State v. St. George

Plaintiff-Respondent, of Wisconsin, State

v. Bradley Defendant-Appellant- Alan St. George,

Petitioner. Supreme Court argument No. 00-2830-CR. February Oral 2002. Decided 8,May 50WI (Also 777.) reported in 643 N.W.2d defendant-appellant-petitioner there were For by Lang, argument briefs and oral Donald T. assistant public defender. state argued plaintiff-respondent

For the cause was by Gregory attorney general, Weber, M. assistant with Doyle, attorney whom on brief was James E. general. ABRAHAMSON, CHIEF SHIRLEY S. JUS- unpublished

TICE. This is of an decision of the review affirming appeals,1 judgment court of of conviction denying an order for motion a new trial entered County, Circuit Robert Court for Ashland E. Judge. Eaton,

¶ 2. This two review raises issues: 1) circuit court's Was exclusion child proffered

defendant's evidence of prior contact child a victim's sexual with another George, State v. St. 00-2830-CR, slip unpublished op. No. 2001). (Wis. App. Ct. June

denial of the defendant's right constitutional to present evidence?

2) Was the circuit court's exclusion of the testi-

mony of the expert defendant's witness an erro- discretion, neous exercise of alternatively, or deprivation of the defendant's constitutional right present evidence, to as the defendant as- serted?

¶ appeals 3. The court of concluded that these questions judg- should be answered no and affirmed the denying ment of conviction and the order a new trial. agree appeals 4. We with the court of that the defendant right was not denied his constitutional present evidence when the circuit court excluded evi- prior dence of the child victim's sexual contact with another child. Exclusion of the defendant's evidence of complaining prior the propriate ap- witness's sexual conduct was § 972.11(2), rape

under Wis. Stat. shield require- statute. The defendant has failed to meet the proffered ments set forth in our cases for the evidence to 972.11(2). judicial exceptions fall within the contrary 5. We conclude, further to the court of appeals, erroneously that the circuit court exercised its excluding testimony discretion in of the defendant's expert witness. We reach this conclusion because in exercising its discretion to exclude the of the expert defendant's witness, the circuit court failed to take into account whether the defendant was denied his constitutional a defense, as the defen- dant claimed. For the forth, reasons set we conclude that exclusion of the witness about techniques recantation and interview denied the defen- dant his constitutional a defense. Ac- cordingly, appeals we reverse the decision of the court of and remand the cause to the circuit court for a trial. new

HH ¶ below, and 6. The relevant facts are set forth each in the of additional facts are set forth discussion legal issue. living

¶ 1998, In the defendant was October staying nights his Wisconsin, most with Ashland, in long-term girlfriend, Tracy

Harvey. night On the Harvey and Ms. 21-22, October the defendant They joined sleeping together in her were were bed. Harvey's five-year-old Kayla. children, Some- one of Ms. night allegedly during fondled time that the defendant vagina. Kayla's day reported fondling Kayla 8. The next next and few weeks

her mother. Over course fondling allegedly reported Kayla months, also charged and The doctor a social worker. defendant was contrary first-degree of a child, With sexual assault 948.02(1) (1999-2000).2 § Stat. Wis. presented several who 9. The State witnesses Kayla out-of-court statements

testified that made claiming improperly her. At the defendant had touched Kayla had ever trial, denied incident occurred reports. The even she had ever made some improperly that he had touched the defendant denied Kayla Harvey youngster. told her that Ms. testified improperly not her. Ms. the defendant had touched Harvey had that she believed the defendant also stated 948.02(1) Degree provides: Wisconsin Stat. "First contact inter Sexual Assault. Whoever has sexual or sexual years person age with a who has not attained of 13 course guilty felony." of a B Class

All are to subsequent references to the Wisconsin Statutes unless indicated. 1999-2000 version otherwise improperly Kayla Harvey touched and that Ms. was continuing relationship her with him. jury guilty,

¶ 10. The found the defendant and he years prison. was sentenced to 20 The defendant post-conviction arguing for relief, moved the same issues as are before court. motion this The was denied. appeal appeals, On to the court of the defendant raised appeals the same two The court issues. affirmed the judgment of the circuit court.

II challenges ¶ 11. The defendant first his convic- denying tion and the order for a his motion new trial on ground the that the circuit court his violated constitu- tional evidence it when excluded evi- Kayla experienced dence that had sexual contact with According defendant, another child. to the is there perhaps child, evidence that at least one and two other previously private children, touched on the victim her - parts. seeking trial, 12. the Before State filed motion previously

to exclude evidence that two other children Kayla. sexual had contact with The State relied on Wis. § 972.11(2)(b), rape statute, Stat. the shield as the basis excluding proffered for the evidence. Section ll(2)(b) provides may 972. "a defendant offer evi- relating past history dence to a victim's or sexual reputation application statutory judicially absent of a or exception"3 created trial.4 at The statute reads as fol- part: lows, in relevant

3 Jackson, 657, State v. 216 Wis. 2d 575 N.W.2d 475 (1998).

4 There exceptions are certain enumerated that are not applicable to the case.

(b) If is of a crime under s. ... the defendant accused concerning complaining any . . . evidence the 948.02 opinions or prior witness's sexual conduct reputation as to sexual conduct prior witness's evi- shall not be admitted into prior sexual conduct trial, hearing course nor during dence or any be in the reference to such conduct made shall jury .... presence of the rape

¶ 13. The shield statute reflects the "view generally complainant's prior of a sexual substantially or, relevant, is if out- conduct irrelevant weighed by proffered prejudicial effect."5 The evi- its explicitly by rape barred shield statute. dence inquiry not, with however, Our does end this recognized, as examination of the statute. We have compul- asserts, defendant sory process that the confrontation and clauses Sixth Amendment of U.S. Article 7 of I, Constitution6 and Section the Wisconsin "grant defendants a constitutional Constitution7 "[t]he has Our court stated that evidence."8 Pulizzano, 633, 644, v. 2d State Wis. 456 N.W.2d325 (1990). prosecutions, enjoy "In all criminal accused shall him; against

right... [and] to be confronted the witnesses obtaining in compulsory process for witnesses his fa have vor ...." 7 enjoy prosecutions "In all criminal the accused shall face; to face to to right... [and] meet the witnesses have compel in compulsory process to the attendance of witnesses his ." behalf... 8Pulizzano, 2d 155 Wis. at 645.

