Impeachment and Rehabiliation Evidence in Wisconsin - Testimonial Capacity

By John DiMotto

In Wisconsin, every person is competent to be a witness. However, this does not mean that what a witness says is automatically worthy of belief. The credibility, that is, the believability of what a witness says when he/she give testimony, is affected by cross examination and by contradiction by other witnesses and evidence. Ultimately, the trier of fact will determine which witnesses to believe and what evidence to accept.

One of the ways that the credibility of a witness is challenged is by attacking the testimonial capacity of a witness. Testimonial capacity implicates the ability to perceive, remember or narrate. If it can be established that a witness was unable to perceive an event, remember an event or relate what he/she saw, the trier of fact may discount the testimony to the point where it is given no weight. Testimonial capacity relates to whether the witness is innocently mistaken not if the witness is lying.

A witness may be cross examined regarding his/her mental or physical condition where such matters have bearing on his/her credibility. For example, if a witness is hard of hearing, needs a hearing aid, and was not wearing his/her hearing aid, that is a fact that a trier of fact may consider in determining whether to believe the witness' testimony regarding a conversation the witness says he/she heard.

In terms of the cross examination of a witness as to a mental or physical condition, it must be one that was in existence:

1) at the time of testifying, or

2) at the time to which the testimony refers, and

3) the condition must be relevant.

Relevancy is an important consideration when considering testimonial capacity. For example, a person may color blind but if the witness' testimony is based on hearing something the color blind condition (vision defect) would be irrelevant. It is further important to note that mere physical or mental impairment, without more, is not sufficient to affect credibility. There must be a connection between the affliction and the reliability of the witness' testimony. The fact that a person has been intemperate in the past regarding drug or alcohol use, or the fact that a person has had a mental condition (i.e. bipolar diagnosis) in and of itself is not generally admissible.

Defects in testimonial capacity are a non-collateral form of impeachment. This means that if the witness denies having a hearing problem, this denial can be challenged by calling a witness or introducing affirmative evidence of a hearing problem. However, the right to attack one's condition is not unlimited. The trial court must always exercise discretion and weigh the potential unfairness and embarrassment against the materiality and relevancy of the evidence.

In my next post in this series on Impeachment and Rehabilitation Evidence, I will look at bias, prejudice and interest issues.

Impeachment and Rehabilitation Evidence in Wisconsin - Credibility of Witnesses

By John DiMotto

One of the most important decisions a jury must make is a determination of the credibility of the witnesses who testify at trial and the weight of evidence. In fact, in the preliminary jury instructions that are read to a jury prior to the introduction of evidence, the jury is instructed:

As a juror, your most important function is to weigh the credibility or believability of the witnesses. You cannot discuss intelligently any question on the verdict that will be submitted to you without first collectively discussing the testimony that you have heard which bears upon that question. It is mot important for you to consider, as you listen to the testimony of the various witnesses in this trial, whether they are believable.

Recognizing the critical nature of the credibility of witnesses determination, in every trial attorneys attack the credibility of the witnesses on the other side of the case. These attacks are usually directed towards four facets of credibility:

1) Accuracy of Perception.

2) Accuracy of Memory.

3) Accuracy of Narration.

4) The Witness's Sincerity.

Accuracy of Perception:

People perceive the world around them through five senses:

1) Seeing.

2) Hearing.

3) Speaking.

4) Smelling.

5) Feeling.

Depending on how the witness has perceived and obtained information will dictate how the accuracy of the perception is challenged. If a witness claims to have heard something, the circumstances in existence at the time the witnesses states he/she heard something will be critical. For example, if a witness claims to have heard people engaged in a conversation in which they were whispering, whether the witness had the ability to hear the whispering is critical. If the witness has hearing problems and ordinarily wears a hearing aid but on the day in question was not wearing it, this fact may well undermine the credibility of the witness.

Accuracy of Memory:

Not only must a person be able to perceive, but a person must be able to remember. If a person suffers from dementia, that fact may be critical in whether he/she has the ability to remember what the person claims to have perceived. If a person was using hallucinogenic drugs at the time of a perception, this fact may be critical in whether the person could truly remember what the person claims was perceived.

Accuracy of Narration:

While a person may have no impediments to perception and while a person may be able to remember what was perceived, if the person has difficulty communicating what he/she perceived and remembered, the trier of fact may not give it much weight. The ability to communicate is very important in terms of whether a witness will be believed.

