*1 Wisconsin, Plaintiff-Respondent-Petitioner, STATE of LINDH, Defendant-Appellant. Aaron
Supreme Court Argued January No. April 89-0896-CR. 1991. Decided 1991. (Also reported 168.) in 468 N.W.2d
.330 *7 cause plaintiff-respondent-petitioner For the *8 Wellman, attorney gen- Sally L. assistant argued by was Hanaway, Donald J. eral, the briefs was with whom on attorney general. filed there was a brief defendant-appellant
For the public defender and Findley, state by Keith A. assistant 332 Casey, appellate chief, P. Kenneth division and oral Casey. argument Kenneth P. principal
STEINMETZ, J. The issue this case by ruling is whether the trial court abused its discretion favor of the state's limine to motion restrict impeachment psychiatric defense of one of the state's during capacity phase witnesses the mental of the bifur- cated trial.
A second issue is whether the trial court abused its during capacity phase discretion the mental of the trial by refusing suppress to the use of taken statements from by psychiatric the defendant hours witness within the defendant's arrest. respect appeals issue,
With first the court of county, Judge reversed circuit for Dane court Robert Pekowsky, holding R. court's trial order restricting impeachment psychiat- defense of the state's remanding ric witness an abuse of discretion and capacity phase a new case for mental the trial. With respect appeals issue, second the court of affirmed allowing the trial court's decision the introduction of the defendant's statements.1 appeals
We reverse the court of and hold that the granting trial court did not its abuse discretion in portion state's motion in limine. We affirm that appeals court decision which held that the trial court by refusing suppress did not err of the state- use challenged by ments the defense. Lindh, (Ct. App.
1State 2d 564 Wis. N.W.2d 1990).
*9 [*] [*] [*] [*] II," only the mental "phase The issues relate trial, pursuant to sec. phase a bifurcated capacity of trial, I, of the 971.165, phase the the phase guilt Stats. At defendant, Lindh, following the charged was with Aaron murder, contrary to first-degree two counts of offenses: 940.01, Stats.; attempted first-degree one count of sec. (a) 940.01; murder, 939.32(1) com- secs. contrary to using a mitting alleged dangerous the above while acts 939.63(l)(a)2; and contrary sec. one count weapon, public building, contrary to sec. carrying a firearm a 941.235(1). guilty the firearm and dan- pleaded Lindh weapon charges guilty and was found the other gerous trial, Lindh, II phase pursu- the charges jury. At 971.15,2 a mental at to sec. claimed he had disease ant pleaded the so not for that guilty the time of crimes and mental jury reason. The found that Lindh did have a Accordingly, judg- at the of the crimes. disease time against was Lindh on all ment of conviction entered charges. charges occurring out of incident dur- arose an January 15,1988. Lindh in the the noon hour of
ing Madison, Wisconsin, City-County to meet Building 971.15, Stats., provides as follows: 2Section (1) person Responsibility A Mental of defendant. is not responsible for conduct if at time of such conduct as a criminal capacity substantial result of mental disease or defect he lacked appreciate wrongfulness either to of his conduct conform requirements conduct to of law. (2) chapter, As 'mental disease or defect1 used this terms only by repeated abnormality do not include manifested criminal or otherwise antisocial conduct. (3) excluding responsibility defect is an Mental disease or affirmative must establish to a reasona- defense which defendant certainty by greater weight ble of the credible evidence. Department.3 with talking officers of Madison Police After police apparently officers, Lindh with certain left *10 building parked nearby, and went to his automobile a which he had modified .22-caliber rifle. Lindh then building proceeded re-entered the and to walk into County Department, hiding office of the Dane Sheriffs wearing. There, the rifle marily coat he under the was he sum- Townsend, shot and killed Eleanor a sheriffs department secretary, seriously and then shot and injured private present Erikson, Erik citizen who was purpose paying parking pro- for the of ticket. He then county office, ceeded to the coroner's where he and shot Clyde Chamberlain, killed the coroner. He then bran- deputy gun sheriff, dished the at a advanced on the challenged officer and the officer to shoot kill him. and transported shot, Lindh was disabled and to Madison Hospital surgery. Meriter where he underwent After sur- gery, hospital's taken Lindh was to the intensive care through evening. unit where he remained shootings, County Late the afternoon of the Dane Attorney Burr Assistant District John Dr. retained Leigh Roberts, whom Burr considered "one of the best psychiatrists forensic Dr. around." Roberts shootings. informed of the He was told that had Lindh custody, questions might been taken into that be raised regarding during shootings, Lindh's mental state and might requested that he to interview Lindh in this connection. evening, shortly p.m.,
That after 8:30 two detectives Department from the Madison Police visited Lindh evidently purpose meeting 3The was either for the of discuss ing department's progress concerning investigation its two of apartment burglaries during of Lindh's that had occurred previous purpose discussing for the week or the imminent disposition charge facing. of a Lindh was They unit. identified themselves the intensive care they police indicated that wanted Lindh as officers and City-County shootings in the with him about the to talk fully day. Building The detectives advised earlier that rights Arizona, U.S. his under Miranda v. Lindh (1966),4 rights he waived. The detectives which 436 questioned approximately for minutes.
Lindh attorney's evening, p.m. that the district At 9:00 requested office Roberts at home contacted evening. Dr. Lindh same Roberts that he interview agreed to do and arrived at Lindh's bedside at 9:33 so explained p.m. District He to Lindh that Assistant Attorney him and Burr had sent indicated taking place request of the District interview was "at the Attorney's beginning his interview office." Before *11 essentially Lindh, Dr. to him his reiterated all of Roberts rights, except him that that he did not inform Miranda attorney provided to interview an would be before expense county him if he wanted could not afford at and purpose Dr. Roberts also informed Lindh that one. assessing Lindh's mental state of his interview related to nothing sug- shootings. the time of the Lindh did to at gest disposed he to such that was not an interview. began question asking Lindh, him if Dr. Roberts to day happened in the he could recall what earlier that Building. City-County Lindh said he had limited shooting men amount of recall but described two and why them, he Lindh When asked shot woman. responded if that he did not know. When asked he cared shootings, details of he answered to discuss the point, suggested negative. Dr. At that Roberts might all, him Lindh he not want talk with at attorney present. "Well," Lindh since did have Hernandez, 4See State v. 61 Wis. 2d N.W.2d (1973), in rights these are set and discussed. which forth Lindh, Roberts said to "I'll wait a few minutes and you again." come back and talk with Dr. Roberts then left the because, defendant alone in his words:
I very understood, wanted to be sure that he really, purpose my there, being and that he under- rights stood his anything relation to might that he me, because, share with in general, prefer I'd much that he attorney prior time, have an to that and that attorney talking aware that he was with me. later, Twelve minutes Dr. Roberts returned to talking Lindh's bedside. Before Lindh, with Dr. Roberts again generally rights concerning informed him of his responded the interview. Lindh that he understood he did not have to talk with Dr. Roberts and understood why again Dr. Roberts was with him. Lindh affirmed anything that he understood that said would not be con- Again, suggested fidential. might Dr. Roberts to Lindh that he attorney want to have an before he talked. Lindh indicated, however, that he would talk with Dr. Roberts. proceeded question
Dr. Roberts Lindh about the shootings personal family as well as about his back- ground. again Lindh indicated that he shot three human beings, personally, day none of whom he knew at City-County Building. spoke burgla- He also of two apartment place ries of his that had taken within the past occurring week, the second on the eve of the shoot- ings. addition, In he indicated that he was dissatisfied *12 angry meeting police and after the he had with at the City-County Building prior some minutes to the shoot- ings. response questions In to from Dr. Roberts concern- ing his state, recent and current mental Lindh indicated significant suicidal, that he was not that he did not have depression, experiencing that he hallucinations, was not hearing seeing visions, voices or and that he had not sleeping eating experiencing significant been problems. opinion his that Dr. Roberts later testified to ability upon converse, Lindh, of his to absence based responsive specific ques- speech, and answers to slurred above, was able to the nature of which is indicated tions place being taking was and said at the understand what stopped the about Dr. Roberts interview at interview. experiencing p.m., Lindh was when indicated he 10:25 pain. some February arraigned 26, 1988, Lindh
On was pleas guilty guilty of of not and not reason entered attorney, request At the of the district mental disease. appointed Dr. Dr. Frederick Fos- the court dal, Roberts and psychiatrist, to the defen- another forensic examine on behalf of the state. dant Dr. Roberts became aware of
