*1 Plaintiff-Respondent, Wisconsin, State Defendant-Appellant.† Lisa Kirschbaum, Court Appeals No. 94-0899-CR. Submitted on March briefs 25, 1995. May 1995. Decided (Also 462.) reported in 535 N.W.2d to review denied. †Petition *6 sub- the cause was defendant-appellant
For the Karrmann, Buggs R. Stephen on the briefs mitted & Baxter of Platteville. Buggs submit- the cause was For plaintiff-respondent Doyle, attorney E. general, on the brief of James ted Posner-Weber, G. general. and M. attorney assistant JJ. Sundby, Vergeront, Before Dykman, from appeals J. Lisa Kirschbaum VERGERONT, with death neglect of child convicting her judgment *7 Stats. 948.21(1), in violation consequence, § as a First, she con- on appeal. Kirschbaum raises two issues request her the trial court denied improperly tends she Second, witnesses. expert to hire two permission to confrontation was right her constitutional contends a videotaped deposition the admission of by violated on the to a trial prior previous witness taken a child contentions and affirm. We both charge. reject same
BACKGROUND criminal The The relevant facts are undisputed. while alleged February that on complaint a fourteen- Dolan, services for Peter providing day-care a around the Kirschbaum tied infant, rag month-old unattended, left him infant's head and mouth and resulting by in the infant's death suffocation. child with charge neglect
A trial on the jury September as conducted in consequence death was H., a witness was Amanda principal 1992. The State's providing day- child for whom Kirschbaum was also day on the of the infant's death. Amanda care services trial, her videotaped deposition did not but testify H. was admitted pursuant In § her video- 967.04, Stats. taped Amanda deposition, H. testified she witnessed Kirschbaum tie a burp rag around the infant's head and face and lay infant down next to her on the floor of a bedroom where she was taking a She stated nap. that she then fell and, asleep when she woke she up, observed Kirschbaum unsuccessfully attempting wake the infant up. Amanda H. was five years old at the time the infant died and seven years old at the time the videotaped deposition was taken in July 1992. Following a five-day trial, the trial court declared a mistrial when the jury was unable to unani- mously agree on a verdict.
A retrial on the same charge was conducted in January Kirschbaum was represented by a new 1994. at the attorney retrial. Prior to the retrial, Kirschbaum (1) filed two motions: a motion for to hire permission (2) child psychologist and a pediatrician, a motion the court asking to exclude Amanda H.'s videotaped and to deposition allow new testimony by H., Amanda either in or person a second videotaped deposition. The trial court denied both motions after a hearing and Amanda H.'s videotaped deposition was admitted at the retrial. The jury convicted Kirschbaum of violating and this appeal followed. 948.21(1), Stats., § *8 REQUEST FOR PERMISSION TO HIRE
EXPERTS Kirschbaum challenges the trial court's denial of her request for permission to hire the child psycholo- and the gist pediatrician as an erroneous exercise of discretion.1
1The record indicates that Kirschbaum's counsel at the appointed retrial court, was not State Public
19 to right has a constitutional defendant indigent An raw materials securing in assistance the state's Ake v. an effective defense. of building to the integral (1985). includes Oklahoma, 470 U.S. 68, right 77 This the attend compelling trial court's assistance a jury to before right put and ance witnesses influence the determination that might evidence (1988). Illinois, v. How 484 U.S. Taylor guilt. is not "an the trial court's assistance ever, the to right give an the trial court requires that right unfettered access to blank checks to defendant unlimited indigent he or she desires." State witnesses that expert hire all Court, Circuit County v. Racine 163 ex rel. Dressler 1991). (Ct. 532, 639, App. 472 N.W.2d 622, 2dWis. duty not have an unequivocal trial court does The indigent defendants expert witness funds provide 540. Id. at 472 N.W.2d at request. upon general of the trial to secure the assistance Rather, order showing make a court, plausible the defendant must both material witness will be expert the proposed i.e., Id. defense, her necessary. favorable his or and N.W.2d at 540. discretionary. is The trial decision The court's court, ruling not whether this on is question appeal it, but motion, on the would have initially granted in accor- the trial court exercised its discretion whether standards and facts legal dance with accepted Friedrich, 1, 16, 2d record. See State 135 Wis. Therefore, under procedures we do not address the Defender. 977.03(2) 977.05(4r)(a) (b), STATS., and WIS. Adm. and §§ expert 2.12(2), services when CODE SPD for reimbursement of § attorney pri- assigned a staff or the State Public Defender has vate counsel to the case. *9 (1987). If 763,
N.W.2d
requires
decision
the exer-
cise of discretion but
fails
demonstrate
on its face
consideration
of any factors on which the decision
based,
be
should
the decision
properly
constitutes
an
Johnson,
discretion. State v.
erroneous exercise of
(Ct.
