State v. Stanley J. Maday, Jr. ( 2017 )

2017 WI 28SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP0366-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Stanley J. Maday, Jr.,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 365 Wis. 2d 608, 871 N.W.2d 867(Ct. App. 2015 – Unpublished)
OPINION FILED: April 5, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Columbia
JUDGE: Andrew W. Voigt
JUSTICES:
CONCURRED: BRADLEY, R. G., J. concurs (opinion filed).
DISSENTED: BRADLEY, A. W., J. joined by ABRAHAMSON, J.
dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner the cause was
argued by Thomas Balistreri, assistant attorney general, with
whom on the brief(s) was Brad D. Schimel, attorney general.
For the defendant-appellant, there was a brief and oral
argument by Megan Sanders-Drazen, assistant state public
defender.
2017 WI 28NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP366-CR
(L.C. No. 2011CF442)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
APR 5, 2017
Stanley J. Maday, Jr.,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. We review an unpublished,
per curiam decision of the court of appeals that reversed the
Columbia County circuit court's1 judgment of conviction taken
against Stanley J. Maday Jr. ("Maday") and which granted Maday a
new trial. State v. Maday, No. 2015AP366-CR, unpublished slip
op. (Wis. Ct. App. Oct. 29, 2015).
¶2 On January 15, 2013, following a jury trial, Maday was
convicted of three counts of first-degree sexual assault of a
1
The Honorable W. Andrew Voigt presiding.
No. 2015AP366-CR
child. Maday moved for postconviction relief, arguing that he
received ineffective assistance of counsel because: (1) his
counsel failed to object to two questions the prosecutor asked
Catherine Gainey ("Gainey"), the social worker who conducted a
cognitive graphic interview with the child victim in this case,
and (2) his counsel should not have withdrawn an objection to
the introduction of evidence about Maday's job-related training
in the use of weapons and the use of force.
¶3 We hold that Gainey's testimony about the absence of
indications during the cognitive graphic interview, either that
K.L. had been coached or that K.L. was being dishonest, does not
violate the Haseltine2 rule, and is therefore admissible. We so
hold for three reasons. First, Gainey's testimony was limited
to her observations of indications of coaching and dishonesty.
Second, by limiting her testimony to indications of coaching and
dishonesty, Gainey did not provide a subjective opinion as to
K.L.'s truthfulness. Third, testimony, such as Gainey's, may
assist the jury. Accordingly, we conclude that Maday's counsel
was not ineffective for failing to object to Gainey's testimony
and counsel's performance was therefore not deficient.
¶4 Furthermore, we conclude Maday's counsel was not
ineffective for withdrawing his objection to the introduction of
evidence of Maday's job-related training in the use of weapons
2
State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673(Ct. App. 1984) (prohibiting a witness from "giv[ing] an opinion
that another mentally and physically competent witness is
telling the truth").
2
No. 2015AP366-CR
and the use of force because Maday was not prejudiced by that
testimony.
¶5 The decision of the court of appeals is, therefore,
reversed.
¶6 We begin our analysis with a brief factual background
and procedural history. We then turn to a discussion of
forensic interview techniques, the Haseltine rule, and the
application of the Haseltine rule to Gainey's testimony in this
case. After concluding Gainey's testimony does not violate the
Haseltine rule, we address Maday's claim of ineffective
assistance of counsel.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶7 In November 2011, the mother of eleven-year-old K.L.
found a letter authored by K.L. that described how Maday
sexually assaulted K.L. on three occasions. In the letter, K.L.
described how, when she slept over at her friend's house, Maday
(her friend's father) put his hands in her pants, placed his
fingers in her vagina, and slipped his hands under her bra to
feel her breasts. After finding this letter, K.L.'s mother
reported Maday to the police. Due to the fact that K.L. was
eleven years old, the police arranged to have K.L.'s allegations
assessed by means of a forensic interview with a social worker.
The social worker, Gainey, interviewed K.L. about her
allegations. Gainey conducted the interview using a type of
forensic interview technique called a cognitive graphic
interview.
3
No. 2015AP366-CR
¶8 For his part, Maday denied K.L.'s allegations, and
pled not guilty to three counts of first-degree sexual assault
of a child in violation of Wis. Stat. § 948.02(1)(b)3 and
§ 948.02(1)(e).4 The case proceeded to trial by jury.
¶9 The trial began with the prosecutor calling K.L. to
the stand. Crying, K.L. read to the jury the letter she wrote
to her mother:
Dear Mom, I'm scared to tell you in person so I wrote
this letter. Stan has been sexually harassing me
while I'm asleep. I wake up to him either sticking
his hand down my shirt and bra or down my pants and
underwear. I don't do anything because I'm afraid he
will hurt me. He's done this three times now. He did
it Friday night. He stuck his hand down my pants and
started rubbing there, and then he stuck his finger in
my vagina. Then he also stuck his hand down my shirt
and my bra, grabbed my boob. I was moving and was
moving it around. I know I should have told you the
first time this happened, but I was too scared. He's
done it three times now, and I want it to stop now if
I file papers against him or take him to court.
Sincerely, [K.L.]
At trial, K.L. explained the letter she wrote to her mother by
further describing the sexual assaults. K.L. testified about
one of the assaults: "I remember in the middle of the night
that I woke up to Stan touching me and the T.V. being on and [my
friend] still being next to me sleeping." She also described
3
"Whoever has sexual intercourse with a person who has not
attained the age of 12 years is guilty of a Class B felony."
Wis. Stat. § 948.02(1)(b) (2009–10).
4
"Whoever has sexual contact with a person who has not
attained the age of 13 years is guilty of a Class B felony."
Wis. Stat. § 948.02(1)(e) (2009-10).
4
No. 2015AP366-CR
how, on another occasion, she awoke on the top bunk in her
friend's bedroom to Maday touching her.
¶10 K.L. testified that she did not open her eyes during
these assaults until she knew Maday had left the room "[b]ecause
I figured if he knew I was awake, he would end up hurting me."
Only during the second assault did K.L. say she opened her eyes,
but only briefly, lest Maday realize he woke her up. K.L. also
described how, on at least one occasion, Maday placed his finger
in her vagina.
¶11 During his cross-examination of K.L., Maday's counsel
played portions of K.L.'s videotaped cognitive graphic interview
with Gainey for the purpose of showing the jury the
inconsistencies——the precise number of fingers Maday inserted
into her vagina and the exact dates of the assaults——between
K.L.'s trial testimony and what K.L. told Gainey during the
cognitive graphic interview. K.L. testified that the
inconsistencies were the result of her "remembering new things"
from being forced to think about what happened to her.
¶12 The State subsequently called K.L.'s mother, and she
testified that, when she returned home from work one day, she
found the letter that K.L. had written on her bed. She
testified that after finding the letter she went to K.L.'s room
where she woke up K.L. to talk about the letter. K.L.'s mother
testified that "[K.L.] was having a hard time talking" and that
"[s]he was crying, shaking, scared," and "hysterical." It was
at this point, K.L.'s mother said, that she alerted the police.
5
No. 2015AP366-CR
¶13 As part of the defense's case-in-chief, Maday's
counsel called Gainey to testify about the cognitive graphic
interview she conducted with K.L. Gainey described the type of
forensic interview technique, the cognitive graphic interview,
that she uses when interviewing children about their sexual
assault allegations and how it is "a rather highly structured
interview." She testified that she was "specially trained" in
using the cognitive graphic interview "to not conduct leading
interviews of children"; that she has conducted about fifty of
these types of interviews; and that she has "had experiences in
the past where children have been essentially prompted by an
adult to give a certain type of answer during this interview"
but that, by using the cognitive graphic interview, such
prompting "become[s] apparent."
¶14 Gainey also described how a cognitive graphic
interview is designed to minimize the risk of false allegations
by, among other things, avoiding leading questions and "mak[ing]
sure there is consistency between what they are telling [the
interviewer] or have told other people." The point, according
to Gainey, is to use the cognitive graphic interview to minimize
the risk that a child's allegations are a result of coaching by
another and to determine if the child fully understands the
difference between truth and lies, along with the consequences
of lying.
¶15 Gainey testified that, when done correctly, the
interviewer in a cognitive graphic interview uses open-ended
questions to let the child introduce information into the
6
No. 2015AP366-CR
conversation and express what happened in his or her own words.
The interviewer also engages in a "truth–lie" discussion in
order to determine if the child adequately understands the
difference between the concepts of truth and lies, the
importance of telling the truth, and the consequences of lying.
At the end of an interview using "the proper interview
technique," it "become[s] apparent" if a child has "been
essentially prompted by an adult to give a certain type of
answer." In short, the cognitive graphic interview technique
"is a way to insure that a child who has been coached does not
continue with the false allegations."
¶16 As it specifically pertains to the truth-lie
discussion she had during her interview with K.L., Gainey
testified, "We reviewed what's called the children's oath.
It's, you know, do you promise to tell the truth, the whole
truth, and nothing but the truth, and the child at that point
states typically yes. In this case, [K.L.] did . . . ." Gainey
also recounted that "[K.L.] said somebody could get into trouble
such as going to jail when asked if there are consequences for
when people lie. And then she promised to tell the truth after
that."