On March Spe- against allegations professional him. misconduct University cifically, Wis- he became aware that Hospital allegation investigating an he that consin patient. engaged in with a female had sexual misconduct thought gave particular fact no at the time He potential charge a criminal to be there was a for against charge him and that such a could involve made County Attorney's However, he office. the Dane District generally the existence of a state knew at the time about subject therapist, him, which could as a criminal law penalties allegation against him if as made such an penalty could be were true.5 He was aware what pre- prescribed charged if he were and convicted. He any prosecution that, out, it be carried sumed were county, happen allegations Dane where would by were made and therefore would be conducted county attorney's office. Dane district Stats., 940.22, provides penalties 5Specifically, criminal sec. by therapist. patient exploitation of or client for the sexual *13 May In 1988, Dr. Roberts learned that the Medical Examining investigating allegations Board was also patients sexual him misconduct with three female examining request after the board made a himof provide it with records. again
Dr. Roberts interviewed Lindh 22, on June county jail. day, 1988, at the Dane The next June University Hospital attorneys of Wisconsin met with County Attorney Dane District Hal Harlowe and allegations against referred to him the Dr. Roberts. At meeting, attorneys the same Harlowe informed those special prosecutor. that he would transfer the matter to a meeting, immediately After the Harlowe undertook to County transfer the matter to the office of Milwaukee Attorney District E. Michael McCann so as to establish special prosecutor that office as in the matter. county attorney's sought The Dane district office light this transfer in of the fact that it had worked closely prosecution with Dr. Roberts on the of a number past pending attorney's cases. The district office relationship considered that that could constitute a con- flict of interest for both Dr. Roberts and the district attorney's investigate prosecute if office it were to county officially Roberts. The Dane circuit court appointed county attorney's the Milwaukee district special prosecutor office as on June 28 or 1988. by any Dr. Roberts was never contacted member or representative county attorney's of the Dane district by any police office, nor officer, was he contacted con- cerning allegations against anyone him. Nor did county attorney's from the Dane district have office attorney allegations. contact with Dr. Roberts' about the July 8, 1988, Not until aware, did Dr. Roberts become through attorney, allegations had been referred county office; the Dane time, district's at the same he already special prosecutor had that the aware became *14 appointed. been by made the was or informal decision formal No any attorney's county whether as to office district Dane against charges investigation be made should or criminal pros- special appointment prior of the to the Dr. Roberts attorney's county district the Dane one from No ecutor. special prosecutor any with the had contact office special prosecutor after the the matter with discussed appointment. special prosecutor report August 17,1988, submitted a Dr. Roberts On suffering concluding from a mental Lindh was August shootings. On at the time of disease or defect last time. 1988, Lindh for the interviewed he "Specific September 7, 1988, filed a the defense On regarding Exculpatory the com- Evidence" for Demand Examining plaint against the Medical Dr. Roberts before discovery complaint to the was attached The Board. specific a list of defense set forth which the demand questions including questions answered, as to when be allegations had that the first became aware Dr. Roberts allegations could made; he was first aware when been allegations charges; were when result criminal attorney's county office; Dane district referred to the appointed, special prosecutor Dr. Rob- when was when a county this; the Dane and whether became aware erts any attorney's decision as had made office district charges filed. should be whether deny- responded promptly demand, to the
The state exculpatory requested any ing the material question every fully answering set forth each but September 12,1988, filed, on The state also the defense.6 answers, entirely state's contained 6The information defense, incorporated this factual undisputed by is within portion opinion. of this requesting pro-
a motion in limine that the trial court any concerning hibit cross-examination of Dr. Roberts allegations pending against of misconduct him or concerning any pending allega- ramification of those including tions, but not limited to the status of Rob- hospital privilege University erts' Hospital. at the of Wisconsin inquiry by
The motion asserted that such "totally the defense would irrelevant and immaterial to the issues" before the court. hearing Sep-
A on the state's motion was held on hearing, tember 1988. At that the defense acknowl- edged fully complied discovery that the state had with its alleging wrongdoing demand. It also indicated it was no part prosecution. parties or bad faith on the *15 argued argu- motion, the merits of the state's the defense ing questions that the circumstances raised serious relat- ing bias, to the motive and interest of Dr. Roberts. The argued generally defense also more that Lindh should be permitted explore credibility the Dr. Roberts as an expert although connection, In defense, witness. this the support upon it had no the record which to base its position, University Hospital asserted of Wisconsin temporarily suspended privilege had Dr. Roberts' patients conducting treat at that institution after its investigation. argued per- own Lindh that he should be during questioning qual- mitted, his own Dr. on Roberts' question concerning allega- ifications, to Dr. Roberts against purported suspension tions him and his so that prosecution present would not Dr. be able to Roberts "pure as as driven snow." argued allegations
The state that the contained complaint the board's were not relevant to the issues of argued allega- bias, motive or interest. The state that the go tions did not to bias Dr. because when Roberts was appointed, prosecution looking retained and was not any particular from his evaluation result to him for opinion. professional simply In this Lindh but prior regard, to the weeks some five noted that the state special report filing that a Dr. was aware Roberts of his county appointed prosecutor that the Dane had been absolutely attorney's involvement no had office district implau- argued prosecutor it was too the case. with report with the file a Dr. Roberts would think sible to hope county help he him in Dane when it would county juris- under Milwaukee that the matter knew marginally proffered were if evidence Even diction. extremely prejudicial said, relevant, it would be the state jury unrelated to on an issue to focus cause the and question capacity time of the at the mental of Lindh's shootings, not be allowed. should and therefore generally
Concerning line stated the defense's more credibility inquiry as Dr. character responded as to Roberts' expert expert that an witness, the state and that like other witness be treated witness should question Dr. about the Roberts no basis to there was argued allegations. that cross-examination The state allegations pertaining misconduct and of sexual to the purpose suspension hospital purported serve no would Dr. on Roberts' did not reflect as those matters insofar expert qualifications cross-examina- witness. Such as an only prosecution said, to "trash" tion, would serve away put Roberts, the issue him on trial and draw *16 responsibility of Lindh. from the mental by parties, arguments Following extensive thought having "given this," lot of court, after trial proffered imma- to be "irrelevant evidence found the relevancy, Rejecting theories the defense's terial." particularly given expressly that, considered trial court against allegations Dr. Roberts that the matter of instantaneous[ly]" out of the "almost was transferred county attorney's Dane district office to the office of the special prosecutor, possibility bias, there was no part motive or interest on the of Dr. "I Roberts. do not anything support find in this record which would or permit inquire [that counsel to issue]," as to the court said. The trial court added: that, I say
And think it's fair to no matter what [Dr. county Roberts for attorney's the Dane district does] office, result, any would not be able to influence [he] special prosecutor's] as a result of investigation [the any judge might ultimately it, hear should charges there be criminal filed. though already proffered
Even it had found evi- apparently relevant, dence not the trial court assumed argument proffered for the sake of that the evidence might marginally be at least relevant such that it should against prejudice be "balanced" the risk of unfair so as to admissibility pursuant determine 904.03, its to sec. conducting balancing In test, Stats. its the trial court prejudice found that the risk of unfair to the state would outweigh any expressly relevance. The court noted that allegations against nothing Dr. Roberts were more allegations than and said that there was the risk that the jury smoke, would think that "if there's there's fire." pertaining Thus, the court held that cross-examination allegations against purported to the Dr. Roberts and his hospital suspension was not admissible. The court there- granted fore the motion in limine. gave time,
