State v. Andre L. Miller, 2012 WI App 68 (recommended for publication); for Miller: Jeffrey J. Guerard; case activity
Haseltine “Vouching” Rule
The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant as lying.
¶11 Relying on Haseltine, Miller contends the video should not have been played for the jury because in it Primising tells Miller multiple times he is lying. See Haseltine, 120 Wis. 2d at 96. Miller points out that Haseltine prohibits a witness from giving an opinion on whether another witness is telling the truth because it invades the jury’s role as the sole determiner of credibility. See id. We conclude that because the comments made by Primising on the video were made in the context of a pretrial police investigation and were not made as sworn testimony in court, the Haseltine rule was not violated.
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¶13 Because Miller’s objection in this case relates to unsworn, out-of-court statements made by a detective during the course of his investigation, however, this case is more akin to State v. Smith, 170 Wis. 2d 701, 490 N.W.2d 40 (Ct. App. 1992), than to Haseltine. In Smith, a detective testified at trial regarding whether, during the pretrial investigation of the case, he had believed statements a State witness, an accomplice, had made to him. …
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¶15 Like the detective’s statements in Smith, neither the purpose nor the effect of Primising’s statements in the video was to attest to Miller’s truthfulness. See id. Moreover, Primising’s statements present even less Haseltine concerns than the statements permitted in Smith because Primising’s statements were not made as sworn testimony. As the trial court observed, Primising’s statements amounted to an unsworn “interrogation technique.” The video showing this technique and Miller’s responses to it provided the jury the necessary framework for understanding those responses. Indeed, at the time the video was played, the court made a point to instruct the jury that Primising’s statements to Miller were not being offered as true but to provide continuity for the entire interview.
¶16 In short, because Primising’s statements were not made as sworn testimony providing his opinion regarding the truth of Miller’s statements to the fact finder but were instead made in the context of a pretrial police investigation, the Haseltine rule was not violated and the trial court did not err by permitting the DVD to be played for the jury.
State v. Kleser, 2010 WI 88, ¶104, 328 Wis. 2d 42, 786 N.W.2d 144 (Haseltine also prohibits witness from vouching for truthfulness of out-of-court statements of non-testifying declarant), distinguished, ¶12 n. 2: “Kleser did not in any way suggest that out-of-court statements, like Primising’s in the video, which are made by someone who also happens to be a witness at trial, are to be treated the same as sworn testimony in court. See id., ¶¶98-107. Because the issue in this case boils down to whether the Haseltine rule applies when the alleged impermissible statements are made in a context other than sworn, in-court testimony, Kleser adds nothing to our analysis.” The holding is certainly broad in one respect: the jury will be allowed to hear a law enforcement official repeatedly dismiss defendant’s attempted exculpation as false, and indeed damn the defendant as a liar. But in another respect the holding is, literally and figuratively, limited: the court stresses that the detective’s statements weren’t meant to be taken as comments on Miller’s truthfulness, accompanied as they were by a limiting instruction not to take them “as being that those things are true that he’s saying but rather [] to provide a continuity of the entire interview,” ¶8. Now, it may well be an unmitigated fiction that a jury will split the hair that finely – don’t take as true the characterization of the defendant as a liar, just take it as an effective interrogation technique that at long last got him to cough up the truth – but it’s the best you’re going to get. For that matter, it’s all you’re going to get. If you’re wondering about caselaw from other jurisdictions, take a look at Lanham v. Commonwealth, 171 S.W.3d 14, 23-29 (Ky. 2005) (collecting and discussing cases, and deriving a rule consistent with ours); State v. Craycraft, 147 Ohio Misc. 2d 5, ¶¶17-24 (same); State v Castaneda, 715 SE2d 290, 294 (NC App. 2011) (“The majority of appellate courts of other jurisdictions that have considered such statements have held them admissible based on the rationale that such ‘accusations’ by interrogators are an interrogation technique and are not made for the purpose of giving opinion testimony at trial.”)
Closing Argument – Waiver of Objection
Failure to object to prosecutorial closing argument reference to the defendant as a liar waived any objection; the comments didn’t amount to plain error.
¶19 When a defendant alleges that a prosecutor’s statements constituted plain error, the test we apply is whether, in the context of the entire record of the trial, the statements “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See State v. Davidson, 2000 WI 91, ¶88, 236 Wis. 2d 537, 613 N.W.2d 606) (citation omitted).
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¶23 We are not persuaded that the prosecutor’s remarks were so egregious as to constitute plain error or usurp the role of the jury as arbiter of witness credibility. See Davidson, 236 Wis. 2d 537, ¶88. The comments were limited in scope, were direct commentary on the evidence, and were an exercise of the prosecution reasoning from the evidence to a conclusion. See id., and Adams, 221 Wis. 2d at 19. Further, the court’s instructions to the jury put the comments in proper perspective. See Adams, 221 Wis. 2d at 19. Thus, in light of the entire trial, we conclude that the prosecutor’s remarks did not deprive Miller of a fair trial.
It seems to me that the Court’s Haseltine rationale makes sense only if the instructions make absolutely clear that the officer’s comment on the veracity of the defendant’s statements is not to be considered by the jury in any way in assessing the truthfulness of the defendant’s statements or defense. Only by such an instruction is the Haseltine problem actually avoided. It would, of course, make no sense to hold that out-of-court statements regarding the veracity of other witnesses or statements are admissible simply because they were unsworn and made outside the courtroom. Such statements remain evidence in the case and, absent a clear limiting instruction, remain admissible for their truth, just as if the statement were made in court.
On the second point regarding prosecutorial misconduct, the current rule limiting reversal for such misconduct to circumstances in which the misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process” is ripe for challenge. That standard makes no sense, first, because errors or misconduct by the prosecution are not legitimate simply because they do not rise to the level of a constitutional violation. Second, there is no rational basis for allowing prosecutorial misconduct so long as it does not render the entire trial unfair when any other error is subject to standard harmful error analysis, i.e., whether the beneficiary of the error can prove beyond a reasonable doubt that the error or misconduct had no impact on the jury’s verdict.