Issue1: Whether testimony by a state’s expert amounted to “Jensen” testimony, i.e., expert opinion that the sexual assault complainant’s behavior was consistent with that of sexual assault victims in general.
¶21. We agree with the court of appeals that Dr. Pucci’s testimony made the requisite comparison between D.F.’s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci’s testimony would have been Jensen evidence only if she had used magic words such as ‘D.F.’s behaviors are consistent with that of persons known to be sexual assault victims.’ We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor’s questions along with Dr. Pucci’s answer to provide the comparison that is the essence of Jensen evidence.¶22. The phrasing of the prosecutor’s questions and the substance of Dr. Pucci’s answer combined to send a clear message to the jury that D.F.’s behaviors were consistent with those of known sexual assault victims. The factual portion of Dr. Pucci’s testimony established that she knew D.F. to be a sexual assault victim. The prosecutor then solicited her expert opinion as to what someone would do ‘under these circumstances’ and ‘in this position.’ This made it apparent to the jury that a direct comparison was to be drawn between D.F. and others in her circumstances or position, which, according to the factual testimony of Dr. Pucci, were the circumstances or position of a sexual assault victim.
Issue2: Whether the defendant’s right to a psychological examination of the complainant, under State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), once the prosecution introduces “Jensen” testimony, is limited to instances where the “Jensen” witness has actually been retained by the prosecution.
¶32. We must not lose sight of the fundamental fairness principle that drives the Maday decision. If the State is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own. As the Maday court explained in support of its holding, ‘a definitive opinion requires an extensive interview plus review of material on the victim’s life and behaviors.’ 179 Wis. 2d at 357.¶33. With these principles in mind, we conclude that it would strain logic and ignore fairness to determine that a psychological expert such as Dr. Pucci does not trigger Maday. Dr. Pucci was not just any professional who briefly encountered D.F. after a reported sexual assault. Dr. Pucci was a clinical psychologist who had an extensive, ongoing relationship with D.F. She interviewed, examined, and diagnosed D.F. Moreover, Dr. Pucci testified that the bulk of her treatment of D.F. in 1997 was directed at the sexual assault. In short, the extent and nature of Dr. Pucci’s contacts with D.F. bring her within the ambit of Maday.
¶34. In addition, we agree with Rizzo and the court of appeals that the State “retained” Dr. Pucci in the sense meant by David J.K. Although there is no assertion by Rizzo that Dr. Pucci received a specific witness fee, the State admitted that it “paid three times” for Dr. Pucci’s flights, hotel, rental cars, and meals in order to bring her from Tennessee, where she had relocated since treating D.F.
¶35. More to the point, however, we determine that even if the State had not compensated or reimbursed Dr. Pucci, she would still have been a Maday expert. A determination of whether the State ‘retains’ an expert for purposes of Maday cannot stand or fall on whether or how it has compensated its expert. Such a determination would thwart the fundamental principle underlying Maday and would allow the State to subvert Maday by, for example, obtaining an expert willing to volunteer her time. For the same reasons, we conclude that an expert’s status as the complainant’s treating therapist does not preclude that expert from being ‘retained’ by the State for purposes of Maday.
Issue/Holding3: Neither outright grant of new trial nor affirmance is an appropriate appellate response to denial of a “Maday” expert, where trial court never had the opportunity to exercise its discretion. Proper remedy is remand for trial court to apply “Maday” factors; if result is that Rizzo was entitled to pretrial psychological examination of complainant, then new trial should be ordered. ¶¶43-47.