Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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Discovery - Expert Opinions - Privilege - Refusal to Answer - Sanctions

Burnett v. Alt, No. 96-3356, etc., (filed 18 February 1999)

This appeal concerned a discovery dispute and the imposition of sanctions based on an expert's refusal to answer certain questions. The underlying case involved a medical malpractice claim stemming from the birth of a badly brain-damaged baby. The plaintiffs named several expert witnesses, including Dr. Acosta who had provided prenatal care and other medical services. (Dr. Acosta was not named as a defendant.) At his deposition on instructions by his attorney, Dr. Acosta refused to answer the following question: "No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that's abnormal?" The circuit court granted a motion compelling discovery and imposing sanctions based upon the witness's refusal to answer. The court of appeals affirmed both orders.

The supreme court, in an opinion written by Justice Bablitch, reversed. The majority addressed three principal issues. First, the court held that the question clearly called for expert opinion testimony. An answer obviously depended upon Acosta's education and experience as a doctor; no lay person could reasonably answer the inquiry. Second, the court held that expert witnesses were privileged to refuse to provide expert opinions; that is, Dr. Acosta had a right to refuse to answer. Plunging into the interstices of the Wisconsin Rules of Evidence, the majority concluded that it created an "implicit" privilege for experts. In particular, section 907.06 of the Wisconsin Statutes permits the court to appoint an expert but only upon the expert's consent. If a trial court cannot compel an expert witness to testify, a litigant also cannot force an expert witness to testify.

Reviewing several diverse approaches, the supreme court adopted a "broad qualified privilege" for expert opinion testimony. A litigant must demonstrate "compelling circumstances" before a court "compels" an unwilling expert to offer opinion testimony. Even where such compelling circumstances are present, the litigant must "present a plan of reasonable compensation." Finally, the expert's participation is limited to providing "existing opinions": "Under no circumstances can an expert be required to do additional preparation." The court expressly held that a contrary holding in a 90-year-old case (experts must testify to existing opinions but can't be forced to do additional work) did not survive the Wisconsin Rules of Evidence.

In this case, the plaintiffs failed to demonstrate any compelling circumstances. For this reason, the plaintiffs also failed on the third issue: The circuit court erred in compelling the answer and imposing sanctions. The majority expressly cautioned lawyers "that our holding in this case is not a license to assert unsubstantiated privileges." Finally, the court rejected the plaintiffs' request for a supervisory writ entering a default judgment against the defendants because they failed to follow proper procedures or meet the standards.

Justice Bradley, joined by Chief Justice Abrahamson, dissented. They were unpersuaded that any such expert opinion privilege exists under Wisconsin law.

Sexual Exploitation of Child - Constitutionality of Wis. Stat. Section 948.05

State v. Zarnke, No. 97-1664-CR (filed 26 Feb. 1999)

The defendant was charged with two counts of sexual exploitation of a child contrary to Wis. Stat. section 948.05(1)(c for his reproduction and/or distribution of photographs, electronically stored images, and other pictorial reproductions of a child engaging in sexually explicit conduct.

Section 948.05(10)(c) provides that whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child is guilty of a Class C felony: "produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes or possesses with intent to sell or distribute, any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct."

The statute further provides that it is an affirmative defense to a prosecution for a violation thereof if the defendant had reasonable cause to believe that the child had attained age 18 and the child exhibited to the defendant, or the defendant's agent or client, a draft card, driver's license, birth certificate, or other official or apparently official document purporting to establish that the child had attained age 18. The statute specifically provides that a defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.

The issue before the supreme court was whether section 948.05 prohibiting the sexual exploitation of a child violates the First and Fourteenth Amendments to the U.S. Constitution and article I, section 3 of the Wisconsin Constitution for failing to require that the state prove that a distributor of sexually explicit materials had knowledge of the minority of the person(s) depicted in the materials.

In a majority opinion authored by Justice Steinmetz, the court held that section 948.05 on its face does not set forth the requirement that the state carry the burden of proving that the defendant had knowledge of the minority of the child-victim depicted in the sexually explicit materials for which the prosecution is being brought. Therefore, the statute as written is unconstitutional as it applies to the distribution of sexually explicit material depicting minors, as well as to the other prohibited conduct that does not entail a personal interaction between the accused and the child-victim.

