By: dmc-admin//March 17, 2004//
The effect of the decision is to give circuit courts unfettered discretion to admit, or not admit, Richard A.P. evidence.
In the case at bar, the accusations were made six years after the alleged incident. Thus, the case plainly fits within those sexual assault cases, where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. State v. Davis, 2002 WI 75, 254 Wis.2d 1, 15, 645 N.W.2d 913.
Nor is there any meaningful distinction between the types of evidence, as the majority found.
In the case at bar, the expert would have testified that she assess[ed] Mr. Walters personality so that the finder of fact can look at it. And I can talk about what kind of personality child sexual abusers are more likely to have. But clearly you are always going to have some people who arent child abusers who have the same kind of problems and you are going to find some child abusers who dont have them, but its a matter of probability. These are characteristics found more often in child sexual abusers, and I can talk about those.
In Davis, the expert would have testified to the general character traits of sexual offenders, the tests used to determine whether an individual possesses such character traits, his findings on whether Davis possesses such character traits, and, based on these results, the likelihood that Davis committed the sexual assault. Davis, 254 Wis.2d at 15.
The majority finds a meaningful distinction between the two, stating, Unlike the offers of proof in both Richard A.P. and Davis, Wakefield would not have offered any conclusions as to Walterss propensity to commit sexual assault.
However, unless one accepts that the use of the term likelihood by the expert in Davis is different than the term probability that the expert in the case at bar used, the distinction is not meaningful at all. Instead of providing guidance to lower courts, it grants unfettered and arbitrary discretion.
Most problematic is that the decision permits circuit courts to exclude such evidence because the court finds it has only minimally probative value or is unreliable both terms used by the circuit court in this case.
Such unfettered discretion is problematic because it is contrary to both experience and law.
Every criminal defense attorney experienced with sexual assault crimes surely has noticed that certain characteristics obsession with pornography, power issues, have a positive correlation with the weight of the States discovery packet.
Conversely, when these characteristics arent noticeable in the client, the probability is greater that, when the State turns over the evidence, it will be (relatively) weaker.
As Walters expert acknowledged, guilt or innocence cant be determined by the presence of absence of such characteristics. Nevertheless, the positive correlation between certain characteristics and an uphill battle for acquittal is well-known to all experienced defense attorneys.
Furthermore, profile evidence is a staple of our court system. Without the very same psychological tests that the circuit court found unreliable, no convicted sex offender could be found substantially probable to reoffend, and committed pursuant to Chapter 980.
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Admittedly, in a Chapter 980 proceeding, such evidence is central to the States case, rather than collateral. Nevertheless, to accept the circuit courts conclusion that the evidence is unreliable is tantamount to permitting a circuit court in a Chapter 980 proceeding to do the same, and refuse to commit a convicted sex offender on that basis.
One test Wakefield administered in this case the Minnesota Multiphasic Personality Inventory has long been in use, and another the Hare Psychopathy Checklist was recently used in part to find that the evidence was sufficient to support a Chapter 980 commitment. In re the Commitment of Burgess, 2002 WI App 264, 258 Wis.2d 548, 654 N.W.2d 81.
Finally, and most importantly, such evidence is accepted by the Supreme Court in the Davis decision as reliable.
Even if such evidence is not per se admissible, it is clear from the circuit courts discussion that the decision was based, at least in part, upon a conclusion that such evidence is unreliable, as a whole. The circuit court stated that admission of the evidence would be substantially confusing to the jury in this case and in future cases (emphasis added).
The reference to future cases makes clear that this was not an instance of applicable law being applied to an individual case. Instead, a blanket rule against admission was used to preclude otherwise admissible evidence.
This is, as Abrahamson observed, a misinterpretation of the applicable law. The unavoidable consequence that in future cases, other courts are unrestrained from doing the same.
– David Ziemer
David Ziemer can be reached by email.