¶17 After Gainey testified about the cognitive graphic
interview technique, her experience with it, and specifics of
her interview with K.L., the prosecutor asked Gainey the
following questions that are now at issue and that give rise to
the first part of Maday's claim of ineffective assistance of
counsel:
7
No. 2015AP366-CR
[Prosecutor:] Was there any indication that [K.L.]
had been coached in any way during her interview?
[Gainey:] No.
[Prosecutor:] Was there any indication that [K.L.]
was not being honest during her interview with you?
[Gainey:] No.
Maday's counsel did not object to these questions, and these
questions essentially concluded Gainey's testimony.
¶18 Maday also testified. During his testimony, he read
portions of his work records from his job as a sergeant at
Columbia Correctional Institution. He did so for the purpose of
casting doubt on whether he could have been at home at the times
K.L. claimed he assaulted her. On cross-examination, the
prosecutor had Maday read specific entries about job-related
training sessions he attended for weapons training and use-of-
force training. Maday's counsel objected to this line of
questioning as irrelevant, but withdrew the objection. The
circuit court noted that "whether or not [K.L.] was aware of
these specific trainings, I think it is probably true that she
was generally aware" that correctional officers receive weapons
and use-of-force training. Maday testified that he never
demonstrated these techniques for, or used them on, K.L.
¶19 During closing arguments, the prosecutor asked the
jury to believe K.L. As part of his argument, the prosecutor
referred to Gainey's testimony and reminded the jury that,
during the cognitive graphic interview, Gainey did not see any
indications that K.L. had been coached or was being dishonest.
The prosecutor also commented on Maday's weapons and use-of-
8
No. 2015AP366-CR
force training saying, "He is trained in all those things so
[K.L.]'s worry he might do something to her was very real to
her. It was very real to her." In an effort to cast doubt on
K.L.'s testimony, Maday's counsel replayed portions of K.L.'s
cognitive graphic interview with Gainey to highlight the
inconsistencies between K.L.'s interview and K.L.'s trial
testimony. In particular, he highlighted two inconsistencies:
(1) the precise number of fingers Maday placed inside K.L.'s
vagina and (2) the exact dates of the sexual assaults.
¶20 After closing arguments, the circuit court instructed
the members of the jury, for the second time during Maday's
trial, on their role as the sole judges of the credibility of
the witnesses. Specifically, the circuit court instructed the
jury that "[y]ou are the sole judges of the credibility, that is
believability of the witnesses and of the weight to be given to
their testimony."
¶21 The jury chose to believe K.L. It found Maday guilty
of all three counts, and the circuit court sentenced Maday to 25
years of initial confinement and 8 years of extended supervision
on the first count, 15 years of initial confinement and 8 years
of extended supervision on the second count, and 15 years of
initial confinement and 8 years of extended supervision on the
third count.
¶22 On October 23, 2014, Maday filed a motion for
postconviction relief. In his motion, Maday argued he received
ineffective assistance of counsel, which required the circuit
court to grant him a new trial. Maday claimed his counsel was
9
No. 2015AP366-CR
ineffective (1) for failing to object to Gainey's testimony that
she observed no indications of coaching or dishonesty during
K.L.'s cognitive graphic interview and (2) for withdrawing the
objection to the introduction of evidence of Maday's job-related
weapons and use-of-force training. The circuit court denied
Maday's motion. In denying Maday's motion, the circuit court
noted that Gainey's testimony "is about as close as I can
personally envision to the line of what is permissible versus
impermissible." But, it found Gainey's testimony about the
absence of any indications of coaching and dishonesty during the
cognitive graphic interview admissible because it "dealt
specifically with the videotaped interview." Therefore, there
was no deficient performance. The circuit court also noted that
the evidence of Maday's job-related training in weapons and use
of force was irrelevant but that the evidence was not
prejudicial because it is likely commonly assumed that
correctional officers have this type of training. Thus, the
circuit court found no ineffective assistance of counsel. Maday
appealed.
¶23 The court of appeals reversed the circuit court.
Maday, unpublished slip op., ¶21. It determined that Gainey's
testimony violated the Haseltine rule in that her testimony
vouched for K.L.'s credibility, and that Maday's counsel was
ineffective for failing to object. Id., ¶¶19–20.
¶24 The court of appeals did not address whether Maday's
counsel was ineffective for withdrawing his objection to the
evidence of Maday's job-related weapons and use-of-force
10
No. 2015AP366-CR
training because Maday's first argument for ineffective
assistance of counsel resolved the case. Id., ¶20 n.3.
II. STANDARD OF REVIEW
¶25 Whether a defendant received ineffective assistance of
counsel is a mixed question of law and fact. State v. Erickson,
227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). "We will not
disturb the circuit court's findings of fact unless they are
clearly erroneous." Id. "[T]he circumstances of the case and
the counsel's conduct and strategy" are considered findings of
fact. State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848
N.W.2d 786. Whether counsel's performance was ineffective is a
question of law that we review independently. Erickson, 227
Wis. 2d at 768.
III. DISCUSSION
¶26 In order to assess Maday's claim of ineffective
assistance of counsel, we first address whether Gainey's
testimony about her observations of indications of coaching and
dishonesty made during K.L.'s cognitive graphic interview
violates the Haseltine rule. To answer this question, we begin
with an explanation of forensic interview techniques and the
Haseltine rule. We then address the admissibility of Gainey's
testimony. Second, we address Maday's claim for ineffective
assistance of counsel.
A. Forensic Interview Techniques
¶27 Starting with a series of high-profile child sexual
assault cases in the 1980s, the interview techniques used with
the children during the investigation of some of these cases
11
No. 2015AP366-CR
raised concerns that children were making false allegations of
abuse. See, e.g., McMartin v. Children's Inst. Int'l, 261 Cal.
Rptr. 437 (Ct. App. 1989); State v. Michaels, 642 A.2d 1372(N.J. 1994); see also Sena Garven et al., More than Suggestion:
The Effect of Interviewing Techniques from the McMartin
Preschool Case, 83 J. Applied Psychol. 347 (1998). Indeed, a
large number of what turned out to be false allegations caused
the public to perceive children as less-than-credible witnesses
because of their vulnerability to suggestion and coaching. See
Michaels, 642 A.2d at 1376 ("[O]ur common experience tells us
that children generate special concerns because of their
vulnerability, immaturity, and impressionability . . . .").
Research on detecting false allegations from children following
in the wake of these cases led to a marked improvement in the
quality of forensic interview techniques used in child sexual
assault investigations, allowing forensic interviewers to better
meet the unique situations present in these instances. See
Garven et al., supra.
¶28 The forensic interview techniques used today are
accepted among experts and courts as effective tools for
investigating child sexual assault allegations because these
methods minimize the risk of false allegations of abuse that
result from a child's vulnerability to suggestion and coaching.
See Karen J. Saywitz & Lorinda B. Camparo, Contemporary Child
Forensic Interviewing: Evolving Consensus and Innovation over
25 Years, in Children as Victims, Witnesses, and Offenders:
Psychological Science and the Law 102, 105–06 (Bette L. Bottoms
12
No. 2015AP366-CR
et al. eds., 2009); see also State v. Michael H., 970 A.2d 113,
120 (Conn. 2009) ("In order to discover child abuse,
investigators often rely on forensic interviews . . . .").
Indeed, allegations made by children present such a unique
circumstance that forensic interview techniques are useful, even
necessary, to combat the problems that arise with allegations of
abuse made by children. Cf. Michaels, 642 A.2d at 1377 ("That
an investigatory interview of a young child can be coercive or
suggestive and thus shape the child's responses is generally
accepted. If a child's recollection of events has been molded
by an interrogation, that influence undermines the reliability
of the child's responses as an accurate recollection of actual
events.").
¶29 The forensic interview techniques used today,
including the cognitive graphic interview technique Gainey used
in this case, are designed to address the reliability problems
that arise with allegations of abuse made by children and to
avoid the problems caused by the interview techniques used
previously. See Saywitz & Camparo, supra, at 103. There are a
variety of types of forensic interview techniques used to
accomplish these results. For example, the court of appeals
dealt with the "Step Wise" method, State v. Krueger, 2008 WI App
162, ¶5, 314 Wis. 2d 605, 762 N.W.2d 114, and the Supreme Court
of South Carolina dealt with the "Rapport, Anatomy, Touch, Abuse
Scenario, and Closure" method, State v. Kromah, 737 S.E.2d 490,
499 (S.C. 2013). Here, though, Gainey used a type of forensic
interview called the "cognitive graphic interview." See Saywitz
13
No. 2015AP366-CR
& Camparo, supra, at 109–10 (providing a brief description of
the cognitive graphic interview technique).
¶30 These different types of forensic interview techniques
are marked by some common characteristics. Id. at 105–06.
First, forensic interview techniques use open-ended questions
and avoid leading questions in an effort to allow the child to
tell the story in his or her own words. See State v. Hilton,
764 So. 2d 1027, ¶20 (La. Ct. App. 2000), cert. denied, 786 So.
2d 113 (La. 2001). Second, forensic interview techniques employ
truth–lie discussions wherein the interviewer evaluates the
child's understanding of truth and lies and the child's
understanding of the consequences for telling lies. See State
v. Douglas, 671 S.E.2d 606, 607 (S.C. 2009).
