Coy v. Iowa
COMMENT: State statute that permitted child witness to testify behind screen, so that a criminal defendant could observe the witness but that witness was shielded from seeing the defendant, violates the Confrontation Clause of the Sixth Amendment. Court leaves open the possibility that exceptions to this rule may exist "when necessary to further an important public policy," and left open the possibility that in a particular case, such a measure may be constitutional if there are individualized findings that a particular witness needed special protection. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, supra.
See also White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992), where the court held that the Confrontation Clause is not violated upon admission of hearsay that is admissible under a "firmly rooted" exception to the hearsay rule, such as the "excited utterance" exception (e.g. Wis. Stat. §908.03(2)).
See State v. Thomas, 150 Wis. 2d 374, 442 N.W. 2d 10 (1989), where the court, in the wake of Coy v. Iowa upheld the constitutionality and the application of portions of Wis. Stat. §967.04(7) which provides a procedure in criminal proceedings for videotaping a deposition of a child victim/witness for use at trial upon a particularized showing of need for special protection.
Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed 2d 638 (1990)
COMMENT: To meet requirements of the Confrontation Clause, admissible hearsay that is not based in a firmly rooted exception to the hearsay rule must have "particularized guarantees of trustworthiness" and must be so trustworthy that adversarial testing would add little to its reliability. In child abuse prosecutions, factors used to determine trustworthiness guarantees – such as the child’s mental state and the use of terminology unexpected of a child of similar age – must relate to whether the child was particularly likely to be telling the truth when the statement was made.
Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 2d 666 (1990)
COMMENT: Court ruled that live testimony of a child victim witness by one-way closed circuit television advanced a significant state interest in protecting the child, and did not violate the Confrontation Clause. The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them. A State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face an accuser in court. The requisite finding of need for special protection must be case specific. Where such a need is shown, then live testimony by one-way closed circuit television was constitutional.
State ex rel. Simpson v. Schwarz, 2002 WI App 7, 250 Wis.2d 214, 640 N.W.2d 527 (Ct. App. 2001)
COMMENT: Simpson, a sex offender, violated the rules of his probation by having sexual contact with a six-year-old girl. The victim was not called as a witness at the final revocation hearing. Instead, the department presented evidence of the victim's hearsay statements to her mother and the police. The ALJ found that the hearsay statements were reliable and used those statements as the basis for a finding that Simpson violated the rules of his probation.
The Court of Appeals held that it was reversible error for the ALJ to receive evidence of the victim's hearsay statements without finding, in the words of Morrissey v. Brewer, that there was "good cause for not allowing confrontation."
In other words, hearsay evidence is generally inadmissible at a final revocation hearing because it deprives an offender of the opportunity to challenge the reliability of the evidence by shielding its source from cross-examination. Inadmissible hearsay can be converted to admissible hearsay by a finding that there is good cause for not allowing cross-examination. A finding of good cause can be based on a determination that the evidence qualifies for admission under one or more of 24 exceptions to the hearsay rule. See Wis. Stats. §908.03. It can also be based upon a determination that there is good cause to dispense with cross-examination. The latter requires the ALJ to weigh three factors, the relevance of the evidence to a material issue in the case, the reliability of the evidence, and any burdens associated with the production of the witness, including (but not limited to) physical, psychological, and financial burdens.
The ALJ must balance the reliability of the evidence against the burden of producing the source for cross-examination. At a minimum, there must be a determination that the evidence is reliable and the proponent has some reasonable explanation for not calling the source as a witness. As the reliability of the hearsay increases, the need to justify the source’s absence decreases but never to the point where no justification is required. Beyond this, the Court's opinion offers little guidance on what combination of circumstances would warrant a determination that there is good cause to dispense with cross-examination
if the proffered testimony does not fall within one of the exceptions to the hearsay rule (including the residual exception) enumerated in Wis. Stats. §908.03An ALJ has two options when confronted with hearsay evidence that is inadmissible under this decision. The ALJ may exclude the evidence or give the offender an opportunity for cross-examination at an adjourned hearing.
State v. Ballos, 230 Wis. 2d 495, 620 N.W. 2d 177 (1999)
COMMENT: "Generally, when evidence is admissible under a firmly rooted hearsay exception, the Confrontation Clause has been satisfied, and no further showing of particularized guarantees of trustworthiness is required. Such evidence may be excluded, however, ‘if there are unusual circumstances warranting its exclusion.’"
