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Reverse Waiver, §§ 938.183(1), 970.032(1) & (2); Comment on Truthfulness; Self-Incrimination – Waiver – Examination by Expert

State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply

Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally

¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection. Having said that, it appears to us that the legislature did not intend the reverse waiver hearing to be a minitrial. Accordingly, the court has authority to control the admission of evidence to assure that a juvenile adheres to the statutory scheme——such as recognition of “the violation” already established——and to prevent the hearing from consuming unnecessary time and resources.

¶84 We conclude that the juvenile must be given reasonable latitude to offer admissible evidence for the purpose of meeting his burden to prove the three elements for reverse waiver under Wis. Stat. § 970.032(2).  This includes evidence of “the violation” or the offense charged that supplements the facts used to establish probable cause.  Stated differently, the defendant may offer additional factual evidence to put “the offense” in context so that the court can make an informed judgment on whether transferring the matter to juvenile court would “depreciate the seriousness of the offense.”  However, the juvenile may not offer evidence for the purpose of contradicting the offense charged because that offense has already been established in the preliminary examination.

Reverse Waiver Hearing – Expert Testimony & Hearsay

¶88 The admissibility of evidence at a reverse waiver hearing is subject to the rules of evidence. “Chapters 901 to 911 [the rules of evidence] govern proceedings in the courts of the state of Wisconsin except as provided in ss. 911.01 and 972.11.” Wis. Stat. § 901.01. Wisconsin Stat. § 911.01(2) provides that the rules of evidence “apply generally to proceedings in civil and criminal actions.” Wisconsin Stat. § 911.01(4) then enumerates a list of situations in which the rules of evidence do not apply. Because a reverse waiver hearing is not listed as one of the specific circumstances in which the rules of evidence do not apply, we see no reason why the rules do not apply at a reverse waiver hearing.

¶90 Because the general prohibition on hearsay applies to reverse waiver hearings, we conclude that Dr. Beyer’s testimony regarding the facts of the offense was inadmissible and that the circuit court erred in relying upon it. …

Expert opinion, of course, may be based on inadmissible evidence, so long as of a type reasonably relied on by other experts in the field, § 907.03. But as the court reminds, this rule doesn’t operate as a hearsay exception:

¶91  We note that Dr. Beyer used Kleser’s description of the offense to formulate her opinion that Kleser acted out of rage and fear. An expert may rely on inadmissible evidence in formulating an opinion, if the evidence is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Wis. Stat. § 907.03.  Even assuming that Kleser’s hearsay was reasonably relied upon by an expert in Dr. Beyer’s field, Wis. Stat. § 907.03 is not a hearsay exception, State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993), and it does not render the underlying inadmissible testimony admissible, see State v. Watson, 227 Wis. 2d 167, 199, 595 N.W.2d 403 (1999). By allowing Dr. Beyer to present Kleser’s description of the offense, the court permitted Dr. Beyer to act as a conduit for inadmissible hearsay.[9] This type of testimony is prohibited by the rules of evidence.  See State v. Coogan, 154 Wis. 2d 387, 399, 453 N.W.2d 186 (Ct. App. 1990) (holding that an expert may not “act as a conduit for inadmissible evidence”).

Footnote 9 elaborates on this point, and should be read in full. Beyer’s testimony was hearsay-based — admitted for the truth of the matter asserted — because she addressed “what happened that night,” based on Kleser’s version of the incident, ¶90. The legal principles recited by the majority are settled, it is their application to the particular facts that might be doubtful (a point made by the dissent, ¶133). The court is a bit less than clear, but apparently Beyer relied on Kleser’s statements to her, during a pre-hearing interview as opposed to his statements to the police, ¶96 and id. nn. 11, 12. Perhaps (again: the court simply does not say), had the opinion been based on an against-interest (i.e., substantively admissible) statement to the police, then the “conduit for inadmissible hearsay” problem would have been absent. On the other hand, the dissent persuasively argues that the facts testified to by Beyer “are nearly identical” to those related by the subsequently-testifying detective, ¶143. The majority doesn’t really address this point, but instead obliquely implies that had the detective testified first, then Beyer’s testimony would have been admissible; same, if Kleser had himself testified, fn. 11. The court leaves to inference the significance of either possibility. Apparently — the court doesn’t say –, in either such event Beyer’s opinion would have been based on admissible evidence.

