March 3, 2010 – In a case of first impression, the Wisconsin Court of Appeals denies a convicted sex offender’s motion for a new trial based on defense counsel’s failure to object to the prosecutor playing a child’s video statement during closing argument.
In State v. Alexander Marinez, No. 2009AP83-CR (WI App. Feb. 25, 2010), defendant Marinez raised claim of ineffective assistance of counsel because defense counsel did not object to the prosecutor playing an edited portion of a video statement that was admitted as evidence in trial.
Marinez was charged with having sexual intercourse with his niece, A.M. then eight years old, and having sexual contact with his niece K.A., then five years old. During trial, the State submitted video statements made by each child, which were admitted by the circuit court into evidence, and each child was also called as a witness by the State. See Id, ¶ 4.
At the end of the trial, while the jury was out of the courtroom, the prosecutor stated he intended to offer edited portions of A.M.’s video statement during his closing argument. The circuit court asked whether this was alright with the defense, and defense counsel answered it was. See Id, ¶ 6.
Playing video statement during closing
Marinez argues that playing the video statement during closing argument violated Wis. Stat. § 908.08, the statute that authorizes admission of recordings at trial, and violated his right to due process under the Fourteenth Amendment of the U.S. Constitution. To establish ineffective assistance of counsel, Marinez had to show that counsel’s performance was deficient and that the deficiency prejudiced him. See Marinez, ¶ 13.
The Wisconsin statute authorizes the court to admit into evidence at a criminal trial the audiovisual recording of a child’s oral statements if the child is available to testify and if certain other conditions are met, which generally relate to trustworthiness, fairness, and the need to minimize the strain on the child testifying in court.
Marinez’s argument focused on Wis. Stat. § 908.08(5)(a), which states that if the court admits a recorded statement, the party who offered the statement into evidence may also call the child to testify immediately after the statement is shown. It continues, “… if that party does not call the child, the court … upon request by any other party, shall order that the child be produced immediately following the showing of the statement to the trier of fact for cross-examination.” See § 908.08(5)(a).
Marinez therefore reasoned that because no witness can be called to testify during closing argument, that the statute prohibits a “showing” of a video statement during closing argument.
Upon analysis, however, the court of appeals found that the plain language of the statute establishes a procedure and standards for admission of a video recording of a child’s oral statement as evidence at trial (emphasis in original). See Marinez, ¶ 18. Nothing in the statute suggests that it’s intended to address the use of video evidence during closing argument.
The court therefore concluded that Wis. Stat. § 908.08 does not prohibit playing at closing argument a child’s video statement properly admitted at trial, and as a result, defense counsel did not perform deficiently in failing to object on that ground.
Due process argument
The due process clause of the Fourteenth Amendement guarantees a defendant in a criminal case a trial that is fundamentally fair. Marinez, in this case, argued that playing portions of A.M.’s video statement during closing made the trial fundamentally unfair because a video of a witness’s statement is much more powerful than reading the transcript.
In other words, according to Marinez, the unfairness resulted from “the inherently compelling nature of seeing and hearing the witness – especially a young, vulnerable child – rather than listening to a transcript or a summary of testimony.” See Id, ¶ 22.
The general rule in Wisconsin is that counsel has wide latitude in closing argument, and control of the content, duration, and form of the closing is within the discretion of the circuit court. See Id, ¶ 23. The court recognized that a video statement provides more information to the jury than a reading of a transcript, including not only hearing the witness’s words, but also seeing the witness again, “with all the cues to credibility and meaning that demeanor conveys.” See Id, ¶ 30.
The court noted, however, that while the potential power of playing video statements at closing requires caution, it does not warrant a wholesale prohibition of use in that context. The circuit court’s discretion in controlling closing argument is sufficient to protect defendants against unfair uses in a particular case. See Id, ¶ 31.
Accordingly, the court concluded that the due process clause does not preclude use, during closing argument, of video statements that have been properly admitted into evidence, and that it therefore followed that defense counsel did not perform deficiently by failing to object on that ground.
Judgment was affirmed and defendant’s motion for a new trial was denied.
