State v. Jobert L. Molde, 2025 WI 21, 6/13/25, reversing COA’s authored, unpublished opinion; case activity
SCOW considers whether an expert witness violated Haseltine‘s anti-vouching rule when she testified that only around one percent of child sexual assault disclosures are false without offering an opinion on whether the victim in this case was telling the truth. A unanimous court overrules Mader and any other court of appeals case that holds statistical evidence alone violates the Haseltine rule.
Decision
After a suicide attempt when she was 13, “Lauren” alleged that her father, Jobert Molde, sexually assaulted her sometime between January 2011 and January 2012. At trial, Lauren testified and the state showed a recording of her forensic interview. (¶2).
A licensed child abuse pediatrician, Dr. Alice Swenson, also testified as an expert although she had not conducted Lauren’s forensic interview. (¶3). After Swenson’s testimony, a juror submitted two questions, one of which was “how frequent is it for children to make up a story of sexual abuse?” Trial counsel for Molde did not object, and Swenson answered, “False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.” (¶4).
Following his conviction, Molde moved for postconviction relief, claiming that his trial counsel should have objected to Swenson’s testimony as impermissible vouching, and this failure constituted ineffective assistance of counsel. (¶5). The circuit court denied the motion and the court of appeals reversed, relying on its previous published decision. (¶6).
The court of appeals agreed in a recent case where it held that expert testimony impermissibly vouched for the victim’s credibility when two experts testified that 99.2% and 99.33% of victims are truthful. State v. Mader, 2023 WI App 35, ¶¶38-39, 408 Wis. 2d 632, 993 N.W.2d 761. It reasoned in part that those percentages amounted to near-mathematical certainty “that false reporting simply does not occur.” Id., ¶39. This violated Haseltine, the court of appeals ruled, because the jury would inevitably understand this testimony as a statement that the victim was telling the truth. Id.
(¶19).
SCOW disagrees. Under the Haseltine rule, “the jury is the ultimate arbiter of credibility” so “[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.” (¶8 (citing State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984)). The Court analyzes the cases that followed, and concludes that “the main question is whether the testimony assists the jury in assessing the credibility of witnesses, or whether it functionally usurps the jury’s fact-finding role.” (¶¶12-18). “Witnesses cross the line, however, when they take the extra step of implicitly or explicitly opining on whether the complainant is telling the truth.” (¶18).
The Court then provides a succinct analysis. It reasons that the Haseltine rule is not violated simply because generalized or typical evidence strongly suggests a complainant is telling the truth. (¶21). The court also “stress[es]” that its conclusion “does not mean all such evidence should be admitted or is impervious to attack” as it must still be admissible under the rules of evidence. (¶23). The Court concludes that Swenson’s testimony did not cross the line into impermissible vouching. (¶25).
Concurrence
In a noteworthy concurrence, Justice Karofsky writes separately “to elevate the voice of Lauren, the victim in this case” and cites her prior concurrence in State v. Hineman, 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652. (¶29). (Hineman’s habeas petition was later granted by the Eastern District of Wisconsin in 24-CV-415).
¶29 I write separately to elevate the voice of Lauren, the victim in this case whose courage and perseverance allowed her to overcome the “herculean task of reporting sexual abuse.” Lauren’s father, Jobert Molde, sexually assaulted her when she was eight or nine years old. Lauren found her voice five years later, after a suicide attempt, when she reported the crime. Lauren found her voice again during her forensic interview when she relayed details of the assault. And at trial, in front of a jury of strangers, she found her voice yet again to testify about the abuse. Lauren managed to state, in open court, that after her father told her “to be his big girl for daddy,” he “had sex” with her by putting his penis in her vagina, which “hurt.” The jury believed her.
¶30 The court of appeals did not. The court of appeals overturned Molde’s conviction of first-degree sexual assault of a child, relying in large part on its determination that Lauren lacked credibility. The court reached this conclusion because “[t]he sexual assault allegation was not independently corroborated by other evidence; there was no physical evidence; there was only one sexual assault that occurred during a one-year period roughly four to five years prior to Lauren’s accusation; and some aspects of Lauren’s story changed over time.” State v. Molde, No. 2021AP1346, unpublished slip op., ¶40 (Wis. Ct. App. May 21, 2024).
¶31 These assertions are as disconcerting as they are misguided. They are predicated upon damaging and victim-blaming misperceptions. Disregarding a child victim’s testimony because of delayed reporting, small variations in her narrative, and most alarmingly, the total number of assaults she reported, defies what we know about how child sexual assault victims behave and report.
The concurrence provides a critique of each of those reasons, and concludes as follows:
¶39 Lauren defied the odds in reporting her abuse. The court of appeals discredited her for reasons that either fail to account for commonplace behaviors of child sexual assault victims or ignore logic and common sense. Child sexual assault victims must overcome near insurmountable barriers to reporting abuse and achieving justice. When these brave children speak, courts must ensure they are heard.
¶40 Lauren, you bravely used your voice. I hear you. I believe you.