Witness's Sincerity:

One of the most important aspects of credibility is the sincerity of the witness. What a witness says must have a "ring of truth" if it is to be given credit by the trier of fact. Sincerity makes a witness likable, and whether a person is or is not likable may be of the utmost importance to the trier of fact.

The four facets of credibility go to the "aura" and "gravitas" of the witness.

In my next post, I will look at Testimonial Capacity - how it can be impeached and how it can be rehabilitated.

Impeachment and Rehabilitation Evidence in Wisconsin - Overview

By John DiMotto

This past week, I had the opportunity to present at the Wisconsin Judicial Criminal Evidence Workshop put on by the Office of Judicial Education. One of the presentations that I gave, with Judge Guy Dutcher of Waushara County, dealt with Impeachment and Rehabilitation Evidence in Wisconsin. It is a fascinating area of the law because at the heart of every case is the credibility of witnesses and the weight of evidence. Based on the material that we presented, today I am beginning a series concerning impeachment and rehabilitation evidence.

In any court proceeding, criminal or civil, the proponent of a proposition ordinarily has the burden of proof. In order to meet that burden, the proponent must bring forth evidence that is worthy of belief. The evidence is most often offered through the testimony of witnesses. Establishing the credibility of one's witnesses is essential. If those witnesses are deemed credible by the trier of fact, the proponent usually will meet his/her burden of proof and prevail.

The opponent to the proposition must challenge the the evidence proffered by the proponent if he/she hopes to defeat the proposition. The challenge comes via impeachment which comes in many forms. If the opponent is able to successfully impeach the proponent's evidence, the proponent will usually come forward with evidence to rehabilitate one's witnesses and evidence to defeat the challenge.

Impeachment evidence and rehabilitation evidence is offered to attack or enhance the credibility of witnesses and the weight of evidence. The areas of impeachment and rehabilitation that I will look at in my next series of blogs include:

1) Testimonial capacity

2) Bias, prejudice and Interest

3) Contradiction by other witnesses

4) Character Evidence - Truthfulness or Untruthfulness

5) Character Evidence - Good or Evil

6) Character Evidence - Expert testimony

7) Prior Criminal Record

8) Prior Inconsistent/Consistent Statements

9) Rebuttal Evidence

I hope you find this series interesting and enlightening.

Judges and the Code of Judicial Conduct - Political Activity after Seifert v. Alexander (Seventh Circuit decision)

By John DiMotto

In my first blog on the interplay between the Wisconsin Code of Judicial Conduct and political activity, I noted that the Code provisions against a judge being a member of a political party, against a judge from endorsing a candidate in a partisan election and against a judge from directly soliciting campaign contributions had been ruled unconstitutional by United States District Court Judge Barbara Crabb in Seifert v. Alexander. I also noted that the case was before the Seventh Circuit and a decision was forthcoming. It is no longer forthcoming, it is here.

Yesterday, in a 2-1 decision, the Seventh Circuit Court of Appeals affirmed in part and reversed in part Judge Crabb's decision in Seifert v. Alexander. The Court held:

1) The ban on a judge joining a political party was unconstitutional.

2) The ban on a judge endorsing a candidate in a partisan election was constitutional.

3) The ban on a judge directly soliciting campaign contributions was constitutional.

With respect to the ban on a judge joining a political party, the Court held that it was not narrowly tailored to serve a compelling state interest. The Court stated "...the partisan affiliation ban acts to prohibit his [Seifert's] speech on both his political views and his qualifications for office. Therefore, the clause is a content-based restriction on speech subject to strict scrutiny." The Court further stated that "the state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy. Nor can casting the argument in terms of the 'appearance of bias' save it - because 'avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the appearance of that type of impartiality can hardly be a compelling state interest either."The Court went on to state that the fact that a judge is associated with a political party would not implicate concerns of bias for or against a party unless the judge were in some way involved in the case beyond simply being a member of a political party. "Without some specific, individualized relationship, the affiliation between a judge who is a member of a political party and other members of that political party is simply too diffuse to make it reasonable to assume that the judge will exhibit bias in favor of his fellow party members."

With respect to the ban on a judge being allowed to endorse a partisan candidate for election, the Court found that an endorsement is a different from of speech. It held that a balancing approach, not strict scrutiny applies. It found that endorsements involve a judge's entry into the political arena for the candidate not for the judge and that this implicates potential abuse of the prestige of office. Thus, the state has the right to place such a restriction on endorsements.

