by admin
on February 12, 2002
State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel
Issue: Whether the prosecution opened the door to otherwise privileged “Shiffra” evidence.
Holding:
¶51. Before trial, the circuit court found that there was nothing relevant in D.F.’s treatment records that was not also in Dr. Pucci’s summary report. Although Dr. Pucci ventured beyond the scope of her summary report at trial in that the report did not say she would give Jensen testimony, it does not automatically follow that Rizzo was entitled to D.F.’s treatment records. Because Dr. Pucci’s factual testimony was anticipated, her Jensen testimony did not change the scope of relevant information in D.F.’s treatment records. The argument that Rizzo could somehow impeach Dr. Pucci’s expert knowledge of the common behaviors of sexual assault victims by accessing the treatment records of one of her patients is not persuasive.¶52. Rizzo also argues that he needed D.F.’s treatment records to cross-examine Dr. Pucci because it was unclear whether a statement in quotation marks in Dr. Pucci’s summary report was attributable to Dr. Pucci or to D.F.’s parents. The statement said that D.F. was ‘lying, and manipulative, and good at diverting attention.’ Dr. Pucci testified that these were not the parents’ exact words, but rather her interpretation of what they had said. She explained that she placed them in quotation marks to signify that she was quoting another source, an intake form.
¶53. Rizzo’s position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.’s parents, this would have undermined Dr. Pucci’s credibility. We do not adopt Rizzo’s position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim’s confidential records. In effect, Rizzo’s position would provide that the defendant must receive full access to the victim’s treatment records in every case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim’s interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609-10.
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by admin
on February 12, 2002
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Officer’s background, including “gang training” and investigations into numerous gang-related shootings, made him qualified to testify as to gang activities in city. ¶26.
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by admin
on February 12, 2002
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶8. After reviewing these cases, we can discern some general rules: (1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; (2) the testimony can include opinions regarding symptomatology common to child sexual assault victims; (3) the testimony can include a description of the symptoms exhibited by the victims; and (4) the testimony can include the expert’s opinion as to whether or not the victims’ behavior is consistent with behavior of sexual assault victims. Our supreme court has concluded that such testimony is not tantamount to vouching for the credibility of the victims and does not establish that an assault actually occurred.
¶9. We can also conclude from this case law assessment what an expert witness may not do: (1) he or she may not testify that the victim is “being totally truthful,” State v. Romero, 147 Wis. 2d 264, 277, 432 N.W.2d 899 (1988) (citation omitted); (2) he or she may not testify that there is “no doubt whatsoever” that the accuser was a victim of moral turpitude, Haseltine, 120 Wis. 2d at 96 (citation omitted); and (3) if he or she is hired to determine whether or not an assault has occurred, the testimony may be limited.”
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by admin
on February 12, 2002
State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.
Holding:
¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits. See Black’s Law Dictionary 58 (7th ed. 1999) (An ‘affidavit’ is a ‘voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’). Further, because the State did not enter these documents into evidence through a witness, such as the officer who allegedly served the defendant or the records custodian from the Milwaukee County Sheriff’s Department, these documents were never properly authenticated. See State v. Garner, 54 Wis. 2d 100, 107, 194 N.W.2d 649 (1972) (stating that under the public records exception to the hearsay rule, custodianship is important, and a competent witness must provide the required identification of official records). Given the absence of proper authentication combined with the trial court’s mistaken belief that these documents were affidavits, we conclude that the trial court erroneously exercised its discretion in admitting these documents into evidence pursuant to Wis. Stat. § 908.03(8). See Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 654, 495 N.W.2d 318 (1993) (‘A circuit court erroneously exercises its discretion when it makes a mistake with respect to the facts upon which its decision is based.’).
Like effect: People v. Jambor, MI App No. 259014, 5/2/06 (failure to adduce proper authentication precluded admissibility as business or public record: “But even if an exception to the hearsay rule would allow admission of the evidence, the exception does not absolve the offering party from the usual requirements of authentication.”)
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by admin
on February 12, 2002
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶18. Shelleen Joyner argues that Trudy Joyner’s statement is against her penal interest, however, because Trudy Joyner admitted that she “knowingly helped a robber escape.” We disagree. “[W]hen ruling upon a narrative’s admissibility … a court must break it down and determine the separate admissibility of each ‘single declaration or remark.'” United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995) (quoting Williamson v. United States, 512 U.S. 594, 599 (1994)). “[E]ach particular assertion in a narrative should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest.” Silverstein v. Chase, 260 F.3d 142, 148 (2d Cir. 2001) (citing Williamson, 512 U.S. at 603-604).
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by admin
on February 12, 2002
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue: Whether, as a foundational requirement for introducing a witness’s prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.
Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn’t been excused from testifying:
¶13. Thus, the trial court was clearly wrong in ruling that Smith had not established a proper foundation in order to introduce the alleged inconsistent statements under Wis. Stat. § 906.13(2)(a)2. A prior inconsistent statement is admissible under Wis. Stat. § 906.13(2) without first confronting the witness with that statement. Under § 906.13(2)(a)2 and 3, extrinsic evidence of prior inconsistent statements is admissible if the witness has not been excused from giving further testimony in the case, or if the interest of justice otherwise requires its admission. See Ruiz v. State, 75 Wis. 2d 230, 232-33, 249 N.W.2d 277 (1977). In the instant case, because Smith intended to introduce extrinsic evidence of alleged prior inconsistent statements of the victim – inconsistent with testimony that the victim had previously given – who was under subpoena, and, therefore, not excused from giving further testimony in the action, we conclude that such evidence is admissible pursuant to § 906.13(2)(a)2.
Nor does the trial court’s broad discretion to control presentation of evidence, § 906.11(1) allow the court to override the specific mandate of § 906.13(2)(a)2. ¶14. (The court suggests, however, somewhat confusingly, that a trial court may use § 904.03 as a basis for exclusion in this context. ¶16. The court then goes on to find the error harmless — not because of § 904.03, but because the discrepancies embodied by the prior inconsistent statements were minor.
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by admin
on February 12, 2002
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
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by admin
on February 12, 2002
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant’s against-interest hearsay statement exculpating the defendant, § 908.045(4).
Holding: Unavailability is determined by § 908.04(1)(e), and requires a “good-faith effort” and due diligence” in attempting to secure the declarant’s presence, ¶62. The proponent has the burden of showing unavailability, and a mere assertion of good-faith is insufficient, ¶63.
¶66. Due diligence is not a standard that lends itself well to bright line rules. Nonetheless, given that there was at least some reason to believe that Winston was from Chicago, due diligence required that Williams make at least some minimal attempt to check in Illinois. Because Williams did not establish that he made any such attempts, he failed to carry his burden to establish due diligence.
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