Sunday, July 12, 2009


I admit, I'm an evidence geek ever since teaching the class at UW Law School in the late 90s. One issue that has always bothered me is the almost unrestricted use by the prosecution of using their case agent as a so called expert witness to summarize at the end of their case. For the most part, this evidence, while characterized as helping the jury understand something outside their general knowledge, is code for "I think that the defendant is guilty." (sorry for the sarcasm)

For me, the main irritant of this type of testimony has been what I see as the backdoor admission of character evidence. Testimony (significantly shortened for this entry) along the following lines: I have investigated 100s of drug cases, including the sale and distribution of cocaine. In my opinion, the packaging and code words in this case are consistent with the sale and distribution of cocaine. What the heck? To add salt to the wound this police expert testimony has been expanded to include testimony characterizing how victims of crimes typically act....way beyond the the two concepts that we are most familiar with: spousal abuse syndrome and rape trauma syndrome.

While a limited number of courts have been sensitive to this issue, the decision in Crawford has focused on a related problem that should result in courts being more thoughtful and analytical in determining admissibility. Crawford establishes that the Confrontation Clause of the 6th Amendment prohibits the introduction into evidence of out-of-court testimonial statements made by an absent witness. This rule has a tendency to collide and intersect with Fed. R. Evid. 703 (Wis. Stat. 907.03) and police expert witnesses. The court and the parties must be sensitive that the "expert" not be allowed to communicate out-of-court testimonial statements in the guise of expert opinion. In the latter part of 2008, the 2nd Circuit addressed this issue head on in the case of United States v. Mejia. While the opinion is too lengthy to summarize here, suffice it to say that the government crossed the line and the defendants' convictions were vacated due to the improper introduction of police expert testimony. It is the intention for this writer to revisit this issue on a recurrent basis as this practice threatens the integrity of the fact finding process and the proper role of the jury.

Sidenote: The governor finally selected the replacements for the three open judgeships in Dane County. The selections were not without their controversey. It is interesting to see the results in light of the Wisconsin State Journal's efforts to promote a merit based system for selecting our judiciary. Dane County has had the opportunity to participate in the Jacksonian-LaFollette direct election process (Genovese v. Ehlke) and the Hamiltonian modified merit process (McNamara, Anderson and Smith). Which worked best? Time will tell. More comments to follow.

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