¶31 The interviewer trained in a forensic interview
technique looks for indications that a child has been coached to
make the allegations of abuse or indications that the child is
being dishonest in making the allegations of abuse. See State
v. Wembley, 712 N.W.2d 783, 790–91 (Minn. Ct. App. 2006), aff'd,
728 N.W.2d 243 (Minn. 2007). For example, a trained forensic
interviewer looks at what information the child introduces into
the conversation in response to questioning and looks for a
child to communicate this information using a vocabulary and
understanding consistent with the child's age. See August
Piper, Investigating Child Sex Abuse Allegations: A Guide to
Help Legal Professionals Distinguish Valid from Invalid Claims,
36 J. Psychiatry & L. 271, 302–03 (2008). The less information
a child can produce on his or her own, the more likely a
14
No. 2015AP366-CR
forensic interviewer will take this as an indication that the
allegations of abuse are false. The same holds true for how the
child communicates that information. Id. at 308. In other
words, a forensic interviewer evaluates whether a child's
recollection of abuse is "told from a child's viewpoint, and
[whether] sexual knowledge in the child's statements or
behavior . . . is beyond that expected for the child's
developmental stage." Id. The more "adult" the child's
language, the more likely a forensic interviewer will consider
the language to be an indication that the allegations of abuse
are false.
¶32 As another example, an expert trained in forensic
interviewing remains alert for consistency with "explicit
details." Id. at 307. "[A] vague or inconsistent account,
delivered evasively or using the same rote phrases, detracts
from the child's credibility." Id. "[A] child's refusal to
discuss details of the abuse should alert the interviewer to the
possibility of a fabricated allegation." Id.
¶33 These indications are often observable only within the
context of a forensic interview and only to a trained
interviewer and thus, taken as a whole, fall outside the realm
of common knowledge. E.g., Williams v. State, 970 So. 2d 727,
¶¶24-27 (Miss. Ct. App. 2007) (admitting a forensic interviewer
as an expert because her training in forensic interviewing gave
her specialized knowledge). Accordingly, a jury could benefit
from an expert's assistance when interpreting and identifying
the indications bearing on the independence of a child's
15
No. 2015AP366-CR
allegations of abuse when such situations arise. See Wis. Stat.
§ 907.02 (2013–14).
B. The Haseltine Rule
¶34 "Under Wisconsin law, a witness may not testify 'that
another mentally and physically competent witness is telling the
truth.'" State v. Jensen, 147 Wis. 2d 240, 249, 432 N.W.2d 913(1988) (quoting State v. Haseltine, 120 Wis. 2d 92, 96, 352
N.W.2d 673 (Ct. App. 1984)). Often called the "Haseltine rule,"
this principle is rooted in the rules of evidence that say
"expert testimony must 'assist the trier of fact to understand
the evidence or to determine a fact in issue.'" State v.
Pittman, 174 Wis. 2d 255, 267, 496 N.W.2d 74 (1993) (quoting
Wis. Stat. § 907.02). "Expert testimony does not assist the
fact-finder if it conveys to the jury the expert's own beliefs
as to the veracity of another witness." Id. The jury is the
sole judge of credibility of the witnesses, and a witness who
comments on the veracity of another witness usurps this role
instead of assisting the jury in fulfilling it. State v.
Romero, 147 Wis. 2d 264, 278, 432 N.W.2d 899 (1988).
¶35 Accordingly, in State v. Krueger, the court of appeals
recognized that expert testimony from a social worker about her
observations made during a forensic interview "on typical signs
of whether a child has been coached or evidences suggestibility
and whether the complainant child exhibits such signs" was
admissible. Krueger, 314 Wis. 2d 605, ¶14. This was so because
it would assist the jury to assess the credibility of the
child's allegations of sexual assault. Id., ¶¶14-15. The
16
No. 2015AP366-CR
social worker's testimony in Krueger was ultimately found
inadmissible, though, because it went a step too far in that the
social worker testified that she did not believe the child could
maintain her story "unless it was something that she had
experienced." Id., ¶15. This had the effect of the social
worker providing her opinion as to the truth of the child's
allegations. Id., ¶16. Thus, the social worker's testimony
went beyond that of observations of indications of coaching and
deceit she made during her forensic interview with the child
and, rather, provided a subjective opinion that had the effect
of stating that the child was truthful. Id., ¶14. Her
testimony violated the Haseltine rule because it usurped the
jury's role as sole judge of credibility of the witness as
opposed to merely assisting the jury in that role. It is fairly
said, then, that while observations of indications of coaching
and deceit the interviewers make during the course of forensic
interviews may be received into evidence, statements of
subjective opinion about the child's truthfulness are not to be
received.
¶36 Other jurisdictions, with a rule similar to our
Haseltine rule, have allowed an expert such as Gainey to testify
about observations made during the course of a forensic
interview. E.g., Wembley, 712 N.W.2d at 790–92; Williams, 970
So. 2d 727, ¶¶15-17; State v. Champagne, 305 P.3d 61, ¶¶33-36
(Mont. 2013). For example, in State v. Kromah, the Supreme
Court of South Carolina determined that those who are so trained
may testify as to "any personal observations regarding the
17
No. 2015AP366-CR
child's behavior or demeanor" during the forensic interview.
Kromah, 737 S.E.2d at 500. An opinion from a forensic
interviewer, though, may not include the expression of the
expert's belief that the child was being truthful. Id.
C. The Admissibility of Gainey's Testimony Regarding
Indications of Coaching and Dishonesty
¶37 We turn now to the application of the foregoing
principles to the particular testimony at issue in this case in
order to determine whether Gainey's testimony about
"indications" of coaching and "indications" of dishonesty during
the cognitive graphic interview violated the Haseltine rule.
1. Gainey's Testimony Was Limited to Indications of Coaching
and Dishonesty and Did Not Provide a Subjective Opinion
Regarding K.L.'s Truthfulness
¶38 As the circuit court found, and as the record bears
out, Gainey's testimony was limited only to observations of the
indications of coaching and dishonesty she made during the
cognitive graphic interview she conducted with K.L. The
prosecutor first asked, "Was there any indication that [K.L.]
had been coached in any way during her interview?" (Emphasis
added). The prosecutor then asked, "Was there any indication
that [K.L.] was not being honest during her interview with you?"
(Emphasis added). Importantly, both questions are limited to
indications. Neither question asked Gainey about her opinion or
belief. By limiting it to her observations of indications
during the cognitive graphic interview, Gainey's testimony in
response to these questions did not provide an opinion about the
18
No. 2015AP366-CR
truth of K.L.'s allegations. Rather, Gainey provided an opinion
about indications she is trained to observe during a cognitive
graphic interview, an interview technique developed specially
for dealing with allegations of abuse made by children. As
such, Gainey was not "allowed to convey to the jury . . . her
own beliefs as to the veracity of the complainant with respect
to the assault," Jensen, 147 Wis. 2d at 256-57.
¶39 Unlike the social worker in Krueger, Gainey did not
take that extra step that turned her testimony into a subjective
opinion about K.L.'s veracity, and thus into a violation of the
Haseltine rule. The State posed the following question in
Krueger, "Based upon that, did you form an opinion as to whether
or not [S.B.] was the product of any suggestibility or any
coaching?" Krueger, 314 Wis. 2d 605, ¶5 (alteration in
original). The social worker answered:
I did not get a sense from this child that she
demonstrated a level of sophistication that [she]
would be able to maintain some sort of fabricated
story, for lack of a better way of describing it. She
did not appear to me to be highly sophisticated so
that she could maintain that kind of consistency
throughout unless it was something that she had
experienced.
Id. (emphasis added). The exchange between the prosecutor and
Gainey in this case is considerably different. The prosecutor
did not ask Gainey for an opinion of whether K.L.'s testimony
"was the product" of suggestibility or coaching but, rather,
asked Gainey about observable indications of coaching or
dishonesty. Further, Gainey did not testify that K.L. could
19
No. 2015AP366-CR
only maintain the consistency of her allegations "unless it was
something that [K.L.] had experienced." Rather, Gainey provided
testimony grounded in her training as a forensic interviewer by
limiting her testimony to the indications she is trained to look
for and, by testifying to a lack of any indications of coaching
or dishonesty, Gainey avoided giving an opinion as to whether
K.L.'s allegations were, in fact, true.
2. Gainey's Testimony May Assist the Jury
¶40 Gainey's testimony may have assisted the jury in
assessing the credibility of K.L.'s allegations and did not
usurp the jury's role as the sole judge of credibility of the
witness. The indications a forensic interviewer, like Gainey,
is trained to look for often fall outside the realm of common
knowledge. See, e.g., Jensen, 147 Wis. 2d at 250–52 (allowing
expert testimony about the typical behavior of child sexual
assault victims); Krueger, 314 Wis. 2d 605, ¶9 (examining expert
testimony regarding signs of coaching). Forensic interviewers
are required to complete training in using such interview
techniques, and given the unique circumstances present with
assessing allegations of abuse made by children, it is, at a
minimum, possible that the jury could benefit from the testimony
of a forensic interviewer to help them more accurately assess
the credibility of a child's allegations. See Jensen, 147
Wis. 2d at 256 ("While an expert's description of the behavior
of victims of crime may assist the jury to understand the
evidence in the case or to determine a fact in issue, an expert
may be no more qualified to compare behavior patterns than the
20
No. 2015AP366-CR
jury. The jury may be able to draw the requisite inferences
itself without the assistance of an expert."). Accordingly, it
is at least possible that Gainey, as a trained forensic
interviewer, was able to assist, as opposed to usurp, the jury
in its role as the sole judge of credibility of the witnesses.
