Impeachment Case Analysis

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The decision is a good candidate for further review in the Wis-consin Supreme Court for a couple of reasons.

First is the court’s rejection of the U.S. Supreme Court’s reasoning in Ohler. Given the decision in Vanlue, which the court of appeals cannot overrule, the court had no option but to reject Ohler.

Nevertheless, its reasoning is ultimately inconsistent with that in Frank, notwithstanding the court’s attempts to distinguish that case. In addition to Frank, the court of appeals has also cited Ohler with approval in another case, State v. Opalewski, 2002 WI App 145, 256 Wis.2d 110, 647 N.W.2d 331.

And in an unpublished case, State v. Nagel, 2002 WL 31312985, the court even cited Ohler as authority for finding a waiver of an objection to use of prior convictions for impeachment purposes.

As a result, the Supreme Court has ample reason to review the decision to decide whether Ohler or Vanlue will be the law in Wisconsin.

An equally good reason for review is Judge Dykman’s dissent, which is clearly the better reasoned of the two decisions on the question of harmless error, and the decision more consistent with prior case law. As Dykman noted, “The credibility of the defendant and of the complainant was critical.”

In case after case in Wisconsin, when there is no corroboration of a complainant’s accusations, and the case is entirely a credibility contest between the complainant and defendant, an error of this magnitude has been held to require a new trial.

Nor is it of any relevance that the complainant may have repeated the allegations to her mother, her father’s girlfriend, social workers, and police, despite the stock that the majority places in this fact.

As the Supreme Court held in State v. Romero, 147 Wis.2d 264, 279, 432 n.W.2d 899, 905 (1988): “The sole issue in this case is whether the complainant or the defendant was telling the truth. There was no evidence of guilt in this case beyond [the complainant’s] testimony. The other state witnesses merely testified about what [the complaint] had told them. It was simply [the complainant’s] word against Romero’s a one-on-one battle of credibility.” (holding a new trial was required after erroneous admission of opinion testimony by lay witnesses)(emphasis added).

Yet, the same sort of evidence that the Supreme Court in Romero concluded constituted a “one-on-one battle of credibility” and was “no evidence of guilt,” the court of appeals inexplicably called, “ample evidence of Gary’s guilt.”

In State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Ct.App.1984), the court also held that, in the absence of any corroboration of the complainant’s accusations by independent evidence, the erroneous admission of the same sort of evidence was prejudicial.

Likewise, in State v. Cuyler, 110 Wis.2d 133, 327 N.W.2d 662 (1983), and in State v. Dunlap, 2000 WI App 251, 239 Wis.2d 423, 620 N.W.2d 398, rev’d on other grounds, 2002 WI 19, the Supreme Court and court of appeals, respectively, held that where credibility was the central issue, the erroneous exclusion of evidence that would bolster the defendant’s credibility required a new trial.

Conspicuously absent from Cuyler is any suggestion, such as that made by the court of appeals in the case at bar, that, because the evidence only went to the defendant’s credibility, without directly affecting the jury’s perception of the complainant’s, there was no prejudice.

Finally, in State v. Faucher, 227 Wis.2d 700, 733, 596 N.W.2d 770, 785 (1999), the Supreme Court noted, “the trial was a credibility contest between [the complainant] and Faucher — the sole witness and the perpetrator of the crime.” The court held that a new trial was required based on the trial court’s failure to strike a biased juror who stated he knew the complainant and knew that she wouldn’t lie.

The issues in these cases are not identical, but the pattern is crystal clear: in a one-on-one credibility battle between a complainant and a defendant, where no other evidence corroborates the complainant’s allegations, errors that affect the credibility of either the complainant or the defendant are prejudicial.

In none of these cases did the court do as the court did here — make the unprecedented and patently incorrect holding that because the evidence affected only the defendant’s credibility, but had no direct effect on the complainant’s, it was not prejudicial.

By contrast, all three cases cited by the court of appeals in support of its conclusion are clearly distinguishable. In State v. Bowie, the Supreme Court went on at great length describing the overwhelming evidence of guilt. Bowie, 284 N.W.2d 613, 618-619.

In Trawitzki, three other witnesses against the de
fendant whose testimony was not affected by the error, and the defendant’s own statements to police, provided substantial corroboration of guilt. Trawitzki, 628 N.W.2d 801, 816.

	Links Wisconsin Court of Appeals Related Article Admitting too many priors harmless error

And in Tkacz, the court noted that, while defense counsel failed to impeach a witness with a prior conviction, it was undisputed that the jury knew the witness was a “convicted felon, admitted perjurer and habitual drug user.” The court stated, “The jury had an ample basis to discredit Wolff’s testimony and it is unlikely that the exact number of convictions would have materially influenced the jury’s credibility assessment.” Tkacz, 654 N.W.2d 37, 44.

In none of the cases cited by the court was a credibility battle between a complainant and a defendant the key issue, much less the only one. Because the decision in this case is both clearly incorrect, and would provide an opportunity to decide whether Ohler or Vanlue should be the law in Wisconsin, it is a very likely candidate for further review.

– David Ziemer

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David Ziemer can be reached by email.