Tuesday, December 14, 2010

Merry Christmas and Happy New Year

By John DiMotto
Today, I want to wish all those persons who have followed this blog a Merry Christmas and a Happy New Year. I have enjoyed sharing my thoughts on various points of law and look forward to continuing to do so in 2011.
With the end of the year in full swing and with a number of things "on my plate" this will be my last post for 2010. I will be back "with fervor" after the first of the year.
"See you all next year."

Tuesday, December 7, 2010

The Wisconsin Rules of Evidence -- The "Business Records" Hearsay Exception

By John DiMotto
Wisconsin Statutes section 908.03(6) sets forth the "Business Records" exception to the general prohibition on the admissibility of hearsay. It encompasses:
1) a memorandum, report, record, or data compilation;
2) in any form;
3) of acts, events, conditions, opinions, or diagnoses;
4) made at or near the time by, or from information transmitted by;
5) a person with knowledge;
6) all in the course of a regularly conducted activity;
7) as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 909.02(12) or (13), or a statute permitting certification;
8) unless the sources of information or other circumstances indicate lack of trustworthiness.
In my experience, this is one of the most misunderstood hearsay exceptions by trial attorneys. Many lawyers believe that any entry in a business record is admissible. Nothing could be farther from the truth.
In order for an entry in a business record to be admissible, all declarants involved in making the specific entry record must be part of the organization which prepared it. If one of the declarants is not part of the organization, an additional level of hearsay is present which must fall into an exception. see State v. Gilles, 173 Wis.2d 101 (Ct. App. 1992); 908.05; 7 D. BLINKA, WISCONSIN PRACTICE, EVIDENCE sec. 803.06, at 481 (1991). In the scenario of a corporation, if an employee of the corporation sets forth in a document made in the course of regularly conducted activity what he saw and did at a meeting, the "Business Records" exception would allow for the introduction of that information. However, if that same employee sets forth what a person, who is not a member of the corporation, said at that same meeting, the statement of that person is not admissible unless some other hearsay exception applies. The "Business Records" exception does not allow admission of a second level of hearsay. The reports cannot establish more than their maker could if he was testifying in court on their subject. see State v. Mitchell, 84 Wis.2d 325, 330 (1978).
It is also important to note that while the custodian, or other qualified witness, who is utilized to introduce the record need not be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of 908.03(6), the witness must have personal knowledge of how the records are made so the witness can say they were made "at or near the time of the event by or form information transmitted by a person with knowledge" and in the ordinary course of regularly conducted activity. see Palisades Collection LLC v. Kalel, 324 Wis.2d 180 (Ct. App. 2010). In the context of collections actions, where a plaintiff buys a debt from a credit card company, the plaintiff, not being a member of the credit card company, could not be the conduit for the introduction of the credit card company's "business records." Personal knowledge as to how the records are kept is foundational.
An interesting issue that I have faced in Termination of Parental Rights (TPR) cases, is whether records that are prepared by a social service agency under contract with the Bureau of Milwaukee Child Welfare (BMCW) to provide services to the subject child and parents and which must be provided to BMCW come under the umbrella of 908.03(6) and are admissible. I have held that if the State can establish that there is an agency relationship between the service providers and BMCW and if the State can establish that the records are kept according to standards set by BMCW, that 908.03(6) applies.
The "Business Records" exception is an important and necessary exception but it can be subject to abuse. A trial court must ensure that the conditions precedent to introduction of evidence under it are met.
In my next blog, I will look at the Public Records exception.

Tuesday, November 30, 2010

The Wisconsin Rules of Evidence - The "Statements for Purposes of Medical Diagnosis or Treatment" Hearsay Exception

By John DiMotto
Wisconsin Statutes section 908.03(4) sets forth the "Statements for Purposes of Medical Diagnosis or Treatment" exception to the general prohibition on the admissibility of hearsay. It encompasses:
"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
In order for the exception to apply, not only must the statements be made for purposes of medical diagnosis or treatment but they must describe:
1) medical history, or
2) past or present symptoms, or
3) pain or sensations, or
4) inception of the cause or external source, or
5) general character of the cause or external source
insofar as the statements are reasonably pertinent to the diagnosis or treatment.
It is critical that what is being said is "reasonably pertinent to the diagnosis or treatment. The fact that statements are made, in and of themselves, does not make them admissible. For example if a patient is seeing his/her doctor for a sprained ankle and the doctor asks the patient how it happened and the patient says that he/she tripped and fell on a bump in the sidewalk and then adds, "oh by the way, one year ago I was sexually assaulted while on a date by John Doe", the report of the sexual assault would not be admissible under 908.03(4) because it could not be successfully argued that it was reasonably pertinent to the diagnosis or treatment of a sprained ankle. There must be a link between the statement and the diagnosis or treatment.
The reason for admissibility under 908.03(4) is that the declarant's motive is for obtaining improved health. This guarantees trustworthiness since a physician relies on what a person says to diagnose and treat. In fact, in a child abuse case, the identity of the perpetrator is deemed reasonably necessary to provide treatment to the child. see State v. Nelson, 138 Wis.2d 418 (1987). For this reason, the statement may come from the patient himself/herself (first party) or from the mother of a child (third party). see State v. Huntington, 216 Wis.2d 671 (1998). This exception is a firmly rooted one. This exception, however, does have limits. For example, while it applies to physicians and psychologists it does not extend to counselors or social workers. see Huntington.
It is believed that when people speak with their doctor that they will be honest and candid since their health, their life is at stake. The law recognizes this as a fact and as such endows these statements with sufficient reliability that they can be admitted regardless of the presence or even availability of the declarant.
In my next post, I will address the Business and Public Records exceptions.

Monday, November 22, 2010

The Wisconsin Rules of Evidence -- The State of Mind Hearsay Exception

By John DiMotto
Wisconsin Statutes section 908.03(3) sets forth the "State of Mind" exception to the general prohibition on the admissibility of hearsay. It encompasses:
"A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."
This exception is a limited one. It only applies to the then existing state of mind, emotion, etc and does not apply if the state of mind is with respect to a memory or belief. Thus, if a witness is on the stand and says that when she was with the declarant, the declarant seemed distant and distracted and when she asked the declarant if anything is wrong the declarant said he was extremely upset because he has been diagnosed with cancer, this declaration would be admissible because it describes the current circumstances of the declarant's state of mind. However, if the declarant would answer by saying that the declarant is reflecting on the assassination of JFK from 47 years ago, this would not be admissible because it is a statement of memory.
While the State of Mind exception allows a witness to testify as to what a declarant's current state of mind is, it does not allow the admission of a declarant's statements of conduct of others to prove the truth of that conduct solely because that conduct is relevant to the declarant's state of mind. see State v. Kutz, 267 Wis.2d 531 (Ct. App. 2003). The State of Mind exception allows a declarant's statements about his/her state of mind to prove his/her state of mind. see State v. Johnson, 187 Wis.2d 431 (Ct. App. 1994). Under 908.03(3), a statement of a present intent to do an act in the future is admissible to prove the declarant acted in conformity. see State v. Everett, 231 Wis.2d 616 (Ct. App. 1999).
The State of Mind exception had its genesis in Mutual Life Ins. Co. of NY v. Hillmon, 145 US 285 (1882). In this case, the admissibility of letters which set forth the intentions of a declarant was at issue. The Kansas trial court excluded the letters as being hearsay. The United States Supreme Court reversed and remanded for a new trial ruling that the letters should be admitted. SCOTUS held that:
"The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation."
"The rule applicable to this case has been thus stated by this court: 'Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.'"
In my next blog, I will look at the exception dealing with Statements for Purposes of Medical Diagnosis or Treatment.

