Review of a per curiam court of appeals decision; case activity (including briefs)
Issue (copied from the State’s petition for review):
No witness, expert or otherwise, may give an opinion at a trial that another mentally and physically competent witness is telling the truth. Here, the social worker who interviewed a child regarding her claim that she had been sexually assaulted testified that there was no indication that the child had been coached and no indication that the child was not being honest during the interview. Did the social worker’s testimony constitute a prohibited opinion that, during this interview, the child was telling the truth?
During cross-examination of the social worker who interviewed the child, the following exchange occurred:
The State: So using the [cognitive graphic] interview techniques is a way to insure that a child who has been coached does not continue with the false allegations during the interview?
Social Worker: Yes.
The State: Was there any indication that K.L. had been coached in any way during her interview?
Social Worker: No.
The State: Was there any indication that K.L. was not being honest during her interview with you.
Social Worker: No.
Seems like a clear-cut example of an expert opining that K.L. was telling the truth when she accused the defendant of sexual assault. Such testimony has long been held inadmissible under State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984); State v. Romero, 147 Wis. 2d 264, 432 N.W.2d 899 (1988); and State v. Krueger, 2008 WI App 162, 314 Wis. 2d 605, 762 N.W.2d 114. So how did the State persuade SCOW to take this case? First, it stretches State v. Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988) to draw a hair-splitting distinction that would be very hard for trial courts to apply with any consistency. According to the State:
The court should take this case to clarify the distinction between impermissible testimony expressing subjective beliefs about the credibility of the child, the kind of testimony in Krueger about the personal sense impressions of a witness regarding the child’s ability to lie, and permissible testimony describing objective behavioral manifestations of a child’s credibility, the kind of testimony in this case about the lack of any indication that the child was lying. (State’s PFR at 12)(emphasis supplied).
Second, SCOW grants most of the State’s petitions but only a tiny fraction of defense petitions. Click here for more on this phenomenon. Also, this is one more example of a disturbing trend that Justice Abrahamson noticed last Fall. SCOW has granted review of an unusually large number of per curiam court of appeals opinions, which in theory do not involve new or unsettled questions of law. Click here for more on that phenomenon. Is the court of appeals having trouble figuring out which appeals involve unsettled questions of law or is something else going on?
I fear the worst is yet to come from SCOW.