" directly the Due 'Whether rooted Process Clause Amendment, Mississippi, Chambers v. 410 U.S. 284 Fourteenth

512 rights granted by compulsory the confrontation and process are clauses fundamental and essential to achieving objective the constitutional a fair trial."9 grants right The confrontation clause defendants "the to 'effective' cross-examination witnesses whose tes- timony compulsory process is adverse,"10and the clause "grants right to defendants admit favorable testi- mony."11 Despite guarantees,

¶ 15. these constitutional a right present defendant's evidence not absolute.12 compulsory process only grant "Confrontation and de- fendants the constitutional relevant substantially outweighed by prejudicial its rape excluding Thus, effect."13 shield statute evi- proffered by dence the defendant not on face does its violate defendant's constitutional (1973), Compulsory or or Process Confrontation clauses Texas, Washington Amendment, 14, v. of the Sixth 388 U.S. 23 Alaska, Davis v. (1967); (1974), 415 308 U.S. Constitution guarantees 'a meaningful opportunity criminal defendants Trombetta, v. complete U.S. defense.' 467 California Strickland Washington, (1984); 668, v. 479, 485 466 U.S. cf. (1984) (The guarantees 684-85 Constitution a fair trial Clauses, through Due Process but it defines the basic largely through provisions of a fair elements trial several Amendment').'" Scheffer, States v. United the Sixth U.S. 523 (1998) (Stevens, 303, J., dissenting) (parallel n.16 cita- 329-30 omitted.). tions 9 Pulizzano, Chambers v. Missis (citing 155 Wis. 2d at 645 (1973)). sippi, 410 U.S. 294-95 10 (citation omitted). Pulizzano, Wis. 2d at (citations omitted). Id. at 645-46 12 Chambers, 410 U.S. at 295.

13 Pulizzano, 155 Wis. 2d at 646. However, under some circumstances evidence.14 prior "may conduct be so of a victim's sexual right probative to and the defendant's relevant constitutionally protected."15 present Thus, the it is "may impermissibly given rape in a case statute shield rights infringe upon to and a confrontation defendant's process."16 compulsory therefore, determine whether must, 16. We application present Wis. Stat. 972.11 case rights.

deprives the of his constitutional This defendant question of "constitutional fact" that determination is a independently the circuit court this court determines appeals benefiting court from their but analyses.17

14Id.

15 at 647. Id.

16Id. at 647-48. 17 Dodson, 65, 69-70, v. 2d 580 181 State Wis. N.W.2d (1998) (defendant's Amendment a defense Sixth question independently by is a of constitutional fact determined (claimed Pulizzano, court); appellate 155 Wis. 2d at 648 a deprivation compulsory process rights of confrontation and question reviewed deference to of constitutional fact without Robinson, 146 appeals); the circuit court and court of State v. (court (1988) 315, 331-32, indepen Wis. 2d N.W.2d relevancy claim dently determined of evidence on constitutional case); of violation of a defense sexual assault (1984) Johnson, 479, 472, State v. 118 Wis. 2d 348 N.W.2d196 (circuit authority discretionary ruling on a court's issue may be it accommodates procedural issue exercised until defense). rights process the accused's due Hammer, 92, 44-49, 236 2d But see State v. 2000 WI Wis. ¶¶ (ignoring usual 613 N.W.2d629 standard review ¶ proffered 17. The defendant contends his Kayla evidence shows that had a source of sexual knowledge apart alleged experience from her with him. argues young Kayla He a that because child as as would possess knowledge experience sufficient or to manu- jurors accusation, facture the the will infer that her knowledge comes from the defendant's assault. The evidence of other would, sexual claims the contacts defendant, show an alternate source the victim's knowledge about sexual and would matters show that possessed knowledge the victim sufficient to formulate her out-of-court accusation.18

¶ 18. For the defendant establish constitu- admissibility proffered tional to the evi- by rape dence that is otherwise excluded shield satisfy two-part inquiry.19 statute, the must defendant inquiry, part In 19. first the defendant satisfy through must each of five offer factors an proof evidentiary hypothesis by that states an bolstered justify a statement of fact sufficient to or conclusion accept.20 inference the court is asked to The five factors are:

questions of constitutional fact are independently determined court); Walker, 158, 192, this State v. 154 Wis. 2d N.W.2d 453 (1990) (same). 127

18 prior experiences For admission of evidence of of a sexual prove child victim to knowledge a source sexual victim's defendant, see, other than experience the victim's with for Dodson, Pulizzano, example, 83; 2d at 2d Wis. 155 Wis. at 652-53.

19Dodson, Pulizzano, 72; 219 Wis. 2d at 2d at 155 Wis. 648-49, 654.

20Hammer, Dodson, 44; at WI Wis. 2d

1) clearly act prior occurred. The 2) closely resembles The act

case. 3) clearly relevant a material prior The act is

issue. 4) necessary to the defendant's The evidence is

case. 5) outweighs prejudicial probative value The

effect.21 satisfies the successfully 20. After the defendant ¶ factors a constitutional five to establish the evidence, part a court undertakes the second of whether the defendant's by determining inquiry is nonetheless out- the evidence proffered to exclude compelling the State's interest weighed the evidence.22 conclude, In the as did the present case, we that the appeals,

circuit court and the court of one of did meet factors and two proof defendant's offer of The circuit court was satisfied that the five factors. challenge sufficiency the of

The State did not of offer proof, this and we do not address issue. if

The defendant's brief asserts that defense counsel's prior failure to a motion to sexual conduct file introduce 971.31(11) § waived his constitutional evidence under Wis. Stat. claim, addressed the he was denied effective counsel. We have and claim on the merits and therefore we need not defendant's of any do ineffective counsel claim. not address assistance Dodson, Hammer, 44; 2d at 72. 2000 WI 219 Wis. 22 Dodson, 219 Wis. 2d at 72-73. Kayla testify her either or mother would to the fact that Kayla's vagina at least one other child had touched proof past. This offer of satisfies first factor's requirement prior clearly that the acts occurred. Fur- proof thermore, the defendant's offer of satisfies the requirement prior second factor's that acts re- alleged semble the defendant's conduct.