Monday, November 15, 2010

The Wisconsin Rules of Evidence - The Excited Utterance Hearsay Exception

By John DiMotto
Wisconsin Statutes section 908.03(2) sets forth the "Excited Utterance" hearsay exception. It encompasses:
"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
There are three elements to this hearsay exception:
1) Need for a startling event or condition.
2) Statement related to the startling event or condition.
3) Statement made while under stress of excitement caused by the startling event or condition.
Case law gives lawyers and judges guidance on the parameters and outer limits of this exception.
The excited utterance is a firmly rooted hearsay exception. State v. Patino, 177 Wis.2d 348 (Ct. App. 1993). It is based upon spontaneity and stress which endows the statement with sufficient trustworthiness to overcome reasons for exclusion. Essentially, it must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement stimulated by the event and the event itself. State v. Huntington, 216 Wis.2d 671 (1998). Under the excited utterance, time is measured by the duration of the condition of excitement rather than the mere lapse of time from the event/condition. State v. Moats, 156 Wis.2d 74 (1990). The excited utterance exception is based on the notion that excitement or agitation stills the declarant's capacity for conscious reflection thus reducing the risks associated with fabricated or insincere testimony. State v. Gerald L.C., 194 Wis.2d 549 (Ct. App. 1995).
In the context of child sexual abuse cases, the excited utterance is expansively applied. The Wisconsin Supreme Court has formulated, by case law, a special species of excited utterance for statements made by young children alleged to have been victims of sexual assault. A broad and liberal interpretation is given. State v. Padilla, 110 Wis.2d 414 (Ct. App. 1983). Excited utterance time is measured by the duration of the condition. Young children produce declarations free of conscious fabrication for longer time than adults. It is unlikely a young child will review the incident and calculate the effect of his or her statement. State v. Teynor, 141 Wis.2d 187 (Ct. App. 1987). In fact, a statement from an alleged victim may be an excited utterance even though the alleged victim did not appear emotionally upset and even if the statements were made in response to questions. State v. Gollon, 115 Wis.2d 592 (Ct. App. 1983); State v. Lindberg, 175 Wis.2d 332 (Ct. App. 1993). What matters is spontaneity and stress. Contemporaneity, unlike the present sense impression, is not needed. Moats.
The excited utterance exception is a vehicle to bring evidence before the trier of fact by taking the trier of fact back in time. The excited utterance is a legal "time machine."
In my next blog, I will examine the "State of Mind" exception.

Friday, November 12, 2010

The Wisconsin Rules of Evidence - Present Sense Impression Hearsay Exception

By John DiMotto
Section 908.03(1) sets forth the "Present Sense Impression" hearsay exception. It encompasses:
"A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
These statements describe or explain what the declarant has seen, heard, smelled or tasted.
For example:
1) I just saw a car strike a person crossing the street in the crosswalk.
2) I smelled an odor of gas just before the explosion.
3) I just heard a woman screaming "leave me alone" and then saw a man slap her in the face.
4) I just took a bite out of an apple and it caused my mouth to pucker up.
It is important to note that these statements pertain to facts; matters that are concrete. The exception is not intended to encompass opinions.
These statements must be made at the time of the perception or immediately thereafter. They are considered to be reliable because of their spontaneity and contemporaneity. There should be no appreciable time between the observation and statement. This is unlike the Statement of Recent Perception exception found in 908.045(2). The temporal relationship between an event and a statement describing the event is not as critical when dealing with the Statement of Recent Perception as it is with the Present Sense Impression. 908.045(2) concerns that which is recent. 908.03(1) concerns that which is present. see State v. Knapp, 265 Wis.2d 278 (2003). The Statement of Recent Perception was intended to allow more time between the observation of the event and the statement. see State v. Weed, 263 Wis.2d 434 (2003); Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis.2d 806 (Ct. App. 1988); State v. Ballos, 230 Wis.2d 495 (Ct. App. 1999).
The Present Sense Impression is akin to a 908.03(2) "excited utterance" without the excitement requirement and with a contemporaneity requirement. They are both "firmly rooted" hearsay exceptions. see State v. Hemphill, 287 Wis.2d 600 (Ct. App. 2000).
The Present Sense Impression exception to the general rule barring hearsay allows the introduction of a statement which is deemed to have sufficient indicia of reliability by virtue of the circumstances in which the statement is made.
In my next blog, I will look at the 908.03(2) Excited Utterance Exception.

Tuesday, November 9, 2010

The Rules of Evidence: Hearsay Exceptions

By John DiMotto
The Wisconsin Rules of Evidence are set forth in Chapters 901 - 911 of the Wisconsin Statutes. They were enacted by Supreme Court Order, 59 Wis.2d R1, R9 (1973). Today, I would like to begin a series on the hearsay exceptions codified in 908.03 and 908.045.
Hearsay is defined in 908.01(3). "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence, to prove the truth of the matter asserted." Ordinarily, hearsay is excluded because it is not based on the personal observation or knowledge of the witness. 908.02 specifically sets forth that "hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.
Black's Law Dictionary, 5th Ed. reports that hearsay is:
1) "Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say."
2) "That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons."
3) "The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity."
That having been said, the exceptions -- specified cases from necessity -- are numerous.
There are two sets of hearsay exceptions:
1) Those where the availability of the declarant is immaterial.
2) Those where the declarant is unavailable.
908.03 delineates the hearsay exceptions where the availability of the declarant is immaterial. There are twenty three specific exceptions and one "catchall" exception. Many of these exceptions are firmly rooted while others are not.
With respect to these exceptions, while availability of the declarant may be statutorily immaterial, in criminal cases the issue of confrontation must be addressed when testimonial hearsay is at issue. In Crawford v. Washington, the United States Supreme Court held that the only indicium of reliability to satisfy constitutional demands with respect to testimonial statements is confrontation - by testing in the crucible of cross examination. Where the hearsay is nontestimonial, the States have flexibility in their development of hearsay law. It is important to note that Crawford applies in criminal cases not in civil cases.
In my next blog, I will begin looking at the various hearsay exceptions in 908.03 and 908.045 as they pertain to civil cases.

Monday, November 1, 2010

Jury Trial Issues -- The Twelve Person Jury

By John DiMotto
Did you ever wonder why, in Wisconsin, a criminal defendant is entitled to a trial by a twelve person jury?
The 6th Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." There is no reference as to how many jurors shall constitute the jury.
Article I, Section 7 of the Wisconsin Constitution provides that "In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed..." Once again, there is no reference as to how many jurors shall constitute the jury.
If there is no direct language as to how many jurors shall constitute a jury, how is it that in Wisconsin we have settled on twelve in every criminal case? The answer lies in case law.
In State v. Hansford, 219 Wis.2d 226 (1998), the Wisconsin Supreme Court addressed the issue in the context of whether a six person jury in misdemeanor cases is constitutional. In absence of any direct language in the constitution itself, the Court resorted to extrinsic evidence to ascertain the intent of the framers of our constitution.
The Court looked to records from the constitutional conventions of 1846 and 1847. However, they found almost no debate about the guarantee of the right to a jury trial let alone as to the number of jurors. What the Court did find was a comment by a delegate to the convention, Charles H. Lakin, during a debate regarding whether Article I, Section 5 should prohibit judges from instructing juries other than as provided by statute. In his remarks, Lakin stated, "If it be the name of trial by jury that enamours you, you can get something that will do as well, perhaps better, than flesh, and blood, and bones. Erect within your temples of justice twelve hollow, graven, brazen images. Have them so constructed that they will case an echo; and as the dicta of the bench shall be hurled at them, the same will be reflected back to record; and if you will, you may call this, trial by jury." Far from definitive, but the starting point.
In Norval v. Rice, 2 Wis. 17 (1853), the Wisconsin Supreme Court concluded that the right to trial jury guaranteed by the Wisconsin Constitution is the right to a jury of twelve persons as recognized by common law as it existed at the time the constitution was adopted. Subsequent cases - Bennett v. State, 57 Wis. 69 (1883), In re Staff, 63 Wis. 285 (1885), Jennings v. State, 134 Wis. 307 (1908) and State ex rel Sauk County District Attorney v. Gollmar, 32 Wis.2d 406 91966) - reaffirmed this conclusion. It does not matter whether the accused is charged with a misdemeanor or a felony. The jury shall consist of twelve person.
In ensuring the right to a twelve person jury for all persons charged with a crime, the Wisconsin Constitution parted ways from the United States Constitution. Wisconsin provides greater protection to its citizens than the 6th Amendment to the United State Constitution does. In Williams v. Florida, 399 U.S. 78 (1970), SCOTUS concluded that the refusal to impanel a jury of more than six persons did not violate the criminal defendant's rights to a trial by jury guaranteed by the 6th Amendment. SCOTUS reasoned that although juries at common law generally consisted of twelve members, there is "absolutely no indication" that the framers intended to "equate the constitutional and common-law characteristics of the jury." SCOTUS held that a twelve person jury is not "an indispensable component of the 6th Amendment."
In the final analysis, when it comes to the right to a jury trial in a criminal case, Wisconsin affords great protection to persons charged than is afforded to those accused of crimes than the United States Constitution provides.