State v. Gilbert, 109 Wis.2d 501, 326 N.W.2d 744 Wis. (1982)
COMMENT: Mother charged with crimes against two children. Ten-year-old daughter-victim subpoenaed to testify against mother at preliminary hearing. Circuit court quashed subpoena to compel testimony.
Child had no statutory, constitutional or common law privilege not to testify. Circuit Court had no authority to quash subpoena to compel testimony on grounds that subpoena was oppressive or unreasonable. That only applies to subpoenas to produce documents.
Adversarial system depends on virtually everybody testifying as needed. However, we should be sensitive and try to protect victims. Those closest to the proceedings can best devise ways to do this, case by case.
See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992); see also, State v. Sorenson, 143 Wis.2d 226 (1988).
State ex rel. Harris v. Schmidt
COMMENT: Harris was being supervised in Tennessee, under the provision of the Uniform Act for Out-of-State Parolee Supervision; State Compacts. He violated the terms of his probation by sexually assaulting his five-year-old stepson. Harris was returned to Wisconsin where his preliminary hearing and final revocation hearing were held. The child did not testify at the hearing, but his statements were brought into evidence through his mother’s testimony. The court ruled as follows:
Note: In State ex rel. Ramy, the court of Appeals stated polygraph results may not be used.
For more information on hearsay, see Gagnon v. Scarpelli, 411 U.S. 776, 93 S.Ct. 1756 (1973), Egerstaffer v. Israel, 756 F.2d 1231 (7th Cir. 1978).
State ex rel. Simpson v. Schwarz, 2002 WI App 7, 250 Wis.2d 214, 640 N.W.2d 527, (Ct. App. 2001)
COMMENT: Simpson, a sex offender, violated the rules of his probation by having sexual contact with a six-year-old girl. The victim was not called as a witness at the final revocation hearing. Instead, the department presented evidence of the victim's hearsay statements to her mother and the police. The ALJ found that the hearsay statements were reliable and used those statements as the basis for a finding that Simpson violated the rules of his probation.
The Court of Appeals held that it was reversible error for the ALJ to receive evidence of the victim's hearsay statements without finding, in the words of Morrissey v. Brewer, that there was "good cause for not allowing confrontation."
In other words, hearsay evidence is generally inadmissible at a final revocation hearing because it deprives an offender of the opportunity to challenge the reliability of the evidence by shielding its source from cross-examination. Inadmissible hearsay can be converted to admissible hearsay by a finding that there is good cause for not allowing cross-examination. A finding of good cause can be based on a determination that the evidence qualifies for admission under one or more of 24 exceptions to the hearsay rule. See Wis. Stats. §908.03. It can also be based upon a determination that there is good cause to dispense with cross-examination. The latter requires the ALJ to weigh three factors, the relevance of the evidence to a material issue in the case, the reliability of the evidence, and any burdens associated with the production of the witness, including (but not limited to) physical, psychological, and financial burdens.
The ALJ must balance the reliability of the evidence against the burden of producing the source for cross-examination. At a minimum, there must be a determination that the evidence is reliable and the proponent has some reasonable explanation for not calling the source as a witness. As the reliability of the hearsay increases, the need to justify the source’s absence decreases but never to the point where no justification is required. Beyond this, the Court's opinion offers little guidance on what combination of circumstances would warrant a determination that there is good cause to dispense with cross-examination
if the proffered testimony does not fall within one of the exceptions to the hearsay rule (including the residual exception) enumerated in Wis. Stats. §908.03An ALJ has two options when confronted with hearsay evidence that is inadmissible under this decision. The ALJ may exclude the evidence or give the offender an opportunity for cross-examination at an adjourned hearing.
State v. Gerald L.C., 194 Wis. 2d 549, 535 N.W. 2d 777 (Ct.App. 1995)
COMMENT: An out of court statement made to police, two weeks after the incident, by the fourteen-year-old daughter of the defendant charged with sexually assaulting her, was admitted at a preliminary hearing, as an excited utterance.
