Civil suit is basis for impeaching plaintiff

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A defendant should be permitted to cross-examine the victim about a civil suit he filed against the defendant arising from the same incident.

In holding that Jose Matamoros should have been able to question his accuser about a civil suit the victim filed against him, the Wisconsin Court of Appeals on May 13 rejected the trial court’s reasoning that Matamoros was required to show fabrication as a prerequisite for such evidence.

Unfortunately for defendants, the holding has relatively little significance because it was not recommended for publication.

As for Matamoros, the court held that any error in not permitting impeachment with the lawsuit was harmless error.

Although it will not be published, the opinion at least gives defense counsel hope when they try to engage in such cross-examination in future cases. The only other two Wisconsin Court of Appeals cases to address the issue (both also unpublished) have gone the other way.

In State v. Martine, 180 Wis.2d 470, 514 N.W.2d 54 (Table), 1993 WL 467905 (Wis.App.1993)(unpublished), the court wrote, “crime victims have the right to sue persons who have harmed them. There is no inconsistency in pursuing civil remedies in addition to criminal charges. This evidence, therefore, has limited impeachment value.”

The court also found that permitting such cross-examination would pose a substantial danger of confusion of the issues.

The Martine case presented a slightly different issue, because it was the victim’s mother who had expressed intent to bring a civil suit, not the victim herself. But the quote above suggests that the court considered such cross-examination irrelevant either way.

Similarly, in State v. Norris, 137 Wis.2d 650, 405 N.W.2d 84 (Table), 1987 WL 267500 (Wis.App.1987)(unpublished), the court wrote, “[the victim’s] testimony as to the civil suit was simply not that crucial to the defense case. [The victim] was the victim of a violent confrontation, which in and of itself indicates that she had a stake in the final outcome of the criminal trial.”

Only one other case addresses the issue, but declined to hold whether evidence of the civil suit should have been admitted, because the court concluded that, even if it should have, the error was harmless. State v. Koepp, 133 Wis.2d 478, 395 N.W.2d 831 (Table), 1986 WL 217232 (Wis. App. 1986)(unpublished).

Koepp actually involved a civil suit against a third party, but the distinction would not seem to be relevant — in both cases, the victim may have a financial incentive to fabricate.

Assuming the opinion in the case at bar is not published, like the previous cases in which the issue arose, attorneys and lower courts are in the same position as before —there is no binding authority whether a defendant should be allowed to cross-examine a victim regarding a civil suit.

Nevertheless, published or not, the existence of this opinion should at least put circuit courts on notice that continuing to bar such evidence creates a serious risk of reversal in cases in which the evidence is not overwhelming.

In addition, there is ample persuasive authority from other jurisdictions that such impeachment should be allowed: Carroll v. State, 916 S.W.2d 494 (Tex.Cr.App. 1996); Payne v. State, 541 So.2d 699 (Fla.1st DCA 1989); and People v. Wallert, 469 N.Y.S.2d 722 (N.Y.A.D. 1 Dept. 1983).