Tuesday, October 26, 2010

Jury Trial Issues - The Anonymous Jury

By John DiMotto
In a previous blog, I have discussed the right to a public trial. While every criminal defendant is entitled to a public trial under the Sixth Amendment to the US Constitution and Article I, Section 7 of the Wisconsin Constitution, this right is not conferred without boundaries. Under limited circumstances, an anonymous jury may be impanelled.
Before the trial court can impanel an anonymous jury, the court must articulate compelling circumstances on the record. It must be shown that there is a strong reason to believe that the jury needs protection. In addition, the court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights are protected. [see State v. Britt, 203 Wis.2d 25 (Ct. App. 1996)]
Examples of compelling circumstances have included participants' histories of violence -- including the defendant/s or victim/s; history of potentially threatening associations; witness intimidation; defendant involvement in organized crime; defendant involvement in a group with capacity to harm jurors; defendant's past attempts to interfere with judicial process; extensive publicity that could enhance the possibility that juror names would become public and expose them to intimidation or harassment. [see State v. Tucker, 259 Wis.2d 484 (2003)]
When the court concludes that an anonymous jury is warranted based on articulable facts, the court must take action to minimize any prejudicial effect. Usually this is accomplished by doing "voir dire by number." When this approach is utilized, the court ordinarily advises the jury that this practice is routine to avoid the inference that the jury should fear the defendant. The court should give a special presumption of innocence instruction that the use of numbers is not a reflection on the defendant's guilt. This instruction must not mislead the jury. Also, at the outset of the voir dire the attorneys are provided with a list of the names of the jurors as well as juror questionnaires. This way they have a "knowledge base" on the jurors. Under this scenario, when addressing jurors only their numbers are used.
Trial courts must take great care to balance the right to a public trial with the right of jurors to be free from fear and intimidation. Judges must always remember that anonymous juries should not be routine or standard practice. They are the exception not the rule.

Friday, October 22, 2010

Jury Trial Issues -- The Parameters of Character and Other Acts Evidence

By John DiMotto
In criminal jury trials, it is the job of the jury to determine if the state has presented "sufficient evidence" to overcome the defendant's presumption of innocence. "Sufficient evidence" is that amount/degree of evidence with respect to each element of the offense charged whereby the jury can say, beyond a reasonable doubt, that the defendant is guilty. Ordinarily, the evidence addresses two questions: was the crime committed and did the defendant commit the crime. It sounds simple, but that is far from the truth.
In many trials, evidence unrelated to the commission of the crime charged is offered. This evidence usually falls within two categories: character and other acts. Sometimes it is admissible; sometimes it is not. One thing is sure, the trial judge must be on his/her toes in terms of what to admit and what not to admit in order to protect the record.
Under the rules of evidence "general character" evidence [904.04(1)] is normally not admissible to prove that a person acted in conformity therewith on a particular occasion. This is because guilt should be determined based on "crime related" conduct. There is, of course, an exception. Under 904.04(1)(a), evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same is admissible. The defendant is in control of what character evidence may come in since the State may only admit character evidence to rebut character evidence offered in the first instance by the defendant. As a practical matter, a defendant rarely puts in character evidence since it opens the door for the State to put in "negative" character evidence. (Usually "negative" character evidence far exceeds "good" character evidence.) However, while character evidence is ordinarily not admissible, this does not preclude the introduction of "other acts" evidence when offered for a legitimate purpose.
"Other acts" evidence [904.04(2)] may be admissible if it is offered for a purpose other than character. By statute, it may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. By case law, it may be introduce to prove context or for background. However, while it may fit into one of those categories, it must be relevant in the context of the case under 904.01 and, most importantly, under 904.03, the probative value of the other acts evidence must not be outweighed by unfair prejudice. It is the trial court that is the gatekeeper of other acts evidence.
Over the past twenty years, the introduction of other acts evidence has grown by leaps and bounds. There are some who say it is becoming more the rule, rather than the exception. I disagree with that assessment. I believe judges are careful when it comes to deciding whether to admit other acts evidence.
I am actively engaged in judicial education in Wisconsin. Marquette University Law School Professor Daniel Blinka, one of the most foremost evidence experts in Wisconsin, and I have taught on the subject of character and other acts evidence at numerous evidence workshops. Wisconsin judges understand that it is incumbent on the trial judge to undertake a careful "Sullivan" analysis (State v. Sullivan) and make a good record. If the proponent can meet its burden under 904.04(2), 904.01 and 904.03 then the evidence will be admitted with a strong cautionary instruction. However, if not, then the evidence is barred.
In the final analysis, the burden is on the trial judge to enforce the rules of evidence to ensure that a fair trial results.

Tuesday, October 12, 2010

Jury Trial Issues -- The Right to a Public Trial

By John DiMotto
Every criminal defendant is entitled to a public trial from jury selection through the verdict. This right is guaranteed by the Sixth Amendment Right to a Public Trial -- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...in the State and district wherein the crime shall have been committed..." as well as Article I, Section 7 of the Wisconsin Constitution -- "In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury..."
The Right to a Public Trial promotes the presumption of openness that attends court proceedings. The values served are to:
1) ensure a fair trial.
2) remind the court and the prosecutor of their responsibilities toward the criminal defendant.
3) encourage witnesses to come forward.
4) discourage perjury.
Where values are implicated and closure is not trivial, exclusions must be justified. In order to justify closure:
1) The party seeking closure must show an overriding interest which is likely to be prejudiced by a public trial.
2) Closure must be carefully tailored to protect that interest.
3) Alternatives to closure must be considered by the court, and
4) The court must make findings sufficient to justify closure.
Closure of the entire courthouse, thereby denying the public access to a courtroom during a trial, violates a defendant's right to a public trial. The Right to a Public Trial is a basic tenet of our judicial system. The principle is that justice cannot survive behind walls of silence. However, where the unjustified closure is trivial there may not be a constitutional violation. Each case must viewed individually -- case by case.
It is important to note that the Right to a Public Trial is not only tested when the entire proceedings are closed to everyone. It is also tested when there is exclusion of just certain people (ie. family members of the defendant) and if only for part of the trial.
In Wisconsin, two recent cases that have addressed the Right to a Public Trial are State v. Vanness, 304 Wis.2d 692 (Ct. App. 2007) and State v. Ndina, 315 Wis.2d 653 (2009).
In the final analysis, the public has not just a right to know but a right to be present in order to know.