In United States v. X-Citement Video Inc., 513 U.S. 64 (1994), the U.S. Supreme Court suggested strongly that some level of scienter as to the minority of the child-victim was constitutionally required in child pornography prosecutions where there is no reasonable expectation of a face-to-face meeting between the accused and the minor. The Wisconsin Supreme Court agreed that the age of the performer is an elemental fact and that the government must prove some level of scienter as to the performer's minority.

It is true that section 948.05 is not a strict liability statute, for it is possible for a defendant to escape liability by proving a lack of knowledge under the statutory affirmative defense described above. However, the current statute, as it applies to distributors, is indistinguishable from a strict liability statute because it is virtually impossible for a defendant who functions as a distributor of the materials to meet his or her burden under the affirmative defense (which requires among other things some documentary proof of age to be supplied by the child to the defendant or the latter's agent or client).

The court declined to save the statute by severing the offending portions thereof and then reading into those same portions a scienter requirement. Said the court, it is the Legislature's job, not the court's, to amend the invalid portion of the statute to conform to the federal and state constitutions.

The court concluded its decision by noting that, with the removal of the offending language, section 948.05(1)(c) now reads: "produces or performs in any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct." The court specifically reserved the question of whether this remaining portion of the statute is constitutional.

Justice Prosser filed a dissenting opinion in which he urged that the court has a duty to read into the statute the element of scienter and to construe the statutory affirmative defense to apply only to those situations in which there has been or could have been personal contact between the defendant and the child.

Circuit Courts - Power to Dismiss Cases With Prejudice Prior to
Attachment of Jeopardy

State v. Krueger, No. 97-2663-CR (filed 16 Feb. 1999)

The issue presented in this case was whether a circuit court has the inherent power to dismiss a criminal complaint with prejudice prior to the attachment of jeopardy when the defendant's constitutional right to a speedy trial is not implicated. On appeal the defendant asked the supreme court to reexamine and expand its decision in State v. Braunsdorf, 98 Wis. 2d 569, 297 N.W.2d 808 (1980), in which the supreme court held that "trial courts of this state do not possess the power to dismiss a criminal case with prejudice prior to the attachment of jeopardy except in the case of a violation of the defendant's constitutional right to a speedy trial." In a unanimous decision authored by Chief Justice Abrahamson, the supreme court refused the defendant's request.

The defendant argued that Braunsdorf should be expanded to recognize that a circuit court has the inherent power to dismiss a prosecution if the circuit court's sense of fairness has been violated. He equated a violation of the court's sense of fairness with a violation of due process. That was the position taken by the circuit court when it dismissed with prejudice a case of indecent exposure against the defendant. The circuit court thought this prosecution was generally violative of due process because the facts supporting the indecent exposure case had been admitted as "other acts evidence" in a prior trial of the defendant involving a similar charge. At that prior trial the judge warned the state that, if it introduced the "other acts" evidence, it could not later prosecute the defendant for the "other acts" conduct.

The supreme court concluded that the state's exercise of discretion to proceed with the current prosecution fell within the generally accepted bounds of a prosecutor's discretion in deciding whether to prosecute and how to prosecute. Adhering to well-accepted law governing prosecutorial discretion in charging decisions, the court concluded that the state lawfully exercised its charging discretion in bringing the present case. The circuit court's conclusion that the state's conduct violated a sense of fairness cannot displace the state's lawful exercise of well-accepted prosecutorial discretion.

Allegation of Delayed Charging to Avoid Juvenile Court Jurisdiction - Standards for Requiring Circuit Court to Hold Evidentiary Hearing on Delayed Charging

State v. Velez, No. 96-2430-CR (filed 12 Feb. 1999)

In 1994, after becoming an adult, the defendant was charged with first-degree intentional homicide for a crime committed when he was still a juvenile. [Note: The age at which a court of criminal jurisdiction has original jurisdiction of a defendant accused of committing a crime has since been lowered from 18 to 17. The age at which a court of criminal jurisdiction has original jurisdiction of a defendant accused of committing an intentional homicide has since been lowered to 10.]