¶ 22. However, conclude, we as did the circuit appeals, court and the court the defendant's proof satisfy offer of fails to the final three factors. proffered satisfy ¶ 23. The evidence does not fac- relevancy three, tor test. Under 904.01, Wis. Stat. having any tendency relevant is "evidence any consequence make existence of fact probable the determination action more or less probable than it would be without the evidence." Evi- Kayla's experiences dence other sexual is relevant in jury might Kayla the acquired case if infer that knowledge

sexual because the defendant com- charged.23 mitted the act Kayla's knowledge satisfy

¶ 24. sexual fails to relevancy requirement nothing of factor three. There is precocious Kayla's about statements that someone body.Kayla's touched her accusation that the defendant vagina "wiggled jiggled" touched her and is not description age-inappropriate knowledge. Kayla's de- scription graphic precise enough is neither nor a that jury Kayla's age a would infer that child would be able only description charged to make if this the conduct actually knowledge Kayla pos- occurred. The sexual knowledge body. was mere sessed her Such knowl- Id. at 80; Reid, The Sexual Innocence Christopher B. Theory Admissibility as a Basis a Child Inference for Conduct, Sexual Molestation Victim's Prior Mich. L. Rev. (1993). 829-30 edge an inference that some not to raise so unusual as must have taken the defendant contact with sexual place. jury infer-

¶ that the 25. The defendant asserts body, Kayla's knowledge of her but ence not from comes knowledge someone have a desire from the that would Kayla private parts has not of another. to fondle the knowledge expressed that someone would want gratification, arguably body which her for sexual touch precociousness or knowl- be evidence of sexual would knowledge edge beyond years. Kayla expressed her knowledge body part touched, not of her about why her. touch would desire to about someone Kayla that that the We conclude vagina to have touched on the does not claimed been knowledge jury precocious that sexual show such defen- that some sexual contact with the would believe necessarily have occurred. Without this dant must jury, inference there is no reason for defense Kayla acquired knowl- show that could have sexual edge prior inference, in from sexual encounters. No this equals any the reason- little if relevance. Without case, jury possibility make the inference able would asserts, the defendant has not met factor defendant three, relevance.

¶ 27. the evidence Because we conclude was relevant, met. The factors four and five cannot be necessary cannot be considered (factor four), probative case and the value defendant's outweigh any prejudicial of the evidence cannot effect (factor five). defendant all 28. Because the has not satisfied inquiry, factors,

five we not continue to the second need is, whether the defendant's proffered outweighed by compelling evidence is a state interest to exclude the evidence. Therefore, we conclude that the of exclusion proffered Kayla's prior evidence of sexual conduct infringe

with at least one other child does not on the defendant's constitutional evidence and 972.11(2). appropriate was under Wis. Stat. fur-We appeals, conclude, ther as did the court of appropriately circuit court exercised its discretion proffered exclude the evidence.

HH I—IH-4 challenges ¶ 30. The defendant also his conviction denying and the order motion a his for new trial arguing expert witness, Stonefeld, that his Dr. was only qualified topics as an in the limited witness upon going testify he which was but also that testimony deprived exclusion of the the defendant hisof constitutional a defense.

¶ 31. The defendant offered Dr. Stonefeld's testi- mony testimony to rebut two the State's witnesses. One of the State's witnesses was Maureen (Mimi) Rappley, expe- a clinical social worker who was counseling rienced in child sexual abuse Ms. victims. Kayla's Rappley ley Rapp- testified about recantation. Ms. among things, approximately stated, other 20-24% child sexual abuse victims recant their reports recanting abuse, hut 92% of those later charge reaffirm the of sexual abuse. Ty Juoni, 32. A the State, second witness for protection' investigator,

child testified that he inter- Kayla viewed and that him she told that the defendant finger. explained touched her with his Mr. Juoni that he "cognitivé graphic technique had used interview" with nationally technique Kayla. "a as He characterized process accepted information that obtains accurate using non-leading questions. He thus children" from apparently reliability technique for the vouched he had used. According

¶ defendant, Dr. Stonefeld 33. points. First, in order to rebut Ms. make two would Rappley's testify recantation, he would about assign specific possible to a level of that it was Kayla's probability to the truthfulness of scientific allegation in the case. Dr. of sexual assault testify would that no scientific basis exists to Stonefeld is truthful in a conclude whether a recanted accusation though study particular case, claimed that 92% even studied recanted later reaffirmed the children who original their accusation. Second, Dr. would state that the Stonefeld Kayla

cognitive graphic technique interview used with thereby guarantee rebutting results, does not reliable reliability of his inter- Mr. Juoni's about the opening technique. In the State view its statement "nationally- employed Mr. claimed that Juoni recognized system questioning for child sexual assault "designed victims" that is elicit answers that are conformity Mr. Juoni that the with truth.” testified cognitive graphic process ais that obtains interview from children. Dr. Stonefeld "accurate information ..." testify the duration and manner in would also case which the interview was conducted reliability questions raised process. about the of the interview appeals Judge court of Chief Thomas 35. As "[I]n dissent, short, Cane in his Stonefeld was wrote going testify on as to the scientific limitations fairly inferences that could be drawn from the use of a cognitive graphic interview or the fact that a child had prior recanted a claim of sexual abuse." objected ¶ 36. The State to Dr. Stonefeld's testi- ground mony on the that Dr. Stonefeld was not suffi- ciently qualified testify concerning these issues. The argued any defendant limitations of Dr. Stonefeld's qualifications regarding experience actual hands-on perceived by go weight the circuit court to the of his testimony, admissibility, not its and could be raised argument. the State on cross-examination and in admissibility expert opinion ¶ 37. The of testi- mony lies in the discretion of the circuit A court.24 erroneously circuit court exercises its discretion if it neglects makes an error of law or to base its decision upon facts in the record.25 The circuit court in the upon case based its decision the in facts question record. The then is whether the circuit court applied legal principles the correct to the facts of any questions record.26This court decides of law which may during arise its review an exercise discretion independently ap- of the circuit court and court of peals.27

24 28, Ripp, 113, 67, Martindale v. 2001 WI 2d 246 Wis. ¶ 698; Watson, 629 N.W.2d State v. 167, 186, 227 2dWis. 595 (1999). N.W.2d 403 25 235, King King, 248, v. 224 2dWis. 590 N.W.2d 480 (1999).