Friday, October 8, 2010

Jury Trial Issues -- Polling the Jury in a Criminal Case

By John DiMotto
One of the most important rights that any party involved in litigation has is the right to a jury trial. The beauty of the American system of justice is the right to have one's case decided by one's peers. 6 or 12 people from one's community are empanelled to:
1) hear all the evidence;
2) decide what the fact actually are by assessing the credibility of witnesses and the weight of the evidence;
3) apply the law, the legal principles applicable to the facts;
4) render a verdict by answering a question or questions on a Verdict/Special Verdict form.
The American Jury System is the envy of the world. Judges in other jurisdictions "thirst" for our system of justice. (Many judges from Wisconsin, including myself and my wife, Judge Jean DiMotto, have gone to countries throughout the world to discuss our justice system. In every country their judges have been on the edge of their seats taking in what it really means to "do justice.")
Today, I want to start on the "back end" of a jury trial -- taking the verdict in a criminal case.
When a jury arrives a a verdict, the jury is brought into the courtroom and the verdict is read in open court either by either the Court Clerk, the Judge or the Jury Foreperson. After it is read, it is customary for the judge to collectively ask the jury if what was read is their verdict. After the collective polling, a defendant has the right to have the jurors individually polled - although he has no right to cross examine them on their verdict. see State v. Cartagena, 140 Wis.2d 59 (Ct. App. 1987). Collective polling is not sufficient if the defendant wants individual polling. see State v. Wojtalewicz, 127 Wis.2d 344 (Ct. App. 1985).
The purpose of polling a jury is to ensure that the verdict, as read, is the verdict of each and every one of the twelve jurors - to test uncoerced unanimity of the verdict. see State v. Kircher, 189 Wis.2d 392 (Ct. App. 1994). An ancillary purpose of individual polling is to allow jurors to change their mind. see U.S. v. Shepard, 576 F.2d 719 (7th Cir. 1978). The act of polling the jury safeguards the right to a unanimous verdict by giving each jury the opportunity to dissent although previously agreeing or to state that assent was merely an accommodation. A juror may dissent at any time before the verdict is received and properly recorded.
The right to poll a jury is a corollary to the right to a unanimous verdict. see State v. Weise, 162 Wis.2d 507 (Ct. App. 1991). It is a significant right. see State v. Behnke, 155 Wis.2d 796 (1990). Because the return of a verdict is a critical stage of the proceedings, a defendant has the right to counsel at that time. In fact, where defense counsel's absence cause a defendant to lose the right to poll a jury, the conviction must be reversed. see State v. Smith, 51 Wis. 615 (1881).
The decision whether to poll is one that is delegated to defense counsel. However, the failure to request polling the jury will almost always result in a claim of ineffective assistance of counsel. Most judges will sua sponte poll the jury to ensure unanimity.
The trial court should carefully and delicately question a juror who during polling creates some doubt as to his/her vote to see if there is, in fact, doubt. If there is doubt, the court has three options:
1) Direct jury to retire to jury room and resume deliberations.
2) Declare a mistrial.
3) Carefully interrogate the juror about ambiguous or ambivalent assent.
The threshold question in polling is whether there was assent. If not, court then must determine whether further deliberations are necessary. see State v. Duke, 303 Wis.2d 175 (Ct. App. 2007). The court is only to question regarding whether the juror agrees or not. The court cannot go beyond the issue of "assent." see State v. Raye, 281 Wis.2d 339 (2005).
The right to poll a jury is an absolute right. It must be honored by the trial court!

Tuesday, October 5, 2010

Termination of Parental Rights Law in Wisconsin - Adoption and Safe Families Act

By John DiMotto
In October, 1997 the United State Congress passed the Adoption and Safe Families Act (ASFA). One month later, President Bill Clinton signed the legislation into law.
ASFA was enacted to address problems in the foster care system. It changed how child welfare was viewed. It focused on the health and safety of children as opposed to reuniting children with birth parents. ASFA puts children first and the needs and rights of birth parents second.
In all cases involving children who are placed out of their parental home -- CHIPS and TPR cases -- there are certain obligations and duties that must be undertaken by Child Welfare Agencies. In Milwaukee County that agency is the Bureau of Milwaukee Child Welfare (BMCW). Anytime a child is placed out of the parental home, the Court is required to undertake an ASFA analysis to ensure that the interests of the child and parents are fully protected in light of the potential for TPR. The analysis requires the Court to determine if:
1) Reasonable efforts have been made by the BMCW to prevent the removal of the child from the parental home, while assuring that the child's health and safety were the paramount concerns.
2) Reasonable efforts have been made by the BMCW to permit the return of the child safely to the parental home.
3) Placement in the child's parental home is contrary to the welfare of the child.
4) Reasonable efforts have been made by the BMCW to provide services and involve appropriate service providers in meeting the needs of the child and the parents.
5) Reasonable efforts have been made by the BMCW to place the child safely with other out of home siblings.
6) Reasonable efforts have been made by the BMCW to facilitate safe visitation among siblings where they are not placed together.
7) Reasonable efforts have been made by the BMCW to achieve the permanency plan goals, including through out of state placement if appropriate.
ASFA puts the onus on both the parents and the Child Welfare Agency to make every reasonable effort to work together in the best interest of the child.

Friday, September 24, 2010

Termination of Parental Rights Law in Wisconsin - Permanency Planning

By John DiMotto

Whenever a child is removed from the parental home, federal and state law requires that a Permanency Plan be created and implemented to ensure that a child is reunified with the child's family whenever appropriate, or that the child quickly attain a placement or home providing long term stability.

The first Permanency Plan must be prepared and filed with the court within 60 days after the child is removed from the parental home. Furthermore, the plan must be updated and reviewed by the court every six months until the child is returned to the parental home or until permanency is achieved by an adoption following the termination of parental rights.

The Permanency Plan must address:

1) The names of all of the interested parties.
2) Date of removal.
3) Description of services offered and provided to address the circumstances.
4) Basis for the current placement.
5) Statement as to availability of a safe and appropriate family placement.
6) Statement of reasonable efforts to reunite family.
7) Educational information.
8) Medical information.
9) Plan for future.
10) Goals of the Permanency Plan.
11) Conditions that must be met to ensure safe return to parental home.
12) Statement as to ability of child to consult with court regarding the Permanency Plan.

At the Permanency Plan Review Hearing, the court must consider the following:

1) Continuing necessity for and the safety and appropriateness of the out of home placement.
2) Extent of compliance with the most recent plan by agency, service providers and family.
3) Efforts of Agency to provide appropriate services.
4) Progress towards eliminating causes that prevent return of child to parental home.
5) Potential date by which child can be returned to parental home.
6) Appropriateness of Permanency Plan if child has been out of parental home for 15 of the most recent 22 months.
7) Whether reasonable efforts have been made to achieve the most recent Permanency Plan goals, including through out of state placement if appropriate.

At the hearing, the court will hear from:

1) Attorney for State.
2) Social worker from Agency.
3) Parents.
4) Parents attorneys.
5) Guardian ad Litem.
6) Child, if age appropriate.

What is of the utmost importance is that the Agency involved in monitoring the case, in Milwaukee County it is the Bureau of Milwaukee Child Welfare (BMCW), must make reasonable efforts towards reunification or, if not viable, a permanent placement to provide stability for the child. If the court determines that the Agency has not done "reasonable efforts", their failure to comply with their duties will result in the loss of federal funds which is provided to the states to achieve permanency.

The Permanency Plan Review Process ensures that "no stone is left unturned" in the drive to provide safe permanency for vulnerable children.

In my next blog, I will discuss the Adoption and Safe Families Act (ASFA) and its role in TPR cases.