As the reasoning of Jensen makes clear, and as we recognize,
juries are free either to make use of such testimony or
disregard it and rely solely on their own collective wisdom and
experience, in accord with the instructions provided to them by
the circuit court. See id.¶41 Based on the foregoing, we conclude Gainey's testimony
is admissible.
D. Maday's Arguments Against Admission
1. The Question About Indications of Coaching
¶42 Maday first argues that, even if testimony about
indications of coaching is sometimes admissible, it is
admissible only if it includes sufficient detail about what
indications the interviewer is looking for because only then is
the jury able to draw its own conclusions about the child's
allegations. See id. at 255-56. Because these details were not
provided here, Maday argues Gainey's testimony violates the
Haseltine rule. Maday argues in his brief, "Untethered to
background information about the typical signs of coaching, an
expert's statement that a child displays no such signs does
little to assist the jury and runs an unacceptable 'risk that
the jury could interpret the testimony as an opinion that the
21
No. 2015AP366-CR
complainant is being truthful about the assault,'" Jensen, 147
Wis. 2d at 256.
¶43 Gainey provided background information as context for
her testimony in regard to the indications of coaching and
dishonesty during the cognitive graphic interview. On direct
examination, defense counsel introduced the concept of a
cognitive graphic interview by asking Gainey, "And that's a
rather highly structured interview, isn't it?" Gainey
responded, "Yes." Defense counsel asked next, "Why do you go
through that kind of structure . . . when interviewing a child?"
Gainey answered, "I'm specialized, specially trained in that
technique to not conduct leading interviews of children. We
also videotape and do that format of an interview so the video
can be introduced rather than having the child testify at every
hearing."
¶44 On cross-examination, the prosecutor expanded on
defense counsel's questioning and asked Gainey about the
cognitive graphic interview technique that she uses to conduct
forensic interviews:
Q. Can you explain more fully the benefits of
conducting the cognitive graphic type interviews
with children?
A. The benefit most importantly is to have that
interview done on video so in a matter where the
case is taken to the criminal level, the video
can be submitted versus having the child appear
and testify at multiple hearings.
Q. But the interviewing technique you have been
trained on?
22
No. 2015AP366-CR
A. Oh, I'm sorry. The technique is to make sure the
child fully understands the difference between
truth and lies so they understand if they are
making up allegations, there are consequences for
those lies. Also to make sure that there is
consistency between what they are telling me or
have told other people. I'm not sure if there is
anything else I'm missing from your question.
Q. No. I think that's fully answered my question.
We did not watch the whole video. We just
watched the sort of midsection when you were
actually discussing the allegations that she had
made. So at the beginning part of the video that
we didn't see, you cover the difference between
truth and lie?
A. Yes.
Q. And was [K.L.] actually placed under oath?
A. She was. We reviewed what's called the
children's oath. It's, you know, do you promise
to tell the truth, the whole truth, and nothing
but the truth, and the child at that point states
typically yes. In this case she did, and then we
have them sign their name to the document as
well.
Q. Did in this instance you also cover consequences
for not telling the truth?
A. Correct. And I believe with this interview she
said somebody could get into trouble such as
going to jail when asked if there [are]
consequences for when people lie. And then she
promised to tell the truth after that.
Q. How long have you been conducting these kinds of
interviews?
A. I would say [I] probably was trained at least,
well, probably going on three years.
¶45 Gainey also described how she avoids leading questions
because she wants the child to introduce information into the
conversation:
23
No. 2015AP366-CR
Well, for example, where did your dad touch you.
Okay, so you are indicating that, as the interviewer,
I know that this man even though you haven't
identified him [as] the person that touched you, they
did touch you. If the child has not offered that
information, you don't introduce that information.
Gainey also described how she uses cognitive graphic interview
techniques to "kind of open the door for children to talk about
if something has happened to them" by using body diagrams:
We show them a body diagram. We go over the different
body parts, have them use the words that they prefer
to describe the different body parts. Then we ask
them has anybody or do you know what parts on your
body are okay or not okay for other people to touch.
Then have them identify those body parts, and then we
simply ask has anybody touched you anywhere on your
body. They can indicate yes or no or where those
things happened.
¶46 After describing how she avoids leading questions and
uses body diagrams, Gainey further testified:
Q. And you conduct the interview that way because it
makes the answers more reliable?
A. Yes.
Q. Have you had experiences in the past where
children have been essentially prompted by an
adult to give a certain type of answer during
this interview?
A. Yes.
Q. And does that become apparent when you use the
proper interview techniques?
A. Yes.
Q. So using these interview techniques is a way to
insure that a child who has been coached does not
continue with the false allegations during the
interview?
24
No. 2015AP366-CR
A. Yes.
¶47 In light of the testimony described above, we conclude
Gainey did provide a sufficient contextual basis to testify
about the indications she observed or, more to the point, did
not observe during the course of her cognitive graphic interview
with K.L. Jensen requires Gainey to provide sufficient detail
about what she is trained to look for, see Jensen, 147
Wis. 2d at 255, and Gainey did so. Gainey discussed the truth-
lie discussion she engaged in. She described the open-ended
questions she used, and she described how she tried to have K.L.
describe the assaults in K.L.'s own words.
2. The Question About Indications of Dishonesty
¶48 Second, Maday argues that even if Gainey is allowed to
testify about indications of coaching, Gainey should never have
been allowed to testify about indications that K.L. "was not
being honest."
¶49 Viewed in isolation, a question about indications of
whether a witness was "being honest" would seem to go more
directly to truthfulness than a question about indications of
coaching. Here, though, we are not viewing Gainey's testimony
in isolation, but rather, we view it in the context of a
cognitive graphic interview. Gainey was not asked to, and in
fact did not, opine about the veracity of another witness's
testimony. Rather, Gainey was asked about her observations of
indications of dishonesty during a cognitive graphic interview.
We honor the principle that a jury normally needs no help
assessing whether a witness is telling the truth. However, we
25
No. 2015AP366-CR
must also recognize the development of specialized, technical
interview methods for investigating allegations of child sexual
abuse as well as the case law that gives them life in the
courtroom. See, e.g., Tenn. Code Ann. § 24-7-123 (Supp. 2016)
(allowing the use of a videotaped forensic interview as evidence
if certain conditions are met); Michael H., 970 A.2d at 116
(using a forensic interview to investigate allegations of child
sexual abuse); Hilton, 764 So. 2d 1027, ¶20 (using a forensic
interview at the Jefferson Parish Children's Advocacy Center as
part of an investigation into allegations of child sexual
abuse); Wembley, 712 N.W.2d at 790-92 (allowing testimony of a
forensic interview conducted at CornerHouse in a child sexual
abuse case); Champagne, 305 P.3d 61, ¶36 ("The District Court
properly allowed Matkin to testify about a matter to which she
had training and experience: whether a victim had been
coached."); Kromah, 737 S.E.2d 490 (outlining the parameters for
admitting testimony of a forensic interview called the "Rapport,
Anatomy, Touch, Abuse Scenario, and Closure" method); Douglas,
671 S.E.2d 606 (evaluating testimony from a forensic interviewer
in a case involving child sexual abuse); Krueger, 314
Wis. 2d 605 (using a forensic interview called the "Step Wise"
method to investigate allegations of child sexual abuse); see
also Victor I. Vieth, The Forensic Interviewer at Trial:
Guidelines for the Admission and Scope of Expert Witness
Testimony Concerning an Investigative Interview in a Case of
Child Abuse, 36 Wm. Mitchell L. Rev. 186 (2009).
26
No. 2015AP366-CR
¶50 Any concerns we may have that Gainey was commenting on
K.L.'s veracity were addressed during Gainey's testimony in that
Gainey was clear that a cognitive graphic interview helps only
to increase the reliability of allegations from children. When
the prosecutor asked, "And you conduct the interview that way
because it makes the answers more reliable," Gainey answered,
"Yes." Of at least equal importance, Gainey also answered,
"True," in response to defense counsel's question asking, "There
is no way for you when conducting an interview to decide to know
whether or not previous interviews or questioning has influenced
the child's memory." Gainey never implied, much less said, that
K.L. was telling the truth. Rather, her testimony was expressly
limited both as to scope (the cognitive graphic interview) as
well as to the fact that, based upon her training and
experience, she did not see any indications of dishonesty, all
of which the jury was free to either use for assistance or
disregard entirely.
¶51 Therefore, Gainey's testimony does not violate the
Haseltine rule because her testimony was limited to commenting
on observations of indications she made during her cognitive
graphic interview with K.L. and her testimony included the
foundation of her training and experience.
E. The Circuit Court's Instructions
¶52 The circuit court instructed the jury on two occasions
that it, the jury, was the sole judge of credibility of the
witnesses. We generally assume that the jury follows its
instructions. E.g., State v. Anthony, 2015 WI 20, ¶89, 361
27
No. 2015AP366-CR
Wis. 2d 116, 860 N.W.2d 10. With no reason to set this
assumption aside, we assume here that the jury fulfilled its
role as the sole judge of credibility and determined the
credibility of K.L.'s testimony for itself. While Gainey's
testimony is admissible, the circuit court's proper instruction
of the jury helps us in reaching our conclusion because it
provides additional assurance that Gainey did not usurp the
jury's role as the sole judge of credibility of the witnesses.