The out of court statement should not have been admitted as an excited utterance, based on three factors to be used to determine when a child makes an excited utterance. The factors are: (1) Whether the child is under ten years old; (2) whether the time between the incident and the child’s report is less than a week; and (3) whether the child first reports the incident to his/her mother. Her statement also does not qualify for admission under the residual exception [Wis. Stat. §908.03(24)], based on the Sorenson factors, restated in State v. Jagielski, 161 Wis. 2d 67 (1991). All this is in spite of the court’s recognition of the "unusually compelling need for admission of hearsay arising from young sexual assault victims’ inability or refusal to express themselves in court when the child and the perpetrator are the sole witnesses." See State v. Sorenson, 143 Wis. 2d (1988) at 243.
State v. Gollon, 115 Wis. 2d 592, 340 N.W. 2d 912 (Ct.App. 1983)
COMMENT: In criminal trial, out of court statement of two six-year-old girls who were victims of sexual assault by defendant were admitted as evidence.
Trial court properly exercised discretion in admitting girls’ out of court statements under excited utterance exception, based on timing of statement and age of children.
But this use of an out of court statement violated the confrontation clause. To satisfy confrontation clause prosecution must either produce or demonstrate unavailability of declarant whose statement it wishes to use against accused, and then show that statement bears indicia of reliability.
When confrontation clause requires testimony, courts can protect child victim-witness in sexual assault cases from aggressive cross-examination and alter courtroom procedures to limit harm to child.
State v. Hanna, 163 Wis. 2d 193, 471 N.W. 2d 238 (Ct.App. 1991)
COMMENT: Four-year-old girl victim of sexual assault by adult female babysitter was almost totally unresponsive to questions at the preliminary hearing. She was declared unavailable as a witness and her out-of-court statements to her mother and grandmother were admitted. The girl was declared unavailable to testify at trial based on similar behavior at a motion hearing. Remanded the proceeding back to the trial court for a new trial.
Witness’s apparent inability to testify truthfully or communicate effectively was not a basis for excluding her testimony. It goes to credibility and weight of evidence.
See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992).
State v. Hanson, 149 Wis. 2d 474, 439 N.W. 2d 133 (Wis. 1989)
COMMENT: Five-year-old sexual assault victim testified at preliminary hearing. Unclear whether she understood difference between "truth" and "lie."
Young child does not have to be formally "sworn." Purpose of oath is to stimulate truthfulness, not to exclude witnesses.
Trial court erred as a matter of law in striking the testimony of child at preliminary hearing, since court exceeded its authority in determining the competence of the child to testify. Competency is no longer the test for the admission of witness testimony. The court should have taken the child’s testimony for what it appeared to be worth and dealt with the deficiency in her testimony by assessing her credibility, an issue to be determined by fact finder in arriving in decision on merits of the case.
Court cautions judges to be sensitive to children who may have useful information but are easily frightened and confused in a courtroom setting, specifically by avoiding asking them questions that make no sense, even to adults.
See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992).
State v. Jagielski, 161 Wis. 2d 67, 467 N.W. 2d 196 (Ct.App. 1991)
COMMENT: In trial resulting in conviction for sexual assault of defendant’s four-year-old step-daughter, court admitted child’s out of court statement to social worker and excluded evidence that, in the same statement to the social worker, she accused other men of similar crimes. Defendant was convicted and appealed.
State v. Sorenson, 143 Wis. 2d 226, 243 (1988) stated five factors to be considered in admitting a child’s statements under the residual exception [Wis. Stat. §908.03(24)] to the hearsay rule: (1) attributes of child, including age; (2) person to whom statements were made; (3) circumstances of statement; (4) content of statement; and (5) corroborating evidence. Based on those factors, the child’s statement was properly admitted in this case.
Exclusion of evidence that child accused other men was abuse of discretion. In rare cases, defendant has right to evidence related to prior sexual assault of victim, in spite of rape shield law. The purpose of that law makes it inapplicable to a child this young.
See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992).
State v. Nelson, 138 Wis. 2d 418, 406 N.W. 2d 385 (Wis. 1987)
COMMENT: The court finds that statements made by a four-year-old sexual assault victim to her therapist are admissible under the "medical examination" exception to the hearsay rule. See Wis. Stat. §908.03(4).
In White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 60 LW 4094 (1992), the U.S. Supreme Court held that the Confrontation Clause is not offended when hearsay is admitted under the "spontaneous declaration" and "medical examination" exceptions to the hearsay rule, without a showing that the declarant was unavailable.
See also Egerstaffer v. Israel, 726 F.2d 1231 (7th Cir. 1984).
