Submitted on Briefs: ORAL ARGUMENT: September 9, 2016
OF A DECISION OF THE COURT OF APPEALS Reported at 365 Wis.2d
608, 871 N.W.2d 867 (Ct. App. 2015 - Unpublished)
COURT Columbia COUNTY L.C. No. 2011CF442, Andrew W. Voigt
the plaintiff-respondent-petitioner the cause was argued by
Thomas Balistreri, assistant attorney general, with whom on
the brief(s) was Brad D. Schimel, attorney general.
the defendant-appellant, there was a brief and oral argument
by Megan Sanders-Drazen, assistant state public defender.
MICHAEL J. GABLEMAN, J.
We review an unpublished, per curiam decision of the court of
appeals that reversed the Columbia County circuit
court's judgment of conviction taken against
Stanley J. Maday Jr. ("Maday") and which granted
Maday a new trial. State v. Maday, No. 2015AP366-CR,
unpublished slip op. (Wis. Ct. App. Oct. 29, 2015).
On January 15, 2013, following a jury trial, Maday was
convicted of three counts of first-degree sexual assault of a
child. Maday moved for postconviction relief, arguing that he
received ineffective assistance of counsel because: (1) his
counsel failed to object to two questions the prosecutor
asked Catherine Gainey ("Gainey"), the social
worker who conducted a cognitive graphic interview with the
child victim in this case, and (2) his counsel should not
have withdrawn an objection to the introduction of evidence
about Maday's job-related training in the use of weapons
and the use of force.
We hold that Gainey's testimony about the absence of
indications during the cognitive graphic interview, either
that K.L. had been coached or that K.L. was being dishonest,
does not violate the Haseltine rule, and is therefore
admissible. We so hold for three reasons. First, Gainey's
testimony was limited to her observations of indications of
coaching and dishonesty. Second, by limiting her testimony to
indications of coaching and dishonesty, Gainey did not
provide a subjective opinion as to K.L.'s truthfulness.
Third, testimony, such as Gainey's, may assist the jury.
Accordingly, we conclude that Maday's counsel was not
ineffective for failing to object to Gainey's testimony
and counsel's performance was therefore not deficient.
Furthermore, we conclude Maday's counsel was not
ineffective for withdrawing his objection to the introduction
of evidence of Maday's job-related training in the use of
weapons and the use of force because Maday was not prejudiced
by that testimony.
The decision of the court of appeals is, therefore, reversed.
We begin our analysis with a brief factual background and
procedural history. We then turn to a discussion of forensic
interview techniques, the Haseltine rule, and the application
of the Haseltine rule to Gainey's testimony in this case.
After concluding Gainey's testimony does not violate the
Haseltine rule, we address Maday's claim of ineffective
assistance of counsel.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In November 2011, the mother of eleven-year-old K.L. found a
letter authored by K.L. that described how Maday sexually
assaulted K.L. on three occasions. In the letter, K.L.
described how, when she slept over at her friend's house,
Maday (her friend's father) put his hands in her pants,
placed his fingers in her vagina, and slipped his hands under
her bra to feel her breasts. After finding this letter,
K.L.'s mother reported Maday to the police. Due to the
fact that K.L. was eleven years old, the police arranged to
have K.L.'s allegations assessed by means of a forensic
interview with a social worker. The social worker, Gainey,
interviewed K.L. about her allegations. Gainey conducted the
interview using a type of forensic interview technique called
a cognitive graphic interview.
For his part, Maday denied K.L.'s allegations, and pled
not guilty to three counts of first-degree sexual assault of
a child in violation of Wis.Stat. §
948.02(1)(b) and § 948.02(1)(e). The case
proceeded to trial by jury.
The trial began with the prosecutor calling K.L. to the
stand. Crying, K.L. read to the jury the letter she wrote to
Dear Mom, I'm scared to tell you in person so I wrote
this letter. Stan has been sexually harassing me while
I'm asleep. I wake up to him either sticking his hand
down my shirt and bra or down my pants and underwear. I
don't do anything because I'm afraid he will hurt me.
He's done this three times now. He did it Friday night.
He stuck his hand down my pants and started rubbing there,
and then he stuck his finger in my vagina. Then he also stuck
his hand down my shirt and my bra, grabbed my boob. I was
moving and was moving it around. I know I should have told
you the first time this happened, but I was too scared.
He's done it three times now, and I want it to stop now
if I file papers against him or take him to court. Sincerely,
trial, K.L. explained the letter she wrote to her mother by
further describing the sexual assaults. K.L. testified about
one of the assaults: "I remember in the middle of the
night that I woke up to Stan touching me and the T.V. being
on and [my friend] still being next to me sleeping." She
also described how, on another occasion, she awoke on the top
bunk in her friend's bedroom to Maday touching her.
K.L. testified that she did not open her eyes during these
assaults until she knew Maday had left the room
"[b]ecause I figured if he knew I was awake, he would
end up hurting me." Only during the second assault did
K.L. say she opened her eyes, but only briefly, lest Maday
realize he woke her up. K.L. also described how, on at least
one occasion, Maday placed his finger in her vagina.
