complaining witness, the prosecutor asked if there was anything else about what happened that “you think we should know.” The girl responded: “He did it to three other little girls.” The prosecutor asked the court to strike the answer, which it did, and additionally told the jury to disregard it. But Castillo moved for mistrial, arguing that no jury instruction could cure such a prejudicial comment. The court refused Castillo’s request.

Later, Castillo’s sister said she and Castillo had discussed Castillo’s “getting a job if he gets out.” Castillo objected and the court again struck the testimony, but it also denied another mistrial motion.

Acknowledging that a trial court receives a high degree of deference on mistrial motions not founded in prosecutorial wrongdoing, the court of appeals nevertheless concludes the circuit court misused its discretion in denying Castillo’s. There was no physical evidence in this case; it was purely a question of credibility between Castillo and the complaining witness. And the court notes that the two pieces of prejudicial testimony could work in concert: they suggested that Castillo might presently be in custody for previous child sexual assaults. The court also rejects the state’s argument (originally articulated by the circuit court) that the girl’s testimony was not so damaging because the jury would understand that a young child might “blurt something out”:

We do not find this analysis convincing. While the jury might understand the possibility that a child witness would “blurt something out,” that does not mean the jurors would necessarily disregard or disbelieve the child’s statement. Indeed, the fact that Gail was a scared, eight-year-old child who had “blurt[ed] … out” an accusation about Castillo sexually assaulting three other girls would serve to enhance, not diminish, the credibility of that accusation. Gail’s young age and the apparent spontaneity of her statement would militate against a conclusion that she was making a calculated attempt to shock or improperly influence the jury by fabricating an allegation about Castillo sexually assaulting other girls.


On these facts, we conclude Castillo has overcome the presumption that the jury followed the circuit court’s instructions to disregard Gail’s and Lorena’s statements. We agree with Castillo that the prejudicial effect of those statements, taken together, was so great that the court’s instructions were “not sufficient to remedy the error[,] and the evidentiary bell could not be unrung.” “[I]f you throw a skunk into the jury box, you can’t instruct the jury not to smell it.” Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962). Here, the proverbial odor of the improper statements was so strong that we cannot conclude the court’s cautionary instructions were sufficient to prevent the jury from considering those statements and allowing them to affect its deliberations.


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