26Martindale, 113, (quoting 2001 WI 29 State v. Woll man, (1979)). 459, 464, 86 Wis. 2d 273 N.W.2d 225 See also Watson, 186; Pittman, 227 Wis. 2d at v. 174 State Wis. 2d (1993). 268, 496 74 N.W.2d 27 (1999). King, 235, 248, 2dWis. N.W.2d applicable legal principles to the The court One, the circuit must case are two-fold. expert evidentiary applicable to rules

adhere to two, the defendant asserted witnesses, and because his consti- violate evidence would exclusion defense, court the circuit tutional principles making constitutional law must consider evidentiary ruling. its applicable evidentiary

¶ 39. We first consider the governed by Testimony of an witness rules. specialized § provides if 907.02, Wis. Stat. which knowledge of fact to understand will assist trier issue, the witness or to determine a fact evidence may testify. provision This "continues the tradition of liberally admitting expert testimony" in Wisconsin.28 Stat. 907.02 states: Wisconsin scientific, technical, specialized knowledge If or other or the trier of fact to understand will assist issue, qualified an a fact in witness as to determine skill, training, expert by knowledge, experience, or education, may testify opinion thereto in form an or otherwise. give qualified an 40. Whether a witness "is upon superior

opinion depends whether he or she has question knowledge precise in the area in which the Having automatically a medical license does not lies."29 testimony qualify every person to offer on issue 28 Blinka, 7 Daniel Wisconsin Practice: Wisconsin Evi 2001). (2d 702.202, § at 478 ed. dence 29 357, 370, Shoupe, v. 2d Tanner Wis. 596 N.W.2d (Ct. 1999). App. in the field of medicine. If the witness has no scientific, specialized knowledge technical, or other about the particular opinion issues in the then the case witness's enough probative.30 is not reliable to be apply legal ¶ 41. The circuit court was to these principles to determine whether Dr. Stonefeld was testify qualified to about limited issues for which his testimony proffered. was The circuit court heard the following relating qualifications. facts to Dr. Stonefeld's training

¶ 42. Dr. has Stonefeld substantial and experience psychiatrist neurologist. aas and He has spent approximately years physician specializ- aas ing neurology psychiatry. diplómate in both He is a of the American Board of Forensic Examiners, with a fellowship Royal Society at the of Medicine and the Academy Psychosomatic American of patient Medicine. His practice is in direct care and focuses 80% psychiatry neurology. and 20% in He has testified anas expert witness about 30-40 times.

¶ 43. Dr. Stonefeld has counseled 10-15 adults who were of child survivors abuse and is familiar with regarding literature sexual assault cases. He has coun- seled two or three children who were victims of child training however, Dr. has, abuse. Stonefeld had limited experience in and with recantation and children. 30The admissibility an expert witness depends qualifications, on combination of the witness's relevancy testimony, the assistance of the trier fact and considerations set forth in Wis. 904.03, namely, probative § Stat. whether out value is weighed by danger prejudice, of unfair confusion of the issues, misleading jury, or or considerations undue delay, time, presentation waste of or needless of cumulative Blinka, Wisconsin Practice: Wisconsin Evi evidence. 7 Daniel (2d 2001). dence 702.202, at 480-81 ed. Although

¶ not attended 44. Dr. Stonefeld has programs specific and had issue recantation on the study Rappley to which Ms. read the recantation he in in which literature the areas referred, he had read especially testify preparation trial, in in for the was the area of recantation. explained

¶ he 90% of what Dr. Stonefeld 45. tech- and was trained to do involved interview does professional expe- niques. has, however, He had limited cognitive interviewing or in the rience in children interviewing graphic technique. testimony

¶ was to be limited 46. Dr. Stonefeld's scope. testify regarding He how the statistics in was to returning original to their accusation "recanters" about complain- help of a determine the truthfulness does not testify particular He was to about ant case. be limited conclusions that could drawn from sta- Rappley presented to the tistics on recantation Ms. jury. testify regarding he inter- Furthermore was to techniques. viewing gist ruling of the circuit court's 47. The testimony expert witness that Dr.

exclude the was extensively expe- studied and had no Stonefeld had not child interview- rience with recantation or ing techniques. sexual abuse circuit concluded The court therefore special- did that Dr. Stonefeld not meet the standard cognitive knowledge ized graphic in recantation and in the testify technique as an on interview The circuit court also concluded that the those matters. likely Stonefeld would was not Dr. understanding jury assist the the evidence. In the of its discretion to admit or exercise expert, of the defendant's exclude the give not, however, circuit did to the court consideration presented by second issue of law the defendant in the namely, bar, at case the defendant's constitutional claim expert opinion deprived that exclusion of evidence right present considering him of his to a defense. In only qualifications testify Dr. Stonefeld's to on the issues, limited the circuit court concluded that it would expert exercise its to exclude discretion witness as being qualified testify not to on these limited issues. The circuit court's failure to consider the constitutional presented by exercising claims defendant its discretion of was an error law.

¶ 49. This court must therefore determine as a matter of law whether the defendant was denied his right present constitutional to a defense when the expert testimony.31 circuit court excluded the If the right defendant was denied his constitutional erroneously defense, the circuit court exer- expert cised its discretion to exclude the witness testi- mony. attacking

¶ 50. The defendant is the constitu- § tionality of 907.02, Wis. Stat. of the rule evidence relating to admission wit- Supreme nesses. Indeed he could not. The U.S. Court has declared that states have broad latitude under the excluding U.S. Constitution to establish rules 31 Dodson, 65, 69-70, State v. 219 2dWis. N.W.2d Cf. (1998) (determination of whether Wis. Stat. 972.11 deprives rights question defendant of his constitutional is a independently constitutional fact be determined by this court); Pulizzano, 633, 648, v. State 2dWis. 456 N.W.2d 325 (1990) (same) (see n.17.) additional citations in ¶ trials. An accused's

from criminal subject to reasonable restrictions.32 evidence is application an Nevertheless, eviden- explained previously tiary may, in our as we rule rape application statute, shield discussion of the abridge impermissibly an accused's The constitutional defense certain circumstances. present 907.02, in case whether Wis. Stat. issue upon the circuit court the rule of evidence which applied Stonefeld, Dr. in as excluded infringed upon impermissibly present case, right present to a defendant's defense. Supreme has 52. The U.S. Court set forth

following a state's rules exclud- test to determine when abridge right ing an accused's to defense evidence abridgment present There is no of the a defense: right present long to a defense so as the rules accused's 'arbitrary' 'disproportionate "are not or to of evidence "33 they designed purposes The U.S. are serve.' Supreme went on to state that the exclusion of Court

