State v. Maday
| Decision Date | 15 September 1993 |
| Docket Number | No. 92-2989-CR,92-2989-CR |
| Citation | 507 N.W.2d 365,179 Wis.2d 346 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Norbert J. MADAY, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.
In this appeal we consider whether a defendant in a sexual assault prosecution is entitled to a pretrial psychological examination of the victim when the state gives notice that it intends to introduce evidence generated by a psychological examination of the victim by the state's experts. Because fundamental fairness dictates that a defendant be able to obtain access to all relevant evidence necessary to be heard in his or her own defense, we conclude that a trial court has the discretion to grant a motion for a psychological examination of a victim. Before the trial court may grant such a request, the defendant must have presented evidence of a compelling need or reason for the psychological examination and the trial court must balance the rights of the defendant against the interests of the victim. Therefore, we reverse the order of the trial court denying Norbert J. Maday's motion for reciprocal psychological examinations of the two victims in this case and remand to the trial court to conduct further proceedings consistent with this decision.
Maday is charged in an information with two counts of sexual contact with Stephen W., who was fourteen years old at the time, and one count of sexual contact with Randall S., who was twelve years old. All acts allegedly occurred in 1986. Stephen W. and Randall S. first reported these incidents to the City of Oshkosh Police Department in May of 1992.
After Maday's arraignment, the state filed notice of its intent to use expert testimony under State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913 (1988). The state proposed to present to the jury the opinions of five expert witnesses that the behaviors of Stephen W. and Randall S. were consistent with the behaviors of sexual abuse victims that the experts had dealt with in the past. The state's expert witnesses were retained in anticipation of trial; none of the experts was the victims' treating therapist.
In response, Maday filed a motion requesting that the trial court require Stephen W. and Randall S. to submit to psychological examinations by qualified psychologists designated by Maday. The trial court denied the motion. After receiving the written reports of the state's experts, Maday renewed his motion to have the victims examined by his experts. He also filed a motion in limine to prohibit the introduction of testimony by the state's experts that the victims' behaviors were consistent with the behavior of a sexually abused person. In the alternative, Maday requested that the trial court declare the "Jensen rule" unconstitutional as applied to the facts of the case.
The trial court denied these motions. The court reasoned that Maday's experts could adequately rebut the testimony from the state's experts without one-on-one psychological examinations. The trial court declared that Maday's experts could offer testimony on the behavior of sexual assault victims based on their experience. The court refused to prohibit the state from introducing testimony fitting within Jensen and found that the application of Jensen was not unconstitutional. 1
Maday filed a petition for leave to appeal a nonfinal order. On December 3, 1992, this court granted the petition. Our order stayed the jury trial scheduled for December 7, 1992 and established an accelerated briefing schedule. 2
Maday argues that the denial of his request for reciprocal psychological examinations denies him his constitutionally guaranteed rights of due process and equal protection of the law. He contends that this will cause a fundamentally unfair trial. Maday reasons that the state's announced intention to present the testimony of experts places the victims' mental condition and behavior in issue. He argues that he is at a disadvantage because he cannot present substantive evidence, from his experts' one-on-one interviews with the victims, that rebuts the state's evidence of the victims' mental condition and behavior. 3
The state counters that the issue is whether the trial court properly exercised its discretion in denying Maday's motions. The state points out that because of the indignity of such an examination and the potential chilling effect on victims, the discretion of the trial court is carefully circumscribed. The state argues that the trial court did not misuse its discretion because of the limited permissible scope of Jensen evidence and the availability to Maday of responsive mechanisms to rebut the conclusions of the state's experts. The state asserts that Maday did not present strong and compelling reasons for subjecting the victims to reciprocal psychological examinations. Addressing Maday's arguments on the merits, the state begins with the proposition that due process and equal protection of the laws are not determined from Maday's subjective notions of what constitutes fundamental fairness.
Whether Maday is entitled to psychological examination of the victims presents us with varying standards of review. Normally, discovery matters are procedure-oriented determinations, central to keeping the trial process moving, and we pay a great deal of deference to the trial court in its role as overseer of the trial. See Hofer, Standards of Review--Looking Beyond the Labels, 74 MARQ.L.REV. 231, 248-49 (1991). However, in this appeal we are also concerned with constitutional principles and protections. We cannot reject the trial court's findings of historical or evidentiary fact unless they are contrary to the great weight and clear preponderance of the evidence. See State v. Pheil, 152 Wis.2d 523, 529, 449 N.W.2d 858, 860 (Ct.App.1989). Questions of law we review de novo. See id. Likewise, in order to insure consistency in the scope of constitutional protections, we independently review the trial court's findings of constitutional fact and independently apply the constitutional principles involved to the facts as found by the trial court. See id.
Wisconsin has moved away from the notion that a criminal trial is a sporting event. See Irby v. State, 60 Wis.2d 311, 320, 210 N.W.2d 755, 760-61 (1973). Rather than continue the search for truth in trial by ambush, Wisconsin permits pretrial discovery as a device to speed up trials; to encourage defendants to enter pleas after learning the strength of the state's case; and, most importantly, to make trials fair by providing a level playing field. See id. There is a general realization that "[t]he truth is most likely to emerge when each side seeks to take the other by reason rather than by surprise." 2 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 19.3, at 475-76 (1984) (footnote omitted).
In Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973), the United States Supreme Court recognized a defendant's due process rights to "a fair opportunity to defend against the State's accusations." Chambers noted that among the minimum essentials of a fair trial is a defendant's right to be heard in his or her own defense and to offer testimony. Id. The fundamental right of the defendant to present witnesses and evidence is not absolute; the defendant must comply with a state's established rules of procedure in order to accommodate the legitimate interests of the state in the trial process--fairness and the reliable ascertainment of the truth. Id. at 295, 302, 93 S.Ct. at 1037, 1049.
Wisconsin has traveled down the same road. "The right to present testimony in defense of a criminal charge [is a] fundamental right[ ] of a criminal defendant." Milenkovic v. State, 86 Wis.2d 272, 286, 272 N.W.2d 320, 327 (Ct.App.1978). This is not an unfettered right to be heard in one's own defense; it is subject to the requirement that the testimony presented be relevant. See Rogers v. State, 93 Wis.2d 682, 692-93, 287 N.W.2d 774, 778 (1980).
Pretrial discovery is nothing more than the right of the defendant to obtain access to evidence necessary to prepare his or her case for trial. See Britton v. State, 44 Wis.2d 109, 117, 170 N.W.2d 785, 789 (1969). Because pretrial discovery concerns the ultimate ability of a defendant to present relevant evidence and witnesses in defense of criminal charges, pretrial discovery is a fundamental due process right. Cf. Milenkovic, 86 Wis.2d at 286, 272 N.W.2d at 327; Rogers, 93 Wis.2d at 692-93, 287 N.W.2d at 778. Providing a defendant with meaningful pretrial discovery underwrites the interest of the state in guaranteeing that the quest for the truth will happen during a fair trial.
An enduring requirement of the criminal justice system is that there must be a comprehensive presentation of facts. As the United States Supreme Court has stated:
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.
United States v. Nobles, 422 U.S. 225, 230-31, 95 S.Ct. 2160, 2165-2167, 45 L.Ed.2d 141 (1975) (quoting United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974)).
The state submits that Maday's right to present relevant testimony on his own behalf must be balanced against the rights of the victims to be free from intrusive psychological interviews. The state argues that a fair trial is guaranteed by the...
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