F. Maday's Claim of Ineffective Assistance of Counsel
¶53 Maday claims his counsel was ineffective for failing
to object to Gainey's testimony and for withdrawing an objection
to the introduction of evidence of Maday's job-related training
in weapons and use of force. We address each claim in turn, and
ultimately, we conclude that neither claim results in
ineffective assistance of counsel.
1. The Strickland Test
¶54 Under the Sixth Amendment of the United States
Constitution and Article I, Section 7 of the Wisconsin
Constitution, a criminal defendant has the constitutional right
"to the effective assistance of counsel," Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). Thus, a criminal
defendant is denied his constitutional rights when he or she
receives ineffective assistance of counsel. The test to
determine ineffective assistance of counsel is a two-prong test
commonly known as the "Strickland test." Erickson, 227
Wis. 2d at 768. Under the first prong, the defendant must show
28
No. 2015AP366-CR
that counsel's performance was deficient. Id. Here, the
question for the court is whether counsel's performance fell
below an objective standard of reasonableness. State v. Thiel,
2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. Under the
second prong, the defendant must show that he was prejudiced by
counsel's deficient performance. Erickson, 227 Wis. 2d at 768.
Here, the question for the court is whether the deficient
performance undermines confidence in the outcome. Id. (quoting
Strickland, 466 U.S. at 694). Both prongs must be satisfied in
order to find ineffective assistance of counsel. Id.
2. Counsel's Failure to Object to Gainey's Testimony Is Not
Ineffective Assistance of Counsel
¶55 It follows that Maday's counsel was not deficient for
failing to object to Gainey's testimony because we hold that her
testimony is admissible. State v. Johnson, 2004 WI 94, ¶24, 273
Wis. 2d 626, 681 N.W.2d 901. Counsel's performance cannot be
considered deficient for failing to object to admissible
evidence. See State v. Maloney, 2005 WI 74, ¶¶25-30, 281
Wis. 2d 595, 698 N.W.2d 583. Even though the admissibility of
Gainey's testimony at the time of the trial may have been
unclear, this does not mean counsel was required to object to
Gainey's testimony. Id. (discussing that counsel has no duty to
object to every possible violation, particularly when the state
of the law is unsettled or unclear). In fact, it is axiomatic
that "[c]ounsel is not required to object and argue a point of
law that is unsettled." Id., ¶28 (quoting State v. McMahon, 186
Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994)).
29
No. 2015AP366-CR
¶56 In sum, Maday did not receive ineffective assistance
of counsel because counsel's performance was not deficient.
There is no need to analyze prejudice because his claim for
ineffective assistance of counsel cannot satisfy both prongs.
Id., ¶14 ("We need not address both components of the inquiry if
the defendant makes an insufficient showing on one.").
3. Counsel's Withdrawn Objection to the Training Evidence Is
Not Ineffective Assistance of Counsel
¶57 In addition to claiming ineffective assistance of
counsel based on his counsel's failure to object to Gainey's
testimony, Maday claims his counsel was ineffective for
withdrawing an objection to the introduction of evidence of his
job-related training in weapons and use of force. Because
neither party disputes that this evidence is irrelevant, we will
assume without deciding that counsel's performance was deficient
when he withdrew his objection to introduction of the evidence.
See State v. Smith, 207 Wis. 2d 258, 274–75, 558 N.W.2d 379(1997). Thus, the first prong is assumed to be satisfied, and
we move to the second prong to look for prejudice.
¶58 When determining if counsel's deficiency undermines
confidence in the outcome of the trial and amounts to prejudice,
"a court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury." Strickland,
466 U.S. at 695.
¶59 The totality of the evidence before the jury in this
case shows no reason why our confidence in the outcome should be
undermined. Before the training evidence even entered the
30
No. 2015AP366-CR
courtroom, K.L. testified that she did not report the sexual
assaults earlier because she was afraid of Maday and because she
knew he had weapons. Further, the jury's perception of Maday
likely did not change by hearing testimony of his training
because, as the circuit court noted, it is likely commonly
assumed that someone of Maday's position, i.e., a correctional
officer, has training in weapons and use of force. Thus, there
is no prejudice here, and Maday cannot meet the second prong.
We are not persuaded that admitting evidence of Maday's training
in weapons and use of force undermines confidence in the outcome
given the totality of the evidence before the jury.
¶60 In short, Maday cannot show he received ineffective
assistance of counsel. As to his first claim, we conclude there
is no deficient performance, and as to his second claim, we
conclude there is no prejudice.
IV. CONCLUSION
¶61 We hold that Gainey's testimony about the absence of
indications during the cognitive graphic interview either that
K.L. had been coached or that K.L. was being dishonest does not
violate the Haseltine rule, and is therefore admissible. We so
hold for three reasons. First, Gainey's testimony was limited
to her observations of indications of coaching and dishonesty.
Second, by limiting her testimony to indications of coaching and
dishonesty, Gainey did not provide a subjective opinion as to
K.L.'s truthfulness. Third, Gainey's testimony may assist the
jury. Accordingly, we conclude that Maday's counsel was not
ineffective for failing to object to Gainey's testimony.
31
No. 2015AP366-CR
Counsel's performance was not deficient because Gainey's
testimony is admissible.
¶62 Furthermore, we conclude Maday's counsel was not
ineffective for withdrawing his objection to the introduction of
evidence of Maday's job-related training in the use of weapons
and the use of force because Maday was not prejudiced by that
testimony.
By the Court.—The decision of the court of appeals is
reversed.
32
No. 2015AP366-CR.rgb
¶63 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion's reversal of the decision of the court of
appeals and also join its ineffective assistance analysis in
part F. I write separately for two reasons: (1) this case
should have been analyzed only under the ineffective assistance
test, and (2) the third factor the majority uses to support its
Haseltine analysis signals a change in the law where none was
intended.
I
¶64 Maday's issues should be reviewed only under an
ineffective assistance of counsel analysis because his trial
counsel: (1) failed to object when the prosecutor asked Gainey
the two questions Maday argues violate Haseltine, and (2)
withdrew an objection to the questions on Maday's use of weapons
and force training. See State v. Carprue, 2004 WI 111, 274
Wis. 2d 656, ¶¶36-47, 683 N.W.2d 31 ("[A]bsence of any objection
warrants that we follow 'the normal procedure in criminal
cases,'" which is to address the alleged error "within the
rubric of the ineffective assistance of counsel." (quoted and
cited sources omitted)); see also Kimmelman v. Morrison, 477
U.S. 365, 374-75 (1986) (in absence of objection, error should
be analyzed under ineffective-assistance-of-counsel standards,
even when error is of constitutional dimension). The majority
analyzed the Haseltine issue on the merits, independently from
an ineffective assistance review, and after deciding the merits
of the Haseltine issue, proceeded to analyze ineffective
assistance. I disagree with this approach for many of the
1
No. 2015AP366-CR.rgb
reasons this court expressed in Carprue. It also unnecessarily
lengthens the opinion and may lead to problematic consequences.
In particular, this court's use of an altered standard of review
in unobjected-to error cases could create a lack of certainty
for the bench and bar as to when a case like Maday's will be
limited to ineffective assistance review and when an unobjected-
to error will be decided on the merits. The majority opinion's
independent Haseltine analysis worked here because it concluded
there was no Haseltine violation. If the majority opinion
concluded Haseltine was violated, what would have been the next
step? Under the proper ineffective assistance review, our
analysis would proceed to the second prong of the ineffective
assistance test.
¶65 Although this court may in limited situations overlook
a forfeited or waived issue, see State v. Long, 2009 WI 36, ¶44,
317 Wis. 2d 92, 765 N.W.2d 557 (this court may address a waived
issue in certain circumstances); see also Carprue, 274
Wis. 2d 656, ¶¶36-39 (discussing reasons why this court is
reluctant to overlook non-objected-to error in criminal cases),
the majority does not explain why it did not follow this court's
normal procedure of limiting our review to ineffective
assistance.
¶66 Our review under the ineffective assistance test
requires a defendant to show: (1) deficient performance; and
(2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, ¶¶35-37,
848 N.W.2d 786. To prove deficient performance, Maday must show
2
No. 2015AP366-CR.rgb
specific acts or omissions by trial counsel that are "outside
the wide range of professionally competent assistance." See
Strickland, 466 U.S. at 690. To prove prejudice, Maday must
demonstrate his trial counsel's errors were so serious that he
was deprived of a fair trial and a reliable outcome. See id. at
687. To satisfy the Strickland prejudice prong, Maday "must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
See id. at 697. We need not address both deficient performance
and prejudice if Maday fails to prove either one. See id. at
697. This court's review of ineffective assistance claims
presents mixed questions of law and fact: (1) findings of facts
will not be disturbed unless clearly erroneous, and (2) the
legal conclusions "of whether counsel's performance was
deficient and prejudicial to the defense are questions of law
which this court reviews independently." State v. Johnson, 153
Wis. 2d 121, 127-28, 449 N.W.2d 845 (1990).