With respect to the ban on a judge directly soliciting campaign contributions, the Court indicated that this is a finance regulation and the state has a compelling interest in preventing corruption or the appearance of corruption in elections via such regulations. The Court stated "Wisconsin's personal solicitation ban serves the anti-corruption rationale articulated in Buckley and acts to preserve judicial impartiality. A contribution given directly to a judge, in response to a judge's personal solicitation of that contribution, carries with it both a greater potential for a quid pro quo and a greater appearance of a quid pro quo than a contribution given to the judge's campaign committee at the request of someone other than the judge, or in response to a mass mailing sent above a judge's signature." The Court concluded "...the solicitation ban is drawn closely enough to the state's interest in preserving impartiality and preventing corruption to be constitutional."

While this ruling allows judges to join political parties, I do not intend to do so. I believe that the ban on joining a political party serves the public and I ran for judge 20 years ago to serve the public. As I have stated previously, judges must be above the fray. Judges must be separate from "politics." When I decided to run for judge, I made the decision to "leave" partisan politics. It is a choice I made - one that I have never regretted.

Judge Seifert has been quoted in the media as saying he intends to seek review by the SCOTUS. so, for now, this matter is "To Be Continued."

Judges and the Code of Judicial Conduct - Extra-Judicial Activities (Part One)

By John DiMotto

SCR 60.05 makes it clear that in non-judicial activities, a judge must be very careful that he/she does not:

1) cast reasonable doubt of the judge's capacity to act impartially as a judge;

2) demean the judicial office;

3) interfere with the proper performance of judicial duties.

So what does this mean?

Judges can speak, write, lecture, teach and engage in activities outside of the courtroom concerning the law, the legal system, the administration of justice and nonlegal subjects. For example, a judge can participate in continuing legal education for lawyers; speak about the law publicly and privately to groups, appear at and speak at public hearings on matters concerning the law, the legal system or administration of justice.

A judge may not accept appointment to governmental committees or commissions concerned with issues of fact or policy on matters other than the improvement of the law, although a judge may represent government on ceremonial occasions or in connection with historical, educational or cultural activities.

A judge may serve as an officer, director, trustee or nonlegal advisor of an organization or governmental agency devoted to the improvement of the law... or nonprofit educational, religious, charitable, fraternal or sororal or civic organizations so long as it is likely that the organization will not engage in proceedings that will come before the judge or engage frequently in adversary proceedings in the court of which the judge is a member.

A judge, in any capacity,

1) may assist an organization in planning fund-raising activities and participate in the management of the organizations funds but,

2) may not personally participate in the solicitation of funds except from other judges over whom the judge does not exercise supervisory or appellate authority;

3) may make recommendations to fund-granting organizations on projects and programs concerning the law, legal system or administration of justice;

4) may not personally participate in membership solicitation if it may be perceived as coercive or if it is essentially a fund-raising mechanism.

In essence, judges may engage in activities related to the law so long as they are not direct fund-raising activities. Judges may engage in some activities not related to the law so long as they will not end up before the judge or so long as they do not compromise the judges ability to be fair and impartial in judicial work. Judges may not act as legal advisors to organizations.

Judges live in the world. Judges need not isolate themselves from their communities. However, judges may not engage in activities that will be coercive and they may not engage in activities that are fund-raising in nature, not even for charity.

Perception is very important. The appearance of impropriety is as bad as engaging in impropriety. Judges must put themselves above the fray. Outside of the courtroom they may advocate for the law and must stay away from activities that put their ability to be fair in question.

A judge must always remember that most people hold judges in high regard. Most people do not want to upset a judge. People want to be on the good side of a judge. The title "judge" bring with it great power and awesome responsibility. The Code of Judicial Conduct with respect to extra-judicial activities exists to guide judges to avoid putting them in compromising situations.

Judges and the Code of Judicial Conduct - The Prestige of Office

By John DiMotto

There is no doubt that there is "prestige" that attends the judicial office. Whether it is in or outside of the courtroom, most people refer to a judge by his/her title. In the courtroom, when a judge enters everyone rises , even before the bailiff announces the presence of the judge. When addressing the court, staff, lawyers and parties will start out by saying "Your Honor" or "Judge." Outside of the courtroom, when a judge walks into a gathering, people usually address the judge with "hello, judge, how are you today" or words to that effect. When I walk into a restaurant where I have dined in the past, I am usually greeted with "Good evening, Judge, nice to see you again."