2d 472, 480-81,
Wis.
348 N.W.2d
200-01
App.
1984). However, we are not
required
reverse a dis-
we can conclude ab initio decision if
cretionary
there are facts
the record that would
support
trial
decision
court's
had discretion been exercised on
the basis of those facts under
the correct
stan-
legal
Id. dard.
A. Child Psychologist
According to the motion and affidavit filed with the court, trial the child psychologist would have testified on these issues:
(1) concepts General regarding memory, percep- tion distortion; and
(2) seeing not things Children in adult perspec- perceiving tives and not an things as adult would perceive them;
(3) suggestion Bias and in interviewing child wit- general, nesses both intentional unintentional, suggestion and the bias or which occurred in the interviews of Amanda prior [H.] videotaped testimony; her
(4) regard- [H.'s] Amanda inconsistent statements ing whether Peter was in a put Dolan closet or laid on the bedroom floor allegedly after the defendant tied a rag around his face. *10 rely- Rirschbaum's request, denied
The trial court Friedrich, 135 Wis. 1, 2d 398 on State v. ing primarily (1987): 763 N.W.2d that I had in got very thing I have here is the
[W]hat a young girl. This isn't sexual I have a Friedrich. against person the is a crime case. This not assault young girl who got I have a [H]. of But Amanda agot request I have to what she saw and testified as not her a liar. to come and call psychologist for a in the call the victim trying weren't to They is they trying liar. All were to do case a Friedrichs tell you And as can say happened. couldn't have it past psychologist in the a experience has shown ... it talking he What know what was about. did not go to towards the credi- be used for would be would Credibility jury is of the child bility of the child. reason, Buggs, going I am to Mr. issue and for that to request psychologist. as the deny your that trial court's decision with We conclude the concepts regarding of "general to the issues respect not and "children and distortion" memory, perception not perceiving adult seeing things perspectives the an them" was within perceive as adult would things reasonably its The trial court could of discretion. scope the knowledge these are matters within conclude that of the common to member every and general experience consideration of these and that community, jury's of testimony psychol- not be aided issues would See, Blair, State v. 64, 77, 2d 473 e.g., 164 Wis. ogist. (Ct. State, Hampton App. 1991); 572 N.W.2d cf. (1979) (trial 450, 459, 2d 285 N.W.2d 92 Wis. "to inform the jury court allowed psychologist human observa- principles underlying psychological to itself the task of jury but left perception, tion and those facts of applying principles specific [the] case").
We also conclude that
the trial court's decision
respect
with
the issue
"Amanda [H's] inconsistent
was
the scope
statements"
within
of its discretion.
It is
well established
credibility
witnesses,
child
including
witnesses, and the weight
assigned
their
are matters
for the jury's judgment.
Shawver v. Roberts
Corp.,
672, 681,
Wis. 2d
*11
(1979).
226,
N.W.2d
230
The trial court could reasona
conclude
that
the
bly
jury could draw its own
on
conclusions
Amanda H.'s allegedly inconsistent
statements
and that
this was
the
something
could
jury
knowledgeably
determine without
the
help
expert
See
Haseltine,
State
testimony.
A different is analysis required respect with to the of improper issue interview techniques allegedly used with Amanda H. Friedrich did not address this issue. There, our court held supreme that the trial court did erroneously not exercise its discretion excluding that the did psychologist's testimony accused not fit the of known sex "psychological profile" incestuous offend on ground ers the that the would the testimony usurp assessing credibility. Friedrich, 135 Wis. role of jury's 16, 398 2d at N.W.2d 770.
While the
not
issue has
been
addressed Wiscon-
sin, many jurisdictions
recognize
young
children
be
can
susceptible
suggestive
interview techniques
and that such
can
techniques
undermine
reliability
See,
e.g.,
Idaho v.
child's
actual
of a
account of
events.
Wright,
805,
Maryland v.
(1990);
497 U.S.
812-13
(1990)
Craig,
836,
(Scalia, J.,
497 U.S.
868
dissenting);
(N.J.