State v. Oliver, 161 Wis. 2d 140, 467 N.W. 2d 211 (Ct.App. 1991)
COMMENT: The court uses the analytical framework in State v. Sorenson, 143 Wis. 2d 226 (1988), a case of sexual abuse, to uphold the use of hearsay in a case where a four-year-old boy was physically abused.
And see, Egerstaffer v. Israel, 726 F.2d 1231 (7th Cir. 1984).
State v. Sorenson, 143 Wis. 2d 226, 421 N.W. 2d 77 (1988)
COMMENT: In criminal proceeding dealing with charges of sexual assault, a child victim’s statements made to social worker possessed sufficient guarantees of trustworthiness to be admissible at preliminary hearing under residual hearsay exception. There was no evidence in the record of deliberate fabrication on the part of the child victim, the social worker was experienced in counseling and child sexual abuse cases, the social worker had no possible motive to fabricate or distort statements made to her, the victim’s statements were sufficiently contemporaneous to be considered reliable, the statements established knowledge well beyond ordinary familiarity of a child her age, and other circumstantial evidence corroborated the veracity of the child victim’s statements. See Wis. Stat. §§908.045(1), (4) and (6).
State v. Street, 202 Wis. 2d 533, 551 N.W. 2d 830 (Ct.App. 1996)
COMMENT: The Court of Appeals upheld the use of videotaped depositions of child witnesses in a criminal trial. According to the court, "A video-taped deposition under Sec. 967.04(7), Stat., is the functional equivalent of in-court testimony, with the exceptions that the jury is viewing taped testimony rather than live testimony and the defendant is confronting the witnesses prior to trial rather than at trial."
The Court of Appeals also held that it was permissible for the state to use a screen to keep the child witnesses outside the Defendant’s view, but within sight of the defendant’s attorney, because there was uncontradicted evidence that the children would be traumatized by testifying face-to-face with Street.
State v. Tarantino, 157 Wis. 2d 199, 458 N.W. 2d 582 (Ct.App. 1990)
COMMENT: Applies §908.08 as to videotaped statements of children. (Section 908.08(1) is expressly applicable to parole and probation revocation hearings.)
State v. Thomas, 144 Wis. 2d 876, 425 N.W. 2d 641 (1988)
COMMENT: The trial court did not violate the defendant’s Sixth Amendment right to confrontation when it allowed the State to submit the videotaped deposition of a Child Sexual Assault Victim. Nor, did the trial court violate the client’s right to confrontation by requiring the defendant to sit behind screen so neither he nor the child could directly view one another.
The Court reasoned: (1) The defendant and his attorney were present at the deposition, and were given an opportunity to ask the child questions; (2) the child was unable to give effective testimony in the presence of the defendant, which was demonstrated at the preliminary hearing; (3) the child was very young – eight years old; and (4) the State has a compelling interest in preventing further traumatization of the child by the legal process.
Note: The court did state that it is preferable to have face-to-face confrontation between the defendant and accuser, but this preference must be balanced against what is in the best interest of the child. Decisions to take testimony outside the immediate presence of the defendant must be made on a case-by-case basis.
State v. Thomas, 150 Wis. 2d 374, 442 N.W. 2d 374 (1989)
COMMENT: A child’s videotape deposition under Wis. Stat., §967.04(7) is the functional equivalent of live testimony, so all the essential protections of the confrontation clause – cross-examination, observation of witness demeanor, testimony under oath – were provided.
The United States Supreme Court decision in Coy v. Iowa, 108 S.Ct. 2798 (1988), recognizes that there "may be exceptions to ‘face-to-face’ confrontation" with a child witness "when exceptions are found to be necessary to protect child witnesses from the trauma of usual courtroom testimony."
State v. Wachsmuth, 166 Wis. 2d 1014, 480 N.W. 2d 842 (Ct.App. 1992)
COMMENT: The trial court did not violate Andrew Wachsmuth’s Sixth Amendment right to confrontation by allowing the videotaped deposition of the five-year-old victim to be used at trial.
The Court of Appeals reasoned: (1) The young age of the child; (2) the child had testified in previous court proceedings – it would pose an unreasonable hardship upon the child to testify again; (3) the child had testified in the trial of a co-defendant, Donald Wachsmuth; (4) the defendant and victim were face-to-face during the deposition; (5) defense counsel was able to ask the child questions during the deposition; and (6) the jury was able to view and judge the child’s demeanor on the video tape.