At the same the court defense counsel the right presence to voir dire Roberts outside the jury, place hearing and a voir dire took before Dr. Rob- phase hearing erts testified at II of the trial. The essen- tially amounted to a reiteration Dr. Roberts of much response of the information in his contained to Lindh's *17 discovery addition, In Dr. Roberts stated at demand. hearing the case that when he was first called into Attorney District Burr he was not aware Assistant any allegations against him He also were threatened. Attorney that he was not aware that District stated Hospital University had met with of Wisconsin Harlowe attorneys hearing. The defense did until the date of the upon dispute by Dr. Based these statements Roberts. hearing, the court no basis to the voir dire trial found ruling granting the in limine. alter its motion psychia- phase II, Griffith, Dr. At Ezra a forensic lengthy giving trist, After testified for defense. professional qualifications and introduction as to his degree background, Dr. Griffith testified to a reasonable certainty day killings that on the of the of medical psychotic diagnosed in a he as defendant was state which psychosis," a result of that a "brief reactive and that as psychotic capacity state Lindh substantial lacked appreciate wrongfulness of his conduct and lacked capacity his conduct to the substantial to conform requirements of law. He also testified to a reasonable certainty degree of medical that Lindh had been suffer- ing long diseases before Janu- from mental or disorders ary long-term 15,1988. He characterized these disorders personality as "mixed disorder." principal expert witness for the state was testimony, At the outset of his Dr. Roberts
Roberts. faculty indicated that he was: a sity member at the Univer- adjunct School; of Wisconsin Medical "on the Seminary"; faculty Theological at San Francisco chairperson "relating religion of conferences previously essentially health"; ... mental "honored as psychiatrist year"; grandfa- and, the mid-west proceeded give opinion ther. Dr. Roberts that the did not suffer a mental illness at the time of defendant personality *18 crimes, is not a mental that a disorder the is not a mental disease, a conduct disorder and that opinion that the defendant testified to his disease. He psychosis suffering at the time of a brief reactive not was opinion gave the defendant his that offenses. He wrong could conform was and that he his conduct knew requirements of the law. to the his conduct . Dr. who stated that he state also called Fosdal suffering personality
diagnosed disor- a mixed Lindh as however, testified, a disorder does that such der. He wrongfulness appreciating prevent his of one from require- conforming his conduct to the from conduct or opinion that the He testified to his ments of the law. psychosis at the not suffer a brief reactive defendant did disease, crimes, a mental and did not have time of the ability impairment his to conform no of suffered requirements law. of the conduct to
[*] [*] [*] [*] respect issue, that to the first Lindh contends With of show on cross-examination he wished to the evidence wrongfully it to the extent excluded Dr. Roberts part might who, Roberts, bias on the of have shown investigation possibility facing and criminal of a curry charges, allegedly might have wanted to criminal diagnosis prosecutor by reporting of favor with the prosecution favor the mental state that would Lindh's generally against more Lindh. Lindh also asserts and Dr. Roberts' character was relevant to the evidence credibility. Amendment clause of the Sixth
The confrontation right guarantees States Constitution of the United prosecution "to confronted accused a criminal By against virtue of the four- him." with the witnesses applicable right amendment, is to the citi- this teenth I, of the Wisconsin state. Article sec. 7 zens of this essentially provides right, the same indicat- Constitution right ing to meet his witnesses an accused has " ' purpose essential "The main and "face to face." opponent opportu- to secure is confrontation nity for' " Arsdall, v. Van Delaware cross-examination." (1986), quoting Alaska, Davis v. 475 U.S. " (1974) original). (emphasis '[T]he U.S. exposure 315-16 testifying is a motivation of a witness' constitutionally important proper function " protected right Id. at 678-79. of cross-examination.' Nevertheless: *19 judges as the Con- retain wide latitude insofar
[T]rial impose Clause is concerned to reasonable frontation on concerns limits on such cross-examination based about, harassment, among things, prejudice, other issues, safety, or inter- confusion of the the witness' only marginally rogation repetitive or is relevant. " 'guarantees an
Id. The confrontation clause at 679. opportunity cross-examination, effective not cross- for way, in examination that is effective whatever and " quot- might Id., extent, the defendant wish.' whatever (1985) ing Fensterer, 15, Delaware v. 474 U.S. (emphasis original). evidence law conforms with these funda-
Wisconsin by precepts. relevant, If evidence is as defined mental 904.01, Stats.,7 admissible, it is unless its introduc- sec. prohibited by be another rule or the constitu- tion would 904.01, Stats., provides: 7Section any tendency having 'Relevant evidence1 means evidence consequence to the determi-
make the existence of fact that is of 904.02, United States or Wisconsin. Section tions of the if admissible, may be excluded if evidence Stats.8 Even substantially outweighed by other probative value is its factors, prejudice. risk unfair Section including of specifically to evi- pertains 906.08.10 Section 904.03.9 probable probable be or less than it would of the action more nation without evidence. 904.02, Stats., provides: 8Section admissible, except provided is as otherwise All relevant evidence Wisconsin, by States and the state constitutions of United by statute, by rules, adopted supreme by by rules these or other is not is not admissible. court. Evidence which relevant Stats., 904.03, provides: 9Section relevant, Although may probative if its be excluded evidence prejudice, substantially outweighed by danger unfair is value issues, by misleading jury, or or considerations of the confusion time, presentation delay, of cumulative of undue waste of or needless evidence. Stats., 906.08, provides as follows:
10Section (1) of witness. Evidence of character and conduct OF CHARACTER. AND REPUTATION EVIDENCE OPINION may 972.11(2), credibility Except provided of a witness as s. opin- reputation supported or the form of or evidence attacked only a) may ion, subject the evidence refer but to these limitations: b), untruthfulness, except with for truthfulness character behalf, respect evidence in his or her own to an accused who testifies only after the character truthful character is admissible reputation by opinion or for truthfulness has been attacked witness *20 or otherwise. evidence Specific (2) OF INSTANCES CONDUCT. SPECIFIC witness, attacking purpose or of of of a for the instances the conduct credibility, crimes supporting other than conviction of the witness's 906.09, proved by provided may evidence. in be extrinsic s. not as however, 972.11(2), probative may, subject They if of truthful- to s. time, inquired into on remote be or untruthfulness and not ness a wit- on of of the witness or cross-examination cross-examination or for truthfulness to his her character ness who testifies or untruthfulness. 347 of dence character and of conduct witnesses. relevancy
"The criterion of
is whether the evidence
sought
any light
to be introduced
shed
would
on the
State,
subject
Rogers
of inquiry."
v.
93 Wis. 2d
(1980).
Rogers,
N.W.2d
In
287
774
we also said that:
proper
The
relevancy
standard for
test of
on
is
sought
cross-examination
not whether the answer
will
of
elucidate
the main issues
the case but
apprais-
whether
be
it will
useful to the trier of
fact
ing
credibility
evaluating
of the witness and
probative
testimony.
value
the direct
scope
Id. at 689. The
of cross-examination
is
limited
scope
However,
to the
of the direct examination.
Id.
to
relevant,
be
the proffered
must
a logical
evidence
have
or
rational
sought
provided.
connection with the fact
to be
Williamson,
v.
370, 384-85, 267
State
84 Wis. 2d
N.W.2d
(1978).
There must be a reasonable relation between
the evidence
to
sought
be introduced and
proposition
proved
before the cross-examination will be
Rogers,
allowed.
93 Wis.
691.
2d at
previously
We
evidentiary
have noted that
determi
nations are a matter of
State
trial court discretion.
v.
Pharr,
334, 342,
115 Wis. 2d
(1983);
N.W.2d 498
Rogers, 93
2dWis.
at 689. This
discretion
the trial
Oberlander,
court is
132, 140,
broad. State
149 Wis. 2d
(1989).
appellate
relate *21 represents preju- only if trial determination court's Williamson, 84 Wis. 2d at of abuse discretion. dicial Whiting, 400, 422, 384-85; v. 136 2d 402 State Wis. (Ct. 1987). Hartung Hartung, App. 102 In N.W.2d (1981), court this stated: Wis. 2d 306 N.W.2d of recognized trial in an exercise its It is that a court reasonably may reach a conclusion which discretion reach, may but judge another court it another judge or court must be a decision which a reasonable the relevant could arrive at the consideration of facts, law, reasoning. process logical of and Oberlander, 2d No See also 149 Wis. at 140-41. abuse if a basis exists for discretion will be found reasonable Oberlander, 149 Wis. the circuit court's determination. 141. 2d at its
We hold that the trial court did not abuse discre- proffered determining evidence was not tion that the gener- bias, more to show motive or interest or relevant credibility ally Dr. Roberts as an the character or appeals substituting expert witness. The court of erred for trial its discretion that of the court. reaching appeals decision,
In con- its the court Lindh have been allowedto cross-examine cluded should allegations of miscon- "as the fact Roberts pending against him the serious effect duct were and upon profession if were convicted and livelihood he charges alleged" that Lindh should have been and period ques- inquire during "whether, allowed respect possible investigated tion, with crimi- he was upon conviction, which, have would serious nal conduct personal consequences." professional This conclu- ignores the the trial had a reasonable sion fact that court *22 proffered simply to basis conclude that the evidence was any way not in relevant.
