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Court reverses sexual assault conviction

In a prosecution for sexual assault of a child, the state may ask an expert witness about typical signs indicating that a child has been “coached” to make a false allegation, and whether the child exhibits such signs.

However, prosecutors may not ask the witness her opinion as to whether the child has or has not been coached.

Writing for the Wisconsin Court of Appeals, Judge Lisa Neubauer held, “An opinion that the child’s allegations are or are not the result of coaching or suggestion is inadmissible, as it does not assist the jury to understand the evidence or determine a fact in issue.”

In a concurring opinion, Judge Richard Brown wrote, “The questions must be objectively tailored and designed to elicit objective answers. … What the prosecutor cannot do is cross the line by inviting the expert to give her or his opinion about whether the child was coached. In sum, be careful.”

The case began on April 1, 2003, when a mother reported that S.B., her 7-year-old daughter, said she had been sexually assaulted on Feb. 15 by Bryan James Krueger, who was staying at their home.

On April 28, a social worker, Holly Mason, interviewed S.B. The next day, Krueger was charged with one count of first-degree sexual assault of a child. At trial, the defense was that S.B.’s mother influenced her to falsely accuse Krueger.

Following S.B.’s testimony, Mason testified regarding her interview with S.B., explaining that part of the interview process was evaluating the possibility that the child has been coached in making the allegation of abuse.

The prosecutor then asked Mason if she had an opinion whether S.B. had been coached, and Mason said that, in her opinion, she had not.

Krueger’s attorney did not object, and Krueger was found guilty and sentenced to 18 years’ confinement and 10 years extended supervision.

His appellate attorney claimed ineffective assistance of counsel by the trial attorney for not objecting to Mason’s testimony, but Racine County Circuit Court Judge Gerald P. Ptacek denied the motion.

Krueger appealed, and the Court of Appeals reversed, holding that counsel was ineffective for failing to object, and that the failure was prejudicial.

In reaching its conclusion, the court relied heavily on two cases which address a related issue, whether an expert can testify about the typical behavior of sexual assault victims and whether the child complainant exhibits such behavior.

In State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913 (1988), the Wisconsin Supreme Court held such testimony was admissible.

However, in State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Ct.App.1984), the Court of Appeals held that an expert could not testify that, in his opinion, there “was no doubt whatsoever” that the defendant’s daughter was an incest victim.

Extending Jensen to the case at bar, the Court of Appeals concluded that the same rules should apply to testimony concerning whether the complainant has been coached, because “[b]oth address behavioral manifestations of external influences or events impacting upon the complainant.”

Appling Haseltine to this case, the court concluded that the testimony went too far, when Mason testified that, in her opinion, S.B. had not been coached.

The court concluded, “in assessing that because S.B. was not highly sophisticated she would not have been able to maintain consistency throughout her interview ‘unless it was something that she experienced,’ Mason testified that S.B. had to have experienced the alleged contact with Krueger.”

The court found this “tantamount to an opinion that the complainant had been assaulted — that she was telling the truth.”

As in Haseltine, the court concluded that this testimony went too far and usurped the role of the jury in determining credibility.

Because the allegations against Krueger were uncorroborated by any independent evidence, and the sole issue at trial was credibility, the court also concluded that the failure of Krueger’s attorney to object to the testimony was prejudicial.

Attorney Bradley J. Lochowicz, of Seymour, Kremer, Koch & Lochowicz, LLP, in Elkhorn, who represented Krueger on appeal, said he thought the case was fairly straightforward as to how it should be decided.

He said the parties did not dispute that Jensen and Haseltine provided the proper framework, but that the issues were whether the expert’s testimony crossed the line, and whether it was prejudicial.

Lochowicz emphasized that it was a pure “he said/she said” case, and that, if there had been physical evidence, the result could have been different.

Lochowicz said the concurrence by Judge Brown hit the nail on the head, in that the court’s opinion doesn’t change anything, but is more of a warning to prosecutors how far they can go in questioning experts regarding a witness’ truthfulness.

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