32 (1998). 303, Scheffer, United v. 523 U.S. 308 States "may, present appropriate in The accused's evidence cases, legitimate in the to accommodate other interests bow 284, process." Mississippi, criminal trial Chambers v. 410 U.S. (1973). 295 proposition

"Chambers therefore does not stand for the opportunity a fair to defend himself the defendant is denied whenever a state or federal rule excludes favorable evidence." (1998). 303, Scheffer, v. 523 U.S. 316 United States

33 Arkansas, v. Scheffer, (quoting 523 U.S. at 308 Rock 483 Lucas, 145, 44, (1987), citing v. Michigan U.S. 500 U.S. 56 (1991)). 151 526 "unconstitutionally arbitrary dispropor- evidence is or only infringed upon weighty tionate where it has weighty interest of accused."34The interest of the defendant is to "fundamental elements" his defense.35

¶ 53. For the defendant to establish a constitu- admissibility proffered expert tional to the of the in witness case, the defendant satisfy two-part inquiry, inquiry must similar to the developed determining has this court in whether the application rape excluding shield statute certain deprives rights an accused of constitutional two-part inquiry a defense. This enables a circuit court determine the accused's interest Rock, Scheffer, (citing at 58; 523 U.S. at U.S. Chambers, Texas, 302; 410 U.S. at v. Washington 388 U.S. (1967)). 22-23 The appeals explained court of has principles these State (Ct. Johnson, 472, 479, v. 2dWis. App. 348 N.W.2d 196 1984) (citations omitted), as follows: ingredients process ofOne the essential due in criminal trial opportunity’ against the to a is fair to defend the State's corollary principle present accusations. ... A to this is the to competent Important rights relevant and evidence. ... as these are, they They may legitimate are not absolute. to bow other state process. competing in the criminal interests trial These state interests, however, must be substantial to the overcome claim

the accused. ... procedural may Thus a trial court's decision on a at trial issue nominally discretionary, authority may be labeled hut the court's process not be exercised until it accommodates the accused's due rights interest, compelling a defense. state Without ruling may opportunity the court's interfere with the accused's jury. crucial evidence to the 35Scheffer, 523 U.S. at 315.

527 admitting whether the and to determine the evidence clearly the to the defense and is central arbitrary disproportion- and of the evidence is exclusion purpose exclusion, so that of the rule of ate to the [s] of the elements "undermine fundamental exclusion defendant's defense."36 part inquiry,

¶ the defendant the the In first through satisfy following the four factors must each of proof. The must show: an offer of defendant 1) testimony expert witness met the The governing of Wis. Stat. 907.02

standards testimony.37 expert admission of 2) clearly rel- expert was The witness's a material in this case.38

evant issue 3) necessary to was The witness's defendant's case.39 36Id. first and second factors of the This factor is similar asking

Pulizzano test 19 above. Instead of set forth ¶ the acts prior sexual act occurred whether whether other, case closely question each resemble may its properly the circuit court exercise discretion to whether testimony. admit the third factor of the Pulizzano This factor is similar to test set forth in above. of the Pulizzano similar to fourth This factor is factor test forth in 19 above. set

4) probative The value the of the expert outweighed preju-

defendant's witness its dicial effect.40 successfully

¶ 55. After the defendant satisfies right these four factors to present establish constitutional expert testimony, a court undertakes the part inquiry hy determining second whether the proffered defendant's evidence is outweighed by compelling nonetheless the State's inter- est to exclude evidence.41

¶ 56. conclude, We for the below, reasons forth set that the defendant in the has case met the four part inquiry factors of the first of the also has met part inquiry. Accordingly, second exclusion of the evidence violated the defendant's constitutional a defense. expert First, of the witness met the standards of Wis. Stat. 907.02. Because the admissibility discretionary witness is with regard- court, the circuit that, the defendant must show presented, less of constitutional considerations had the circuit evidence, court admitted the the circuit upheld court's exercise its discretion would have been by reviewing court. judicial

¶ 58. It is well settled that discretion is proper judgment definition an exercise of that could 40 This is fifth factor similar to the factor of the Pulizzano test forth in 19¶ set above. inquiry inquiry This in the similar to the Pulizzano test

set forth above. by opposite

reasonably permit another an conclusion reviewing judge fact the circuit court.42 The or exercised its discretion in the case court expert does not neces- evidence exclude the sarily or was not admissible mean that that the evidence was irrelevant. Indeed, we that had the circuit 59. conclude discretion to admit the testi-

court exercised its discretionary mony present case, in the decision upheld by Dr. has this court. Stonefeld have been would testify person qualifications to knowl- sufficient as edgeable meaning of statistical data and about the interviewing processes techniques. and On the about training knowledge, Dr. Stonefeld had and basis his going topics upon expertise he was in limited which testify. specific to match creden- He did not have experts. He did not have to be tials of the State's paper upon which the familiar with the recantation relied. State's witness rel- Second, Dr. Stonefeld's was credibility to a material issue this case: the

evant credibility Kayla central and the defendant. Indeed was prosecution the State's and defendant's to both Kayla the defendant and took claim innocence. Both alleged In and denied the sexual contact. the stand prosecution, had to order to the State succeed Kayla's contradictory statements introduce out-of-court accusing attempt why her show statements denying more he defendant were reliable than those explain why her. The State had to her an- assaulted 42 66, Hartung Hartung, v. 58, 2d 306 N.W.2d Wis. Wurtz, 800-01, v. (1981); State 2d 416 N.W.2d 623 Wis. (Ct. 1987). App. change depending swers would on the circumstances under which the statements were made. Similarly,

¶ 61. for a successful defense the defen- explain dant had to undermine the State's case and to why Kayla's statements favorable to him were reli- as gave accusing able or more reliable than those she him of sexual contact with her.