Michaels,
State v.
1372,
642 A.2d
1994);
1379
(N.Y.
M., 618 N.Y.S.2d
Sup.
v. Michael
People
14 F.3d
McGravey,
Guam v.
Territory
1994);
Ct.
1994).
(9th
is that per
The concern
1344, 1348-49
Cir.
will,
child
either
interviews with the
conducting
sons
and pro
facts
suggest
or
inadvertently
purposefully,
will
"remember" and
that the child
later
mote fantasies
Christiansen, The
truth. See John R.
to as the
testify
Fantasy, and
Fact,
Child Witnesses:
Testimony of
Interviews,
Pretrial
L.
62 Wash.
Rev.
Influence of
(1987).
recognize
utility
also
Many jurisdictions
interview tech-
testimony
suggestive
on
expert
and how suggestive
with a
child
young
used
niques
child witness's answers.
young
can
techniques
shape
See,
Michaels,
("Experts may
24 (S.D. 1992); United States v. Geiss, 30 M.J. 681 (A.F.C.M.R. 1990).
We
that in
recognize
Wisconsin,
witness,
no
expert
otherwise,
or
should
be
to
normally
permitted
testify
that witness is or is not
telling
truth, unless the
witness whose credibility is at
issue suffers from a
psychological disorder. See Friedrich, or
physical
770; Haseltine,
16-17,
Wis. 2d at
398 N.W.2d
2d at
Wis.
N.W.2d at 676. This is because the
of a witness is
credibility
ordinarily something
lay
juror, having
and
knowledge
general experience
common to
member of the
every
can deter-
community,
Haseltine,
mine on his or her
own.
findWe the cases from these other jurisdictions persuasive that, and conclude cases, some it be may an erroneous exercise of discretion deny an indigent defendant's for hire an request permission expert *13 suggestive
testimony
interview tech
on the issue of
young
niques
however,
Here,
witness.
with a
child
used
particu
making
requisite "showing of
than
the
rather
2d at
N.W.2d
need," Dressler, 163 Wis.
larized
only
in Kirsch-
a broad assertion
540, there was
at
psychologist
that the
would
counsel's affidavit
baum's
testify
suggestion
in the
or
that occurred
on the bias
Amanda H. Kirschbaum's
conducted with
interviews
specific example
single
point
of an
counsel failed to
technique
expert
improper
that her
would
interview
the
could invoke its decisional
such that
court
discuss
process.2
Dressler,
2d
472 N.W.2d
163 Wis.
at
See
showing of
not make a
at
Because Kirschbaum did
540.
psychologist,
particularized
for
child
the trial
need
the
recognize
utility
expert
jurisdictions
2In
the
the
witnesses,
following
suggestibility of
the
on the
child
pro
improper
techniques or
examples of
interview
are cited as
(1)
questioning
leading questions or incessant
the use of
cedure:
(2)
by
by
interviewer;
pursuit
the interviewer of
the
the
happened to the child or what the
preconceived notion of what
(4)
(3)
defendant;
witnessed;
"vilification" of the
child
voluntary
spontaneous
of events
and
recall
absence
(5)
child;
the child's
a lack of control of outside influences on
(6)
statements,
ongoing
peers
parents;
with
and
such as
contact
(7)
threats,
cajoling; and
the failure
use of
bribes and
videotape
audiotape the initial
interview sessions with
or
See,
(noting
at
conclusion
e.g., Wright,
child.
497 U.S.
812-13
videotape
Supreme
Court that the failure to
inter
the Idaho
victims,
blatantly leading questions,
the use of
views with child
preconceived
happened
of what
an interviewer with a
idea
and
eliciting
testimony);
potential
unreliable
indicate
for
M.,
Michaels,
1383;
Michael
court did not exercise its erroneously discretion in her denying request to hire permission that expert. B. Pediatrician
Kirschbaum also requested permission to hire a pediatrician provide expert testimony at trial on the actions and typical activities a fourteen-month-old child and how a typical fourteen-month-old child would not submit to having a tied around his or rag face, her would not lie still on a bedroom floor, and would strug- gle and scratch in an to remove attempt from rag his or her face.
The trial court denied the request, concluding such would be too speculative because of all the variables in the behavior of fourteen-month-old children. We conclude this decision was within the trial court's discretion. The trial court could con- reasonably clude that of behavior type for a fourteen- "typical" month-old child was an issue the could determine jury without aid an expert.
