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State Supreme Court clarifies child-testimony rules in unanimous opinion

By: Michaela Paukner, [email protected]//January 20, 2021//

State Supreme Court clarifies child-testimony rules in unanimous opinion

By: Michaela Paukner, [email protected]//January 20, 2021//

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The Wisconsin Supreme Court clarified child-testimony rules in a unanimous opinion involving a man convicted of sexually assaulting three children.

On Wednesday, the state Supreme Court reversed an appellate court’s decision in full, saying the court had misinterpreted subsections of Wis. Stat. § 908.08, which provides procedures for submitting recordings of children’s statements in criminal trials or hearings, when reviewing State of Wisconsin v. Angel Mercado.

Mercado was arrested in 2016 for sexually assaulting three girls, who were then between the ages of 4 and 7. Before his trial began, Mercado was informed by the state of its intent to introduce video recordings of the victims’ forensic interviews. Mercado objected to the introduction of two of the videos because two of the girls had trouble articulating the difference between right and wrong.

The court reviewed the part of video showing officers asking the girls about the difference between a truth and a lie, and it allowed the state to introduce both interviews.

Mercado then moved to dismiss the charge related to one of the girls, referred to as N.G., but the court denied the motion. It found that a prima facie case had been made, and the jury returned a guilty verdict for first-degree sexual assault of a child.

The circuit court denied Mercado’s motion for postconviction relief, so Mercado went to the court of appeals. He argued that the lower court erred by not watching the three interviews in their entirety before admitting them into evidence, conflating N.G.’s ability to testify as a credible witness, permitting N.G. to testify before her forensic interview was played for the jury and admitting the transcripts of the forensic interviews because they weren’t certified.

The appellate court ruled in Mercado’s favor on all of the issues. It also found that the video recordings were not admissible as residual hearsay because the circuit court had not complied with parts of § 908.08 concerning filing an offer of proof to accompany the recording.

The state Supreme Court took up the case and reviewed two issues: whether Mercado had forfeited his objections by not raising them at trial, in his postconviction motion or on appeal; and whether N.G.’s video interview was admissible under the residual hearsay exception.

Chief Justice Pat Roggensack was the author of the court’s unanimous opinion reversing the appellate court’s decision in full. The justices concluded that Mercado forfeited his objections by either not raising them during his trial or on appeal.

“We are uncertain why the court of appeals chose to ignore the multiple forfeitures in this case,” Roggensack wrote. “… In so doing, the court of appeals misinterpreted subsections of § 908.08.”

The state Supreme Court found that the statute doesn’t require a circuit court to review a child victim’s recording in its entirety before admitting it into evidence. Roggensack said interviews with children will differ, and that means the circuit court will need to exercise its discretion in deciding how much to watch in order to make the findings required by statute.

As for the question of the residual hearsay exemption, the high court concluded that there were sufficient circumstantial guarantees to permit N.G.’s statement to be admitted under the exception. Roggensack provided details of the justices’ assessment of the five factors the court uses to determine whether a recording of a child’s statement meets those guarantees.

“(A)lthough she had trouble articulating the difference between the truth and a lie, there is simply no evidence that N.G. deliberately fabricated her statement,” Roggensack wrote.

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