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“Maday” Examination of Complainant (Defendant’s Right to Examine Complainant’s Psychological Condition), to Meet State’s “Jensen” Testimony

State v. Joseph F. Rizzo II, 2003 WI App 236, PFR filed 11/13/03, on appeal after remand of State v. Rizzo I, 2002 WI 20
For Rizzo: Kathryn A. Keppel, Raymond M. Dall’osto

Issue: Whether Rizzo is entitled to a psychological examination of the sexual assault complainant pursuant to State v. Maday, 179 Wis. 2d 346, 507 N.W. 2d 365 (Ct. App. 1993) (where the state offers expert opinion under State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988) that the sexual assault complainant’s behavior was consistent with that of sexual assault victims in general, the defendant is entitled to meet such testimony with a defense expert).

Holding: Because the State’s “Jensen” testimony was limited to the complainant’s delay in reporting, and because Rizzo’s expert conceded that he could assess that aspect without a personal examination, such an examination wasn’t necessary.

This seems to be more of a very fact-specific resolution rather than a retreat from Maday. In the first place, the court holds “that the State’s Jensen evidence did not embrace a more general comparison between D.F.’s behaviors and the common behaviors of sexual assault victims,” ¶6. (Rizzo argues otherwise, and whether or not he’s right is beside the point: the holding is limited by that finding.) True, the State’s expert gave “Jensen” testimony with respect to why the complainant delayed reporting the alleged sexual contact; and, the court seemingly denigrated that testimony as relating “only” to “the requisite comparison between D.F.’s reporting behaviors and the common reporting behaviors of sexual assault victims,” ¶14. But in context, the court is merely saying that this analysis “establishe(s) the scope of the Jensen evidence in this matter,” ¶17. This limited scope is important because Rizzo’s expert did not “require[] a personal interview with the victim in order to rebut the State’s Jensen testimony about delayed reporting” (emphasis supplied). ¶18. And it is for that reason that a Maday exam isn’t necessary. Take note, too, of this usefully pithy summary of Maday, (¶19): “The purpose of the Maday rule is to level the playing field by giving the defendant an opportunity to counter the State’s Jensen evidence.” The State may have used Jensen evidence in this case, but the defense could refute it without a Maday exam: that is all, really, that this case says.

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