State v. Gilbert
| Decision Date | 30 November 1982 |
| Docket Number | No. 82-1061,82-1061 |
| Citation | 109 Wis.2d 501,326 N.W.2d 744 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Kathleen Marie GILBERT, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Chris Heikenen, Asst. Atty. Gen. (argued), for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.
Kenneth W. Forbeck, Beloit (argued), for defendant-respondent; O'Neal, Noll, Elliott, Forbeck & Iglesias, S.C., Beloit, on brief.
Tod O. Daniel, guardian ad litem, Janesville, for intervenor.
This appeal is from a non-final order of the circuit court for Rock county, John H. Lussow, circuit judge. The court of appeals granted the state leave to appeal, sec. 808.03(2), 809.50, Stats.1979-80, and this court granted the state's petition to bypass the court of appeals. Secs. 808.05(1), 809.60, Stats.1979-80. The issue posed on appeal is whether the circuit court erred in quashing a subpoena ad testificandum requiring the attendance of a ten-year-old girl (BP) to testify at a preliminary examination, on the ground that the "best interest of the child" were served by not having her appear to testify in the courtroom before her alleged abuser (her mother). 1 We conclude that the circuit court erred in quashing the subpoena, and we vacate the order quashing the subpoena.
This case reaches this court at an unusually early stage in its procedural history, namely, during a preliminary examination which has been stayed pending this appeal. We wish to avoid, as much as possible, commenting upon the evidence introduced at the preliminary examination which has not yet been completed and therefore shall state only the facts necessary for resolution of the issue at hand.
On December 8, 1981, the state issued a criminal complaint against Kathleen Marie Gilbert, charging her with six counts of criminal conduct. The first four counts of the complaint concern Ms. Gilbert's alleged actions toward her younger daughter, TG. The complaint charges Ms. Gilbert with the murder of TG, contrary to section 940.01(1), Stats.1979-80; arson, contrary to sec. 943.02(1)(b), Stats.1979-80; aggravated battery, contrary to sec. 940.19, Stats.1979-80; and child abuse of TG, contrary to sec. 940.201, Stats.1979-80. The last two counts of the complaint both concern Ms. Gilbert's alleged actions toward her older daughter, BP. The complaint charges Ms. Gilbert with the crime of injury by conduct regardless of life, contrary to sec. 940.23, Stats.1979-80, and with child abuse, contrary to sec. 940.201, Stats.1979-80.
On February 18, 1982, the preliminary examination commenced for the purpose of determining whether there is probable cause to believe that Ms. Gilbert committed a felony. Sec. 970.03, Stats.1979-80. The state subpoenaed BP, the ten-year-old daughter, to testify at the preliminary examination. Tod O. Daniel, an attorney who had been appointed as BP's guardian ad litem in other court proceedings involving BP, 2 moved to quash the subpoena on the ground that BP would be emotionally harmed if she had to testify in the presence of her mother. The guardian ad litem argued that BP "is of such tender years and in such a psychological and emotional state that requiring her to testify creates a probability of psychological damage to her far outweighing the probative value of any testimony she may give."
The circuit court held hearings on the motion to quash at which a social worker and BP's foster mother testified. The substance of the testimony was that apparently Ms. Gilbert had severely abused BP, that BP feared her mother, that BP feared testifying in the presence of her mother, and that BP's behavior has, in the past, been adversely affected when she must see or confront her mother. The circuit court also received in evidence a psychologist's report regarding BP's verbal and motor skills. The report concluded that BP's
After considering the testimony regarding the effect on BP of testifying in her mother's presence and taking judicial notice of the judicial proceedings relating to BP in which Ms. Gilbert's parental rights were terminated, 3 the circuit court balanced the likelihood of BP's suffering emotional damage by testifying against the state's interest in securing a conviction. The court concluded that "it would probably do great damage to BP if she were required to testify" and ordered the subpoena quashed. It stayed the preliminary examination pending the state's appeal.
The sole issue for our determination is whether the circuit court, acting in what it considered the best interest of the child, erred in quashing a subpoena ad testificandum which required the child-victim to testify at a preliminary examination.
In this case the application of a well-accepted legal principle--which is grounded in basic concepts of justice and fairness--conflicts with our sense of compassion.
The well-accepted legal principle, a fundamental tenet of our modern legal system, is that the public has a right to every person's evidence 4 except for those persons protected by a constitutional, common-law, or statutory privilege. This principle applies to all of us--even to the President of the United States. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Fromme, 405 F.Supp. 578 (E.D.Cal.1975).
The principle and its corollary--that each person has a duty to testify--are basic to the adversary system. The integrity of the legal system depends on the court's ability to compel full disclosure of all relevant facts under the rules of evidence. The theory of the adversary system is that examination of all persons who have relevant information will develop all relevant facts and will lead to justice. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).
Nonetheless, our sense of compassion tells us that we should do what we can to protect a ten-year-old who allegedly has been abused by her mother from further victimization in a legal system which is committed to protecting human rights. No sensitive person can read about child abuse without feeling anguish for the abused child or without understanding a child's needs and wishes to avoid confronting and accusing the alleged abuser in criminal proceedings, especially if the abuser is a close relative of the child. We commend Attorney Daniel, BP's guardian ad litem, for impressing upon us the importance of the issue we decide today and for his continuing concern for BP's well-being and his good counsel.
While we are concerned with the victim-witness child, we must also consider that although the district attorney's insistence on BP's testifying is portrayed as being cruel and insensitive, the district attorney is also concerned with BP's welfare. In demanding the testimony the district attorney represents BP's interest and the public's interest in prosecuting an alleged child abuser and murderer. 5 The district attorney contends that BP's testimony may be crucial to bringing the mother to trial. The district attorney faces the dilemma of letting the defendant go free or doing harm to the emotional well-being of the child-victim by compelling her testimony. Were the district attorney to decide not to call the child as a witness, the district attorney may protect the child's emotional interest in not being forced to face the alleged abuser and accuse the abuser of criminal acts, but may inflict a greater harm on the child by allowing the alleged abuser to go free and by demonstrating to the child that the state of Wisconsin does not place a high enough value on the child's suffering to bring to justice the person alleged to have caused the suffering.
We turn to the legal arguments in this case against the backdrop of the fundamental principle that every person must testify and the concern that the child victim-witness be protected to the extent possible from further harm. We first consider whether any legal doctrine supports BP's claim for not testifying. 6
Courts rarely excuse persons from the duty to testify; exemptions are "distinctly exceptional, being so many derogations from a positive general rule." 7 The exemptions recognized are narrowly drawn and are "grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth." United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950).
Sec. 905.01, Stats.1979-80, sets forth this state's adoption of the principle that each individual must testify and that privileges from testifying are limited. 8 BP's claim to be excused does not fall within the rules set forth in ch. 905, Stats.1979-80.
Although BP cannot claim a statutory, constitutional, or common law privilege against testifying, it is arguable that she could claim exemption under sec. 805.07(3), Stats.1979-80, which grants the circuit court authority to quash the subpoena on the ground that it is unreasonable and oppressive. Sec. 805.07 provides in part as follows:
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