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.

Wednesday, July 14, 2010

Impeachment and Rehabilitation Evidence in Wisconsin - Character Evidence: Truthfulness/Untruthfulness

By John DiMotto
A powerful method of impeaching or rehabilitating the credibility of a witness -- but which is oftentimes overlooked or avoided -- is the introduction of character evidence in the form of opinion or reputation of the untruthfulness or truthfulness of a witness. This method of impeachment or rehabilitation requires the proponent of such evidence to understand the parameters of 906.08 and to be familiar with the case law that explains its use.
906.08(1)(a) sets forth that the credibility of a witness may be attacked or supported by evidence in the form of reputation OR opinion that refers to character for truthfulness or untruthfulness. 906.08(1)(b) sets forth that, except with respect to an accused who testifies in his/her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Finally, 906.08(2) provides that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than [906.09 circumstances] may not be proved by extrinsic evidence. However, specific instances of conduct, if probative of truthfulness or untruthfulness and not remote in time, maybe inquired into on cross-examination of the witness or cross examination of the witness who testifies to his/her own character for truthfulness or untruthfulness.
From 906.08 we receive the following "bright line" rules:
1) Evidence of a witness's character for truthfulness or untruthfulness can be elicited by reputation OR opinion.
2) Only an accused in a criminal case can elicit evidence of his/her character for truthfulness BEFORE there is an attack.
3) Once a witness's character for truthfulness is attacked by reputation or opinion testimony, evidence of the witness's character for truthfulness may be introduced.
4) Specific instances of conduct bearing upon character for truthfulness or untruthfulness to attack or support credibility can be inquired into on cross examination but may NOT be proved by extrinsic evidence.
Case law gives us further insight as to what evidence is admissible.
906.08 was a major change in Wisconsin law and a return to early 19th century Wisconsin cases that permitted opinion evidenced in special instances. Opinion evidence is not geographically limited and does not require foundation that the witness giving the opinion is familiar with the community of the person at issue. Furthermore, there is no requirement that the witness giving the opinion testimony have a long acquaintance or have recent information since cross examination can expose lack of familiarity. However, opinion evidence regarding character for truthfulness is not automatically admissible. If the witness lacks personal knowledge or if there are 904.03 concerns, the evidence can be prohibited. see State v. Cuyler, 110 Wis.2d 133 (1983); State v. Gonzalez, 2010 WI App ___ (recommended for publication).
Most contradictions in testimony do not put a witness's character for truthfulness in issue. There is a difference between credibility and character for truthfulness. However, where the nature of the defense and tone of the examination as a whole puts a witness's character for truthfulness in issue, the court may allow supportive rehabilitation character evidence. see State v. Anderson, 163 Wis.2d 342 (Ct. App. 1991).
It is not absolute that a person must testify before the person's character for truthfulness be attacked. If a hearsay statement is admitted, the hearsay declarant's credibility is open to attack by evidence that would be admissible if the declarant had testified. However, specific instances of conduct may not be proved by extrinsic evidence. see State v. Evans, 187 Wis.2d 66 (Ct. App. 1994).
An attack in opening statement on the character of a witness for truthfulness opens the door for rehabilitative evidence even before the witness testifies. see State v. Eugenio, 219 Wis.2d 391 (1998). Asking a witness if he/she lied is an attack on character for truthfulness. see State v. Tutlewski, 231 Wis.2d 379 (Ct. App. 1999).
In terms of cross examination of a witness with respect to specific instances of conduct, it is important to keep in mind that the cross examiner is "stuck" with whatever answer is given by the witness. Even if the cross examiner has positive evidence that the witness has lied, it cannot be introduced via another source since this would be extrinsic evidence which is not admissible under 906.08(2). see State v. Rognrud, 156 Wis.2d 783 (Ct. App. 1990).
Finally, it must be noted that introducing evidence as to "character" for truthfulness or untruthfulness is not testimony or evidence that a person IS telling the truth. Case law is clear that no witness may testify that another witness did or did not tell the truth in the proceedings or with respect to the event in question. Evidence as to "character" is not evidence that the witness did or did not tell truth in this case. It is only general character evidence so the jury can assess the overall credibility of the witness.
In my next blog with respect to impeachment and rehabilitation evidence, I will look at the parameters of Character Evidence for "Good and Evil."

Sunday, July 11, 2010

Impeachment and Rehabiliation Evidence in Wisconsin - Prior Consistent and Inconsistent Statements