MOTION TO EXCLUDE VIDEOTAPED
DEPOSITION Kirschbaum contends that her to confronta right tion was violated when the trial court admitted videotaped deposition of Amanda H. taken to the prior first trial and refused her request to have Amanda H. testify person byor a second videotaped deposition. Whether a defendant's confrontation right is infringed presents law, which question this court reviews de novo. State Sharp, 640, 647, 511 Wis. 2d N.W.2d (Ct. 1993). App. filed a retrial, Kirschbaum's counsel
Prior to the of Amanda videotaped deposition to exclude the motion 967.04, pursuant to the first trial § H. taken prior retrial, H. at the testify He Amanda asked that Stats. so that videotaped deposition, a second or person for cross- complete opportunity have a full and he could videotaped deposition He that the examination. argued *15 attorney Kirschbaum's first conducted with had been had some questions first asked attorney and that this asked,3 not and that H. that he would have of Amanda to Amanda H. attorney first had failed confront the of the her accounts with some inconsistencies incident.4 motion, the relying prima-
The trial court denied
(1992). The
Illinois,
on White
Q. rag stopped breathing. he A. He had the around him and you And who told that? Q.
A. No one. you figure How did out?
Q.
IA. don't know.
4According Kirschbaum, H. Amanda made inconsistent put in a or regarding the infant was closet statements whether died, put day her the the and on the floor next to on infant day. the her that her sister was in bedroom with whether would lead to a "trial of videotaped deposition second was and that it immaterial that Kirsch- videotapes," baum was different counsel at the represented retrial.
The trial court's reliance on White for admitting was incorrect. The issue in videotaped deposition White was whether the admission of from testimony the child had made statements individuals whom violated the defendant's confrontation under the rights Amendment to the United Sixth States Constitution when the child was not unavailable to In admit- testify. the trial court had relied on ting testimony, hearsay exceptions spontaneous declarations for statements made in course of medical securing treatment. The Court held that the Confrontation Clause did not require prosecution produce child or the trial court to find that the child was require unavailable order to admit because: (1) the relied were hearsay exceptions upon firmly (2) rooted, and the child's statements admitted under *16 in hearsay the were not made the course of a exceptions and had substantial prior judicial proceeding probative value that could not be the duplicated simply by having child later in court. testify White,
Here, unlike in the testified, although child White does not stand for via a videotaped deposition. the that because the State could have proposition relied on the of individuals to whom solely case, in Amanda H. made statements its presenting Kirschbaum was not entitled to her full confrontation However, when Amanda H. testified. we con- rights clude, on other grounds, that Kirschbaum's confrontation were not violated. rights
29 of Sixth Amend- Clause the The Confrontation Constitution, made States to the United ment through the Fourteenth to the states applicable criminal Amendment, prosecutions, "In all provides: to be confronted enjoy right... the shall the accused him."5 "The central concern against with the witnesses reliability is to ensure the Confrontation Clause the sub- a criminal defendant against of the evidence an in the context of testing it to jecting rigorous fact." Mary- the trier of proceeding before adversary (1990). The v. 845 Craig, land U.S. a three-fold purpose. Confrontation Clause serves his her that the will or First, give it ensures witness oath, the wit- impressing upon statement under thus guarding of the matter ness the seriousness Green, the against possibility perjury. California (1970). Second, it the forces witness U.S. cross-examination, "greatest legal to to the submit Id. for the of truth." engine discovery ever invented observe demeanor of it the to the Finally, permits jury statement, aiding in his or her thus making the witness Id. assessing credibility. witness's juiy The Amanda H. was videotaped deposition 967.04(7), STATS., provides to which pursuant taken § move criminal any prosecution, any party may deposition of a videotaped the court order taking likely of a child who has been or is to be called as right I, The confrontation under article section 7 of Constitution, supreme inter which our court has Wisconsin preted to be the same as that secured under the United States Constitution, provides: prosecutions "In all criminal enjoy right... meet shall the witnesses face accused *17 Burns, 131, 144, 332 State v. 112 Wis. 2d N.W.2d face." (1983).
