May 24, 2022 – A video recording of an interview of a minor victim was not rendered inadmissible by the fact a separate audio recording of the interview was merged with the video, the Wisconsin Court of Appeals has ruled.

In State v. Marks, 2020AP1746 (April 27, 2022), the Court of Appeals District III held that because the alteration enhanced the quality of the recording, the recording was accurate.

Calls From Stepmother, Teacher

Moyer, a social worker with the Barron County Department of Health and Human Services interviewed R, a four-year-old girl, on March 22, 2018.

The interview was prompted by calls to Chafer, a Cumberland police officer, from R’s stepmother and kindergarten teacher. Those calls took place on March 20 and 21, 2018, respectively.

R’s stepmother called the police after R said that on March 19, 2018, Joseph Marks, the live-in boyfriend of R’s stepmother, had exposed himself to her and touched her genitals three times

R’s teacher called the police after R said that Marks had exposed himself to her, told her to pull down her pants and touch herself, then pulled down his pants and touched himself. 

Moyer’s interview of R took place at the Cumberland police station, with Chafer in the room. The interview was recorded on video.   

Audio Added to Video

The Barron County District Attorney charged Marks with one count each of first-degree sexual assault of a child under the age of 13 and exposing his genitals to a child.

The state moved to admit the video of Moyer’s interview of R.

Chafer testified that upon playback, the audio on the video recording of the interview was cutting in and out.

So he had Flessert, a senior digital forensic examiner at the state Department of Justice, strip the audio from the video and then sync a separate audio recording of the interview made by Moyer to the video recording.

Flessert testified that he used a video production program to match Moyer’s audio recording to the video recording. Flessert testified that the two recordings “matched perfectly,” with no distortions, alterations, or loss of content.

The circuit court admitted the amended video. The jury convicted Marks on both counts and the court sentenced him to twelve years in prison and eight years of extended supervision.

Marks moved for post-conviction relief. He argued that his lawyer was ineffective by not moving the trial court to reconsider its ruling on the admissibility of the video.

The court denied Marks’ motion and Marks appealed.

Alteration Enhanced Video

On appeal, Marks argued that the video of the recording was not “accurate and free from excision, alteration and visual or audio distortion” as required by Wis. Stat. section 908.08(3)(b), because of the merged audio and video.

Marks also argued that the video: 1) did not demonstrate that R understood that she needed to tell the truth and that not telling the truth is punishable, as required by section 908.08(3)(c); and 2) lacked sufficient indicia of trustworthiness, as required by section 908.08(3)(d).

Writing for a three-judge panel, Judge Jennifer Nashold pointed out that Marks hadn’t argued that the video was inaccurate. Rather, he argued that the process used to create the video rendered it in admissible.

The amended video was “free from … visual and audio distortion” because it contained “clear and continuous sound,” Judge Nashold wrote.

Judge Nashold noted that it was true that the original audio had been stripped from the video and replaced with the audio recorded by Moyer.

“But we do not view Wis. Section 908.08(3)(b) as prohibiting the type of non-substantive modification—i.e, an alteration or excision that restores sound quality so as to more precisely capture the content of the interview,” Nashold wrote.

“Such alteration or excision creates or enhances (as opposed to obscures) the accuracy of the recording and thus is consistent with the purpose and the intent of the statute.”

Child Understood True and False

Judge Nashold acknowledged that R’s answers to certain questions posed by Moyer during the interview didn’t reflect the child’s understanding that it was important to tell the truth and that false statements were punishable.

But other parts of the interview showed that R did understand those concepts, Judge Nashold explained.

For instance, R said that a lie gets one in trouble while telling the truth does not. Additionally, R answered in the affirmative when asked whether it was “important to tell true things and things that actually happened” and “Do you promise to only talk about things that have actually happened?”

And while R appeared confused or unresponsive at times during the interview, “[w]hether a recording complies with Wis. Stat. section 908.08(3)(c) does not involve a rigid determination as to whether the child correctly answered every question,” Judge Nashold wrote.

“Rather we must examine the child’s statement in its entirety,” Nashold wrote. “Here, we independently conclude that [R’s] statement was made upon an understanding of the consequences of false statements and the importance of telling the truth.”

‘Scattered and Haphazard Criticisms’

Judge Nashold wrote that Mark’s argument with regard to the indicia of trustworthiness of R’s statement in the video amounted to only “scattered and haphazard criticisms that do not lead to the conclusion that Moyer’s manner of interview caused, or was likely to cause, [R] to give false or untrustworthy responses to Moyer’s questions.”   

And despite Mark’s argument that Moyer was biased, the court of appeals agreed with the circuit court’s statement that R didn’t appear to have been coached.

Furthermore, Judge Nashold pointed out, R said some good things about Marks during the interview, which meant R likely didn’t have an ulterior motive for alleging sexual contact.

Additionally, Nashold wrote, the interview came close in time to the date of the alleged crimes, “which lessens the likelihood that she would have forgotten the events described.”

Regarding Mark’s ineffective assistance of counsel argument, Judge Nashold explained that he failed show that his lawyer’s performance was prejudicial.