Ultimately, there is a bit of a puzzle: just how is an expert supposed to derive an opinion about the best placement for an adolescent without having an understanding of “what happened”? And if that understanding must be based entirely on “admissible evidence,” then this is a novel approach to expert testimony. Not necessarily a bad thing, unless limited to the unusual context such as this one where the defendant bears the burden of proof. Put it like this. As to the settled principle that inadmissible hearsay may not be admitted as substantive evidence under guise of expert opinion: application of that principle with the same assiduity as reverse waiver to, for example, ch. 980 proceedings may be something else; we shall see.

In any event, a juvenile must prove all of the elements of reverse waiver, else jurisdiction remains in adult court. With the loss of admissibility of Beyer’s opinion testimony (as to reverse waiver not depreciating seriousness of the offense), Kleser’s claim necessarily fails, ¶97, but the court nonetheless takes up other errors in the hearing.

“Jensen” / “Haseltine Comment on Truthfulness

¶98 We next address whether the circuit court erred by relying on Dr. Beyer’s testimony as to the truthfulness of Kleser’s hearsay. The State argues that this testimony violated the principles articulated in Jensen, 147 Wis. 2d 240, and Haseltine, 120 Wis. 2d 92. …

¶101 We agree with the State that Dr. Beyer’s account of the homicide offense here cannot be distinguished from the core principles of Jensen and Haseltine. Dr. Beyer testified: “My opinion of the offense as [Kleser] described it was that it was a rage reaction when he was very fearful.” While she did preface many of her statements with “Kleser reported,” she also described the offense in response to defense counsel’s request that she “explain what happened that night as far as you understand it.”  (Emphasis added.)

¶102 We are not persuaded that the vouching rule becomes inapplicable simply because a witness does not use specific words such as “I believe X is telling the truth,” or is inapplicable because X never testified as a witness. There is no requirement that an expert explicitly testify that she believes a person is telling the truth for the expert’s opinion to constitute improper vouching testimony. In Haseltine, for example, the expert testified only implicitly that the victim was telling the truth. Haseltine, 120 Wis. 2d at 96. A requirement that specific words be used would permit the rule to be circumvented easily.

This “anti-vouching” rule applies to hearsay, i.e., the supposed truthfulness of a non-testifying declarant (such as Kleser), ¶103-04.

Self-Incrimination – Waiver – Examination by Expert

A defendant’s use of his own expert, in a reverse waiver proceeding, to “put[] his account of the offense into issue” operates to waive self-incrimination protection. State v. Davis, 2002 WI 75, deemed applicable:

¶115 Kleser argues that this reasoning from Davis is not applicable because Davis specifically pertained to Richard A.P. evidence as it implicated the defendant’s guilt or innocence. We disagree. Although the issue at a reverse waiver hearing is not guilt or innocence, we see no reason why a different rule should apply when the defendant is seeking reverse waiver under Wis. Stat. § 970.032(2). The reasoning from Davis is not limited to cases where the defendant was presenting Richard A.P. evidence to prove his innocence. Rather, the relevant inquiry from Davis is whether “the defendant uses the expert as a surrogate to assert his or her own statements about facts on the crime and thereby waives the right against self-incrimination.” Davis, 254 Wis. 2d 1, ¶3. In Davis, because the expert evidence was “circumstantial evidence of [the defendant’s] innocence,” the state could adequately rebut the testimony without a reciprocal examination.[16] Id., ¶38. Here, on other hand, Kleser waived his right against self-incrimination by using Dr. Beyer as a surrogate to assert his own statements about the crime, and the State was put at an unfair disadvantage when the court prohibited Dr. Collins from interviewing Kleser regarding the offense.

Reverse Waiver Hearing – Sufficiency of Record

124 To us, the record demonstrates that Kleser failed to meet his burden of proving that (1) if convicted, the juvenile could not receive adequate treatment in the criminal justice system; (2) transferring jurisdiction to juvenile court would not depreciate the seriousness of the offenses; and (3) retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violations of which the juvenile is accused. …

127 In this case, Kleser did not dispute that the deceased suffered at least 20 blows to the head, 30 stab wounds to the neck, and various other wounds. He admitted to a police officer that he stabbed the deceased in the neck multiple times with a pair of scissors after he realized that the man was still alive. He is charged with two additional felonies involving violence to a fellow prisoner. We conclude that transferring this 19-year-old defendant to juvenile court would depreciate the seriousness of the offenses and undermine deterrence.

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