Wednesday, September 22, 2010

Termination of Parental Rights Law in Wisconsin -- The Dispositional Phase

By John DiMotto
If the trier of fact (jury or judge) in the Fact Finding Phase of a TPR action, finds that involuntary grounds have been proven by clear, convincing and satisfactory evidence, the case then proceeds to a Dispositional Phase. In the Dispositional Phase, the judge alone evaluates all of the evidence submitted and determines whether the Best Interests of the child warrants termination as the disposition. "Best Interests of the Child" is the "polestar" in the Dispositional Phase.
In the Dispositional Phase, the Court (ie. judge) must make findings of fact from the evidence submitted in determining what is in the best interest of the child. In the Dispositional Phase:
1) The Court may take judicial notice of the evidence offered in the Fact Finding Phase.
2) An Agency Court Report should be introduced.
3) The Rules of Evidence are relaxed -- not unlike at sentencing in a criminal case.
The Agency Court Report address:
1) The social and medical history of the child, including prior court involvement.
2) Statement of services needed.
3) Likelihood of adoption.
4) Plans for permanency.
Relevant evidence may include:
1) Expert testimony.
2) Other evidence having probative value regarding disposition.
3) Foster parent input.
In considering the Best Interest Standard, the Court looks at the "egregiousness" of the parent's conduct and must consider the following factors:
1) Likelihood of adoption after TPR.
2) Age and health of child.
3) Time child has been removed from the parental home.
4) Whether child has a substantial relationship with parents.
5) Whether child has a substantial relationship with other family members.
6) Whether it will be harmful to sever substantial relationships.
7) Wishes of the child.
8) Duration of separation of child from parents.
9) Whether child will be able to enter into more stable and permanent family relationship as result of the termination considering results of prior placements, current conditions of placement and likelihood of future placements.
In light of the above, the Court determines whether Best Interests dictates termination or some alternative such as:
1) Guardianship.
2) Dismissal with continuation of CHIPS order.
There is a debate as to whether there is a specific burden of proof (ie. preponderance, clear and convincing or beyond a reasonable doubt) in the Dispositional Phase. In the Fact Finding Phase, by statute, the burden of proof is clear, convincing and satisfactory evidence. However, no where in the statutes or in case law is there a reference to a specific burden of proof in the Dispositional Phase. There are those who say "Best Interests" governs, and that there is no specific burden of proof. While that seems to make sense, in CHIPS cases, where Best Interests drives the Disposition, case law states that there IS a burden of proof -- preponderance of the evidence. If there is a specific burden of proof in a CHIPS case, it would seem that there should be one in a TPR case. If there is, given the severe consequence of termination -- a civil death penalty, an argument can be made that it should be clear and convincing just as it is in the Fact Finding Phase. However, this is an unanswered question.
In my next blog, I will look at Permanency Plan Reviews -- hearings that are mandated by federal law to ensure that permanency is obtained for children whose parental rights have been terminated.

Friday, September 17, 2010

Blog Will Resume Next Week

By John DiMotto
I was on vacation the week of 9/6 and at a juvenile law judicial seminar this week and have not been able to blog. I will "return to action" the week of 9/20.

Monday, September 6, 2010

Termination of Parental Rights Law in Wisconsin -- The Fact Finding Phase

By John DiMotto
There are two phases to a termination of parental rights (TPR) action;
1) The fact finding phase, where a jury or a judge determines whether "grounds" exist for termination. The key consideration in this phase is on the conduct of the parents. and,
2) The dispositional phase, where, if "grounds" are found, a judge determines whether to terminate or consider an alternative such as guardianship or continued CHIPS (child in need of protection or services) jurisdiction. The key consideration in this phase is on the best interests of the child.
In today's blog, I will discuss the fact finding phase.
The fact finding phase is a "trial." The rules that govern the trial are as follows:
1) The parents and the child have a right to request a jury trial. (The request on behalf of the child is made by the child's Guardian ad Litem -- a lawyer appointed by the court to represent the best interests of the child.) If either of the parents or the GAL request a jury, the grounds will be determined by a jury of 12. Since a TPR action is a civil case, the jury does not have to be unanimous in its decision to return a verdict. A "5/6 verdict" is acceptable; that is only 10 of the 12 jurors need agree to all questions on the verdict. If the right to a jury trial is waived, then the judge will be the trier of fact and decide whether "grounds" exist.
2) The burden of proof in the fact finding phase is on the petitioner, usually the assistant district attorney who brings the case. The middle burden of proof -- clear, convincing and satisfactory evidence -- applies.
3) While there are multiple grounds that a TPR action can be based upon, most cases proceed on the ground of "continuing CHIPS" -- that is, there has been in place a court order in a CHIPS case that the parents have not complied with or on the ground of "failing to assume parental responsibility." When these are the grounds alleged, proof usually entails a broad spectrum of evidence of the life of the parents. It can involve criminal conduct, drug use and a lack of commitment towards one's family. Because of this broad spectrum, the fact finding phase can take 4 or 5 days.
4) The rules of evidence apply in the fact finding phase.
5) The rules regarding jury selection in Chapter 757 and 805 apply in a TPR action.
6) Evidence regarding what is in the best interest of the child is not the consideration in this phase. The focus is on the parents. If grounds are found, then in the dispositional phase the focus in on the child.
In a fact finding phase, the trier of fact - either a jury or the judge - is presented with evidence that focuses on the good and the bad of a person as a parent. It is not pretty.
In my next blog, I will discuss the dispositional phase of a TPR case.

Thursday, September 2, 2010

Termination of Parental Rights Law in Wisconsin - Voluntary Consent to Termination

By John DiMotto

If a parent wishes to contest a TPR, the State must prove to a jury or to the court by clear, convincing and satisfactory evidence that involuntary grounds under 48.415 are present. If this burden of proof is met, then the court must find that the parent is unfit and the case proceeds to Disposition. If ultimately the court orders TPR, this finding constitutes a separate ground which can be the basis of a TPR on another child. However, a parent can voluntarily consent to termination and if accepted by the court the parent is not found to be unfit and the ultimate TPR judgment cannot be used as the basis for a future TPR action.

Before the court can accept the voluntary consent of a parent, the court must engage in a detailed colloquy with the parent to ensure that the decision is being made freely, voluntarily, intelligently and understandingly. This is critical since termination affects one of the, if not the most important fundamental right of any person -- the right to be a parent.

There is an interplay with a number of statutes that must be considered.

1) 48.41 recognizes the right of a parent to voluntarily consent to termination of one's parental rights.

2) 48.42(1) addresses the nature of the TPR petition and recognizes that voluntary consent exists as a ground separate and distinct from involuntary grounds.

3) 48.422 (3) and (7) set forth the statutory requirements that must be considered by the court when a parent wants to voluntarily consent to TPR.

In addition to the statutory mandates, two appellate cases have addressed the voluntary consent issue.

1) In Interest of A.B., 151 Wis.2d 312(Ct. App. 1989) makes it clear that the court must be satisfied that the decision is informed and voluntary. A careful analysis of the circumstances of the parent must be undertaken.

2) In Interest of D.L.S., 112 Wis.2d 180(1983) discusses the tremendous interests at stake and how the court must ensure that due process is afforded.

In making sure that due process is honored, the court must inquire about, and obtain directly from the parent, information regarding education, physical and mental health, employment, medication issues and drug issues. The court must be satisfied that:
1) there have been no threats, promises, force or coercion brought to bear upon the parent.
2) the parent understands that he/she is giving up important rights: right to jury trial or court trial; right to confront witnesses; right to call witness; right to testify; right to make the state meet its burden of proof.
3) the parent and counsel have thoroughly discussed the decision being made and its consequences.
4) the parent understands that the decision will result in the parent forfeiting any say in the life of the child.
5) the parent realizes that there are alternatives to TPR that may be available.

In the final analysis, if the court is sure that the parent is making his/her decision with his/her eyes wide open and that the decision has been carefully thought out with full understanding of all that is being done, the court can accept the voluntary consent and then proceed to disposition.
Notwithstanding the voluntary consent, however, the court must be independently satisfied that TPR is warranted by considering all the evidence in light of the "polestar" standard -- Best Interest of Child in light of factors in 48.426(3).

In my next blog, I will discuss the Fact Finding Phase in a TPR case.

Monday, August 30, 2010

Termination of Parental Rights Law in Wisconsin - The Initial Appearance

By John DiMotto

One of the most important court proceedings in a termination of parental rights (TPR) action is the Initial Appearance. It is during this proceedings that the "groundwork" for the entire case is laid.

The "Initial Appearance" is usually a bifurcated proceeding. The first part is for the purpose of getting the parents into court, establishing personal jurisdiction, briefly advising them of the nature of the case and the rights available to them, and referring them to the Public Defenders Office in order to obtain counsel for them. The case is then adjourned for a short time in order to give the Public Defender time to appoint counsel. The second part is much more substantive. During this part of the Initial Appearance, the court engages in a detailed colloquy with the parents and their counsel about the substance of the Petition, the sufficiency of the Petition, nature of the TPR proceedings, the Rights that the parents have during the proceedings, the parent's "plea" to the Petition, the discovery process and the importance of the parents co-operating with counsel in order to ensure that justice is done in the case. The court then sets dates for a final pretrial and jury/court trial.

1) Substance of Petition -- somewhat similar to a criminal complaint, a TPR Petition must set forth probable cause; that is, it must set forth facts and circumstances that support the elements of the "Grounds" alleged by the State. It provides everyone with a road map for the case.

