Admission of profile evidence not required

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The admission of evidence that a defendant does not share the characteristics of sex offenders is not compelled, but rather is subject to the discretion of the circuit court, the Wisconsin Supreme Court held on March 9.

In doing so, the court reversed a published decision of the court of appeals, State v. Walters, 2003 WI App 24, 260 Wis.2d 210, 659 N.W.2d 151.

In 1998, Steven G. Walters was charged with three counts of first-degree sexual assault of a child. In his witness list, Walters notified the State that he planned to present expert testimony of Ms. Hollida Wakefield, as to “the characteristics of child molesters,” and that he did not share those characteristics.

Such evidence is referred to as “Richard A.P. evidence,” a term derived from State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct.App.1998), in which the court of appeals held that such evidence was relevant and admissible.

The State moved to preclude the testimony, and after three days of pretrial hearings, Walworth County Circuit Court Judge John R. Race held the testimony was admissible. Pursuant to judicial rotation, the case was reassigned to Judge James L. Carlson.

The State moved to reconsider, arguing, “Obviously Richard A.P. is a wrong decision and contrary to precedent nation wide,” and Judge Carlson granted the motion.

Carlson concluded the evidence had “minimal probative value,” and that any probative value was substantially outweighed by unfair prejudice, confusion of the issues, and the danger that it might mislead the jury.

Carlson also explained, “I think the probative value is slight, from just my own experience as a judge, seeing that all types of people can be involved in sexual assaults, whether they have a psychological profile of a sexual offender or not, and also from the studies which have been submitted in the briefs. … Just say that it’s not reliable. Profile testimony is not reliable.”

The court of appeals reversed, concluding that the circuit court did not apply the proper legal standard in excluding the proffered Richard A.P. evidence. The court explained that the circuit court’s analysis was “colored by the trial court’s belief that Richard A.P. was seriously limited as authority and that other jurisdictions have held such evidence to be inadmissible.”

The Supreme Court accepted review and reversed the court of appeals in a decision by Justice Ann Walsh Bradley. Chief Justice Shirley S. Abrahamson dissented.

Case Precedent

The court began with a review of the existing precedent, Richard A.P., and State v. Davis, 2002 WI 75, 254 Wis.2d 1, 645 N.W.2d 913.

In Richard A.P., the defendant sought to introduce evidence to demonstrate that he did not exhibit character traits consistent with a sexual disorder such as pedophilia.

The defendant’s expert planned to testify that his “sexual history and responses to specific testing about his sexual behavior did not show evidence of any diagnosable sexual disorder.” Richard. A.P., 223 Wis.2d at 791. The expert also would testify that, absent such a diagnosable disorder, it was unlikely that such a person would molest a child.

The court of appeals in Richard A.P. concluded that such evidence was both relevant and admissible under sec. 907.02, the general rule governing expert testimony, and sec. 904.04(1)(a), the rule governing character evidence. The court found such evidence would assist the jury in determining the likelihood that the defendant committed the charged offenses.

In State v. Davis, the Supreme Court reviewed the same issues as in Richard A.P., and rejected the State’s request to overrule Richard A.P. Instead, it concluded that the rules on character evidence and expert testimony allow for the admission of such evidence.

The court noted that such evidence has probative value in sexual assault cases, “where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant.” Additionally, the court observed that such evidence might be useful to the jury by “helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant’s innocence.”

However, the Davis court explained that, “the circuit court retains discretion in admitting such evidence and must carefully scrutinize such Richard A.P. expert testimony in each case for its admissibility.”

Application

The court first rejected the State’s contention that the court of appeals incorrectly interpreted Davis as compelling admission of the evidence. The court found that the court of appeals recognized that Richard A.P. evidence remains subject to the requirements of the rules governing all evidence, and judicial discretion.

Nevertheless, the court agreed with the State that the circuit court properly exercised its discretion in excluding the evidence.

Although the circuit court found the proffered evidence relevant, it found it to have “minimal probative value,” relying on its experience as a judge, and a treatise indicating profile testimony was unreliable.

In addition, the circuit court applied sec. 904.03, weighing the probative value against other factors. The circuit court found the evidence was inappropriately lengthy and wandering, and would obscure the real issue of witness credibility with a battle of experts.

The court expressed concerns about the circuit court’s analysis, noting that in Davis, the court explicitly rejected the argument that such evidence was unreliable, as well as the argument that admitting such evidence would improperly create a “battle of the experts.”

Nevertheless, the court concluded that, on balance, the record supports the circuit court’s conclusion that the probative value was substantially outweighed by the danger that the issues would be confused and the jury misled.

The court noted that, due to the victim’s late reporting of the incident, there was a six-year gap between the assault and Walters’ evaluations, during which time Walters quit drinking. Wakefield acknowledged that personality tests can be altered by the consumption of alcohol, minimizing the value of the testimony.

In addition, the court noted that the circuit court found the evidence did not reach the level of the proof as characterized in Richard A.P. The court observed, “Unlike the offers of proof in both Richard A.P. and Davis, Wakefield would not have offered any conclusions as to Walters’s propensity to commit sexual assault.”

Finally, the court noted the length that the testimony would involve. While the trial without the evidence lasted only one day, the offer of proof hearing alone lasted three days.

The court concluded, “In light of the scope and length of the proffered expert testimony in relation to the rest of the testimony, we determine that the circuit court arrived at a conclusion that a reasonable judge could make and that this testimony could have misled the jury and confused the issues in this case. Given the time spent on collateral forays, it was also reasonable for the circuit court to conclude that these dangers substantially outweighed the probative value of the expert testimony here.”

Accordingly, the court reversed.

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The Dissent

Chief Justice Abrahamson dissented, agreeing with the majority that circuit courts are not required to admit Richard A.P. evidence and may exercise discretion, but disagreeing that the circuit court properly did so in this case.

Discussing the circuit court’s finding that the evidence is unreliable, Abrahamson remarked, “This argument is quite similar to the arguments set forth by numerous courts that have chosen to exclude such evidence. Indeed the circuit court referred to a treatise that in turn referred to a number of non-Wisconsin cases that have ruled that this type of ‘[p]rofile testimony is not reliable.’ The circuit court should have relied on State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), a published precedential decision, not on a treatise or other state court decisions. Richard A.P. did not follow these other state courts, and this court has explicitly rejected their views. The circuit court misinterpreted the applicable law.”

Abrahamson added, “The judge’s own personal experiences about whether the evidence is reliable invades the province of the jury. The jury also has personal experiences and is capable of making a determination as to the reliability of profile evidence.”

As for the circuit court’s conclusion that the evidence would unduly add to the length of the trial, Abrahamson noted that the circuit court could have, within its discretion, limited the testimony. Finally, Abrahamson rejected the concern about the trial becoming a “battle of the experts,” noting that this is a potential problem in any case involving experts.

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David Ziemer can be reached by email.