¶67 The majority opinion followed our normal procedure in
reviewing Maday's weapons-training claim by analyzing that claim
only under ineffective assistance. As noted, I join that part
of the majority's opinion. My analysis focuses on the alleged
ineffective assistance based on a violation of Haseltine. I
conclude Maday failed to establish ineffective assistance here
because his trial counsel's decision to withhold objections to
the two questions asked of Gainey during cross-examination was
3
No. 2015AP366-CR.rgb
not outside the wide range of professionally competent
assistance and therefore not deficient. This was not deficient
performance because, as the majority explains at great length,1
the answers did not cross the Haseltine line. The Haseltine
rule provides: "No witness, expert or otherwise should be
permitted to give an opinion that another mentally and
physically competent witness is telling the truth." State v.
Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984).
Asking Gainey whether she saw any indications, during the
cognitive graphic interview of K.L., that K.L. had been coached
or was not being honest did not elicit a subjective opinion that
K.L. was telling the truth or that the sexual assault occurred.
Gainey did not convey to the jury that she personally believed
K.L.'s testimony or that Maday committed the sexual assaults.
Gainey's testimony was limited to her observations that during
the cognitive graphic interview, she saw no indications of
coaching or suggestion or dishonesty. This testimony does not
cross the Haseltine line and is permissible. See State v.
Krueger, 2008 WI App 162, ¶14, 314 Wis. 2d 605, 762 N.W.2d 114(explaining that precedent and logic both support permitting
"expert testimony on typical signs of whether a child has been
coached or evidences suggestibility and whether the complainant
child exhibits such signs"). Because the failure to object was
1
I agree with much of the majority's analysis on the
cognitive graphic interview; I also agree with the reasons the
majority opinion sets forth in ¶¶39-40 as to why Gainey's
testimony did not violate Haseltine. See State v. Haseltine,
120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984).
4
No. 2015AP366-CR.rgb
not deficient, it is not necessary to analyze whether the
failure to object prejudiced Maday.
II
¶68 My second concern with the majority's Haseltine
analysis involves the third factor it uses to support its
independent Haseltine analysis: "Third, testimony, such as
Gainey's, may assist the jury." Majority op. ¶3; see also
majority op. ¶61. I have no doubt this is true. Testimony like
Gainey's will assist the jury. However, neither party raised a
concern under Wis. Stat. § 907.022 or argued the testimony would
not assist the jury.
¶69 Maday raised the issue of whether his counsel should
have objected on the basis that Gainey's testimony violated
Haseltine—not whether Gainey's testimony satisfied Wis. Stat.
§ 907.02. My concern is that the majority's use of the "assist
the jury" factor may suggest to the bench and bar that this
court has changed the Haseltine test. We have not. The
2
Wisconsin Stat. § 907.02(1) limits the admission of expert
testimony:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
(Emphasis added.)
5
No. 2015AP366-CR.rgb
Haseltine test remains the same. The majority's use of the
"assist the jury" factor was not intended as a stand-alone,
independent factor. Rather, the majority declares that Gainey's
testimony did not violate Haseltine because all three of the
factors it lists in ¶¶3 and 61 are present here.3
¶70 For these reasons, I respectfully concur.
3
Although this court discussed Wis. Stat. § 907.02 (1985-
86) in State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988),
it did so in a very different context. The challenged testimony
involved a school guidance counselor testifying that the
victim's reactive behavior was consistent with victims of sexual
abuse. Id. at 248-49. The defense used the reactive behavior
to argue the complainant fabricated the sexual assaults. Id. at
251-52. The State used the testimony to counter that defense,
suggesting the reactive behavior was caused by sexual assault.
Id. at 252. This court held, in that context, "an expert
witness may be asked to describe the behavior of the complainant
and then to describe that of victims of the same type of crime,
if the testimony helps the jury understand a complainant's
reactive behavior." Id. at 257. Maday's case does not present
the same context.
6
No. 2015AP366-CR.awb
¶71 ANN WALSH BRADLEY, J. (dissenting). The State of
Wisconsin seeks review of an unpublished per curium decision of
the court of appeals that reversed the conviction of Stanley
Maday, granting him a new trial. The court of appeals
determined that the State violated what heretofore has been a
rule in Wisconsin held sacrosanct——under no circumstances may an
expert witness opine on whether another witness is being
truthful.
¶72 At issue is whether a social worker's expert testimony
at trial impermissibly vouched for the credibility of a child
witness. Until today, the fundamental premise that the jury is
"the lie detector in the courtroom" has properly limited the
admissibility of expert testimony regarding a witness's
credibility. State v. Haseltine, 120 Wis. 2d 92, 96, 352
N.W.2d 673 (1984) (citing United States v. Barnard, 490 F.2d
907, 912 (9th Cir. 1973)).
¶73 However, in this case the majority concludes
otherwise. It determines that Haseltine permits a social
worker's expert testimony that she saw no indication that the
witness was dishonest during her interview. Additionally it
puts its imprimatur on testimony that she saw no indication that
the witness had been coached to make false allegations.
Majority op., ¶3.
¶74 In reaching its conclusion, the majority misconstrues
Wisconsin precedent, distorting and expanding the limited
exceptions allowing for expert testimony until they swallow the
rule. As a result, it allows social science to usurp the jury's
1
No. 2015AP366-CR.awb
role as the lie detector in the courtroom. The majority further
errs in reconfiguring the expert's testimony by creating out of
whole cloth the necessary foundational facts, which even the
State concedes are nonexistent in this record.
¶75 Contrary to the majority, I conclude that the social
worker's expert testimony that she saw no indications of
dishonesty crossed the line drawn by Haseltine. It
impermissibly vouched for the credibility of the child witness.
¶76 Similarly, I determine that the testimony addressing
indications of coaching was impermissible. Although our
precedent establishes that coaching testimony may fall within a
Haseltine exception if the proper factual foundation is
established, no such foundation exists in this record.
¶77 Because I further conclude that Maday's trial counsel
was ineffective by failing to object to this vouching testimony,
I would affirm the court of appeals. Accordingly, I
respectfully dissent.
I
¶78 From the outset, the majority misconstrues well-
established Wisconsin precedent, distorting and expanding the
limited exceptions allowing for expert testimony until they
swallow the rule.
¶79 Thus, I begin as the majority should have, with
Haseltine's rule that "[n]o witness, expert or otherwise, should
be permitted to give an opinion that another mentally and
physically competent witness is telling the truth." Haseltine,
120 Wis. 2d at 96.
2
No. 2015AP366-CR.awb
¶80 Because the majority opinion substantially alters the
limited exceptions permitting expert testimony, I pause to set
those forth here. Haseltine determined that in only limited
circumstances will expert testimony aid a jury. Id. at 96-97.
For example, the Haseltine court explained that an incest victim
may exhibit behaviors, such as not immediately reporting the
incest or recanting allegations, which might lead jurors to
believe that the victim is not telling the truth. Id. at 97.
It reasoned that an expert "could explain that such behavior is
common among incest victims as a result of guilt, confusion, and
a reluctance to accuse a parent." Id. at 97.
¶81 In State v. Jensen, 147 Wis. 2d 240, 244, 432
N.W.2d 913 (1998), this court permitted a guidance counselor to
testify regarding specific changes in the victim's behavior at
school, such as acting out in class and noncompliance with
homework. After addressing the specific behaviors exhibited by
children who had been sexually abused, the guidance counselor
testified that the victim's behavior was consistent with the
behavior of child sexual abuse victims. Id. at 246-48.
¶82 The Jensen court concluded that the counselor's
testimony was permissible because "the expert witness's
knowledge and experience might have assisted the jury in this
case." Id. at 246. It determined that "the reactions and
behavior of sexually abused children are not ordinarily matters
of common knowledge and experience and that the jury might
therefore be aided by the witness's specialized knowledge in
this area." Id.
3
No. 2015AP366-CR.awb
¶83 Thus, Jensen explained that "an expert opinion is
useful for disabusing the jury of common misconceptions about
the behavior of sexual assault victims." Id. at 251. Jensen
was explicit, however, that "the expert witness must not be
allowed to convey to the jury his or her own beliefs as to the
veracity of the complainant with respect to the assault." Id.
at 256-57.
¶84 More recently, in State v. Krueger, the court of
appeals permitted "expert testimony on typical signs of whether
a child has been coached or evidences suggestibility and whether
the complainant child exhibits such signs." 2008 WI App 162,
¶14, 314 Wis. 2d 605, 762 N.W.2d 114. The Krueger court
observed that testimony about a child's consistency, coupled
with testimony regarding the behavior of like-aged children,
could help the jury understand the interview and rebut a defense
theory of coaching or suggestion. Id., ¶15. Thus, Krueger
explained that "[s]igns of coaching or suggestion could fall
into the realm of knowledge that is outside that of a lay-person
jury." Id.
¶85 The Krueger court provided specific guidance regarding
the bounds of permissible testimony. Appropriate testimony
addresses "objective signs or behavior indicative of whether the
child's rendition is of the child's own making——whether truthful
or not." Id., ¶15 n.10. Krueger further detailed that in
addition to patterns of consistency, examples of objective
behaviors include the child's ability to supply peripheral
details of the alleged incident, the use of language that
4
No. 2015AP366-CR.awb
reflects the word usage of an adult, or the reporting of
information not appropriate for the developmental level of the
child. Id.
¶86 The majority misconstrues Wisconsin precedent by
ignoring that Krueger, and not Jensen, addressed the type of
coaching testimony at issue in this case. Krueger makes clear
that an expert must testify to objective signs or behaviors of
coaching before offering an opinion as to whether a child
witness exhibited those signs or behaviors. Id. Yet, this
requirement is absent from the majority opinion, which contends
that under Jensen an expert's qualifications provide sufficient
foundation for her testimony.