2) Sufficiency of Petition -- the court must determine if the Petition is legally sufficient. If it does not provide information connecting the parents with the child and connecting the parents' behavior to "Grounds," the case cannot proceed.

3) A TPR proceeding is a two phase proceeding. The first phase is the "Grounds" phase. The State bears the burden of proof to establish "Grounds" for termination. There is a right to a jury trial in the "Grounds" phase and the rules of evidence apply. The second phase is the "Disposition" phase. This is a trial to the court without the right to a jury and the rules of evidence do not apply. Best Interests of the Child is the standard in this phase.

4) Rights -- the parents have the right to counsel, right to a jury trial, right of confrontation, right to present evidence, right to testify, right to substitute for a new judge.

5) Plea to Petition -- the parents will either "Denial" to the allegations in the Petition or enter an "Admission."

6) Necessity for co-operation -- it is critical that the judge ensure not only that the parents understand the rights they have and the nature of the case but that they fully understand the need to co-operate and communicate with their counsel, comply with discovery and make all court appearances. A judge should make it clear, in no uncertain terms. that if a parent fails to appear in court or in discovery that this may result in a default judgment in the "Grounds" phase and potentially even in the "Disposition" phase.

7) Scheduling -- the court usually sets two dates; a final pretrial and a jury/court trial.

The "Initial Appearance" is the foundation upon which the case is based. The court must ensure that all the "t's" are crossed and all the "i's" are dotted. The court must also try to connect with the parents regarding the importance of the case and the dire consequences of not taking the case seriously.

In my next blog in this series, I will discuss the availability/consequences of entering a Voluntary Consent or an Admission to a TPR Petition.

Monday, August 23, 2010

Termination of Parental Rights Law in Wisconsin -- Grounds for Termination

By John DiMotto
In Wisconsin, termination of parental rights can result either voluntarily or involuntarily. The vast majority of cases filed seek involuntary termination. These cases are almost always brought by the State and the petition sets forth detailed information and facts to support the grounds alleged. There are instances, however, when a parent makes the decision to consent to termination of his/her rights because he/she believes that it is in the child's best interests. Many of these cases are filed by the parent himself/herself under 48.41 although in some instances they are brought by the State allege the parent's consent as the grounds. see 48.42.
In a voluntary consent scenario, the grounds consist of giving a free, knowing, intelligent consent. In these cases the Court must undertake a colloquy with the parent to be sure that termination is what the parent wants and be convinced that the parent fully understands the consequences of the decision. see 48.422(7). If the court accepts a voluntary consent after an in depth colloquy with a parent, it can proceed to disposition. A finding of unfitness is not a condition precedent to disposition.
In an involuntary TPR scenario, a parent disputes the allegations of the State and will demand either a jury trial or a court trial. The grounds alleged must be proven by the State by clear, convincing and satisfactory evidence. There are seventeen grounds that can be alleged:
1) Abandonment. Child left without provision for care or support and parents can not be found for 60 days. see 48.415(1)(a)1.
2) Abandonment. Child left without provision for care or support in a place where child is exposed to substantial risk or great bodily harm or death. see 48.415(1)(a)1m.
3) Abandonment. Child abandoned at less than one year of age. see 48.415(1)(a)1r.
4) Abandonment. Child out of parent home and parent does not visit or communicate with child for 3 months. see 48.415(1)(a)2.
5) Abandonment. Child away from parent, parent could visit or communicate but does not for 6 months. see 48.415(1)(a)3.
6) Relinquishment. This occurs when a parent gives up custody within the first 72 hours of the child's life. see 48.415(1m).
7) Child in Continuing Need of Protection or Services. This occurs where there is in place a dispositional order that governs a child in need of protection or services, reasonable efforts have been made to help the child and family reunite but the parent has failed to take advantage of the programming and services offered. see 48.415(2)(a).
8) Child in Continuing Need of Protection or Services - Three Strikes. see 48.415(2)(am).
9) Continuing Parental Disability. For two of the last five years the parent has been under disability, the condition is likely to go on indefinitely and the child is not being properly cared for. see 48.415(3).
10) Continuing Denial of Periods of Physical Placement or Visitation. This occurs when an order affecting a family has denied placement or visitation for at least one year. see 48.415(4).
11) Child Abuse. see 48.415(5).
12) Failure to Assume Parental Responsibility. This occurs where a parent does not have a significant parental relationship. see 48.415(6).
13) Incestuous Parenthood. This is utilized against the father. see 48.415(7).
14) Homicide or Solicitation to Commit Homicide against a parent by the other parent. see 48.415(8).
15) Parenthood as a result of a Sexual Assault. see 48.415(9).
16) Serious Felony against One of the Person's Children. see 48.415(9m).
17) Prior Involuntary TPR. see 48.415(10).
Of these 17 grounds, most oftentimes the State alleges three grounds: Abandonment - 3 or 6 months, Continuing Need for Protection or Services, and Failure to Assume Parental Responsibility. Regardless of what grounds are alleged, the allegations brought by the State provide the basis upon which the case will proceed.
In my next blog, I will look at the responsibilities of the Court at the Initial Appearance in the case.

Monday, August 16, 2010

Termination of Parental Rights Law in Wisconsin -- An Overview

By John DiMotto
After 20 years as a circuit court judge in Milwaukee County, I have taken an assignment at our Children's Court Center and I am serving as one of the two full time Termination of Parental Rights (TPR) judges in Milwaukee County. I have the honor of serving along with Judge Christopher Foley who is know statewide for being the expert in these types of cases. Today, I am being a series on the law and procedure governing TPR cases.
One of the most fundamental rights any person has is to be a parent. In the case of Steven V. v. Kelly H., 271 Wis.2d 1 (2004), the Wisconsin Supreme Court reiterated the overriding principle that a parent's interest in the parent-child relationship and in the care, custody and management of a child is recognized as a fundamental liberty interest protected by the 14th Amendment to the United States Constitution. The Court further recognized that the termination of parental rights is very consequential in that it permanently destroys all legal recognition of the parental relationship. The "stakes" are so high in TPR cases that every reasonable effort must be made to keep a family intact before the parent-child relationship may be forever severed.
A TPR generally occurs in one of two ways. First, parents may voluntarily seek to have their rights terminated. Second, the State can bring an action to seek the involuntary termination of rights.
With respect to the involuntary petition to TPR, grounds must be established by clear, convincing and satisfactory evidence in a "fact finding" phase. There are thirteen different grounds upon which a TPR action can be based. The rules of evidence are in full force and effect during this phase. This phase can be a trial to the court or a jury trial. If the burden of proof is met, the court will then conduct a "dispositional phase" where the court alone determines whether there is clear, convincing and satisfactory evidence to warrant the TPR. The fact that grounds are found to exist is not dispositive of the outcome. The standard in the dispositional phase is Best Interest of the Child (BIC). In this phase, the rules of evidence are not binding. It is also important to note, that given the importance of the issues in a TPR case there are restrictive timelines that apply so these cases can be adjudicated in a timely manner, although the deadlines can be extended for good cause.
In a TPR case not only is the petitioner, usually the State, represented by counsel, but a guardian ad litem (GAL) is appointed to represent the best interest of the child and each parent is entitled to counsel. Also, if the child is 12 years of age or older, the child is entitled to his or her own counsel in addition to the involvement of a GAL. Furthermore, these proceedings are so sensitive that these hearings are closed to the public.
In my next blog, I will take an in depth look at the various grounds that can be the basis for a TPR case.

Wednesday, August 11, 2010

Service of Process and Jurisdiction in Civil Actions

By John DiMotto
Now that I have completed my series on Impeachment and Rehabilitation Evidence in Wisconsin, I would like to look at some Juvenile law issues. Today, I will start out with service of process and jurisdiction both generally and as it pertains in TPR (Termination of Parental Rights) cases.

Before a court may act in a civil lawsuit, the court must have both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is conferred by the constitution and statutes of the state and by statutes of the United States. It cannot be conferred by consent of the parties.
see 801.04(1).

