Circuit court erred in telling jurors they would decide if witness was qualified as expert, but error was harmless

State v. Aaron Schaffhausen, 2014AP2370-CR, District 3, 7/14/15 (not recommended for publication); case activity (including briefs)

It was error for the circuit court to tell jurors at the mental-responsibility phase of Schaffhausen’s NGI trial that they would decide whether a defense psychiatrist and psychologist were qualified as expert witnesses, but the error was harmless. In addition, the circuit court did not misuse its discretion in denying the jury’s request during deliberations to provide it with the expert witnesses’ reports.

Schaffhausen called two experts at the mental-responsibility phase, and after questioning each expert about his qualifications Schaffhausen’s lawyer asked the judge to “qualify him as an expert.” Each time the court responded by saying the jury would decide if the witness qualified as an expert, and once added the jury would get an instruction on how to make the determination. (¶¶6-8). The court of appeals agrees it is “inappropriate and unnecessary” under § 907.02 to ask a judge to “qualify” a witness as an expert, for two reasons:

¶18     …. First, a formal finding of expertise may be misinterpreted by the jury as the judge’s approbation of the witness’s testimony. Although the judge must decide the witness’s qualifications under Wis. Stat. § 901.04(1)(a), the finding need not be disclosed to the jury Second, the thrust of the present rules has interwoven questions about the testimony’s relevancy and helpfulness with that of the witness’s qualifications. The issue will seldom be whether the witness is an expert in the field of medicine or economics; rather, the focus will turn on the witness’s qualifications to answer the precise question put by counsel. …. 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence §702.601 (3rd ed. 2011) (footnotes omitted). ….

Schaffhausen forfeited his claim that the circuit court erred in delegating the qualification decision to jury because he didn’t raise it in the circuit court (¶16); in fact, the court of appeals notes, the circuit court’s statements “were prompted by defense counsel’s improper requests, in the jury’s presence….” (¶18). However, this case meets the conditions that justify ignoring the forfeiture: the new issue raised is a legal question, the parties have thoroughly briefed the issue, and there are no disputed issues of fact. (¶17).

While the circuit court shouldn’t have told the jury they would make the expert qualification decision, the court didn’t actually cede its responsibility to make that determination: “Rather, … the circuit court implicitly determined these witnesses were qualified as experts, by virtue of the fact that it admitted their testimony.” (¶19). Furthermore, the error was harmless because, contrary to Schaffhausen’s claims (¶21), the circuit court’s remarks didn’t tell the jury it could refuse to consider the experts’ testimony at all:

¶22      …[I]n light of the instructions the court did provide on expert opinion testimony [Wis. J.I.—Criminal 200 (2012)], no reasonable juror could have believed he or she could refuse to consider any of the experts’ opinions. The court specifically told the jurors that, in determining how much weight to give an expert opinion, they should consider the expert’s qualifications and credibility, the facts on which the opinion was based, and the reasons given for the opinion. The court further stated that, although expert testimony was received to help the jury reach a conclusion, the jury was not “bound by” any expert’s opinion. The court instructed the jury to “weigh the different expert opinions against each other.” The court also told the jury that the same standards applied to Baker, the court-appointed expert, as to the other expert witnesses. In light of these instructions, no reasonable juror could have believed he or she could simply reject out of hand the testimony given by any of the three expert witnesses. ….

In addition, the circuit court didn’t erroneously exercise its discretion in refusing the jury’s request during deliberations to see the reports of all the experts (including the state’s). Whether to send an exhibit to the jury during deliberations is guided by three factors: (1) whether the exhibit will aid the jury in proper consideration of the case; (2) whether a party will be unduly prejudiced by submission of the exhibit; and (3) whether the exhibit could be subjected to improper use by the jury. State v. Hines, 173 Wis. 2d 850, 860, 496 N.W.2d 720 (Ct. App. 1993). Though the circuit court didn’t cite Hines and its three factors explicitly, the record shows it applied the reasoning required by that case. (¶¶28-37).

Nor did the refusal to provide the experts’ reports violate Schaffhausen’s right to present a defense, a claim seemingly based on trial counsel’s statement in closing argument that “hopefully” the jury would get to see the reports during deliberations. Trial counsel’s language essentially acknowledged the jury might not get any or all of the reports; and after all, “indicating to a jury that it would be able to review a particular exhibit would be foolish, given that the decision whether to send an exhibit to the jury during deliberations rests within the circuit court’s discretion.” (¶38).