Testimony that 90% of child sexual assault reports are true didn’t clearly vouch for victim’s credibility

State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)

The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.

At Morales-Pedrosa’s trial for child sexual assault, forensic interviewer McGuire testified as an expert for the state concerning behavior commonly observed in child victims of abuse. On cross-examination, Morales-Pedrosa’s lawyer asked McGuire about “alternative hypotheses” regarding abuse allegations, and McGuire answered that “one hypothesis is the child is making an allegation and the allegation is true” while “an alternative hypothes[i]s is the child made an allegation and for some reason that allegation is either mistaken or false.” (¶12 n.2). On redirect the prosecutor asked McGuire: “[I]n your training and experience when you’re eliminating the alternative hypotheses, is it commonly understood that approximately 90 percent of reported cases are true?” McGuire answered “Correct.” (¶12).

Morales-Pedrosa argues trial counsel should have objected to this testimony because it violates the prohibition against one witness vouching for the credibility of another witness, citing 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. In Haseltine, a psychiatrist who did “a careful and thorough examination” of Haseltine’s daughter testified about patterns of behavior exhibited by incest victims generally, but also that in his opinion there “was no doubt whatsoever” Haseltine’s daughter was an incest victim. In Kleser, a psychologist who examined the defendant testified that, based on the defendant’s narrative, the incident “was a rage reaction when he was very fearful,” thus impermissibly suggesting she believed Kleser’s account.

The court of appeals holds these cases don’t clearly establish that the type of testimony elicited from McGuire was impermissible vouching for the credibility of B.M., the victim in this case:

¶23     The case now before us differs substantially from Haseltine and Kleser. Here, McGuire testified, and it is undisputed, she never even met, much less interviewed or examined, B.M. Thus, there was no risk the jury believed McGuire was providing a personal or particularized opinion as to B.M.’s credibility. Also, McGuire’s generalized confirmation that based upon her training and experience “it [is] commonly understood that approximately 90 percent of reported cases are true” did not constitute a statistical “opinion” that was functionally equivalent to her testifying B.M. was being truthful with her accusations in this case. For these reasons, we cannot say, similar to what was said in Kleser and Haseltine, that McGuire’s testimony “invade[d] the province of the fact-finder as the sole determiner of [B.M.’s] credibility,” see Kleser, 328 Wis. 2d 42, ¶104, or “create[d] too great a possibility that the jury abdicated its fact-finding role to [McGuire] and did not independently decide [Morales-Pedrosa’s] guilt,” see Haseltine, 120 Wis. 2d at 96.

Because case law didn’t clearly prohibit McGuire’s testimony, trial counsel wasn’t ineffective for failing to object to it. “‘Although it might have been ideal for counsel to so object and assert an interpretation of [Haseltine and/or Kleser] that would benefit [Morales-Pedrosa], the fact is that [counsel] was not deficient in failing to do so.’ See State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994).” (¶26).

Morales-Pedrosa cites decisions from other jurisdictions that found problems with a witness providing “a mathematical statement approaching certainty about the reliability of the victim’s testimony,” United States v. Brooks, 64 M.J. 325, 329 (C.A.A.F. 2007); see also Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998); Wilson v. State, 90 S.W.3d 391 (Tex. Ct. App. 2002). (¶24). But the court isn’t persuaded, and opts to leave for another day a decision about what type of statistical testimony might constitute vouching. (¶25).

Nor was trial counsel ineffective for failing to object to evidence that allowed the jury to conclude Morales-Pedrosa had sex with his wife when she was the same age as B.M. (¶¶27-28). Assuming the evidence was irrelevant and inappropriate other-acts evidence under § 904.04(2)(a), the irrelevancy of the evidence shows the failure to object wasn’t prejudicial:

¶30     …. [W]e believe it highly unlikely jurors were swayed to convict Morales-Pedrosa due to learning that approximately twenty years earlier he, as a teenager himself, began an intimate relationship with the teenage girl who would become, and still was at the time of trial, his wife and the mother of their five children. As Morales-Pedrosa himself points out, there was no evidence before the jury “that they were related to one another, or that the relationship was involuntary on [the mother’s] part.” The State echoes Morales-Pedrosa’s points, arguing “[i]t simply does not follow” that a teenage boy who is in a mutually agreeable intimate relationship with his teenage girlfriend “would have forcible sex with his daughter long after he became an adult.” We agree with Morales-Pedrosa that the circumstances surrounding the early years of his relationship with his wife were “night and day from the facts of this case.” ….

Last, Morales-Pedrosa’s confrontation rights were not violated when B.M. was released from the subpoena at the close of her testimony, before she could be examined about statements subsequent witnesses testified she made. Applying State v. Nelis, 2007 WI 58, 300 Wis. 2d 415, 733 N.W.2d 619, the court holds that: the record doesn’t clearly indicate B.M. was released from her subpoena and was unavailable to be recalled; Morales-Pedrosa never attempted to recall her (and even objected to the state’s request to recall her during its case); and in any event, Morales-Pedrosa had a full and fair opportunity to cross-examine B.M. and the other witnesses. (¶¶31-41).