¶ Therefore, 62. because Dr. Stonefeld's testi- mony designed was to witnesses, undermine the State's Kayla's it was relevant to material issue in case, the credibility. and the defendant's testimony ¶ Third, 63. Dr. Stonefeld's was neces- sary shaping the to defendant's defense. The case was up experts. upon as a battle of -The State relied its experts. The defendant had none. experts

¶ 64. The State's use of its and the inability espe- produce expert defendant's an to was cially damaging to the defense this case. The State's any witnesses, give witnesses, without rebuttal were able to impression Kayla's the recantation was either inconsequential perhaps or of even evidence the truth- give impres- fulness her initial accusation and to the cognitive graphic technique sion that the interview was "nationally recognized system questioning for child "designed assault victims" that elicit answers that conformity are in with the truth" and obtains "accurate information from children." impressions

¶ 65. Those were further enhanced by closing argument, the State's which commented on testimony the defendant's failure to rebut expert argument closing State's two witnesses. In prosecutor referred twice to the defendant's failure to prosecutor rebut the State's The witnesses. stated: "That common aided in sense is this case testimony Rappley . . unrebutted Miss Mimi . ." Ty going [Juoni] prosecutor "And was also stated: The using, using questions through very particular what recognized testimony nationally unrebutted is—the —a garnering system sexual information about for accurate added.) (Emphasis assaults." jury ¶ know, course, that the did not 66. The inability prosecutor's caused the defendant's efforts jury testimony The the State's witnesses. rebut believing, guilty, apparently defendant with found the Rappley's Ms. and Mr. Juoni's testi- the assistance of mony, Kayla's out-of-court accusations were more recanting testimony the accusa- reliable than her trial tions. jury opportunity not afforded the 67. The was concerning Dr. observations

consider Stonefeld's any practical could conclusions that be limitations fairly Rappley and of Ms. Mr. drawn from Juoni. probative Fourth, of Dr. value outweighed preju- have its would

Stonefeld's argues that Dr. dicial effect. The State Stonefeld's testimony prejudicial it have a effect because would jury. The that Dr. mislead the State contends would background, professional title, and use of a Stonefeld's vocabulary might appearance of an create the technical expertise credibility Dr. did in and that Stonefeld not give testimony possess, jury his fact and the would weight. conclude that the State could have undue We by any challenging problem Dr. overcome such arguing by on and about Stonefeld cross-examination jury. probative to the the value his argued expert that no 69. The State further qualifications, his her should have witness, whatever or testify behalf of the defendant about allowed to on been

532 expert testimony statistics, the recantation because no jury understanding to the was needed assist in the by argument. statistics. We are not convinced this subject jurors, judges, is a Statistics on which as well as may very "[t]hat well need Furthermore, assistance. lay ordinary may intelligence witness under- also subject opin- stand the matter does not mean that the expert ion of an in field would not be of to assistance understanding the trier fact in the evidence or determining a fact issue."43 Regarding inquiry,

¶ 70. second proffered defendant’s evidence is outweighed any by compelling State interest exclude the evidence. The defendant's and interest presenting expert testimony measured argues first four factors set forth The above.44 State compelling it has a interest exclude the evi- dence. It contends that the circuit court's exercise its testimony, discretion exclude the witness even when circuit court fails to consider the defendant's claim, constitutional both assures fairness and reliabil- ity guilt in the ascertainment of or innocence. The State expert testimony also that the asserts admission of the jury, explained would have misled the as we above. ¶ 71. Because conclude that Dr. we Stonefeld's expert testimony admissible, was necessary case, was and relevant to the defendant's 43 Watson, 187, v. State 227 Wis. 2d 595 N.W.2d (1999) Eichman, 552, 569, (quoting State Wis. 2d v. (1990)). N.W.2d 143 analysis excep a similar in admitting For evidence as an statute, Pulizzano, rape tion v. to the shield see State 155 Wis. (1990). 656-57, 2d 325 N.W.2d outweighed testimony probative of the the value that prejudicial that the effect, we determine State's its excluding a in evidence on the basis of the interest discretionary circuit court that failed to decision of the compel- weigh not so constitutional considerations was constitutionally outweighed ling that it the defendant's protected presenting in a interest defense. considering parts of the in- After the two 72. quiry where, as forth, have set we conclude we challenges the circuit court's evi- the defendant here, ruling grounds, dentiary the on circuit constitutional discretionary expert exclusion of the defendant's court's purposes expert disproportionate to the the witness is designed purpose The rule to serve. of the witness expert is rule to ensure that relevant evidence witness presented irrelevant, the of and is non-probative trier fact case, In the

evidence is excluded. testimony expert the as a of witness was admissible proper a and was exercise of circuit court's discretion necessary, probative, reliable, relevant, material, expert helpful. circuit The court's exclusion testimony infringed upon "weighty witness interest"45 significantly impaired of defendant it because ability defense in the defendant's case. contrary summary, conclude, In we to the appeals, court that the circuit court

decision erroneously excluding exercised its discretion reach the defendant's witness. We exercising discretion to conclusion because its this expert witness, exclude defendant's account, to take into as the circuit court failed 45Scheffer, U.S. at 308. requested,

defendant whether the defendant was de- right nied his constitutional to a defense. In applying two-part inquiry forth, the we have set we expert conclude of the that exclusion of the techniques witness about recantation and interview right denied the defendant his constitutional to clearly Accordingly, central to his defense. we appeals reverse the decision court of and remand to the cause circuit court for a new trial. By appeals the Court.—The decision of the court of reversed the cause remanded. (concurring). ques ¶ 74. SYKES, DIANE S. J. The tion in case is this whether the trial court's discretion ary evidentiary deprived on decisions certain issues defendant of his to a defense under the agree completely Fifth and Sixth Amendments. I with majority's rape resolution of the shield law issue Pulizzano, under State v. 2d 633, 456 N.W.2d Wis. (1990). agree generally majority's ¶ I also with the analysis of the trial to court's decision exclude the § expert Adap- defense witness under Wis. 907.02. Stat. approach purposes tation of the Pulizzano for expert provides in witness issue this case a reasonable enough method which to balance the defendant's against present in defense the state's interest reliability controlling and fairness of the criminal process through trial the rules of evidence. separately my emphasize I 76. write concern constitutionalizing discretionary