From the time Dr. first Roberts interviewed Lindh hospital January through 1988, in the on the times August he him that interviewed in June 1988 and up through September including and and there is investigation no evidence the record a criminal that being or, indeed, that one was con- ever conducted— any regarding allegations against Dr. Roberts. ducted— complaints most, At known it is that the matter of the by patients against Dr. him Roberts' was referred to the county attorney's Dane district office June and that immediately the matter was transferred to the Milwau- county attorney's any investigation kee district for office pursue any prosecution it would to choose it and would choose to conduct. There is no evidence after that that county trial, time and as of the time of the Milwaukee attorney's began any district investigation.11 office ever criminal Clearly, up July 8, 1988, until there nowas reasona- possibility part bias, ble for motive or interest on the Dr. Roberts until because that date he did know any allegations county had been referred to the Dane attorney's district office. Because Dr. Roberts became aware of the immediate transfer of the to matter special prosecutor time, at the same he had no reason to July county 8, 1988, believe after the Dane district attorney's position prosecute office would be in a him possibly exchange thus and favor him in for his testi- investigation An eventually of Dr. Roberts was undertaken special prosecutor brought charges against who Dr. Rob pleaded Dr. erts. charges. Although Roberts no contest to these events, the record does not indicate the exact dates of it these is they subsequent clear that testimony all occurred to Dr. Roberts' phase II at of Lindh's trial. any
mony. county position was not in to make Dane any any charges, or make recom- "deals," even reduce investigation prosecu- as to criminal or mendation against it. He Dr. and Dr. Roberts knew tion Roberts prosecutor in the no to favor the therefore had reason report by testifying giving favorable instant case him. county relationship Dane district between the
attorney's neces- which would be office and Roberts sary simply suggest bias, did not interest or motive prosecutor upon provided by exist. The disclosure request dire Dr. Rob- voir defense *23 thing. unequivocally There is no erts showed the same there fertile reason ground to conclude that whatsoever to of a to be sewn and for even the seed "deal" suggest germinate under To these circumstances. testimony Dr. in favor Roberts' prosecution would be influenced these circumstances amounts under speculation. being mere There no nexus between prosecution investigation future criminal undertaken, Dane Roberts, if and the were to be attorney's jury county office, not reason- district could ably logical two, because connection between find a Thus, not not none it was an abuse discretion existed. up brought cross- on to allow the matter examination. sup- jurisdictions
Analogous from decisions other port State, S.W.2d In Guttierez conclusion. our (Tex. 1984), App. 698, held it was the court 706-07 Ct. prohibit cross-examination not an abuse of discretion chárges pending circum- of a witness on under state county attorney, attor- district stances where authority ney prosecuting case, over had the defendant's charges; pending made deals had been the witness's no nobody attorney's witness; with the in the district office suggested had lenient treatment and there was no evi- sug- dence elicited at the voir dire of the witness which gested testimony. he had a in self-interest his
Similarly,
Bracy,
in
State v.
145 Ariz.
703 P.2d
(1985) (en banc),
the court held that it was not
unreasonable to refuse to allow the defendant to cross-
pending contempt charge.
examine a state witness on a
county attorney prosecuting
the case which the
testify
pending
witness was to
was not
involved
contempt charge.
special, independent prosecutor
A
had
responsibility
contempt charges.
full
for the
Thus, the
pending charge
court held that the
"wouldnot have indi-
testimony
by any
[the
cated that
hope
witness's]
was colored
County Attorney."
of lenient treatment from the
These cases that, stand for the where a subject prosecution by witness is himself to a those who separate are and distinct from those who have him called witness, as a there is no reasonable basis to believe the curry hope leniency witness has a motive to favor or for by testimony. clearly virtue of This is the situation any prosecu- the instant case. Because of the fact that special prosecutor against tion Dr. Roberts at point merely possibility, some in the future was there *24 was no reasonable basis to believe that Dr. Roberts report testify would color or bias, to some sort of motive or interest. indicated, As courts have cross-exam- opportune ination for bias is not when there exists the possibility potential charges. gen- mere of future or See erally, Grasso, State v. 298, 172 Conn. 239, 374 242 A.2d (1977); People App. Simmons, v. 99 Ill. 3d 425 (1981). N.E.2d 1172 It is that, not even the case as psychiatric professional, upon a Dr. Roberts was called
352 might bias, motive lead to influences that above" to "rise part, ever influences no such on his for interest or existed. regard12 upon in this Lindh relies
The cases
which
sharp
in the case at
the situation
in
contrast to
stand
presents
although
them for
broad
bar,
proposition
the defendant
may
about
be cross-examined
that a witness
just
prosecution
about
and not
threat of criminal
the
pending charges.
by
Lindh, the evi-
In
offered
the cases
bias, motive
nexus to
immediate
had a direct and
dence
prosecution.
testify falsely
The
favor the
or motive to
charges
pending
or a
criminal
actual or
cases involved
investigation
ongoing
criminal
and immediate
direct
by
charges
government
a
threat of criminal
imminent
agent
directly
the witness
which
involved
the case
pending
testify.
bar,
no
were
In
case at
there
was to
ongoing
charges.
investi-
criminal
no
There was
criminal
investigation
gation.
and
undertaken
were
If a criminal
charges
brought
charges
future,
would
those
in the
were
by
special prosecutor,
brought by
the Dane
attorney's
county
office.
district
generally
evidence
cited
Lindh
Certain cases
Arsdall,
Supreme
in Van
Court
United States
what the
"prototypical
In
form of bias.”
673, called a
U.S.
475
prohibited
cross-exami-
Arsdall,
court
the trial
Van
public
dropped state had
on the fact that the
nation
exchange
actually
charge,
filed,
for the
drunkenness
prosecutor
speak
promise
about
with the
witness's
prohibi-
Supreme
total
that the
Court held
murder.
State,
(Fla.
191
v.
365 So. 2d
Cowheard
upon
relies
12Lindh
(Utah
Chestnut,
1978);
1228
State v.
621 P.2d
App.
Ct.
Dist.
1979);
Hitchmon,
(5th
Cir.
v.
1980);
F.2d 1098
United States
609
States v.
1980);
Sullivan,
United
(9th
Cir.
Burr v.
F.2d 583
Wainwright,
1976);
Onori,
Greene
(5th
Cir.
Although specifically Van Arsdall did not define "prototypical bias," form of the context of the case referring makes it clear that the court was in which a witness to a situation might realistically perceive have or testifying prosecution. interest example, so as to favor the For position Arsdall, in Van the witness inwas actually testify exchange did for reduction charges or sentence. persuasive by
Other cases cited as Lindh manifest a comparable prototypical Alaska, form of bias. In Davis v. (1974), juvenile 415 U.S. 316-18 witness was on probation distinctly "vulnerable," and thus as the Supreme might it, Court described to influences which questions prejudices biases, raise ulterior motives and directly personalities that "relate to issues or in the case Specifically, probationary at hand." because of his sta- might effectively tus, encouraged the witness have been faulty to make a initial identification of the defendant in suspicion away order to shift from himself as to the same might subject incident, and he also have been to undue pressure police from the and made his initial identifica- possible probation tions under fear of Id. revocation. at 311, 317. This in turn could have affected his in- later court identification. Id. at 317.13 regard, 13In Supreme this the United States Court noted that " partiality time may of mind at some as '[a] used former argument basis of an testifying; the same state at the time of though object partiality ultimate is to establish at the time of *26 prototypical evident form of bias
There was also a
425,
Lenarchick,
When a state, power of the state subject to the coercive he is leniency. The witness object of its can also be the and fact, may influence his it well of that is aware testimony. held, circumstances, this court such 447-48. Under
Id. at meaningful ingredient defendant, cross- as an "[a] subjec- explore right examination, must have the testimony." Id. at 448. for the witness' tive motives Balistreri, N.W.2d 106 Wis. 2d In State v. effectively (1982), prototypical of bias was form proper exposure had been at trial. witness accorded plea negotiations resulting in for criminal acts arrested potential from 105 sentence reduced the witness's which properly ruling years. the trial court In that to 40 prior testimony details of to the factual as excluded witness, number of the nature and acts of the criminal " original). the defendant Id. n.5 (emphasis in While testifying.' attempted this statement might to use have in the case at bar "partiality of meaningful might have had argue that Dr. Roberts envisaged comparable to that mind at some former time" manifestly Davis, argument would be a an Supreme such Court absolutely nothing in the record is one. There unreasonable any held Dr. Roberts ever possibility suggest reasonable conceivably might have affected bias, motive or interest testimony. already jury by
which were
made known to the
the wit-
examination, the
ness on direct
court said that:
objective
allowing
'The
cross-examina-
main
[of
pertaining
plea
tion
to a witness' criminal acts and
may
negotiations]
is to show that
the witness
have
expected leniency
immunity
prosecution if
from
he
testimony
state,
gave
in favor of the
and it is neces-
sary
wrongful
to show the commission of
acts in
expectation.'