In most cases, in order for the court to have personal jurisdiction over a defendant in a civil lawsuit, the person must be served with a summons pursuant to 801.11, although service may be dispensed with if the person appears in the action and does not, by motion or responsive pleading, raise the defense of lack of jurisdiction over the person, insufficiency of process or untimeliness or insufficiency of service of process over his or her person. see 801.04(2), 801.06 and 802.06(8).

In most cases, to effectuate service and obtain personal jurisdiction over a defendant in a civil lawsuit, a summons must ordinarily be personally served upon a defendant. In most cases, if with reasonable diligence the defendant cannot be personally served then substituted service upon a family member who is at least 14 years of age or a competent adult living at the defendant's residence may be done. Furthermore, in most cases, if with reasonable diligence neither personal or substituted service can be effectuated, service may be done by class three publication (three times) and mailing. see 801.11.

In TPR cases, the service of process rules are different. Under 48.42(4)(a), the summons and petition must be served personally upon the parties, if known, at least 7 days before the date of the initial hearing on the petition. Under 48.42(4)(b), if with reasonable diligence a party cannot be personally served, service may be made by class one publication (one time only) and mailing. Substituted service is not permitted in TPR cases. However, proper service is not a condition precedent if the party appears in court and submits to the jurisdiction of the court.
The issue of what constitutes reasonable diligence has been subject to much litigation. A number of principles are articulated in case law:

1) The purpose of a summons is to give notice to a defendant and confer jurisdiction on the court over a defendant. see Useni v. Bourdron, 264 Wis.2d 783 (Ct. App. 2003).

2) In order for service to be effective, statutes must be complied with. Improper service is a fundamental defect. see Hagen v. MERS, 262 Wis.2d 113 (2003).

3) Strict compliance with the rules of statutory service is required even though the consequences may appear to be harsh. see Bar Code Resources v. Ameritech, 229 Wis.2d 287 (Ct. App. 1999).

4) The burden to establish jurisdiction is on the plaintiff. see Laska v. House, 169 Wis.2d 510 (Ct. App. 1992).

5) In order for the court to have personal jurisdiction, a summons must be served according to the statutes. A defendant's knowledge of a pending action is not equivalent to service. what amounts to due diligence depends on the facts in each case. Slipshod and hap hazard attempts to serve are not sufficient. Two attempts, under some circumstances, may be sufficient. see Heaston v. Austin, 47 Wis.2d 67 (1969).

6) Reasonable diligence requires pursuit of "leads or information reasonably calculate to make personal service possible. see Welty v. Heggy, 124 Wis.2d 318 (Ct. App. 1984).

7) Diligence needed is reasonable, not all possible diligence. see Haselow v. Gauthier, 212 Wis.2d 580 (Ct. App. 1997).

8) Fundamental to due process requirement is provision of notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Process server must not stop short of pursuing a viable lead. see Loppnow v. Bielik, 2010 WI App 66, ___Wis.2d ___ (Ct. App. 2010).

It is incumbent upon the trial court to ensure that before it takes action in a case, that it is satisfied that the jurisdictional requirements in the particular matter have been met. This is critical when a default judgment is being sought. If service was not effective, the validity of a default judgment is in question. Justice demands nothing less.

Monday, August 9, 2010

Impeachment and Rehabilitation Evidence in Wisconsin - Prior Criminal Convictions

By John DiMotto

One of the most compelling types of evidence used to impeach the credibility of a witness is evidence of prior criminal convictions (or juvenile adjudications of delinquency). When a jury learns about a prior conviction/juvenile adjudication, although the accompanying jury instruction advises the jury that it should only be used in assessing the credibility of what the witness is saying, the temptation to apply the old adage "once a criminal always a criminal" is front and center. Rules exist to try to ensure the proper use of this type of evidence.

The use of prior criminal convictions/juvenile adjudications is governed by 906.09. It sets forth the general rule that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. Furthermore, the party cross examining the witness is not concluded by the witness's answer if it is incorrect. However, there is an exclusion clause which indicates that such conviction/adjudication may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In other words, the trial judge is the gatekeeper with respect to what convictions/adjudications can be considered.

There is a presumption that a person who has been convicted of a crime/adjudicated delinquent may not be as truthful as someone who has never been convicted/adjudicated and, therefore, questioning in this area is relevant. Also, the number of convictions/juvenile adjudications is relevant because the law further presumes that a person who has been convicted/adjudicated multiple times is considerably less credible that someone with fewer convictions/adjudications. However, it should be noted that while the fact of conviction/adjudication is relevant and admissible, the fact that a person has never been convicted/adjudicated is not considered relevant and is not admissible. The theory is that everyone is expected to follow the law and be law abiding and in so doing a person does not gain or enhance his/her credibility. Furthermore, the fact that a person has no convictions/adjudications does not mean that he/she IS law abiding.

In terms of how the trial court approaches the issue of prior convictions/juvenile adjudications, before any question is asked of a witness regarding prior criminal convictions/juvenile adjudications, a hearing must be held outside the presence of the jury where the trial judge, as gatekeeper, determines which, if any convictions/adjudications may be used. Considerations such as passage of time, nature of prior convictions, involvement of dishonesty in the crimes or witness's rehabilitation since the convictions are taken into account before the trial judge rules on the issue.

Once the trial judge has made his/her decision then two questions may be asked of a witness. First, have you ever been convicted of a crime (or adjudicated delinquent)? Second, how many times? If the witness answers truthfully, and usually the witness does because the witness is present when the judge enters the ruling, that forecloses any further questioning. If the witness does not answer the two questions correctly, the witness may be asked questions regarding the specifics of the convictions to "refresh" the witness's recollection as to the correct answers.

There is another exception to when the specifics may be brought to the attention of the jury. If it is the defendant who is testifying, at his/her option, specifics may be elicited by the defendant's counsel. This may occur if the prior convictions are few in number and totally different in nature than the charge at hand. For example, if a defendant is on trial for a sexual assault and he has a prior conviction for disorderly conduct, his attorney may want to bring that fact out so the jury does not think the prior conviction is for a sexual assault.

While prior convictions and juvenile adjudications are admissible:

1) Arrests are not admissible.
2) Ordinance violations are not admissible.
3) Deferred Prosecution Agreements are not admissible.
4) Expunged convictions are not admissible.

When addressing the use of prior conviction/juvenile adjudication evidence, the is incumbent on the trial court to carefully address to what extent this evidence may be used and to ensure that the jury understands for what purpose it can be used and for what purposes it may not be used.