¶87 Discussing Jensen, the majority asserts that it simply
"requires [the social worker] to provide sufficient detail about
what she is trained to look for, . . . and [she] did so."
Majority op., ¶47 (citing Jensen, 147 Wis. 2d at 255). In its
analysis, the majority quotes at length from the expert's
testimony regarding her training and experience in conducting
this type of interview. Majority op., ¶¶44-46. Thus, the
majority concludes that the social worker "provide[d] a
sufficient contextual basis to testify about the indications she
observed or, more to the point, did not observe during the
course of her cognitive graphic interview with K.L." Majority
op., ¶47.
¶88 The majority distorts the Jensen exception because
Jensen does not require that an expert testify only about the
methods she uses in interviewing a child witness or her training
5
No. 2015AP366-CR.awb
in using these methods before offering a conclusion. A social
worker's interview methods, as well as training in using these
methods, certainly pertain to her qualifications as an expert.
However, whether the social worker was properly qualified as an
expert witness is not at issue here.1 What is in dispute is
1
At the outset of this dissent I observe that we are
reviewing an unpublished per curium opinion of the court of
appeals. In accepting review of such opinions, this court runs
the risk of unwittingly changing or developing the law in
unintended ways. Such appears to be the case here.
Without citing to Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), the majority opinion decides that the social
worker in this case is a qualified expert witness based on the
forensic interview technique she used in eliciting testimony
from the child witness. According to the majority, the forensic
interview techniques used today are accepted by experts and
courts to reliably test the accuracy of a child's allegations of
sexual assault. See, e.g., majority op., ¶¶28, 29, 49, 50.
However, no case cited by the majority in its lengthy
opinion has even addressed, much less recognized as reliable,
the "cognitive graphic interview" technique. The only time that
the "cognitive graphic interview" technique appears in Wisconsin
jurisprudence is over 14 years ago in a case where the
conviction was reversed because the circuit court precluded the
defense from challenging the reliability of the technique.
State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643
N.W.2d 777.
Undaunted by this reality, the majority sua sponte cloaks
this technique with the patina of reliability and asserts that
"we must [] recognize the development of specialized, technical
interview methods for investigating allegations of child sexual
abuse as well as the case law that gives them life in the
courtroom." Majority op., ¶49.
What supplemental information does the majority provide to
support its assertion that this is a reliable standard? None.
(continued)
6
No. 2015AP366-CR.awb
whether the expert's testimony impermissibly vouched for the
credibility of the child witness.
¶89 Haseltine, Jensen and Krueger, do not allow a social
worker to offer an opinion as to whether a witness showed signs
of dishonesty. Instead, our precedent permits an expert to
testify about the behaviors of victims of abuse and the
objective signs or behaviors of coaching. An expert may offer
an opinion regarding whether a witness showed signs of coaching
only after providing a foundation by testifying about the
objective signs or behaviors of coaching and whether a witness
exhibited those signs. Krueger, 314 Wis. 2d 605, ¶15 n.10.
¶90 Under the majority's expansion of the law, every
qualified expert could offer a conclusion regarding whether a
witness showed signs of dishonesty or coaching provided that she
All we know from the social worker's testimony is that in
addition to using non-leading questions and a body diagram, the
technique consists of the following three component parts: (1)
make sure the child understands the difference between truth and
lies, and the consequences of a lie; (2) assess the consistency
in the child's story; and (3) administer an oath to the child to
tell the truth. There is nothing special or scientific about
these component parts (As a parent of four children I had
several occasions to use this approach, although I usually did
not administer an oath.).
Whether a witness qualifies as an expert under the Daubert
standard is engendering substantial debate and litigation in
this state. However, it is not at issue in this case.
Nevertheless, the majority reaches out——without benefit of
briefs or oral argument——to analyze and decide whether this
witness, employing the "cognitive graphic interview" technique,
is a qualified expert witness. In determining that she is, the
majority appears to be implicitly deciding that her testimony
meets the Daubert standard.
7
No. 2015AP366-CR.awb
was properly qualified as a witness. The Haseltine rule, which
the majority purports to follow, would be swallowed by the
exceptions.
II
¶91 I turn next to address whether the testimony in this
case is permissible under the Haseltine rule or one of the
limited exceptions set forth in Haseltine, Jensen and Krueger.
The expert testified that during the interview there was no
indication that the witness was dishonest. Additionally,
without any foundational testimony regarding the objective signs
or behaviors of coaching, the expert confirmed that there was no
"indication that [the witness] had been coached in any way
during her interview." I address each in turn.
A
¶92 In determining the expert could testify that she saw
no indication of dishonesty, the majority violates the essential
Haseltine rule and allows purported social science to usurp the
jury's role as the lie detector in the courtroom.
¶93 The majority acknowledges that when "[v]iewed in
isolation, a question about indications of whether a witness was
'being honest' would seem to go more directly to truthfulness
than a question about indications of coaching." Majority op.,
¶49. However, the majority excuses this testimony by reasoning
that "[h]ere, though, we are not viewing Gainey's testimony in
insolation, but rather, we view it in the context of a cognitive
graphic interview." Id.8
No. 2015AP366-CR.awb
¶94 It reasons that "[a]ny concerns we may have that
Gainey was commenting on K.L.'s veracity were addressed during
Gainey's testimony in that Gainey was clear that a 'cognitive
graphic interview' technique helps only to increase the
reliability of allegations from children." Id., ¶50. According
to the majority, "[t]he forensic interview techniques used today
are accepted among experts and courts as effective tools for
investigating child sexual assault allegations because these
methods minimize the risk of false allegations of abuse that
result from a child's vulnerability to suggestion and coaching."
Id., ¶28.
¶95 There is no basis for the flexibility the majority
finds in the law. Wisconsin precedent is clear and unambiguous
that "[u]nder no circumstances may the expert venture an opinion
about whether the subject is being truthful or whether the crime
occurred." 7 Daniel D. Blinka, Wisconsin Practice Series:
Wisconsin Evidence § 608.3, at 489-90 (3rd ed. 2008); see also
Haseltine, 120 Wis. 2d at 96; Jensen, 147 Wis. 2d at 256-57;
Krueger, 314 Wis. 2d 605, ¶19; State v. Romero, 147 Wis. 2d 264,
278, 432 N.W.2d 899 (1988).
¶96 The law does not place as much faith in interview
techniques as does the majority. Social science, as the
majority acknowledges, may be deemed reliable today and
unreliable in the future. See majority op., ¶27.
¶97 Indeed, experts and commentators agree that "the
fields of [mind sciences] have not developed to a point where
these practitioners are likely to be better judges of
9
No. 2015AP366-CR.awb
truthfulness than a lay jury." 7 Daniel D. Blinka, Wisconsin
Practice Series: Wisconsin Evidence § 608.3, at 485.
Consequently, the law of evidence "remains justifiably skeptical
of the role of the various mind sciences in assessing
credibility, as best seen in the blanket exclusion of polygraph
evidence." Id. at 485-86.
¶98 This court has recognized that a psychiatrist has "no
specialized ability to assess the truthfulness of [a witness's]
account." State v. Kleser, 2010 WI 88, ¶105, 328 Wis. 2d 42,
786 N.W.2d 144 (citing State v. Moran, 728 P.2d 248, 255 (Ariz.
1986) (citing People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984)
("Psychologists and psychiatrists are not, and do not claim to
be, experts at discerning the truth. Psychiatrists are trained
to accept facts provided by their patients, not to act as judges
of patients' credibility.")). As Haseltine cautioned, an
expert's opinion on truthfulness provides only an "aura of
scientific reliability," which must not replace the jury as the
lie detector in the courtroom. See 120 Wis. 2d at 95.
¶99 Accordingly, it the proper role of the jury, and not
an expert witness, to determine whether a witness is truthful.
Id. at 96. The jury in this case had the opportunity to watch
the child witness's videotaped testimony and observe her
testimony at trial. By concluding that the context of a
"cognitive graphic interview" permits an expert to testify about
a witness's truthfulness, the majority allows social science to
usurp the jury's role as lie detector in the courtroom.
10
No. 2015AP366-CR.awb
¶100 The majority repeatedly contends, however, that
because the expert did not use the word "opinion," and instead
said that she saw no "indications" of dishonesty, her testimony
will aid the jury. It errs because as this court has explained,
the vouching rule does not become "inapplicable simply because a
witness does not use specific words such as 'I believe X is
telling the truth' . . . " Kleser, 328 Wis. 2d 42, ¶102.
Indeed, "[t]here is no requirement that an expert explicitly
testify that she believes a person is telling the truth for an
expert's opinion to constitute improper vouching testimony."
Id.¶101 A "requirement that specific words be used would
permit the rule to be circumvented easily." Id. That is
exactly what the majority allows the State to do here, when it
determines that the expert's testimony that she saw no
indications of dishonesty is admissible.
¶102 Contrary to the majority's assertions, this testimony
is not admissible even if it addresses a witness's truthfulness
only in the context of a cognitive graphic interview. Haseltine
prohibits expert testimony regarding a witness's credibility and
therefore prohibits the expert's testimony about whether the
witness was being honest during her interview. 120 Wis. 2d at
96. A unanimous court of appeals determined that this testimony
clearly crossed the Haseltine line. I agree.