The defendant moved to dismiss the case claiming that the state had intentionally manipulated the system in order to avoid juvenile court jurisdiction. See State v. Becker, 74 Wis. 2d 675, 247 N.W.2d 495 (1976). The circuit court conducted a nonevidentiary hearing on the motion and then denied the defendant's request for an evidentiary hearing, concluding that the accused was entitled to an evidentiary hearing only after making some threshold showing of manipulative intent by the state. The circuit judge found that the defendant had failed to make that sufficient initial showing following its examination of the motion, defense counsel's affidavit and memorandum of law, and an offer of proof on the delayed charging submitted by the prosecutor. The defendant subsequently was convicted by a jury.

The court of appeals affirmed. With respect to the circuit court's denial of the defense request for an evidentiary hearing on the motion described above, the appellate court concluded that because the state had refuted the defendant's claim of a manipulative intent at the nonevidentiary hearing, an evidentiary hearing was not required.

In a majority decision authored by Justice Steinmetz, the supreme court affirmed the court of appeals. It held that a nonevidentiary hearing on the defense motion to dismiss, which is used to determine whether an evidentiary hearing is required, satisfies the due process hearing required by Becker, supra. At the nonevidentiary hearing on the motion, the circuit court must determine whether an evidentiary hearing is required under standards articulated in Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972): If the defendant's motion on its face alleges facts that would entitle him or her to relief, the circuit court has no discretion and must hold an evidentiary hearing. However, if the motion does not allege sufficient facts, the circuit court has the discretion to deny the motion without holding an evidentiary hearing if it finds one of the following circumstances: 1) the defendant failed to allege sufficient facts in his or her motion to raise a question of fact; 2) the defendant presented only conclusory allegations; or 3) the record conclusively demonstrates that the defendant is not entitled to relief.

Further, because the motion involved in this case was a pretrial motion, the court modified the second part of the Nelson test to accommodate the inherent difficulties confronting a defendant when making a pretrial motion as the defendant did in this case. Where the circuit court must use its discretion in determining whether to grant an evidentiary hearing, it must carefully consider the record, the motion, counsels' arguments and/or offers of proof, and the law. Where the record establishes no factual scenario or legal theory on which the defendant may prevail, and/or where the defendant holds only hope but articulates no factually based good faith belief that any impropriety will be exposed through an evidentiary hearing, the evidentiary hearing is not required. Where there is a reasonable possibility that the defendant will establish the factual basis at an evidentiary hearing, the circuit court must provide the defendant the opportunity to develop the factual record. See State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) (a case involving a pretrial motion challenging the admissibility of identification evidence in which the court of appeals articulated the standards for determining whether an evidentiary hearing in the pretrial motion context is necessary).

Justice Bradley filed a concurring opinion that was joined by Chief Justice Abrahamson.

Probable Cause to Arrest - Odor of Marijuana Emanating from
Defendant's Vehicle

State v. Secrist, No. 97-2476-CR (filed 2 March 1999)

A police officer was directing traffic at a local Fourth of July parade. The defendant drove up to the officer to ask directions. The driver's window was open and the defendant was alone in the car. The officer immediately smelled a strong odor of marijuana coming from the automobile. He recognized that odor from his training and experience. [Note: According to the defendant's arguments before the supreme court as summarized in the court's opinion, the odor was of burned marijuana ­ not burning or unburned marijuana.]

After detecting the strong odor, the officer directed the defendant to pull his car over to the side of the road. After the defendant complied, the officer told the defendant to get out of the vehicle whereupon the defendant was placed under arrest for possession of marijuana. A search of the automobile incident to that arrest revealed a marijuana cigarette with an attached roach clip in the ashtray next to the driver's seat.

The defendant was charged with one count of possessing a controlled substance and one count of possessing drug paraphernalia. He moved to suppress the physical evidence seized following his arrest claiming that the arrest was without probable cause and thus illegal. The circuit court denied the motion.

The court of appeals reversed. It concluded that the odor of burned marijuana emanating from an automobile with a sole occupant does not establish probable cause to arrest that person.

The supreme court, in a unanimous decision authored by Justice Prosser, reversed the court of appeals. It concluded that the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons. In this case, a police officer detected the strong odor of marijuana coming from the direction of the defendant inside the automobile. The defendant was the operator and sole occupant of the automobile. In these circumstances, said the court, the strong odor of marijuana provided probable cause to arrest the defendant.

In its decision the court indicated that the strong odor of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug. The probability diminishes, however, if the odor is not strong or recent, if the source of the odor is not near the person, if there are several people in the vehicle, or if a person offers a reasonable explanation for the odor.

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