to establish the
for
order
basis
such
quoting Lenarchick,
Thus,
Id. at
for his prototypical In cases where there exists a form of possibility bias, bias, the of motive and interest of the particularly witness is distinct and immediate. The wit- ongoing, relationship ness has an dual with the prosecutory hand, actors. On the one the as such witness being prosecution by giving is of some service to the his testimony; respect hand, on the other his status with prosecution process the same is "vulnerable." Criminal against only witness, of some sort if the even at its initial stages, reality. Usually, by being is a it is carried out prosecuting attorneys depending who are on his service very being witness; least, as a at the it is in carried out jurisdiction the same in as the one which the is witness offering testimony. circumstances, his Under such there usually is a reasonable inference that the witness is or position being effectively considers himself in to be factors that could influence "vulnerable" to more or less relationship testimony. acts, situa- The witness's or his respect likely produce might to the state be tion with suspicion strong bias, motive and intent at least a reasonably eyes jury. jury might A have of a found motive for favor- evidence "furnished the witness a testimony." ing prosecution Arsdall, Van U.S. at 679. expose "prototypical form of bias."
Lindh does not dropped any pending prosecution Here, the had not charges charges against Roberts, Dr. no had criminal favorably disposed, was been reduced or Roberts only probation custody. parole There was not on or possibility allegations with the patients of sexual misconduct charges. There
could form the basis of criminal investigation criminal is not even claim that a steps actually being were conducted. Because substantial immediately by county attor- the Dane district taken prosecutor upon ney's appoint special office to investigation Dr. to the district referral of the Roberts attorney's "prototypical" bias, office, Dr. Roberts had no curry county Dane interest or motive to favor with the attorney's prosecuting Lindh, district office which was any charges brought against Rob- because that would be special prosecutor. brought erts would *28 theory Although of rele- the basis of Lindh's other vancy altogether appears proceed clear, from it is not proffered is the exclusion of the evidence a view that because, it, was allowed to error as he describes the state "pure present as the Dr. if his Roberts as character testimony, Noting that, start of his driven snow." at the grandfather, Dr. Roberts introduced himself as chairper- seminary, faculty theological member at a religion health, as son of conferences on and mental and essentially recipient naming him "midwest of an award psychiatrist year," apparently argues of the Lindh jury entitled the mention such facts front of particular him of Dr. Roberts to the cross-examination Again, the trial court did that he desired. we find that finding proffered not abuse its discretion in evidence "irrelevant and immaterial." may impeached only
The
character
a witness
regard
directly
reputation
go
to matters which
to his
veracity.
State,
for truth and
Barren v.
55 Wis. 2d
(1972).
long
461-66,
examination unrelated to Dr. Roberts' expert and abilities truthfulness as an witness. presenting "pure Far from himself as as the driven simply snow," did, as the defense asserts he Dr. Roberts past experience professional testified to his and back- ground, expert as do all witnesses. The fact that he family offered certain innocuous information without objection from the defendant does not mean that Lindh right had a to cross-examine on the matter of the sexual allegations. misconduct qualitatively
Dr. Roberts' introduction was no dif- psychiatric expert ferent from that of defense Dr. Grif- acting fith, who testified he was: director of Connecticut Haven, Connecticut, Mental Health Center in New and professor psychiatry University was associate of at Yale professor of Medicine School and an associate in the Department of Afro-American studies at Yale. Dr. Grif- University, fith also testified that he went to Harvard degree University Strasburg took his medical at in residency College France, did at the Albert Einstein specialty York, in Medicine New that he has a certifica- psychiatry psychiatry, tion and forensic that he department teaches a course of Afro-American psychological studies that has to do with the dimensions autobiographies, of black that he is a consultant to the Organization, Project Pan American National Health Hope, Security Cooperation and the Commission of Europe Congress, of the United States that he is edi- Psychiatrists Quarterly, tor of Black of Americans Psychia- he is on the executive committee of the Black by fellowship America, trists of that he was honored Psychiatric American ing Association and received a travel- fellowship Institute, Fuller he from the Solomon *30 boards, he has authored a on various and that serves number of articles. profes allegations cases held that have
Numerous is negligence that wrongdoing, misconduct sional proper subject to the case on trial is not unrelated In State v. expert medical witness. impeachment of an 1221, 1229-30 (1990), Paradise, 388, 213 Conn. A.2d 567 prior investigation into a inquiry on cross-examination by prior position the witness his of official misconduct City have chief medical examiner of New York would as moreover, and, have led of dubious relevance would been mini-trial on the circumstances of unrelated cases. to a Weston, 259, 635, Downey In v. Pa. 301 A.2d 639 451 (1973), the court held that it was not an abuse of discre tion or an error of law for the court bar cross-exami he expert of a medical witness to establish that nation princi failing had misconducted himself to observe a Lansche, In Noble v. 735 S.W.2d ple of medical ethics. (Mo. 1987), App. Ct. it was held reversible error for 63 expert the trial court to allow an witness a medical voluntary on his malpractice case to be cross-examined narcotics, dispense controlled surrender of his license to expert's The held the drug problem. due to his own court skill, drug problem former was unrelated to his knowl qualifications express expert opinion an edge and case; his drug neither the abuse nor the surrender of qualification expert license affected his as an witness or credibility. only purpose of such evidence could testimony by disparagement expert's be to cause over the reason of irrelevant misconduct. (2d Revici, also Schneider v. F.2d 987 Cir.
See
817
1987) (fact
license has been
expert
that an
witness's
Down
temporarily suspended pending
investigation);
Weston,
259,
(1973) (expert's
v.
451 Pa.
The trial
even after
irrelevant,
assume, apparently for the
dence
went on to
relevant, analyz-
argument,
sake of
evidence
904.03,
It then
ing
problem pursuant
to sec.
Stats.14
outweighed by
found
relevance was
the risk of
*31
conducting
balancing
14Apparently
this
test the
because
904.03, Stats.,
explicitly
trial court did not
refer to sec.
and did
expressly
engage
"balancing,"
Lindh has
state that it would
not
suggested that
the trial court failed to exercise its discretion.
to exercise discretion constitutes an
Because a trial court's failure
Hutnik,
754, 764,
discretion,
outright
abuse of
State
39 Wis. 2d
(1968),
court if Lindh's
The fact that the trial court did not state the name 904.03, Stats., "balancing" "weighing" of sec. or use the words or analysis, not or some similar word or words to describe its does mean, We do not that the court failed to exercise its discretion. recognize "magic argument. such a words" anything, generally refer to its sec.
If a trial court's failure to 904.03, Stats., balancing might circumstances tests under certain Pharr, reasoning." See to set forth its constitute "failure] "set forth its Wis. 2d at 343. Where the trial court does not evidence, reasoning" regarding the admission of for its decision record for a reasonable basis for the decision. we must search the Id. of discretion if reasonable basis We will not find an abuse court does exists for the decision. Id. at 342. The fact that a trial against expressly probative value of the evidence balance appellate prejudice court of the risk of unfair does not relieve the prejudice We find from admission of the evidence. unfair in that its discretion court was well within that the trial finding. proffered be consid- if the evidence could Even marginally bias, interest or to relevant to motive or ered expert, credibility Dr. it Roberts as the character unfair to conclude that the risk of was reasonable outweighed prejudice evidence far from admission of the probative evidence, of the and the cross-exami- value properly prohibited for that nation could have been reason. Supreme Arsdall, in Van 475 U.S.