B
¶103 Next I address whether the expert's testimony that she
saw no indications that the witness had been coached is
11
No. 2015AP366-CR.awb
permissible under one of the limited exceptions set forth in
Haseltine, Jensen and Krueger. I begin by invoking and
paraphrasing the maxim: the majority may be entitled to develop
its own opinion, but it is not entitled to develop its own
facts. Out of whole cloth, the majority develops its own
factual record, which even the State concedes is nonexistent.
¶104 Haseltine and Jensen permit expert testimony about the
typical behavior of victims of abuse. Haseltine, 120 Wis. 2d at
97; Jensen, 147 Wis. 2d at 246. The expert's testimony in this
case did not address the typical behavior of victims of abuse,
such as a delay in reporting or acting out in school.
Consequently, I need not further address this limited exception.
Instead, the testimony here focused on the interview process.
Thus, I examine the limited exception for coaching testimony
derived from an interview and permitted under Krueger.
¶105 Krueger reasoned that testimony about whether a
child's behavior during an interview is consistent with the
behavior of like-aged children could both help a jury understand
the interview and rebut a defense theory of coaching. 314
Wis. 2d 605, ¶14. Under Krueger, admissible testimony addresses
"objective signs or behavior" such as a child's ability to
supply peripheral details of the alleged incident, the use of
language that reflects the word usage of an adult, or the
reporting of information not appropriate for the developmental
level of the child. Id., ¶15 n.10.
¶106 The expert in this case gave none of the foundational
testimony that Krueger requires. Without any foundational
12
No. 2015AP366-CR.awb
testimony regarding the objective signs or behaviors of
coaching, the expert witness baldly concluded that there was no
indication that the witness had been coached in any way during
her interview.
¶107 To fill a void in the record, the majority
reconfigures the expert's testimony here. It asserts that she
"provided background information as context for her testimony in
regard to the indications of coaching and dishonesty during the
cognitive graphic interview." Majority op., ¶43. Not only is
there no support for this assertion in the trial transcript,
even the State did not contend that she testified about any
objective signs or behaviors of coaching.
¶108 At oral argument, counsel for the State repeatedly
conceded that the proper foundation had not been laid for the
social worker's conclusions that she saw no indication of
coaching. When the State's counsel was asked what objective
indications the expert observed, he responded:
 "I understand that we didn't have the foundation. I
concede that. We don't have the foundation. It's not
there."
 "If you're asking what is the foundation in this case,
there wasn't very much of a foundation."
 "Well this gets back to Justice Abrahamson's question
about whether there was this foundation here and I'd
have to say that I don't know, the record doesn't tell
us."
13
No. 2015AP366-CR.awb
¶109 Rather than determine that the expert impermissibly
opined that the witness showed no indications of coaching, the
majority over-reaches by sua sponte attempting to lay the
foundation for the testimony. Indeed, the majority tells the
reader everything the expert should have told the jury, but did
not.
¶110 Relying on a journal article, the majority informs the
reader that a child's inability to supply information on her
own, the use of adult language, giving vague or inconsistent
accounts, and refusing to discuss details of the abuse are all
objective indications of coaching or suggestibility. Majority
op., ¶¶31-32 (citing August Piper, Investigating Child Sex Abuse
Allegations: A Guide to Help Legal Professionals Distinguish
Valid from Invalid Claims, 36 J. Psychiatry & L. 271, 302-03
(2008)).
¶111 Given its lengthy recitation of the indications of
coaching an expert might identify during a cognitive graphic
interview, the majority opinion might lead the reader to believe
that the expert discussed these indications during her trial
testimony. She did not. Although the majority's discussion may
be informative, it does not remedy the fact that none of the
objective signs or behaviors of coaching was presented to the
jury.
¶112 Without the necessary foundation, the social worker's
testimony does not assist the jury in making a credibility
determination——it instead makes that determination for the jury.
All that the jury was told is that the expert concluded that she
14
No. 2015AP366-CR.awb
saw no indications of coaching. This contravenes Haseltine's
prohibition because it does not fall within the limited
exception allowing for objective signs of coaching under
Krueger.
¶113 The Krueger court provided specific guidance,
carefully circumscribing the bounds of permissible testimony.
It cautioned that "testimony regarding coaching may more readily
border on truthfulness, as compared to the analysis of reactive
behavior." 314 Wis. 2d 605, ¶15 n.10; see also id., ¶21 (Brown,
C.J., concurring). Unfortunately, the majority heeded neither
the caution nor the bounds of permissible testimony.
Accordingly, the coaching testimony here is inadmissible because
without the necessary foundational testimony, it violates the
Haseltine rule.
III
¶114 Because I conclude that the social worker's testimony
impermissibly vouched for the credibility of the witness, I
address next whether Maday received ineffective assistance of
counsel when his trial counsel failed to object to the expert
testimony.
¶115 Maday must demonstrate that his trial counsel's
performance was deficient and that the deficient performance
prejudiced his defense in order to prevail on a claim of
ineffective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 687 (1984). To show prejudice, a defendant must
demonstrate that there is "a reasonable probability that, but
for counsel's unprofessional errors, the result of the
15
No. 2015AP366-CR.awb
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Id. at 694.
¶116 Several Wisconsin cases have addressed whether the
admission of impermissible Haseltine testimony is prejudicial
pursuant to Strickland when a defendant's trial is a pure
credibility contest. See, e.g., Haseltine, 120 Wis. 2d at 96;
Krueger, 314 Wis. 2d 605, ¶¶17-19. All have concluded that such
testimony is prejudicial because it undermines confidence in the
reliability of the outcome of the trial. See, e.g., Krueger,
314 Wis. 2d 605, ¶20; Haseltine, 120 Wis. 2d at 96.
¶117 Of particular import, the Krueger court concluded that
whether the victim's account of a sexual assault is corroborated
by independent evidence is significant in determining
performance and prejudice. 314 Wis. 2d 605, ¶18. Krueger
explained that because the issue at trial was one of
credibility, the expert's opinion, "with its aura of scientific
reliability, creates too great a possibility that the jury
abdicated its fact-finding role to the psychiatrist and did not
independently decide [the defendant's] guilt." Id. (quoting
Haseltine, 120 Wis. 2d at 96).
¶118 The court in Krueger concluded that the risk of
prejudice was too great in a one-on-one credibility battle:
"[t]here is a significant possibility that the
jurors . . . simply deferred to witnesses with experience in
evaluating the truthfulness of victims of crime."). Id., ¶18
(citing Romero, 147 Wis. 2d at 279). This "possibility gives
16
No. 2015AP366-CR.awb
rise to the reasonable probability that, but for trial counsel's
error, the jury would have had a reasonable doubt respecting
guilt." Id. (citing Strickland, 466 U.S. at 695).
¶119 Here, there was no physical or DNA evidence introduced
at trial so the main issue was whether the child or Maday was
more credible. This scenario, as discussed above, enhances the
risk of prejudice. To tip the balance, Maday offered
inconsistencies between the child witness's testimony in the
videotaped interview and her testimony at trial. However, such
evidence pales in comparison to the potency of an "expert"
vouching for the credibility of the child.
¶120 The prosecutor's closing argument further amplified
the improper influence of the expert's testimony by emphasizing
that the expert did not observe indications that the victim "was
lying":
You [] got to hear from a social worker who was
specially trained to conduct these interviews. She
told you there was nothing that she saw that indicated
that [the witness] had been coached or that she was
lying. Neither of those things were present during her
interview with [the witness].
In fact, one of the purposes of that specific
interview technique that she uses is to remind the
child there are consequences for lying. . . . [A]nd
again, there was nothing to indicate that [the
witness] was making anything up. That’s called
reliability, and it makes [the witness's] account more
credible.
This testimony that the witness was not lying or making anything
up "clouded the crucial issue of credibility." Romero, 147
Wis. 2d at 267.
17
No. 2015AP366-CR.awb
¶121 Thus, similar to Krueger, there is too great of a risk
that the jury abdicated its fact-finding role to the expert
witness. Contrary to the majority's assertion, a standard
instruction advising the jury that it is to be the sole judge of
credibility is insufficient to cure the problem. This standard
instruction was likely given in every case where an expert's
testimony was deemed impermissible under Haseltine and
prejudicial under Strickland.
¶122 The risk that the jury abdicated its fact-finding role
to the expert gives rise to the reasonable probability that, but
for trial counsel's error, the jury would have had a reasonable
doubt regarding Maday's guilt. Because counsel's error is
sufficient to undermine confidence in the outcome of the
proceeding, I determine that Maday was prejudiced. See Krueger,
314 Wis. 2d 605, ¶18 (citing Strickland, 466 U.S. at 694).
¶123 In sum, I conclude that the social worker's expert
testimony impermissibly vouched for the credibility of the child
witness. The testimony that she saw no indications of
dishonesty simply crosses the line drawn by Haseltine. Although
the testimony addressing indications of coaching may fall within
a Haseltine exception if the proper factual foundation is
established, no such foundation exists in this record.
¶124 I further conclude that Maday's trial counsel was
ineffective by failing to object to this testimony. Thus, I
would affirm the court of appeals opinion reversing a circuit
court order denying Maday's motion for postconviction relief.
Accordingly, I respectfully dissent.
18
No. 2015AP366-CR.awb
¶125 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
19
No. 2015AP366-CR.awb
1