about the multitude of evidentiary daily that occur decisions on basis In criminal trials in the circuit of this courts state. gen- agree position sense, I with the dissent's that we erally judges engage require should circuit court gymnastics, in order to issue "mental convoluted admissibility at on of evidence." Dissent

decisions for constitutional dimension 90. But case, refusal to in this the circuit court's witness issue expert's testimony under Wis. the defense admit easily upheld on the deferential Stat. 907.02 would be of discretion" standard review. "erroneous exercise my ¶ issue comes view, In the constitutional 77. merely play a criminal case into here not because this is "right present a a defense" and the accused has process, pursuant confrontation, com- due and guarantees pulsory process Fifth of the and Sixth every evidentiary Otherwise, rul- Amendments. almost ing be said to have constitu- in a criminal case could implications. tional be- Rather, 78. the constitutional issue arises expert's testimony, excluded

cause the defense application rule, circuit court's of the witness implicated "weighty and a interest of the accused" significantly element of the undermined a fundamental meaning Arkansas, 483 within the of Rock v. defense (1987), Mississippi, U.S. 44, U.S. Chambers v. (1973), Washington Texas, 14, v. 388 U.S. 302-03 (1967). United v. 523 U.S. Scheffer, 22-23 See States (1998). 303, 308, depended The fate in case defendant's this entirely Kayla's jury's

almost on evaluation turned recantation. The outcome of case on believability Kayla's prior out-of-court statement improperly had her, the defendant touched which jury against had denial to reconcile her in-court any improper touching had occurred. The State experts attempt in an introduced the of two put the recantation issue into "scientific"context: social testified about certain statistical worker who findings regarding in child cases, recantation abuse and protective investigator services who had inter- Kayla reliability viewed and who vouched for the of the "cognitive graphic" technique interview he had used to girl. interview the little proposed expert,

¶ 80. The defense while not a specialist phenomenon in the of child abuse recanta- physician years experience tion, awas licensed with 33 psychiatry neurology, including and at least some treating experience mostly abuse, victims child as generally adults. He was familiar with literature on study abuse, had sexual and undertaken some of the preparation Ninety per- recantation issue for trial. practice interviewing pa- cent of his clinical involved He offer tients. was to rebuttal to the State's experts reliability techniques on the of interview of statistical data on limitations recantation. importance jury's

¶ 81. the critical Given Kayla's evaluation of out-of-court accusation vis-á-vis recantation, her in-court and the State because had expert testimony subject, introduced on the the circuit discretionary court's otherwise decision to exclude the proffered expert took on a di- defense constitutional If mension. it were not so central to the defendant's qualify expert case, the whether to decision defense § gone way under Wis. Stat. 907.02 could have either upheld. judgment and been It was a close call. The objections expert's qualifications to could reason- ably going weight be characterized to as his admissibility. and not its With the constitu- agree majority scales, tional thumb on the I with the it was an erroneous exercise of discretion to testimony. exclude his suggest

¶ 82. The dissent to that evidence seems by applying deemed inadmissible a circuit court thus irrelevant, is definition and rales of evidence violation, because there can be no constitutional right to does not include the defense ¶¶ 86, 91. But Dissent at irrelevant evidence. and that is otherwise relevant admissible evidence completely rules reasons often excluded under the for actual factual unrelated considerations reliability relevancy usually and related to —reasons (e.g., hearsay, evidence, character fairness protected by privilege). That evidence is inad- certain necessarily by operation not of the rules does missible make it irrelevant. expert's was Here, the defense 83. jury's

highly core to the evaluation of the relevant believability Kayla's proposition in the case—the light her recanta- out-of-court accusation in-court response State's tion of it—and it was offered testimony regarding explanatory expert proposi- experts it, the tion. Without State's went unrebutted— expert of the defense occurred in the exclusion request middle and the for a trial, defense Un- continuance to secure another was denied. evidentiary circumstances, court's der these circuit ruling excluding expert's testimony under the defense an of discre- Wis. Stat. 907.02 was erroneous exercise infringed upon element tion because it a fundamental of the defense and therefore violated the defendant's Rock, a defense. See 483 U.S. at Washington, Chambers, 302-03, U.S. at at U.S. 22-23. convinced, however, I multi- am that the inquiry

factor, Pulizzano-based must be undertaken expert any time a criminal defendant offers an witness. experts implicate can all defense be said to Not "weighty" interests of the accused or fundamental ele- only they defense, ments of the and it is when do that scrutiny beyond applicable evidentiary rule will be necessary. The standards in articulated Wis. accomplish Stat. appropri- 907.02 are sufficient to balancing ordinary ate in interests case. See (a deprived Scheffer, 523 U.S. at 316 defendant is not right present merely his to a defense because state or him.) federal rule excludes evidence favorable to apply I would the test set forth in the majority opinion only proffered expert when the testi- mony clearly disputed is so relevant to a central issue reasonably the case that its can exclusion be seen as implicating right present the constitutional a de- proffered centrally fense. Where the evidence is so question relevant, a constitutional arises, an evalu- necessity ation of the relative to the against defendant's case as the other interests at stake appropriate Accordingly, is in order to resolve it. I respectfully concur. agree (dissenting). 86. N. CROOKS, PATRICK J. I majority opinion presented

with the on the first issue this case—that the defendant was not denied his con- right stitutional evidence when the circuit prior court excluded evidence of the child victim's respectfully sexual contact with another child. I dissent, majority however, because on the issue, second opinion ignores the rule that a defendant does not have a constitutional irrelevant or otherwise Supreme inadmissible evidence. As the United States recently, stated, Court has subject to the evidence, rules of in order to ensure only

