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New trial ordered due to erroneous evidentiary rulings that excluded school disciplinary records relevant to impeaching the complainant and admitted Haseltine-type evidence

State v. Gene A. Echols, 2013 WI App 58; case activity

Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.

Erroneous ruling excluding complainant’s school disciplinary records

A fifteen-year-old student alleged that Echols, who worked as a school bus driver, assaulted her on the bus on the way to school one morning. Before trial, Echols sought to admit evidence the complainant had a long record of disciplinary problems at school and had been placed on a “behavioral contract” under which she would face expulsion for any subsequent altercations. According to Echols, the student had, a couple of weeks earlier, thrown a snowball at him while he was driving and was threatening to do so again on the morning of the alleged assault. Echols’s theory was that if the school received word that the student had thrown a snowball at him previously or that she was threatening to do it again, she might be expelled from school; to garner sympathy and avoid punishment for causing mischief on the bus, the student claimed that Echols had assaulted her.

The trial court refused to admit the evidence of the student’s disciplinary records, determining that they were (1) inadmissible “other acts” evidence because there was no link between the student’s alleged behavioral issues and a motive to fabricate the assault; (2) unfairly prejudicial because a victim such as the student should not be “subject to having [her] entire life’s history dredged up against [her]”; and (3) unlawfully obtained. Despite the ordinarily deferential review of trial court evidentiary rulings, the court of appeals reverses, rejecting all three rationales offered by the trial court for its ruling (¶¶18-30).

The court’s conclusion that the disciplinary records are admissible “other acts” evidence involves a straightforward analysis under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). First, the evidence is relevant to show the student knew she would very likely be expelled for throwing and/or threatening to throw a snowball, and that she was alleging wrongdoing by Echols to divert attention from her own misconduct. (¶¶18-19). Next, the probative value of the evidence outweighed any prejudice, and the trial court was wrong to analogize the student’s disciplinary history to a victim’s sexual history because the evidence refers to the student’s credibility and whether she had a motive to fabricate the assault. (¶20).

The novel issue here involves the trial court’s exclusion of the records because they were unlawfully obtained. It appears the school simply faxed the disciplinary records to defense counsel upon counsel’s request. (¶22). Apparently neither was aware of Wis. Stat. § 118.125(2)(f), which requires a subpoena for the records to be sent to the circuit court for an in camera review for relevance to witness credibility or competency. The court concludes there is no authority for construing the statute to require exclusion of the records if its procedure is not followed and, because there is no evidence counsel sought to disregard the confidential nature of the records, exclusion would be too harsh. Rather, “[t]he trial court could have, and should have, upon receipt of the documents, conducted the in camera inspection required by the statute, while requiring the parties to keep the documents confidential. Then, pursuant to the statute, the trial court should have determined which, if any, portions of the records were admissible for purposes of impeachment of the student.” (¶22). If you are litigating a case in which you are seeking introduction of school records, you should familiarize yourself with § 118.125(2)(f). Assuming this decision is indeed published, practitioners may be held to a higher standard in future cases.

Erroneous admission of Haseltine-type evidence

Admission of testimony from the school bus company’s safety director that Echols only stutters when he is lying constitutes reversible error. Though Echols put his character and credibility at issue and thus invited rebuttal testimony from the state, the trial court went too far by allowing testimony that when Echols was lying he would stutter, and that Echols did not stutter in normal conversation when he was not lying. (¶¶24-25). As in State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), where the testimony at issue was an implicit opinion that the victim was telling the truth, “the safety director’s testimony in the case before us is an improper opinion that Echols lies when he stutters.” (¶26). This evidence was not harmless because Echols does in fact stutter, and has done so since childhood, and this case depended heavily on whether the jury found the student or Echols more credible.

A note about the history of this decision. It was originally released on February 20, then withdrawn on March 27, and finally reissued on April 9. The reissued opinion makes a few revisions to reorganize or amplify the legal analysis, but the main alteration was to remove the references in the original opinion to the court’s exercise of its power of discretionary reversal due to the real controversy not being fully tried. Somewhat incongruously, the original opinion concluded both that the evidentiary errors were not harmless and that the real controversy was not tried.

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