30 may the court issue hearing, notice and Upon witness. or in hearing if the trial deposition an order for such be called will commence prior the child may which or to the child's six- birthday, prior twelfth the child's the warrant justice interests birthday teenth at the be use that the child's testimony prerecorded 967.04(7)(a), STATS.6 The stat- Section hearing. trial or may ten factors the court consider ute sets out 967.04(7)(b), and the interests of determining justice, § the deposition, to be followed at procedure the specifies 967.04(8). The judge presides if one is allowed. Section an oath or its equivalent of the taking deposition, at the and the defendant is witness, to the is administered her for cross-examination. afforded his or opportunity 967.04(8). Section videotaped deposition admit may
The court
an
a criminal
without
during
prosecution
into evidence
If
967.04(9),
dep-
Section
hearing.
additional
STATS.
not
called as a
admitted,
the child
be
may
osition is
examiner
so
hearing
the court or
witness,
"unless
testimony by
additional
showing
upon
orders
of fairness for reasons
child is
the interest
required
discovera-
diligence
known nor with reasonable
neither
seeking by
party
time of the
deposition
ble at the
967.04(10).
Section
call the child."
evidence
is to preserve
The
of the statute
purpose
the child
protect
be lost and to
which
otherwise
might
legal pro-
traumatization
witness from further
6
age
of the
regardless
held that
supreme
Our
court has
witness,
findings, appropri
the trial court must make
the child
particular proceeding, that
particular
and the
ate to the
witness
Thomas,
special procedure. State v.
necessity
support
of a
(Thomas II),
cert.
374, 387, 442
2d
N.W.2d
Wis.
(1989).
denied,
493 U.S.
*18
425
Thomas,
888,
cess. State v.
876,
144 Wis. 2d
(Thomas
(1988)
I),
sup
and
641,
N.W.2d
646
confirmed
(1988),
Iowa,
U.S.
light Coy
487
1012
plemented
of
(Thomas II), cert.
10
2d
442 N.W.2d
Wis.
(1989).
denied,
The court also rejected of must be conditioned videotaped sion deposition The child witness. unavailability on a finding stated, court
Generally,
showing
unavailability
required
is
the substitute
for the witness'
in-court
where
testi-
mony
the accused of the
deprives
truth-determining
mechanisms of the confrontation clause. Because a
videotaped
deposition
967.04(7)-(10),
under
§
Stats.,
equivalent
is the functional
of live
*19
protections
and ensures
the fundamental
of the
clause,...
confrontation
we conclude that a demon-
stration of unavailability
required.
is not
(citations omitted).
Id. at
N.W.2d at 646
I
that Thomas
and Thomas II dealt
We
recognize
with the admission of a
at
videotaped deposition
trial,
not at a retrial
following
Nevertheless,
mistrial.
we
I
II
Thomas
and Thomas
conclude that
the
analysis
is
here and that
applicable
Kirschbaum's
confrontation
were not violated
the
rights
by
admission of the video
at her
As
taped deposition
trial,
retrial.
with the first
the fundamental
of the
protections
Confrontation
Clause were preserved:
right
the
to cross-examine
H.,
Amanda
the
jury's ability
observe Amanda H.'s
demeanor while
and the
testifying
requirement
of tes
timony
was,
under oath. The videotaped deposition
therefore,
the functional
of in-court
testi
equivalent
with the
that
the
viewed
mony,
exceptions
jury
taped
rather
than live
and that
testimony
Kirsch-
testimony
baum confronted Amanda H.
to trial rather
than
prior
See
Thomas
at trial and before a
I, 144
Wis. 2d at
jury.