"that reliable evidence is introduced at trial." (1998). United States v. Scheffer, 523 U.S. 308-309 I conclude, would therefore, that the defendant was not defense to

denied his constitutional its and the circuit court exercised discretion when testimony Dr. witness, defendant's the excluded Stonefeld. majority opinion the court of 87. The reverses discretionary

appeals also court's and, thus, the circuit expert testimony from Dr. Stonefeld. decision to exclude majority appeals' upheld the circuit court's The court of discretionary used decision because "the trial court logical reasoning decision on the facts based its George, 00-2830-CR, un- the v. St. No. record." State (Wis. 2001). slip op., App. published In 5, Ct. June majority answering questions, the the constitutional ignore to bases decision seems the circuit court's for its preclude circuit relied on to the evidence. The court determining § 907.02, in Wis. Stat. the Dr. the from was defendant wished offer Stonefeld The circuit concluded that the evi- inadmissible. court likely jury help decision, was arrive at a dence required experience Dr. did not since Stonefeld have on the or education on recantation and mechanics interviewing in child sexual cases. assault answering majority,

¶ 88. the con- Unlike question evidentiary stitutional of whether the decision to exclude denied the defen- Dr. Stonefeld's defense, his I dant constitutional rely discretionary decision, on the circuit court's would ruling. had in the record its which a reasonable basis for Hammer, ¶¶ 92, 43, 49, See State v. 2000 WI 236 Wis. (acknowledging questions 2d 613 N.W.2d629 significance are reviewed def- constitutional without answering court, circuit constitu- erence but questions tional on circuit discretion- based court's decisions);1 ary evidentiary Robinson, State v. 146 Wis. (1988) (reviewing 315, 330-332, 2d 431 N.W.2d165 evidentiary circuit court's decision under abuse of (now discretion) discretion the erroneous exercise answering ques standard, and then the constitutional upheld evidentiary based on tion the circuit court's decision); Daun, 542, see also v. 2d 533, Grube 213 Wis. ("If (1997) N.W.2d 570 851 a basis reasonable for the it."). ruling exists, circuit court's we will not disturb ¶ 89. It is well established defendant does right present any have the not constitutional to and all support in of his claim. Chambers v. Missis (1973); sippi, Hammer, 410 302 284, 92, U.S. 2000 WI ("[Defendants present ¶ 42 cannot irrelevant evi dence.");Robinson, Johnson, 146 Wis. 2d at State v. 332; (1984) (the right 479, 472, 118 Wis. 2d 348 N.W.2d196 present competent to relevant and evidence is the defense). corollary right to the to Further previously recognized more, we have that the circuit proper admissibility court is the arbiter of the of evidence, Grube, 542, see 213 Wis. 2d and at that this evidentiary reviews an court decisions under erroneous Id.; Robinson, of exercise discretion standard. 146 Wis. 332. 2d at Although majority opinion correctly

¶ 90. the evidentiary including notes that an the decision, admis- sibility expert opinion testimony, of is reviewed under of standard, the erroneous exercise discretion the ma- jority opinion apply then fails to here. See standard

1 I disagree majority's with the characterization State v. Hammer, 92, 686, 629, 2000 236 Wis. 2d N.W.2d WI 613 Walker, (1990), State v. 2d as Wis. N.W.2d questions the "ignoring usual standard review that consti independently fact are this court." tutional determined op. at Majority 16 n.17. ¶ majority

majority op. The skirts this standard at exercising by stating its to admit or that in discretion testimony, the circuit court did Dr. exclude Stonefeld's give to whether exclusion consideration George deprive St. of his would majority effect, 48. In a defense. Id. at evidentiary asking judges longer no to base circuit court majority Rather, of evidence. decisions on rules judges engage nothing requires now circuit court gymnastics, in mental order to issue less than difficult admissibility of evidence. Wisconsin decisions on only apply judges rules circuit court must now not question evidence, but then whether court should actually apply other- the rules of evidence exclude light aof defendant's wise inadmissible evidence Here, a defense. constitutional majority court should have reasons that circuit exercised its discretion to admit the so-called testimony, it, rather than exclude on the that the basis right present denied constitutional to a defendant is his though defense, the rules of evidence were even when applied, the evidence deemed to be inadmissible was judge. Majority op. ¶ the court at 73. circuit majority's complicated approach The is not necessary, however, not have because defendant does right, present otherwise, to irrel constitutional or evant or otherwise inadmissible evidence. State v. (1990); Walker, 192, 158, 154 Wis. 2d 453 N.W.2d 127 Robinson, 146 Wis. 2d 332. The rules of evidence are "arbitrary they ap disproportionate" not or where are plied or to exclude irrelevant otherwise inadmissible (The right U.S. to Scheffer, evidence. See at 308-309 subject evidence is the reasonable restric evidentiary legitimate that inter tions of rules serve including "ensuring only ests, that is reliable evidence trial."); at also see United States v. introduced (1982) (to Valenzuela-Bernal, 458 U.S. establish prove a Sixth Amendment violation defendant must testimony would have relevant, material, been and defense). majority opinion ignores vital to the reality The George testimony that St. was not limited to the George of Dr: Stonefeld. St. could have hired another knowledge expe- witness, one with sufficient rience on the issues in relevant this case.

¶ 92. Based on the circuit court's reasonable deci- likely sion that Dr. Stonefeld's was not jury, specialized assist the and that he did not have the knowledge, experience, training skill, or education on topics, appeals', I relevant would affirm the court deprived decision in full. The defendant was not of his constitutional a defense, because, as appeals posses "do[es] the court noted, he not present any constitutional support and all evidence George, of a claim." St. 00-2830-CR, No. (citing 302); Chambers, Hammer, 410 U.S. at see also agree appeals ¶92, 2000 WI 42.1 with court of properly the circuit court exercised its discretion concluding Dr. Stonefeld's did not meet requirements defendant, of Wis. Stat. 907.02. The deprived any right by therefore, constitutional the circuit that he court's conclusion could not requirements that does not meet admissibility. for I evidence code would come to the same conclusion as the circuit court and the court of appeals respectfully therefore, I case, did in this dissent. I state am authorized to that Justice JON E joins WILCOX this dissent.

Case Details

Case Name: State v. St. George

Court Name: Wisconsin Supreme Court

Date Published: May 8, 2002

Citation: 643 N.W.2d 777

Docket Number: 00-2830-CR

Court Abbreviation: Wis.