Right to Present Defense
Trumps Evidence Rule in Wisconsin Case
The Wisconsin Supreme Court has reversed a child sex abuse conviction because the trial court did not permit the defendant’s expert witness to testify. The court did not find the trial court had abused its usual discretion in applying rules of evidence. It decided, rather, that the defendant’s constitutional right to present a defense required admission of the testimony here, even if the rules of evidence did not.
The case is State of Wisconsin v. St. George, 643 N.W.2d 777 (5/8/02). Two justices dissented.
The five-year-old complainant recanted at trial. The State presented two expert witnesses. One, a child protection worker, testified that the girl had reported the defendant’s molestation to him during a “cognitive graphic interview.” He described this interview technique as “a nationally accepted process that obtains accurate information from children.”
The State’s other expert witness, a clinical social worker with experience counseling child sex abuse victims, testified that 92% of children who recant a molestation allegation later reaffirm it.
The proffered defense expert, a psychiatrist who had only slight experience with child sex abuse victims, would have testified in response to the State’s experts. He would have testified that using the cognitive graphic interview technique could not guarantee reliable results, and that the manner of its use in this case raised questions about reliability. He would also have testified that there was no scientific basis to conclude that a particular recanted allegation was accurate.
The supreme court observed that a trial court has some discretion when it applies the rules of evidence. It did not decide whether the trial court here had abused that discretion. Rather, it said that in this situation it was not enough to apply the rules of evidence; the constitutional right to present a defense had to be considered, too. The supreme court held the exclusion of the defense expert’s testimony had violated that constitutional right.
The court began its analysis with United States v. Scheffer, 523 U.S. 303 (1998). There the U.S. Supreme Court said rules of evidence do not violate a defendant’s right to present a defense unless they are arbitrary or disproportionate to the purposes they are designed to serve.
From this the St. George court formed a two-part inquiry for determining whether excluding expert testimony would be unconstitutional. The first part requires the defendant to show each of four things:
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(1)
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the discretion afforded trial courts in evidence rulings would permit admission of the evidence (in other words, constitutional considerations aside, if the trial court admitted the evidence, it would not be reversed for abuse of discretion);
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(2)
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the testimony was clearly relevant to a material issue;
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(3)
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the testimony was necessary to the defendant’s case;
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(4)
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the probative value of the testimony outweighed its prejudicial effect.
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If the defendant shows all those things, the St. George court said, the trial court should then conduct the second part of the inquiry. That is to determine whether the State has a compelling interest to exclude the testimony which outweighs the defendant’s right to present it.
The court applied its two-part inquiry to the case before it, found error, and reversed the conviction.
Copyright © 2003 David S. Marshall
