99-3266 State v. Rizzo

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Only if the circuit court determines on remand that the defendant was entitled to a psychological examination is a new trial necessary.

“We agree with the court of appeals that Dr. Pucci’s testimony made the requisite comparison between D.F.’s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci’s testimony would have been Jensen evidence only if she had used magic words such as ‘D.F.’s behaviors are consistent with that of persons known to be sexual assault victims.’ We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor’s questions along with Dr. Pucci’s answer to provide the comparison that is the essence of Jensen evidence. …

“In sum, we conclude that the State introduced Jensen testimony through an expert within the scope of Maday after representing to the circuit court that it would not do so. Consequently, Rizzo was deprived of his right to a pretrial determination under Maday. We determine that the proper remedy under the facts of this case is a remand for the circuit court to determine whether Rizzo was entitled to a pretrial psychological examination of D.F.

Only if the court determines on remand that Rizzo was entitled to a psychological examination is a new trial necessary. In addition, we determine that the court of appeals erred in concluding that Rizzo was improperly denied access to D.F.’s treatment records. Accordingly, we reverse the court of appeals and remand for the circuit court to make a determination under Maday.”

Reversed and remanded.

CONCURRING OPINION: Sykes, J. “The central question in this case concerns the scope of Jensen for purposes of Maday. I disagree with the majority’s conclusion that the expert testimony at issue in this case is Jensen evidence. Jensen must be read in the context of its facts, in light of the type of evidence actually in dispute in that case. Alternatively, if the expert testimony at issue in this case comes under the umbrella of Jensen, I would conclude that this particular type of Jensen evidence does not trigger a Maday request for a defense psychological examination of the victim.”

Court of Appeals; Bradley, J.

Attorneys:

For Appellant: Franklyn M. Gimbel, Kathryn A. Keppel, Milwaukee

For Respondent: Jeffrey J. Kassel, James E. Doyle, Madison