As the
Court said
only marginally
which is
relevant or
at
bias evidence
may
As stated
confuse the issues is excludable.
which
384-85,
Williamson,
is
84 Wis. 2d at
evidence which
prove
provide bias,
relevant to
like evidence offered
requir-
satisfy
904.03, Stats.,
facts,
other
ing
"must also
sec.
weigh
probative
the trial court to
effect
against
prejudicial
also,
See
United
evidence
its
effect."
(1984).
Abel,
States v.
469 U.S.
54-55
'tendency
unfairly prejudicial
Evidence is
if it has a
by improper means' or if it
to influence the outcome
'appeals
sympathies,
jury's
to the
arouses its sense
horror,
punish'
provokes its instinct
or otherwise
*32
jury
something
its
on
other
causes a
'to base
decision
See
propositions
than the established
of the case.'
Co.,
Economy
&
Christensen v.
Fire Cas.
Wis. 2d
77
50, 61,
n.11,
(1977).
61
As for the trial court's actual case, sufficiently set this we consider the trial court to have e.g., prejudicial reasoning, by noting effects that the forth its smoke, jury might think "where there is there's fire." 362 Lease Corp. America, America v. Ins. Co. N. 88 Wis. of 395, 401, (1979). 2d 276 767 N.W.2d
Other have courts delineated some of the prejudice may which factors warrant the exclusion of bias evi- dence. is One factor whether the evidence would divert Hossman, trial issue. extraneous 467 N.E.2d at
418. A court can and should exclude bias evidence which has on bearing credibility, little the witness's but which impugn would the witness's character because such evi- "opens dence improper the door to considerations and lends confusion of the jury placing undue emphasis Cole, on People collateral v. matters." 654 P.2d 830, (Colo. 1982). evidence, 833 If the bias taken as a whole, might jury's have away directed the attention consideration, may prejudicial. from the case under it Id. at 834. trial may
The court very exclude bias evidence if the slight probative value of the evidence on the issue bias fails strong to overcome its likelihood of confusion of the Jarabek, delay. issues United States and undue 726 889, (1st 1984). F.2d 902 appellate Cir. court should find trial court abused its discretion when the proffered relevance bias evidence was unclear and Sellers, of prejudice the risk was real. United States v. (4th 1981). 658 may F.2d 232 Cir. The trial court prohibit cross-examination in a certain area where to permit open matters, it up would extraneous for the trial " court 'has responsibility seeing for the sideshow " Brown, does not take the circus.' United States v. over (8th 1977). F.2d Cir. case,
In the instant prejudice risk unfair great. Allegations of sexual with patients misconduct against psychiatrist great potential have unduly *33 prejudice jury against witness. Cross-examina- the the jury the from this matter would have distracted tion on jury the in the case and would have caused the real issues charges speculate unproven against the witness. about Dr. conduct could have ensued. A mini-trial on Roberts' clearly its discretion court did abuse The trial proffered any finding evidence was relevance Pointing outweighed alle- other factors. out that the nothing against gations than Dr. were more alle- Roberts jury gations a risk that the would think and there was fire," smoke, there's the trial court accu- that "if there's rately amounted to an focused on what would have unfairly prejudicial admission. reviewing ruling,
Moreover, in trial court's the the appellate court relied court should conclude that the trial expressed by prosecutor as on the considerations obviously ruling, grounds for court's where court prosecutor's explanation, acquiesced in but did not reasoning expressly See all of its itself. articulate Hagenkord State, 452, 464, 2d 100 Wis. 302 N.W.2d (1981). although regard, do In this we not consider "acquiesced" such, as we note that the trial court to have prose- arguing prohibit cross-examination, specifically argued that cross-examination about cutor allegations pending with of sexual misconduct purpose except patients no to "trash” would serve jury Roberts, it real that would distract the from the responsibility Lindh, issue, and that it the mental jury speculate cause the about an unrelated would grounds prejudice These traditional under issue. are 904.03, sec. Stats. hold that the trial court not abuse its discre-
We did it tion otherwise err insofar as concluded that *34 proffered outweighed by of the relevance evidence was including considerations, other of risk unfair prejudice, improper such that it to exclude the evidence. issue,
We now turn to in the second which Lindh argues suppress refusing that the trial court erred in to the use statements taken Dr. Roberts within hours argues right against of Lindh's arrest. Lindh that the applies phase self-incrimination to II of a trial and that rights under Miranda were not honored. The Fifth Amendment to the United States Consti- I, and tution Article sec. 8 of the Wisconsin Constitution
guarantee right against a defendant a self-incrimination. specifically applied Lindh contends that Miranda in his case insofar as Roberts conducted his first interview hospital night him crimes, with at the on the of the interposed insanity before the defendant had an defense officially appointed and before Roberts had been as one experts. despite of the state's Lindh makes this assertion fact that his statements to Dr. Roberts were admit- only insanity phase only trial, ted at the on the responsibility, only issue of Lindh's mental after Lindh interposed insanity only an defense and after he presented expert opinion support evidence of defense. general
We a note as matter that the constitution apply prohibit testimony does not the admission of psychiatric expert state circumstances where the already interposed insanity defendant has defense presented expert testimony support has and of that Kentucky, v. 402, defense. See Buchanan 483 U.S. (1987); Texas, 421-22 680, Powell v. 492 U.S. 109 S. Ct. (1989); Byers, 1104, 3146 United States v. 740 F.2d (D.C. 1984); McCotter, 1110-11 Cir. Riles v. 799 F.2d
365 Lynaugh, 1986); Schneider v. F.2d 947, (5th 835 Cir. 953 Lynaugh, Granviel v. (5th 1988); 570, 881 Cir. 575-76 Hope, v. State (5th 1989); 96 N.C. F.2d 190 Cir. Huff, 325 N.C. State v. (1989); 224 App. 386 S.E.2d (1989). 1, 381 S.E.2d Hinckley, States v. United upon relies
Lindh Francis, Cape (D.C. 1982) 741 F.2d F.2d 115 Cir. 1984) (11th support Cir. his contention that II applies phase self-incrimination right against Hinckley, In clearly distinguishable. Both cases are trial. *35 interrogate the defendant agents F.B.I. continued attorney requested an and after the defendant after he stopped. government The the interview said he wanted be allowed use the defen- argued it should at least opinion psychiatric evidence dant's statements and the police reports of the interview to rebut based the on held insanity The court evidence defendant's defense. police egregious from the officer's violation gleaned used, Miranda rights could be even not the defendant's insanity purpose, because exclu- for this limited rebuttal Hinckley, necessary to such misconduct. sion was curtail Francis, v. Cape In the court held an F.2d at 133-34. opinion the defendant was sane and crimi- expert's nally phase I of the responsible could not admitted at Moreover, expert's opinion the upon case. the was based during made court- unwarned statements a defendant's exam, the never psychiatric ordered and defendant insanity defense. raised the v. Arizona relies, unpersuasively, upon also
Lindh
Mauro,
(1987),
police
a
481 U.S.
which involved
psychiatric
question
and not a
interview.
interview
insanity
applied
the fifth amendment
to the
of whether
on Estelle
Finally,
Lindh relies
issue was
considered.