Quite frankly, even after 20 years as a judge, I am sometimes uncomfortable by this salutation when it is used outside the courtroom. I know the people are showing me respect that comes with my profession, but I am really no different a person than they are. I "put my shirt on one arm at a time" just like they do. I eat, drink, sleep, etc. no different than they do. If it is in a private setting and people call me judge, I oftentimes tell them my parents gave me the name "John" and I like it and it is OK for them to use my name since we are not in the courtroom.

While the title "judge" is part of the prestige of the office, a judge may not use his/her position to advance his/her or other's private interests. SCR Chapter 60 specifically addresses the "prestige of the office" issue head on.

SCR 60.03(1) states:

"A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

This rule governs conduct both on and off the bench. We are judges 24/7. It encompasses not just behavior but the appearance given by the behavior. In essence, judges must avoid not just inappropriate conduct but even the appearance of impropriety. A common sense "rule of thumb" that a judge can apply in every circumstance is "how would this look if it appeared on the front page of the local newspaper or was the lead story on the 10:00 news."

SCR 60.03(2) states:

A judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge may not lend the prestige of judicial office to advance the private interest of the judge or of others or convey or permit others to convey the impression that they are in a special position to influence the judge. A judge may not testify voluntarily as a character witness.

This rule is designed so that the judicial office is not denigrated. A judge should not be given consideration because he/she is a judge. If this rule did not exist, people might bend over backwards to do things for a judge in order to get something in return -- a favorable ruling on a motion, a favorable verdict at the end of a court trial, etc. Likewise, judges cannot seek an advantage in a matter because he/she is a judge. For example, a judge cannot use his/her judicial letterhead for conducting a judge's personal business. For example, a judge cannot allude to his/her judgeship to seek preferential treatment if stopped for a traffic violation or when making a purchase such as a car, etc.

SCR 60.03(3) states:

A judge may not hold membership in any organization that practices invidious discrimination on the basis of race, gender, religion or national origin.

This rule is obvious. How could any litigant believe a judge will be fair is the judge practices discrimination.

In addition to the rules, there Advisory Opinions can be sought to aid judges in making decisions.

The bottom line is this:

1) The judicial office comes great prestige.

2) A judge cannot use that prestige for his/her or another person's/entity's advantage.

Judges and the Code of Judicial Conduct - Judicial Civility and Decorum

By John DiMotto

In addition to the Judicial Code of Conduct in SCR 60, the provisions of SCR 62 - Standards of Courtesy and Decorum for the Courts of Wisconsin - also apply to judges. In many respects, the dictates of SCR 62 are the foundation for SCR 60.

SCR 62.01 sets forth the scope of the standards in SCR 62. It states that they are adopted "to enhance the administration of justice by promoting good manners and civility among all who participate in the administration of justice in [Wisconsin], are applicable to judges, court commissioners, lawyers court personnel, and the public in all Wisconsin courts."

SCR 62.02 sets forth the actual standards of conduct. They are standards to be followed at all times, regardless of how trying the circumstances may be. Under these standards:

1) Judges must maintain a cordial and respectful demeanor and be guided by a fundamental sense of integrity and fair play in all their professional activities.

2) Judges must be civil in their dealings with one another and with the public and conduct all court and court related proceedings, whether written or oral, ... with civility and respect for each of the participants.

3) Judges must abstain from making disparaging, demeaning or sarcastic remarks or comments about [one another, lawyers, court commissioners, parties, witnesses, etc.]

4) Judges must abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.

5) Judges must ... promote proper conduct and address disorder and disruptions.

6) Judges must be considerate and reasonable in scheduling matters.

7) Judges must conduct themselves in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process.

8) Judges must be punctual in convening proceedings.

These standards are not merely aspirational but must be followed regardless of the circumstances. Any judge can tell you how, at times, lawyers, parties, and witnesses "push the envelope" and try the patience of the court. However, judges must not succumb to the pressures of the moment. Judges must maintain an equilibrium of patience lest they lose control of the proceedings. Lose of control will result in chaos, lead to injustice and may subject a judge to potential discipline. A review of Wisconsin Judicial Commission Annual Reports reveals that each year complaints of demeanor/injudicious temperament rank near the top of all complaints made against judges.

These standards do not prevent a judge from imposing sanctions on inappropriate conduct or behavior of lawyers, parties, witnesses or the public in the courtroom. At times, judges can and must be "forceful" in taking control of a situation in the courtroom lest "all hell break loose." These standards do not tie judges hands or prevent judges from taking action. They do, however, require judges to do so in a dignified and respectful manner. To address incivility with incivility promotes incivility. Judges must rise above the fray, take control and set an example for all. Justice requires nothing less.