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.