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Testimony that 99% of sexual assault reports are true improperly vouched for complainant’s credibility, but wasn’t prejudicial

State v. Conrad M. Mader, 2022AP382-CR, District 2, 6/7/23 (recommended for publication); case activity (including briefs)

Mader was convicted of repeated sexual assault of his stepdaughter. He argues his trial lawyer was ineffective in numerous ways. The court of appeals agrees trial counsel performed deficiently in three respects, but holds trial counsel’s mistakes weren’t prejudicial and therefore Mader isn’t entitled to a new trial.

The number of issues make this a long decision (43 pages). This post will briefly summarize most of the issues and focus on the issue that likely led to a publication recommendation. That issue is whether testimony by two state’s witnesses about the rarity of false sexual assault allegations constituted improper vouching of the complainant’s credibility in violation State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), and State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, 786 N.W.2d 144.

The two witnesses were Lockwood, a retired therapist who had treated 500 sexual assault victims, but had not treated or interviewed “Beverly,” the complainant; and Steier, the investigating officer. (¶¶5-7, 33). Their testimony presents a scenario that was noted by, but not present in, State v. Morales-Pedrosa, 2016 WI App 38, 369 Wis. 2d 75, 879 N.W.2d 772. The defendant in Morales-Pedrosa challenged the testimony of a forensic interviewer who said it was “commonly understood” that about 90% of sexual assault reports are true. Id., ¶19. The court held this kind of “general statistical testimony” was not impermissible vouching, particularly when the interviewer was testifying only as a background witness and had not interviewed or treated the complaining witness. Id., ¶¶23, 26. But the court also said the 90% figure was “less obviously objectionable than testimony that ‘99.5%,’ ‘98%,’ or even ‘92-98%’ are telling the truth,” though it left “for another day” the question of “what type of statistical testimony might effectively constitute improper vouching.” Id., ¶25.

With Mader’s case:

¶38     That day has arrived. The testimony of Lockwood and Steier bears both of the hallmarks we flagged in Morales-Pedrosa as likely to turn statistical testimony about the prevalence of false reports of sexual assault into improper vouching. First, although Lockwood had not met or counseled Beverly before trial, Steier testified that he interviewed Beverly multiple times during the course of his investigation. He first spoke with Beverly, her mother, and her boyfriend in January 2018, when Beverly disclosed the assaults, and conducted multiple follow-up interviews to obtain further details about the assaults. Indeed, Steier acknowledged that multiple interviews are often required when victims disclose sexual assault because they are often unable to provide a complete, chronological recounting of what took place in a single sitting. Steier testified that he had “conversations back and forth” with Beverly as she prepared her written statement and worked with her to gather photographs and other materials to link specific assaults with particular days or months. Steier’s detailed account of his interactions with Beverly connected his final answer on direct examination—that only one of the 150 sexual assaults he had investigated involved a false report—to Beverly’s credibility because it would be clear to a jury that he did not count hers as a false report. His testimony would inevitably be seen by the jury as “a personal or particularized” endorsement of Beverly’s credibility. See Morales- Pedrosa, 369 Wis. 2d 75, ¶23.

¶39     The extreme rarity of false reports to which Lockwood and Steier attested also weighs in favor of finding a Haseltine violation. Lockwood testified that she had experienced only four cases of false reporting in the course of treating more than five hundred victims in her career. Even under a conservative calculation that uses five hundred as the denominator, Lockwood essentially told the jury that 99.2% of the victims she had worked with had truthfully reported. Steier reported personal experience of a similar percentage—one false report in 150 investigations, or 99.33% truthful reports. We agree with Mader that these percentages “provided a mathematical statement approaching certainty” that false reporting simply does not occur. Even the research cited by Lockwood indicating that only three to eight percent of assault reports turned out to be false fits within the range we described in Morales-Pedrosa as more clearly objectionable. See Morales-Pedrosa, 369 Wis. 2d 75, ¶25.

To the extent Morales-Pedrosa left the law “unclear” on when statistical testimony might become impermissible vouching, and trial counsel isn’t deficient for failing to object when the law on the evidence is unclear, 369 Wis. 2d 75, ¶16, how could Mader’s lawyer be deficient for failing to object to Lockwood’s and Steier’s testimony? Because Morales-Pedrosa “identified the additional circumstances that would render such testimony inadmissible”—i.e., testimony about a greater than 99% truthful reporting rate and a witness’s personal interactions with the complainant. 369 Wis. 2d 75, ¶25. Thus, “[a] reasonably competent lawyer … should have known enough to object” to the testimony of Lockwood and Steier, and trial counsel performed deficiently by not doing so. (¶40).

Mader’s other deficient performance claims are that trial counsel failed to do the following:

  1. Object to Beverly’s mother’s hearsay statement that her son heard what may have been sexual activity between Mader and Beverly (¶¶17, 31).
  2. Object to references to Beverly’s virginity (¶¶9, 31).
  3. Object to Beverly’s mother’s testimony about Mader’s diminished interest in sex (¶¶47-49).
  4. Object to evidence of Beverly’s use of birth control and intimacy issues with her boyfriend (¶¶50-54).
  5. Investigate and find additional factual support for the defense’s unsuccessful attempt to admit evidence of Beverly’s employment with a company that sold sexual aids (¶¶55-58).
  6. Object to the prosecutor’s closing argument references to how common it is for persons not to report sexual assault (¶¶59-65).
  7. Move to redact certain information from Beverly’s statement before it went to the jury during deliberations and to assure the jury also listened to Mader’s recorded statement again (¶¶66-78).

The circuit court agreed trial counsel was deficient for the first two, and the court of appeals accepts that conclusion because the state doesn’t contest it. (¶31). The court of appeals, like the circuit court, rejects the other claims.

While trial counsel was deficient in the three ways noted above, the court concludes his deficient performance was not prejudicial because the evidence was so strongly in favor of conviction the errors were not likely to have affected the jury’s assessment of Beverly’s credibility. (¶¶79-87).

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