00-2916-CR State v. Davis

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If the defendant’s expert testifies, either implicitly or explicitly, to facts surrounding the crime, the defendant may be compelled to submit to a psychological examination by a State-selected expert.

In this case, involving defendant’s alleged repeated sexual assault of his daughter, because the circuit court never made a determination as to the admissibility of the evidence, we remand for such a determination.

Waiver of the right against self-incrimination in this case depends on the testimony of the expert; it is not waived simply by introducing the expert’s testimony. We therefore reverse the court of appeals’ decision and remand for further proceedings on the issue of waiver as well.

DISSENTING OPINION: Crooks, J. “First, although I agree with the majority opinion that Richard A.P. evidence is admissible, it should be noted that its admissibility is premised on the unique nature of many sexual assault trials, and we should caution Wisconsin courts that the use of character profile evidence should not be extended to other situations.

“Second, I disagree with the majority’s conclusion that the mere introduction of Richard A.P. evidence does not constitute a waiver of the right against self-incrimination.

“I would affirm the court of appeals’ conclusion that a defendant who offers expert testimony to show he or she lacks the psychological profile of a sex offender puts his or her mental status at issue and thereby waives the right against self-incrimination.”

Reversed and remanded.

Review of a decision of the Court of Appeals, Bablitch, J.

Attorneys:

For Appellant: Marguerite M. Moeller, James E. Doyle, Madison

For Respondent: James M. Shellow, Angela Kachelski, Milwaukee