June 11, 2024 – A criminal defendant was prejudiced by an expert witness’s testimony that only 1% of the evidence in child sexual abuse reports is false, the Wisconsin Court of Appeals (District III) has held in an unpublished opinion in State v. Molde, 2021AP346 (May 21).

As a result of the prejudice, the Court of Appeals ruled, the defendant’s attorney provided ineffective assistance of counsel by not objecting to the introduction of the expert witness’s testimony.

In January 2017, Jobert Molde’s 13-year-old daughter Lauren (a pseudonym) told a school counselor that her father had sexually assaulted her.

Lauren made the allegation shortly after she’d recovered from swallowing a nearly fatal amount of pain pills in a school bathroom.

Three days after swallowing the pills, a nurse practitioner interviewed Lauren at a children’s advocacy center. During the interview, which was recorded, Lauren gave a detailed account of the alleged sexual assault.

After the interview, the Dunn County District Attorney charged Molde with one count of first-degree sexual assault of a child less than 12 years old and one count of incest with a child.

The State alleged that the assault occurred between January 2011 and January 2012.

Expert Witness

The Dunn County Circuit Court allowed Dr. Swenson, who supervised the nurse practitioner at the children’s advocacy center, to testify at Molde’s jury trial as an expert witness.

After Dr. Swenson testified, a juror submitted two written questions for the doctor.

The judge held a sidebar with the prosecutor and defense counsel before he read the questions to the doctor. Defense counsel did not object to the questions.

The judge read the first question to the witness: “How frequent is it for children to make up a story of sexual abuse?”

“False disclosures are extraordinarily rare, like one percent of all disclosures are false disclosures,” Dr. Swenson replied.

Defense counsel then asked Swenson if she had based her answer to the two questions on any particular studies.

Dr. Swenson said she had but said she didn’t know the names of the studies “off the top of my head.”

The jury convicted Molde on both counts. The circuit court sentenced Molde to 25 years in prison plus seven-and-a-half years of extended supervision.

Post-conviction Relief

Molde filed a motion for post-conviction relief. He argued that defense counsel had provided ineffective assistance of counsel by:

• failing to object to Dr. Swenson’s answers to the juror’s questions;

• failing to seek the admission of evidence about the victim’s allegedly dishonesty, under Wis. Stat. section 906.08(1); and

• withdrawing her objection to evidence of Molde’s prior bad acts.

After holding a Machner hearing, the circuit court denied Molde’s motion. Molde appealed.

Vouching Testimony

Judge Gregory Gill Jr. began his opinion for three-judge panel by explaining that to prevail on his ineffective assistance of counsel claim, Molde must show that: 1) his attorney’s performance was deficient; and 2) the deficiency prejudiced him.

Gill concluded that, under Court of Appeals caselaw, Dr. Swenson’s response to the juror’s first question constituted impermissible vouching testimony.

In particular, Judge Gill reasoned that Molde’s case was analogous to State v. Mader, 2023 WI App 35, 408 Wis. 2d 632, 993 N.W.2d 761.

In Mader, a therapist who hadn’t met or counseled the victim testified that: 1) she had seen only four instances of false sexual assault reporting in 30 years; and 2) research shows that only 3-8% of sexual assault reports are false.

Gill noted that the Court of Appeals in Mader held that defense counsel’s failure to object to the admission of the therapist’s testimony constituted ineffective assistance of counsel.

Judge Gill reasoned that Dr. Swenson’s answer to the juror’s first question was similar to the testimony at issue in Mader.

Swenson’s testimony was vouching testimony, Gill concluded, because while she hadn’t interviewed Lauren, she’d supervised the nurse practitioner’s interview of Laruen in real time.

Judge Gill wrote that Swenson’s vouching testimony was impermissible because it “‘would inevitably be seen by the jury as ‘a personal or particularized’ endorsement of [Laruen’s] credibility.’”

“Swenson effectively testified that 99 percent of all child sexual assault reports are true,” Gill wrote. “A 99 percent statistic ‘provided a mathematical statement approaching certainty’ that false reporting simply does not occur.”

Failure to Object Was Prejudicial

The State argued that defense counsel’s failure to object to Dr. Swenson’s testimony hadn’t prejudiced Molde because the sum of the evidence presented a trial weighed heavily in favor of finding Molde guilty.

The State pointed to the fact that Lauren had engaged in cutting and had detailed the alleged assault in a text message to her sister about one week before she overdosed.

But Judge Gill pointed out that in Mader, the victim provided detailed accounts of sexual assaults over one year that were corroborated by other witnesses and other evidence at trial.

Judge Gill wrote that while it was “a close case,” Molde had shown prejudice because the prosecutor mentioned Dr. Swenson’s answer to the juror’s first question in her closing argument.

“The State essentially argued to the jury that Lauren could not be lying about what occurred because Swenson testified that 99 percent of all child sexual assault reports are true,” Gill wrote.

Judge Gill also concluded that the evidence against Molde was not as strong as the evidence against the defendant in Mader, and pointed to the following:

• there was no physical evidence of the alleged assault;

• Lauren had alleged only a single assault – one that occurred four or five years before the accusation; and

• Lauren changed some parts of her story about the alleged assault over time.

Other Arguments

Gill concluded that Molde failed to show that defense counsel performed deficiently by 1) failing to elicit witness testimony under section 906.08(1); or 2) withdrawing her objection to the introduction of Molde’s prior bad acts.

The Court of Appeals reversed the circuit court’s order and judgment.