State v. Jobert L. Molde, 2021AP1346-CR, petition for review of an unpublished court of appeals decision, granted 11/12/24; case activity
In a case that we correctly identified as SCOW bait, SCOW accepts review of the State’s petition for review asking to modify the substantive law on vouching as applied by COA. The case is also relevant to determining what is “settled law” in assessing a claim of ineffective assistance of counsel.
The State’s petition presents two issues for review related to the deficient performance inquiry in this case:
What is the proper place for statistical evidence of the prevalence of false reports of abuse in sexual assault cases, and did the court of appeals wrongly conclude in Mader and now in this case in holding that statistical testimony putting the incidence of false reporting at or below 8 percent amounts to Haseltine testimony that the victim in the case is telling the truth?
Even if Mader correctly determined that such statistical testimony violates Haseltine, was this proposition settled law at the time of Mader’s and Molde’s 2019 trials, as Mader and the court here held below, so that trial counsel should have known to object to the testimony?
As we discussed in our post, COA’s holding that the forensic examiner improperly vouched for the credibility of the sexual assault complainant rests on its conclusion that Wisconsin law does not permit statistical testimony as to the prevalence of false reporting when that statistical testimony provides a “mathematical statement approaching certainty” that such false reporting does not occur. Thus, because the jury was “effectively told that 99 percent of all child sexual assault reports are true” they would have perceived this testimony as communicating that the witness in question must have been telling the truth. The State disagrees with COA’s application of this “statistical certainty” rule, and asks SCOW to overrule Mader by holding that statistical testimony is not vouching.
At the same time, even if SCOW declines that invitation, it also asks SCOW to reverse because it argues that the law on this point was insufficiently settled at the time of Molde’s trial such that reasonable counsel had an obligation to object–a vexing issue that stymies many ineffectiveness claims, given SCOW’s otherwise strict application of this “clearly-established” standard.
Aside from asking for review based on these knotty legal issues, the State also asks that COA’s decision be reversed under the prejudice prong, asserting that this single instance of allegedly improper testimony does not sufficiently undermine the credibility of the complainant.
Self-reported statistics like these are are notoriously subject to sample bias. I’ve seen everywhere from less than one percent to upwards of 40 percent rate of false reporting depending on the organization doing the surveying, the population polled, and the questions asked. Regardless of Haseltine, which the eight percent claim appears to violate, how does a claim that only eight percent of sexual allegations are false even pass basic relevancy and 907.02/907.03 requirements for admissibility? And how could certain justices on the high court presume the reliability of social science in this instance when they rejected the same in State v. Dobbs and State v. Roberson (in which RG Bradley compared social science to Plessy v. Ferguson and eugenics)? Finding social statistics reliable and admissible only when they support conviction doesn’t pass the constitutional sniff test.