888,
Kirschbaum does not contend that the trial court should have excluded Amanda H.'s videotaped deposi- tion because the particularized made findings by court to the 967.04, trial first trial prior pursuant § longer applicable.7 Rather, she con- no Stats., were have excluded the court should tends that the trial testimony, permitted videotaped deposition new videotaped deposition person, by or in either a second attorney would not have conducted because her new deposition videotaped find in the same manner. We unpersuasive. argument this provided § Kirschbaum First, STATS., 967.04(10), opportunity H. as a witness at to call Amanda with an if she shown that additional the retrial had required in the interest fairness child was diligence dis- known nor with reasonable reasons not deposition. at the time of Kirschbaum coverable showing. hearing on At the was unable to make such videotaped deposition, her motion to exclude attorney tran- did not state Kirschbaum's scripts H. of the interviews conducted with Amanda Kirschbaum the time the video- were not available to *20 taped deposition taken, or were not "with was
7 to find did not ask the trial court make new Kirschbaum ings 967.04, STATS., prior to the retrial. While the under § issue, it recognizes not raised this dissent that Kirschbaum has trial court did not nevertheless concludes that because the findings pur requisite witness-specific make the and for case deposition poses retrial, videotaped was not of the testimony. This admissible as a substitute for child's live duty any court to other those has no consider issues than presented County Graf, 442, 453, v. Wis. to it. Waushara 166 2d (1992). 16, 20, denied, 269 113 Ct. The N.W.2d cert. S. only recently Supreme "[t]here Wisconsin Court reiterated that addressing develop problems are real with unmade claims and ing County arguments dispute." for to a Swatek v. one side (1995). Dane, n.1, 45, 47 192 Wis. 2d 531 N.W.2d We see develop argument, no reason this one compelling decide appeal. raised neither before the trial court nor on the time of the discoverable diligence reasonable first was attorney that Kirschbaum's such deposition," on any cross-examine Amanda H. effectively unable concerning statements she made inconsistent allegedly Kirschbaum's counsel contends Although incident. Amanda H. on incon- to cross-examine that he wished brought light by were statements which sistent trial, the State at the first Kirsch- witnesses other at the motion acknowledged hearing counsel baum's first attor- [Kirschbaum's "I the State that, says know those said things. They have discovered ney] should they over. I'm not didn’t. everything saying turned they I did." they probably think represented the fact that Kirschbaum was
Second,
not have
at the retrial who may
a new
attorney
as her
H. in the same manner
cross-examined Amanda
significance.
not of constitutional
is
attorney
first
Clause guar-
the Confrontation
"Generally speaking,
cross-examination,
for effective
antees an opportunity
in
that
is effective
whatever
not cross-examination
wish."
extent,
might
the defense
and to whatever
way,
(1985)
Fensterer,
15, 20
Delaware
(empha-
474 U.S.
430, 439
Myren,
State v.
133 Wis. 2d
original);
sis
1986).
(Ct.
See also
n.4,
App.
395 N.W.2d
(1972) ("No one
Stubbs,
Mancusi v.
408 U.S.
the same
develop precisely
counsel will ever
defense
exactly
his questions
lines of
or frame
inquiry
another").
Roberts,
In Ohio v.
Nor does it matter
at
lawyer
at
from the one
dent had
different
trial
hearing. Although
might strain
preliminary
one
assign
reading
to
this factor some
one's
of Green
sub-
no reason of
significance,
respondent advances
Indeed,
if we
supporting
the distinction.
stance
carry,
accept
suggestion,
Green would
were
this
demise;
a "same attor-
the seeds
its own
under
rule, a
could
the effect of
ney"
nullify
defendant
by obtaining
prelimi-
new counsel after the
Green
hearing
nary
concluded.
was
Roberts,
Because Kirschbaum the child in the additional was testimony by required nor for reasons neither known with interest fairness time of reasonable discoverable at diligence rights her confrontation were videotaped deposition, of the by deposition not admission impinged videotaped retrial. at the
By affirmed. Judgment Court. — SUNDBY, I conclude that the trial (dissenting). J. it court was to determine whether was neces- required to substitute Amanda H.'s sary videotaped deposition for her live at Kirschbaum's second trial. I testimony therefore dissent. respectfully case,
"Where a
trial is
in a criminal
it
granted
new
in all
if no trial
proceed
respects
must
as
had
generally
(1989).
2d New
Trial §
"A
been had."
Am. Jur.
rehearing
new trial is
Blackstone
'a
of the
defined
as
before
but with
little
jury;
prejudice
cause
another
as
Green,
(1970),
8In
To satisfy defendant's to be right free from double he or she jeopardy, cannot be convicted on the record made at the trial where the jury was unable to agree. "Generally, at a new trial all of the must be produced anew; the former verdict not be may used or referred to either in evidence or argument." (1989). New Trial However, evi- 2d § Am. Jur. dence presented at the trial is original admissible at the second trial if the evidence is competent.
