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Hearing-Impaired Juror: Inability to Hear Certain Testimony; Evidence: Haseltine “Vouching” Testimony – Harmless Error

State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity

Hearing-Impaired Juror – Inability to Hear Certain Testimony 

A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994) (defendant has right not to be tried by juror unable to comprehend testimony; if juror missed material testimony, prejudice presumed), distinguished; instead, analogy drawn to “sleeping juror” analysis as found in State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996) (Hampton I), and State v. Hampton, 217 Wis. 2d 614, 579 N.W.2d 260 (Ct. App. 1998) (Hampton II).

The court explains the presumption of prejudice in Turner as having been based on absence of trial court findings about what testimony the juror couldn’t hear, ¶17. Here, by contrast, the trial court made detailed findings, allowing the court “to assess the significance of what the juror did not hear in light of the testimony the juror did hear,” ¶21 (namely, the juror “was able to hear substantially all of the trial testimony,” etc., but “missed most of” S.K.’s video testimony, ¶9). The court then applies a Hampton analysis to those facts:

¶27      Hampton I and Hampton II are instructive because, although they concern a sleeping juror, not a hearing-impaired juror, the fundamental inquiry is the same: are the defendant’s constitutional rights to an impartial jury and due process violated when a juror does not hear particular testimony?  Reading Hampton I and Hampton II together with Turner, we conclude that, when it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent he or she did not receive a fair trial—that is, a trial comporting with the constitutional guarantees of an impartial jury and due process.[8]  See Hampton I, 201 Wis. 2d at 673.

¶32      … In this case, the juror heard S.K. testify at trial and was able to observe her demeanor then; and she saw S.K.’s demeanor on the videotape, although she was not able to relate it to specific answers.  Moreover, those answers were consistent with the answers S.K. gave at the trial. …

¶33      We also consider it significant that the juror heard “substantially all” of defense counsel’s cross-examination of S.K. at trial.  This cross-examination suggested several different grounds on which to question S.K.’s credibility.

¶34      In summary, … general assertions of materiality or prejudice are not sufficient to establish a violation of the rights to an impartial jury and due process when we are able to see and hear the precise interview the juror saw but did not hear and are able to compare that to the transcript of that witness’s trial testimony, which the juror did hear.  Given the consistency of S.K.’s videotaped answers with those she gave in person at trial and in the absence of any factor identified by Kettner that indicates some specific source of prejudice, we conclude that Kettner’s rights to an impartial jury and due process were not violated.

Haseltine “Vouching” Testimony – Harmless Error 

Kettner challenges a pediatric nurse’s testimony that children “don’t lie to make up a story, and so I find it valid what the child tells me when I’m making an assessment,” as violating the anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not express an opinion about the truthfulness of another witness’s testimony). The court assumes, without deciding, the existence of such a violation, but holds it harmless:

¶45      First, the jury had already heard from the nurse that he relied in part on S.K.’s account of how the bruises occurred in arriving at his opinion on their cause.  The jury heard this once on direct, without objection from defense counsel, and again on cross-examination, when defense counsel elicited the nurse’s acknowledgment that he assumed, in treating all his patients, that the injury occurred as they said it did.[11]  Thus, if we accept Kettner’s premise that the nurse’s partial reliance on S.K.’s account in arriving at his conclusion is the same as vouching for her credibility, the jury had already heard this by the time defense counsel objected.

¶46      Second, although the nurse mentioned S.K.’s account when asked about the bases for his opinion on the cause of the bruises, his own explanation of his reasoning in arriving at this opinion does not include anything S.K. told him about the spanking.  …

¶47      Third, even without the bolstering to S.K.’s credibility that the nurse’s challenged testimony may have provided, there was compelling evidence that the bruises were the result of the spanking from Kettner. …

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