Estelle,
Smith,
(1981). In
the trial court
By terms, its own Estelle limited In is to its facts. Supreme clearly appears fact, the Court Estelle exempted holding have from its situation such as indicating case, the instant that a defendant who asserts insanity supporting psychiat- defense and introduces preclude ric evidence cannot also con- state from ducting introducing product an examination and Estelle, that examination. at 451 U.S. 468. Estelle,
In the defendant made his statements *36 unwittingly, unknowing that the state would use them to penalty, secure the death on issue bur- which it had the proof beyond contrast, den of doubt. In reasonable case, the instant the made defendant his statements knowingly. important, proof, More he had burden of only and the from the evidence interview was used for purpose argu- rebutting insanity the defendant's "simple, using expedi- ment. The state was not cruel forcing lips ent" of evidence from the defendant's own proof. quoting 462, meet its burden of Id. Culambe v. at (1961). Connecticut, 568, 367 U.S. 581-82 367 purpose examina- on the nature and of the We focus timing. fact Dr. Roberts its The tion and not on Lindh his before and not after conducted interposed interview appear insanity would rele- defense not legal policy regard. rea- There are valid and vant this sons focus. for this designed psychiatric to ascertain
A interview responsibility, which is mental evidence of defendant's accusatory phase trial, is until II of not admitted past inter looks at the conduct of which the nature. It already Miranda We viewer was warnings, aware. consider involuntary against are self- which aimed prerequisite incrimination, such an are a neither to nor to of the the interview interview admission results of phase Knapp, 380, 388, v. 111 330 at II. State Wis. 2d Cf. (Ct. 1983); App. v. 129 Heffran, 242 State Wis. N.W.2d (1986). 156, 165-66, 2d 351 N.W.2d insanity Complete is essential on the information expert defense, and the best information comes from of the himself. To the extent examination defendant deterred, misconduct be sufficient deter official needs to adequately provided by excluding rence the evidence is phase. importance guilt great from reliabil ity of this issue the defendant's own statements on by any not be undercut to be should incremental benefits gained by suppression. Reliability fact-finding process by application of the consti would decreased privilege. Illinois, v. Allen 478 U.S. tutional Cf. (1986). psy state 374-75 Admission of results of a chiatric examination of a defendant who raises insanity "noble defense does not tarnish diminish the aspirations" underlying values" and "fundamental generally privilege against See Mur self-incrimination. (1964). phy Comm'n., 378 U.S. Waterfront *37 privilege We thus hold that the constitutional against require self-incrimination does not the exclusion psychiatric of results of a interview with the defendant phase psychia- grounds from II of a trial on that the comply trist did not with the dictates of Miranda. arguendo, Assuming, applicable that Miranda is argument bar, the case at we will Lindh's consider that scrupulously purported Dr. Roberts failed to honor his right of his assertion to remain silent when he indicated shootings. he did not want to discuss the details of the right A defendant's exercise of his to silence must be "scrupulously Hartwig, honored," State v. 123 Wis. 2d (1985), Michigan citing 278, 284, 366 866 N.W.2d v. Mosley, (1975). safeguard 96, 103 423 U.S. The critical right right questioning the by to silence is the to terminate right
invocation of the
Id.
silence.
principles notwithstanding,
These
it is clear that
right
Lindh never exercised or
invoked
to silence
during
day
his interview with Dr.
on the
Roberts
shooting. Lindh did
assert
he
not
that
did not want to
say
with Dr.
talk
Roberts. Never did
he did
he
not
questions.
want to answer additional
He did
ask Dr.
not
go away.
only
Roberts
to end
interview or to
said
He
he
did
want to discuss
details
of the shoot
ings.
standing
That,
alone, is not
an invocation
right
e.g.,
Koput,
195,
See
to silence.
State v.
2dWis.
(Ct.
1986),
App.
202, 396
on other
N.W.2d 773
rev'd
grounds,
(1988);
370,
142 Wis. 2d
We conclude scrupulously right silent, Dr. Roberts remain to questioner right. used Whether honored that "overbearing "improper persuasive coer- or or tactics" Turner, 136 Wis. State cive tactics" is determinative. (1987). Here, 333, 357-60, such tac- 2d N.W.2d not used. tics were
Thus, hold court did not abuse its we that the trial excluding in the evi- err either discretion or otherwise proffered by or in Lindh on cross-examination dence admitting pertaining testimony to his of Roberts shootings. evening of the Lindh on the interview of holdings case, we not con- this need Because of our respect question with harmless error sider the of either issue.
By appeals of the court of Court.—The decision is reversed. A. BABLITCH
JUSTICE WILLIAM withdrew participation. from (dissenting). ABRAHAMSON, S. J. I
SHIRLEY agree of the court of with the unanimous decision prejudicial appeals the circuit court committed completely barring from cross- error examining the defendant psychiatrist-witness pending about a investigation alleged criminal miscon- into the witness's bias.1 duct show biases, revealing toward
1Cross-examination directed is, interest prejudices, of a witness —that or ulterior motives directly may personalities to issues the witness that relate credibility particular case hand —is a attack on at relevancy in proper for cross- witness. The standard the test jury in will be useful to the examination is whether the evidence The majority opinion holds that the test to deter- may mine whether defense counsel cross-examine state's witness alleged about criminal misconduct show the witness's bias is whether a jury could find a "logical connection" between the criminal investigation attorney's the witness and the district office on whose behalf the witness testifying. The majority then con- cludes the circuit court did err in excluding evidence, because relationship "the between the Dane county attorney's district office and which *39 [the witness] bias, be necessary would to suggest interest or motive simply did Majority op. not exist." at 351.2
This test does not conform the
to
test set
in
forth
earlier cases. This court
the
United States Supreme
Court have
defendant,
concluded that "a
as an ingredi-
cross-examination,
ent of meaningful
must have the
right
explore
to
subjective
the
motives for the witness'
testimony."3 Evidence is relevant
the
in
issue of bias
appraising
credibility
Rogers State,
the
of the witness.
93 Wis.
682, 689,
(1980).
2d
2The
asserts that
there was no evidence of
investigation
during
of Dr.
pendency
Roberts
the
of the defen
Majority
case.
op.
dant's
at
purposes
353.1 believe that
the
for
appeal,
this
allegations
professional
the fact that
misconduct
by
special prosecutor
had
Roberts
been referred to a
suffi
is
investigation
cient evidence that some kind of
would follow.
Lenarchick,
425, 448,
3State v.
74 Wis. 2d
According Supreme Court, to the United States evidence relating jury might to bias on if cross-examination is a relevant reasonably that find the evidence "furnished the witness [state's] favoring prosecution testimony." a motive for in the Delaware Arsdall, (1986). v. Van 475 U.S.
The recognize jury accept circuit court must that need not the per- witness's denial about bias. Cross-examination should be expose jury "to jurors, mitted to the facts from the which as the prove believed if that the witness this case it tends testifying might harmed he be aided or that inquiry way. particular The of the circuit court's focus on witness's of mind. be the state should opinion majority uses an I Because believe decision, I and reaches an incorrect incorrect standard dissent.
H-I court in this case I believe that the circuit had analysis following apply to determine relevance proffered on to show a cross-examination of evidence proposed Does the cross-examination witness's bias: support a witness believed reasonable inference might if benefit he testified favor state's he position, might disadvantaged if or he testified he position? against the state's prove party asserting bias need not promises would in testimony. received from the state or fact
witness by giving It from be certain benefit harmed enough if he has witness or she a self- is believes testimony.4 interest *40 credibility, appropriately draw of could infer-
sole triers fact and Alaska, v. Davis relating reliability to the of the witness." ences (1974). 415 U.S. 318 Alaska, (1974), Davis example, v. 308 for the
4In 415 U.S. Supreme it to on Court held that was error bar evidence cross- juvenile probation. on examination that a state witness was party asserting bias in case wished show that the adverse that to may probation that be revoked and witness have feared would might suspect investigation. in feared that he be a the There was probation suggestion of had no that actual threats of revocation suspect. been made to the witness or that the witness was a Balistreri, 741, 753, 317 See also State v. 2d 106 Wis. N.W.2d (1982). 493
372 if "absurd," Even the witness's beliefs were party right duty explore adverse has a and a to the wit- explained obligation ness's motives. We this v. State (1976), Lenarchick, 425, 447, 74 Wis. 2d 80 N.W.2d as follows:
Although promises no had been made to wit- [the may ness], testifying he favorably well have been hope expectation the state and that the state him by dropping reducing would reward pending charges. expectation Even though absurd, that were right counsel duty explore defense had the and witness' motives. majority opinion mistakenly
I conclude that adopts newa test to determine the relevance evidence to show a witness's that from bias deviates the test this Supreme court and the United States Court have established.