Generally, testimony given at the first trial of a case a witness now unavailable is admissible at the second trial where the issues or subject matter same, are the or substantially the same.The deposition or testimony witness, of a now unavaila- ble, taken at the hearing on a petition motion or upon the case at a retrial of trial is admissible new issue. same may had a first trial and
Discovery be after *23 may A of new trial. criminal defendant granting a pos- of evidence in inspection certain be entitled to ofa at the commencement prosecution session ofthe trial. second omitted). (footnotes
Id. at 590 trial, entitled at the "new" Kirschbaum was Thus, CONST, I, face." WlS. art. witnesses face to "to meet the Thomas, v. 876, 887-89, 425 State In 144 Wis. 2d 7. § (Thomas (1988) and T), 641, 645-46 N.W.2d confirmed Iowa, v. 1012 light Coy in 487 U.S. supplemented of (Thomas II), 442 10 (1988), 374, 2d N.W.2d 150 Wis. denied, (1989), 867 the Wisconsin cert. 493 U.S. videotaped deposition concluded that a Court Supreme "the functional 967.04(7)-(10), was under § STATS., of and was constitu- testimony" in-court equivalent for live preference court said that tional. The at to the give way of witnesses trial must confrontation Id. at witnesses. reasons child compelling protect at 646. The court further concluded 889, 425 N.W.2d under videotaped deposition [this that "[b]ecause of live equivalent is the functional statute] the con- protections and ensures the fundamental clause..., we conclude that demonstration frontation 890, 425 Id. is not unavailability required." Iowa, U.S. 1012 Coy However, 487 N.W.2d at 646. (1988), the Wisconsin court day was decided the after Thomas I. Justice Scalia wrote that special released child witnesses arrangements protect videotaping were not were because impermissible they depositions Thomas II court1 con- confrontations. The face-to-face it was not clear whether Justice Scalia's cluded that (1989). Thomas, 374, 442 State v. 2d N.W.2d Wis. opinion represented view of the The majority. Thomas II court stated:
What we can conclude ... is that Justice Scalia recognized exceptions that to "face-to-face" confron- may tation exist particularized certain cases supported by specific proper findings.... While the Coy sweep of the case is problematic, can, we with confidence, that, conclude although generalized leg- policy justify islative will not special procedures protect a child trauma, witness from exceptions may recognized be when case-specific there are witness-specific findings necessity. Thomas,
State v. 150 Wis. 2d N.W.2d (1989). 13-14 The Wisconsin Supreme Court adhered to I Thomas its holding the state was not required to show that a child witness was unavailable before the *24 child's videotaped could be testimony substituted the witness's live Id. testimony. N.W.2d at 19. Whether we speak terms of or "unavailability" the fact "necessity," remains that before a trial court may substitute videotaped of a child witness for live the trial testimony, court must make "case- specific" "witness-specific" the findings child is not able to testify. Because, case, this the trial court did not make such in the findings trial, new the "old" videotaped deposition was not admissible as a substitute for the child's live course, Of testimony. the child's previous videotaped be testimony may used at trial to show a prior consistent or inconsistent statement.
I recognize that Kirschbaum has not made this argument. However, because the error involves errone- ous admission of evidence which affects a substantial right, we must take notice of this plain error. Section 901.03(4), Stats., provides: in this rule "Nothing pre- affecting taking plain errors notice
eludes brought they rights although not were substantial judge." deci While the Wisconsin of the the attention "plain application of the their are inconsistent in sions States, 325 U.S. v. United rule,2 Screws error" (1944), case, land. In that of the remains law Supreme Court stated: United States to the exception was taken It true that no is those charge. Normally we would under court's trial the error. But there not note of take circumstances error so rule. And where the is to that exceptions are jury not submit to the essen- as fundamental only offense on which ingredients tial necessary it to take rest, we think is conviction could on our own motion. Even those guilty of the note itof a are entitled to fair trial. most heinous offenses omitted.) Accordingly, (Emphasis added; citations which affects a fundamental we "note" an error when may right have of the defendant and and substantial duty deprived to at trial, fair have a him or her of a we error, or not we conclude that whether least review is entitled so that defendant the error was substantial duty present in the have such new trial. We appeal. Pichler, 88-0670-CR, slip op. v. unpublished See State No. 1990) (Wis. J., (Sundby, concurring). App. May Ct.
at 12-20
specifically
has
Supreme Court Justice
At least one Wisconsin
Gustafson,
*25
State
acknowledged
inconsistency.
In
this
(1984) (Abrahamson, J.,
700,
653,
676,
2d
350 N.W.2d
Wis.
curiam,
459,
grounds per
other
121 Wis. 2d
rev'd on
concurring),
denied,
(1985),
Justice
cert.
For reasons, these I dissent. respectfully