Wednesday, August 4, 2010

Impeachment and Rehabilitation Evidence in Wisconsin -- "Profile" Evidence

By John DiMotto
After a brief hiatus from blogging in order to make my move to my new assignment in the Juvenile Division at our Children's Court Center, I return to continue my series on the myriad forms of Impeachment and Rehabilitation Evidence in Wisconsin. Today I want to look at the use of "Profile" Evidence in sexual assault prosecutions.
Profile Evidence is usually offered in sexual assault cases as Rehabilitation Evidence. It is usually offered as expert testimony from a psychologist or psychiatrist. It is most often used by the prosecutor to provide an explanation for some act of a sexual assault victim which, on the surface, appears to be odd or strange or inconsistent with what a juror believes the reaction of a sexual assault victim should be. However, it is also used, though less often, by defense counsel to explain that the defendant does not exhibit character traits consistent with a sexual disorder such as pedophilia. When Profile Evidence is offered by the prosecutor it is referred to as "Jensen" evidence. [State v. Jensen, 147 Wis.2d 240 (1988)]. When it is offered by defense counsel it is referred to as "Richard A.P." evidence. [State v. Richard A.P., 223 Wis.2d 777 (Ct. App. 1998)].
The Court in Jensen held that::
1) An expert can testify that a victim's conduct, or acting out, is consistent with child sexual abuse victims.
2) An expert can explain the context in which a victim did something to rebut the defendant's suggestion that the victim fabricated the complaint.
3) Expert testimony on post assault behavior of sexual assault victim is admissible in certain cases to explain the meaning of the behavior and can be used to prevent false assumptions about sexual assault complaints.
4) An expert may be asked to describe the victim's behavior and that of sexual assault victims to help the jury understand the victim's reactive behavior.
Since Jensen, the rule on the use of this type of Profile evidence has been expanded.
In State v. Richardson, 189 Wis.2d 418 (Ct. App. 1984), the Court indicated that an expert may describe behavior of the specific victim in the case and give an opinion on whether this victim's behavior is consistent with other victims. In other words, comparative testimony may be admissible. However the expert may not give conclusions about the victim's actual beliefs at the time of the offense or about the victim's state of mind.
In State v. DeSantis, 155 Wis.2d 774 (1990), the Court indicated that a sexual assault counselor would be allowed to testify how sexual assault victims react to educate the jury and disabuse the jury about widely held misconceptions about how sexual assault victims respond to an assault.
In State v. Delgado, 250 Wis.2d 689 (Ct. App. 2002), the Court set forth some general rules about Jensen testimony:
1) A witness may testify as an expert if 907.02 is complied with.
2) Expert testimony may include opinions regarding symptomatology common to sexual assault victims.
3) Expert testimony may include descriptions of symptoms exhibited by the victim.
4) Expert testimony can include an opinion as to whether the victim's behavior is consistent with behavior of other sexual assault victims.
5) An expert cannot testify that the victim is totally truthful. [Such testimony would run afoul of the rule in State v. Hazeltine, 120 Wis.2d 92 (Ct. App. 1984) where the court indicated that no witness should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. Credibility is for the jury to determine on its own.]
6) An expert cannot testify that the expert has no doubt whatsoever that the victim was a victim of moral turpitude.
The use of Profile evidence by the defense was recognized in the Richard A.P. case. In the spirit of "what's good for the goose is sauce for the gander", the Court of Appeals held that a defendant may introduce character "profile" evidence which seeks to explain conduct or absence of it - to explain that the defendant does not exhibit character traits consistent with sexual disorder such as pedophilia. This is defense Jensen evidence.
In State v. Davis, 254 Wis.2d 1 (2002), the Court indicated that the evidence that a defendant lacks psychological characteristics of a sex offender and unlikely to commit a sexual offense may be admissible both as character and expert testimony. However, the trial court must carefully scrutinize the evidence for relevancy, probative value and unfair prejudice.
In State v. Walters, 269 Wis.2d 142 (2004), the Court held that Davis did not compel the admissibility of Richard A.P. evidence but rather it is subject to discretionary determination by the trial court and the trial court should undertake a 904.03 analysis with respect to this type of evidence.
One huge problem with the introduction of Jensen and Richard A.P. evidence is that under certain circumstances, the trial court may grant a request to allow an independent psychological examination of the victim or defendant. Obviously, this can be very intrusive and therefore before Jensen or Richard A.P. evidence is going to be offered the prosecutor and defense counsel should carefully analyze his/her case to see whether the nature of the evidence will allow for such a request and order from the court for the independent examination.
In conclusion, Jensen and Richard A.P. evidence can provide an explanation for conduct not otherwise understood by layperson jurors. However, care must be used so that the focus of the trial - did a crime occur - is not overshadowed and lost in the maze of expert testimony.
In my next blog I will look at the use of Prior Criminal Record Evidence as Impeachment and Rehabilitation Evidence in Wisconsin.

Monday, July 26, 2010

Rotation into the Juvenile Division

By John DiMotto
Today, I am going to divert from my series on Impeachment and Rehabilitation Evidence in Wisconsin to briefly discuss my upcoming rotation to our Juvenile Division. I will return to the I/RE series next week.
In Milwaukee County, because of the high volume of cases of every sort, a judge serves in a special division and handles only one type of case during a rotation. We have six divisions: Civil, Probate, Juvenile, Family, Misdemeanor and Felony. Every four years our judge in Milwaukee County must change his/her assignment.
I am currently in the midst of a transition from my Civil/Probate assignment at the downtown Milwaukee County Courthouse to my new assignment in the Juvenile Division at the Watertown Plank Vel Phillips Children's Court Center. The new assignment officially begins on Monday, August 2nd. However, I have been going to the VPCCC over the past week to sit and mentor with the judges who are presently assigned to that Division.
I have served in every division except the Juvenile Division during my 20 year tenure on the bench. I made the decision to serve there because I would like the opportunity to serve children and families in crisis. I know that it will be a daunting challenge but I look forward to it.
There are three types of cases that are handled at Children's Court: Delinquency, CHIPS and TPR cases. Delinquency are the juvenile equivalent of criminal cases. CHIPS are cases where a child is at risk and is in need of protection and services. TPR cases are termination of parental rights matters. I will be assigned to a TPR court. These cases can be very intense because of the stakes involved. Many, many TPR cases go to trial. I know I will be busy but I do enjoy jury trials. They are very challenging and bring out the best in a judge.
During my mentoring days, I have had the chance to see the law "in action." I am big on outlines and checklists to make sure cases are handled properly. (I believe in "crossing the t's and 'dotting the i's") What I have learned is what I read in the statutes and the case law sometimes plays out a little differently in real time. Mentoring is a must -- even after 20 years of judging.
I had my choice of divisions when our rotation selection process arose earlier this year. I knew I could get whatever choice I wanted based on my seniority. I chose the Juvenile Division for the chance to help children and families. After just a few days of mentoring, I know it was the right choice.
I will return next week once I am settled in my new position to take up the issues of Impeachment and Rehabilitation once again.

Monday, July 19, 2010

Impeachment and Rehabilitation Evidence in Wisconsin - Character for Good/Evil

By John DiMotto
The use of "general" character evidence is much more restrictive than other forms of character evidence (ie. character for truthfulness; prior criminal convictions) It's admission is governed by the interplay between 904.04(1), 904.05, 904.01 and 904.03.
904.04(1) sets forth that evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion with six exceptions:
1) Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecutions to rebut the same.
2) Evidence of a pertinent trait of character of the victim of a crime [subject to 972.11(2) -- rape shield law] offered by an accused, or by the prosecution to rebut the same.
3) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
4) Evidence to impeach a witness.
5) Evidence of Truthfulness/Untruthfulness.
6) Evidence of prior convictions.
It is important to note that the first three exceptions only apply in criminal cases. It is also important to note that in criminal cases, it is the defendant who controls when this form of character evidence is admissible in the first instance. Only the defendant can open the door regarding one of his/her character traits or one of the victim's character traits. If the defendant does open the door, then it is fair game for the prosecution to rebut the evidence.
When it comes to character evidence regarding good or evil, a defendant must be very careful. For example if he introduces evidence that he is a "good" person, subject to 904.03, the State is permitted to introduce evidence that he is a "bad" or "evil" person. Like wise, if a defendant introduces evidence that the victim is a "bad" person, the State can, subject to 904.03, rehabilitate with evidence that the victim is a "good" person.
904.05 sets forth the methods of proving character. Proof may be made by testimony as to reputation or testimony in the form of an opinion [ala 906.08]. Once the door is opened, on cross-examination, inquiry is allowable, subject to 904.03, into relevant specific instances of conduct. Relevancy is, of course, governed by 904.01. The two conditions precedent to relevancy are that the evidence goes to a matter of consequence in the case and that the evidence makes the matter of consequence more probable or less probable.
Furthermore, with respect to specific instances of conduct, where the character or trait of character is an essential element of a charge, claim or defense, proof may also be made of specific instances of the person's conduct. A prime example of this is when a defendant relies on self defense as his/her defense. What he/she actually knew about the character of the victim for violence vis a vis specific instances is admissible. Also, to the extent others are knowledgeable of those same instances they may be admitted via others to corroborate the testimony of the defendant.
The overriding principle with respect to character evidence for good or evil is that while it may be admitted, it is subject to a 904.03 analysis. That is, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Whenever a party intends to introduce character evidence for good or evil, the trial court should always do a 904.04(1) analysis followed by a 904.05 analysis, followed by a 904.01 analysis and a 904.03 analysis. It is the duty of the trial court to protect the rights of the parties and to protect the record.