By John DiMotto
My three week civil jury trial is now in the hands of the jury so today I would like to resume my series on Impeachment and Rehabilitation Evidence in Wisconsin by looking at the use of prior consistent statements and prior inconsistent statements.
Under our Wisconsin Rules of Evidence, hearsay is ordinarily not admissible. "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. [908.01(3)]. Furthermore, hearsay is not admissible except as provided by these rules [rules of evidence] or by other rules adopted by the supreme court or by statute. [908.02]. This means that just because the witness is on the stand subject to cross examination that anything the witness said at some previous time is automatically admissible. The statement must either not be hearsay or a hearsay exception must apply. Two such statements that are not hearsay are prior inconsistent statements [908.01(4)(a)1.] and prior consistent statements [908.01(4)(a)2.]. Prior inconsistent statements are used to impeach. Prior consistent statements are used to rehabilitate.
Prior inconsistent statements constitute the most often used form of impeachment. If during a hearing a witness says "A" about a subject but previously said "B" about that subject, the witnessed can be confronted with the difference in order to challenge and weaken the credibility of the witness in the eyes of the trier of fact. Rarely does a trial go by where a witness does not say something inconsistent with something the witness said at some earlier time. It is a fact of life that sometimes memories may fail for various and sundry valid reasons. It is also a fact of life that sometimes a witness may lie. It is in the context of the entire trial that the trier of fact will determine if the inconsistency is "honest" or "dishonest" and how it affects the overall credibility of the witness.
Prior consistent statements constitute the most often used form of rehabilitation. If during a hearing a witness says "A" about a subject and the cross examiner makes either an express charge or implies that the witness has recently fabricated his/her testimony or there has been recent improper influence or motive, then the witness can be rehabilitated with a prior statement that predates the fabrication/improper influence/motive. This evidence is admissible to rebut the charge of recent fabrication/improper influence/motive. What is critical is that the prior statement must predate the fabrication/improper influence/motive claim. For example, if a defendant is charged with the sexual assault of his ex-wife and during the cross examination of the ex-wife the defense brings out the fact that prior to the alleged assault she filed a motion for contempt in family court alleging he has willfully refused to pay child support, her prior account to the police, which postdated the alleged sexual assault, would not be admissible as a prior consistent statement. However, if the motion had been filed after the alleged sexual assault, the prior statement, having predated the claim of fabrication/improper influence/motive, would be admissible. The timing of the prior statement is the key to admissibility.
The significance of prior inconsistent statements and prior consistent statements is intertwined with the credibility of the witness and the weight to be given to the testimony of the witness.

Monday, July 5, 2010

The Senate Supreme Court Confirmation Hearings

By John DiMotto
I will soon return to my series on Impeachment and Rehabilitation Evidence in Wisconsin, however, today I would like to reflect on the Senate Supreme Court Confirmation Hearing Process.
Many people ask me "what is the purpose of the Senate Supreme Court Confirmation Hearings?" I tell them that I believe it is to determine whether the nominee is qualified by knowledge, intelligence and experience to be a member of the Court. Whether the nominee is a political Conservative, Moderate or Liberal is not the standard.
Article II, Section 2 of the US Constitution grants the President, with the advice and consent of the Senate, the power to appoint judges of the supreme court. So long as the nominee is "qualified", I believe that selection should be honored. People may strongly disagree with decisions of perceived conservatives (Chief Justice Roberts, Justices Alito, Thomas and Scalia) or perceived liberals (Justices Stevens, Ginsberg, and Sotomayor) but no one can honestly say they are not qualified for the position. I was not in favor of some of the above justices when they were nominated, but they were qualified and as such I supported their confirmation. When the voters of our country elect a President, with that election comes the power and the right to choose any qualified person for the Court.
There are some "single issue" people (abortion, right to bear arms, same sex marriage, campaign finance) who take the position that if a nominee does not agree with their view of the issue or will not express an opinion on the issue that they should not be confirmed. I disagree. The fact that the nominee may not agree with their position does not make the nominee unqualified.
There are some people who believe that all justices on the Court should think alike. I disagree. I think that is unhealthy for the law and the country. You need a Court with members who will debate and challenge each other on the meaning of the Constitution and legislation and how it applies in each case. Debate causes the members of the Court to justify their positions; to think through their approach. For two interesting articles on the differing viewpoints on Elana Kagan and the Confirmation process, I would direct you to one by Marquette University Law Professor Ed Fallone and one by Marquette University Law Professor Rick Esenberg. They appeared in July Fourth edition of the Milwaukee Journal Sentinel "Crossroads" section.
In a word, the Senate Confirmation hearings should be about legal "qualifications" and not about political "rhetoric."

Sunday, July 4, 2010

Celebrating our Independence

By John DiMotto
I have been super busy the past two weeks with a complicated civil jury trial and have not had time to tend to this blog. The trial will go for at least one more week so my time to blog will be limited. I hope my posts have been interesting and thought provoking. I intend to keep them up.
Today, I want to deviate from my "legal" blogging to briefly reflect, as a judge, on the significance of the Fourth of July.
We celebrate our freedom and independence.
1) We have the right to say what is on our mind, regardless of how brilliant or stupid the thought may be (freedom of speech). This means that people have the right to rant and rave as much as they want regardless of whether they have a legitimate point to make or not.
2) We have the right to practice our religious faith unfettered by government intrusion (freedom of religion). This means that we can believe or not believe as we choose without fear of recrimination by our government.
3) We have the right to associate with whomever you want - with some limitations - (freedom of association).
4) We have the right to write and convey our thoughts without censorship (freedom of the press).
5) We have the right to petition our government for redress of wrongs.
6) We have the right to bear arms.
7) We have the right to be free from unauthorized governmental intrusions - searches and seizures.
8) We have the right not to incriminate ourselves.
9) We have the right to due process.
10) We have the right to equal protection under the law.
11) and the list goes on and on and on. And what is that list - it is our Constitution.
Just why was this document enacted? I cannot say it any better than in its own Preamble:
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
We ALL have the obligation to WORK to make this happen. As a judge, I work to achieve justice for every party, witness and person who comes before me. Every single one of us must do our part bring about domestic tranquility, promote the general welfare and secure the blessings of liberty. As we reflect on "freedom" and "independence" we must remember that the Constitution is not a one way street. Our Constitution confers upon all of us many rights. we must never forget that if we want to maintain them we need to live up to and embrace the responsibilities that come with those rights. Some people have forgotten that our Constitution is this two way street. It is time for all of us to recommit to the original intent of our founding fathers/mothers.
Happy Fourth of July.