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Opinion Testimony – comment on truthfulness of another, mentally impaired witness

State v. David C. Tutlewski, 231 Wis.2d 379, 605 N.W.2d 561 (Ct. App. 1999)
For Tutlewski: Dianne M. Erickson

Issue: Whether one witness’s opinion that state’s witnesses were incapable of lying invaded the jury’s province.

Holding: This testimony violated the rule that one witness may not testify to the credibility of another witness.

The alleged sexual assault victim and her roommate are cognitively disabled. Both testified as state’s witnesses. Another witness, who had been their special education teacher, when asked for an opinion about “their reputation for truthfulness and honesty,” testified: “I think both … are very honest, truthful young people … and I don’t think it is within their capabilities to lie or be deceitful.” Tutlewski argues that this testimony violated the rule in State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), that an opinion by one witness as to the credibility of another invades the jury’s province. Though Tutlewski clearly had attacked the witness’ character for truthfulness, the challenged opinion testimony exceeded the limits set by Haseltine. While it is permissible to impeach “an impaired witness whose ability to perceive events or to tell the truth might be affected, there is no corresponding right to bolster a witness’s testimony’s testimony if the witness has a mental impairment.” ¶18. Discussion of these witnesses’ cognitive impairments was proper, but testimony that they “were incapable of lying clearly crossed the line of admissibility articulated in Haseltine.”

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