The decision is flawed in two respects: it is contrary to precedent; and the hearsay definition of statement has no place in the analysis of what statement means in this context.
The Wisconsin Supreme Court addressed the MMPI long ago in Goetsch v. State, 45 Wis.2d 285, 172 N.W.2d 688 (1969). In Goetsch, the defendant pleaded guilty to sex offenses, and was ordered to undergo a psychological examination prior to sentencing that included the MMPI, as well as other personality tests. Goetsch, 45 Wis.2d at 287.
The defendant objected to testimony of the states expert witnesses because the actual tests had not been introduced into evidence, arguing that the best evidence rule requires their admission. Id., at 288.
Rejecting the argument, the Supreme Court held, Here the testimony of Drs. McFall and Geocaris was not introduced to prove the content of the report nor was their testimony aimed at establishing whether any given question had been answered true or false. Clearly, the answers to the questions would have been meaningless to the trier of fact in and of themselves. The value of these tests lay wholly in the interpretation given to them by the expert witnesses; and it was to establish their respective interpretations that the witnesses testimony was received. There can be no question that the conclusions and interpretations … had an existence independent of the departments tests. Id., at 291.
The Supreme Court approved the following conclusion of the trial court that the admission of the actual tests would serve no useful purpose: The fact is the court could look at that test and it wouldnt mean a thing … without the doctors interpretation… Id., at 291-2.
If a criminal defendant has no right to copies of raw personality tests, it is difficult to conceive of how a workers compensation claimant would have such a right.
Furthermore, as in Goetsch, Dr. Lynchs ultimate testimony would not be aimed at establishing whether the answer to any given question was true or false, as would be the case with statements of an employee to an employer that DWD 80.24 contemplates.
Some people dispute the notion that raw tests should only be disclosed to other experts. However, the American Psychological Association has propounded a rule of ethics that precludes releasing the tests to laypersons, and the Wisconsin Supreme Court has accepted that position. It is not the place of the LIRC to reject it.
The second error in the commissions analysis is its adoption of the Rule 809.01(1) definition of statement as applying to DWD 80.24.
In State v. Hereford, 195 Wis.2d 1054, 537 N.W.2d 62 (Ct.App.1995)(a published decision, unlike Premeau v. LIRC, which the commission cited), the court of appeals addressed the definition of statement at length.
Although the facts and issues were wholly different in that case, the essence is extremely relevant: the difference between statement, when used in discovery rules, as opposed to evidentiary rules.
The court of appeals held that the word statement should be given a narrow interpretation when used in discovery rules, because the purpose of the rule is to to test whether the witnesss testimony is consistent and accurate. Id., at 1075.
A broader definition is used when applying evidentiary rules, because one of the purposes is to ensure that the statement was in fact made. Id.
Thus, as a discovery rule, rather than a evidentiary one, the term statement in DWD 80.24 should be given a narrower interpretation than in Rule 809.01(1).
The fact that DWD 80.24 only applies to written or recorded statements is further indication that the definition of
statement in Rule 809.01(1) should not apply. As the court in Hereford noted, statement, when used in the criminal discovery rules, only applies to written or recorded statements, while the hearsay definition of statement applies to oral, written, and even nonverbal assertions. Id., at 1076.
If the LIRC is going to adopt the hearsay definition of statement for use in applying discovery rules, it really should explain just how exactly an employer would give a copy of an oral or a nonverbal statement to the employee.
Nothing in the foregoing analysis should be construed to suggest that no well-reasoned argument can be made that, even adopting a narrow definition of statement, the answers to the questions on an MMPI test fall within it.
However, the hearsay definition of statement from Rule 908.01(1) has no place in any well-reasoned argument. Whatever the best definition of statement is, the hearsay definition is not as good a definition as any. It is both inappropriate and unworkable.
– David Ziemer
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David Ziemer can be reached by email.