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00-2916 State v. Davis

By: dmc-admin//September 4, 2001//

00-2916 State v. Davis

By: dmc-admin//September 4, 2001//

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“Therefore, we reverse the order of the trial court denying the State’s motion to compel Glenn E. Davis to submit to a reciprocal psychological examination and remand to the trial court to conduct further proceedings consistent with this opinion. …

“A defendant who intends to present Richard A.P. [See, State v. Richard A.P., 223 Wis.2d 777 (Ct. App. 1988)] evidence through an expert is using that expert as a conduit for presenting the defendant’s statements about his or her sexual history, sexual preferences and sexual attitudes. Were the defendant to take the stand and testify about these subjects, he or she would be deemed to have waived his or her privilege and would be required to submit to cross-examination. The defendant cannot be permitted to avoid this result by using an expert as a surrogate. …

“We agree with the State that in a jury trial, the opinion of an expert who has interviewed the defendant and administered a battery of psychological tests will almost certainly be accorded greater weight than the opinion of an expert who has never met the defendant. Therefore, Davis must submit to a psychiatric interview by a state-selected expert or else forego the presentation of the Richard A.P. testimony. To hold otherwise would deprive the State of the only effective means it has of controverting Davis’s proof on whether he has a diagnosable sexual disorder, an issue that he proposes to interject into the case.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Ozaukee County, Wolfgram, J., Brown, J.

Attorneys:

For Appellant: Marguerite M. Moeller, Madison; Sandy A. Williams, Port Washington

For Respondent: James M. Shellow, Milwaukee; Catherine E. Levinson, Milwaukee

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