l-H hH Applying the test this court and the United States Supreme Court have used determine relevance of proffered bias, I evidence to show conclude the cir- barring cuit court erred in cross-examination on the issue of bias this case. reviewing
In the circuit court's decision about the scope appellate bias, of cross-examination to show an (1) party court must consider adverse is allowed great regarding subject scope latitude and inquiry (2) bias; to show that the determination of the relevancy questioning proffered of the line of to establish (3) bias court;5 is within the discretion the circuit Hartung Hartung, 58, 66, 5In 102 Wis. 2d N.W.2d (1981), reviewing the court stated the method for a circuit court's discretionary determination:
373 from an accused is for a circuit court to bar it error that reasonably jury might a all from which facts presenting prosecution witness.6 infer bias of a that the in this case determined The circuit court "totally irrelevant and immate- proffered was evidence motive, or bias.7 state issues of interest rial" the bias, possible the defen- sliding on a scale of argues that is weak to allow the theory of bias this case too dant's subject. to cross-examine on this defendant opinion court Both the and the circuit majority lack of relevance apparently base their determination of reason as follows: on two factors and simultaneously. 1. two Dr. Roberts learned facts might investigate allegations that state of He learned determination, sustained, discretionary must A be demonstra- bly upon appearing be and in the record and made based facts Additionally, applicable appropriate and reliance on the law. product importantly, discretionary must be most a determination by process of record and law of a rational mental which facts together purpose upon relied are are considered for stated and achieving recognized It is a reasonable determination. reasoned and may reasonably reach court in exercise of discretion trial its reach, may judge which or another court conclusion another judge it be a or court could but must decision which a reasonable law, facts, and a arrive the consideration of the relevant at beyond logical process reasoning. The record here demonstrates use the doubt that the trial court in this case failed to articulate and guidelines discretionary legislature as for which has set standards determining set the facts an award of maintenance and failed to forth upon which it relied. Lenarchick, 425, 446-448, 6State 2d 247 N.W.2d Wis. (1976). that, say I think it's fair no 7The circuit court stated: "And County district matter what Roberts for the Dane [Dr. does] office, any attorney's to influence not be able would [Dr. Roberts] result, special prosecutor's] investigation as a result [the it, ultimately any charges judge might hear should there filed." *42 patients against his him.
criminal conduct made He also special prosecutor that a learned unconnected with the County attorney's charge in district office would be Dane Knowing County the of attorney matter. that the Dane district prosecuting was the in defendant this case and attorney's charge pos- in another district office of a was investigation charges, sible of him for criminal Dr. Rob- testimony possibly could his erts ting not think that benefit- County attorney's against the Dane district case the poten- defendant could influence the outcome of his own criminal tial case. against charges
2. Criminal were not Dr. filed during pendency Roberts the case. defendant's pendency during case, Thus the of the defendant's any prosecution "merely because of Dr. Roberts possibility, there was no reasonable basis to believe that report testimony. Dr. Roberts would his ..." color or Majority op. majority at 352. The intimates that no bias charges can be shown unless criminal are or filed there is proof negotiation of actual between the and witness regarding specific pending charges. state reasoning majority's is, believe, This I flawed. The upon special prosecutor's being reliance in the Mil- County attorney's waukee in district office and not County attorney’s sup- Dane district little office lends port majority's though for the Even conclusion. cir- majority presence cuit court or believes that the attorney guarantees two autonomous district offices that might other, one would influence the Dr. Roberts have believed Dr. know otherwise. Roberts would profile testimony high open, in his this case would be an public special prosecutor very might record that the well hear read about.
The record Dr. shows that Roberts learned of his expanding difficulties with various authorities after his he filed with and before January interview the defendant August. investigations about report He learned Examin- University Hospital the State Medical against him had been ing allegations and that Board district Department State and the referred to the Justice in the record indicates attorney's Nothing office. the defen- opinion regarding had formed an Roberts Indeed, Dr. first
dant's mental state after the interview. again June and Roberts interviewed the defendant *43 in August shortly September, before trial 1988. may infer Dr. have felt
A could that Roberts jury to pressure period internal over the entire intensified A testimony jury shade in of the state. could favor believed, infer Dr. Roberts unwarranted that however belief, favorably in the that if he for the state testified case, prosecutor be special might defendant's disposed or to favorably drop investigation; more allegations vigorously; or to show investigate the less in leniency any charges plea in or in a or agreement filed sentencing. a recommendation on supports majority's law logic
Neither case
nor
charges
view
be filed
an investi-
that formal
must
before
issue of
gation into criminal behavior is relevant
to the
"when a
proposition
bias. The cases stand for the
power
the state and
subject
witness is
the coercive
leniency"
party
object
can also be the
of its
adverse
must
opportunity
explore
subjective
have the
Lenarchick,
testimony.
for the
State v.
motives
witness's
(1976).8
425, 447-448,
74 Wis. 2d
247 N.W.2d
Garrett,
1976),
(6th
United States
In this case the of cross-examination to show many In bias should be even broader than other cases. fingerprints, areas, ballistics, such as and forensic chem- expert istry, testimony opinions are formed from "hard" knowledge principles. opportunity data, or for the expert opinion Psy- to be influenced bias is limited. chiatry, largely contrast, "soft" data is field based on knowledge. possibility Under these circumstances psychiatrist's opinions, findings, increases that the consciously presentations may slanted, or uncon- Coping sciously, by any Faust, D. biases. J. Ziskin and *44 upon prosecution that as a means witness looked a successful having suspension of his lifted. Chesnut, State v. (Utah 1980), 1233
See also 621 P.2d Crick, disapproved grounds, on other State v. 675 P.2d (Utah 1983) ("the possibility charges criminal is a mere future explore on cross- sufficient basis to the motives of the witness place apprehensions before the examination thereof [and to] jury"). charges against Dr. were
9The fact that Roberts unproven might important theory of admis to the defendants' sibility credibility. I challenging based Dr. Since on Roberts's bias, conclude that I do not the evidence was admissible to show reach that issue. (4th Testimony Psychological and Psychiatric
with 1988). ed.
I circumstances of this case conclude that under the ruling that circuit court abused its discretion Dr. involving investigation of the criminal evidence theory Roberts was irrelevant to the defendant's bias.10
HHHH
if
course, may be
its
evidence,
barred
Relevant
probative
value is outweighed
prejudice.
unfair
may
circuit court
if
exclude relevant evidence
it has "a
tendency
by improper
to influence the outcome
means."
Baldwin,
441, 455,
State v.
101 Wis. 2d
10Because I believe the circuit court abused its discretion cross-examination, refusing to admit the evidence of bias on I do not reach the defendant's constitutional claim based on the con note, however, conforming frontation I clause. to the Wis may satisfy consin Rules of Evidence constitutional requirements.
(Rel. 11/83).11 No. 10— object being an of of Dr. Roberts's
The evidence probative of wrongdoing criminal investigation for by this giving caused Any or distraction prejudice bias. circumscribed could have been jury to the information cross-exami- the scope of defendant's restricting the by Dr. Rob- made allegations of the The nature nation.12 theory of irrelevant to the defendant's patients was erts's was the seri- jury for the relevant information bias. The allegations referral of the the allegations, of the ousness prosecu- criminal possible state for hospital to the by the career, professional Dr. tion, effect on Roberts's and the he be life should livelihood, personal reputation charges. these or convicted of charged with regarding the latitude party's great an adverse Given show the witness's inquiry to scope of an subject and testimony, and the bias, Roberts's importance the prejudice undue curtail power court's circuit cross-examination, circuit the by limiting state proffered all the barring abused its discretion court the state out- evidence, concluding prejudice case. this value of the evidence probative weighed IV. barring the evi- I the error further conclude pri- the state's Dr. Roberts was harmless. dence was not in his testi- emphasized He psychiatric witness. mary defendant on interviewed the having mony the value psychi- other advantage the shooting day —an 11 judges always jury the "sole are The members of given to be weight and credit credibility of the witnesses and 6/90). (Rel. No. testimony." Wis JI —Criminal to their 25— instructions, limiting considered circuit court never 12The was not relevant. the evidence the court ruled because *46 Despite atric witnesses could not claim. the defendant's having proof the of burden on the mental or disease trial, defect issue the second half of the I bifurcated prohibition conclude of bias evidence on cross- examination of Dr. Roberts undermines confidence Dyess, outcome of this case. State 124Wis. 2d (1985). 544-45, 370 N.W.2d
V. Finally, my register disagreement major- I with ity's apply conclusion that the Miranda rule does not Dr. Roberts's initial of interview the defendant. The Supreme yet United States has Court not decided a case application which discusses of Miranda situations presented namely, such case, as the one in this where the place interview takes charged before accused has been insanity.13 or has of raised defense The court should not reach out and decide this issue presented by which is not the facts of the case. The court appeals correctly determined, of believe, I that Dr. Rob- warnings adequate erts's Miranda to the defendant were rights Although and that the defendant's were honored. lawyer Dr. Roberts failed to inform the defendant that a provided expense, necessary, would him if at state County gave Dane detective the defendant full rights Miranda than hour less before interview with Dr. Roberts. Smith, majority's reliance on Estelle v.
13The
For the reasons appeals, I appeals. Like the court the court sion of plea the defendant's trial on for a new remand would guilty defect. of mental disease reason