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SCOW to review admission of video statements by children and the forfeiture doctrine

State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity

Issues (from the State’s petition for review):

1.  Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?

2.  Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?

Carnac the Magnificent correctly predicted that the State would file a PFR in this case and that SCOW would grant it. You can see why. The poor State. It says the court of appeals elected to review forfeited errors, developed arguments for its opponent, and then ruled for the opponent. The State’s petition claims the court of appeals “abandoned its role as a neutral error-correcting court, engaged “judicial overreach,” and issue a “patently unfair” decision. Suddenly, sauce for the goose tastes yucky!

Mercado was convicted of sexually assaulting 3 children. In a split decision, the court of appeals held that the circuit court erred in determining admissibility of the videos under § 908.08 because it didn’t view the videos in their entirety. It only reviewed “relevant portions.” Reading § 908.08 as a whole, and comparing it to § 885.44(11), which governs videotaped depositions, the court of appeals held that the trial court must review the entire videotaped statement to determine whether the criteria under § 908.08 are met. (¶¶34-41).

The second issue for review re the admissibility has four sub parts: (a) Did the circuit court comply with §908.08(2)(c)? (b) Did the court of appeals contradict binding case law by holding that the videos were not admissible under the residual hearsay exception? (c) Was the youngest victim’s video admissible under §908.03(3) or as a prior inconsistent statement? And (d) Did the circuit court comply with §908.08(5)(a) when it allowed the youngest victim to testify be playing her video for the jury?




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