During his cross-examination of K.L., Maday's counsel
played portions of K.L.'s videotaped cognitive graphic
interview with Gainey for the purpose of showing the jury the
inconsistencies--the precise number of fingers Maday inserted
into her vagina and the exact dates of the assaults--between
K.L.'s trial testimony and what K.L. told Gainey during
the cognitive graphic interview. K.L. testified that the
inconsistencies were the result of her "remembering new
things" from being forced to think about what happened
The State subsequently called K.L.'s mother, and she
testified that, when she returned home from work one day, she
found the letter that K.L. had written on her bed. She
testified that after finding the letter she went to
K.L.'s room where she woke up K.L. to talk about the
letter. K.L.'s mother testified that "[K.L.] was
having a hard time talking" and that "[s]he was
crying, shaking, scared, " and "hysterical."
It was at this point, K.L.'s mother said, that she
alerted the police.
As part of the defense's case-in-chief, Maday's
counsel called Gainey to testify about the cognitive graphic
interview she conducted with K.L. Gainey described the type
of forensic interview technique, the cognitive graphic
interview, that she uses when interviewing children about
their sexual assault allegations and how it is "a rather
highly structured interview." She testified that she was
"specially trained" in using the cognitive graphic
interview "to not conduct leading interviews of
children"; that she has conducted about fifty of these
types of interviews; and that she has "had experiences
in the past where children have been essentially prompted by
an adult to give a certain type of answer during this
interview" but that, by using the cognitive graphic
interview, such prompting "become[s] apparent."
Gainey also described how a cognitive graphic interview is
designed to minimize the risk of false allegations by, among
other things, avoiding leading questions and "mak[ing]
sure there is consistency between what they are telling [the
interviewer] or have told other people." The point,
according to Gainey, is to use the cognitive graphic
interview to minimize the risk that a child's allegations
are a result of coaching by another and to determine if the
child fully understands the difference between truth and
lies, along with the consequences of lying.
Gainey testified that, when done correctly, the interviewer
in a cognitive graphic interview uses open-ended questions to
let the child introduce information into the conversation and
express what happened in his or her own words. The
interviewer also engages in a "truth-lie"
discussion in order to determine if the child adequately
understands the difference between the concepts of truth and
lies, the importance of telling the truth, and the
consequences of lying. At the end of an interview using
"the proper interview technique, " it
"become[s] apparent" if a child has "been
essentially prompted by an adult to give a certain type of
answer." In short, the cognitive graphic interview
technique "is a way to insure that a child who has been
coached does not continue with the false allegations."
As it specifically pertains to the truth-lie discussion she
had during her interview with K.L., Gainey testified,
"We reviewed what's called the children's oath.
It's, you know, do you promise to tell the truth, the
whole truth, and nothing but the truth, and the child at that
point states typically yes. In this case, [K.L.] did . . .
." Gainey also recounted that "[K.L.] said somebody
could get into trouble such as going to jail when asked if
there are consequences for when people lie. And then she
promised to tell the truth after that."
After Gainey testified about the cognitive graphic interview
technique, her experience with it, and specifics of her
interview with K.L., the prosecutor asked Gainey the
following questions that are now at issue and that give rise
to the first part of Maday's claim of ineffective
assistance of counsel:
[Prosecutor:] Was there any indication that [K.L.] had been
coached in any way during her interview?
[Prosecutor:] Was there any indication that [K.L.] was not
being honest during her interview with you?
counsel did not object to these questions, and these
questions essentially concluded Gainey's testimony.
Maday also testified. During his testimony, he read portions
of his work records from his job as a sergeant at Columbia
Correctional Institution. He did so for the purpose of
casting doubt on whether he could have been at home at the
times K.L. claimed he assaulted her. On cross-examination,
the prosecutor had Maday read specific entries about
job-related training sessions he attended for weapons
training and use-of-force training. Maday's counsel
objected to this line of questioning as irrelevant, but
withdrew the objection. The circuit court noted that
"whether or not [K.L.] was aware of these specific
trainings, I think it is probably true that she was generally
aware" that correctional officers receive weapons and
use-of-force training. Maday testified that he never
demonstrated these techniques for, or used them on, K.L.
During closing arguments, the prosecutor asked the jury to
believe K.L. As part of his argument, the prosecutor referred
to Gainey's testimony and reminded the jury that, during
the cognitive graphic interview, Gainey did not see any
indications that K.L. had been coached or was being
dishonest. The prosecutor also commented on Maday's
weapons and use-of- force training saying, "He is
trained in all those things so [K.L.]'s worry he might do
something to her was very real to her. It was very real to
her." In an effort to cast doubt on K.L.'s
testimony, Maday's counsel replayed portions of
K.L.'s cognitive graphic interview with Gainey to
highlight the inconsistencies between K.L.'s interview
and K.L.'s trial testimony. In particular, he highlighted
two inconsistencies: (1) the precise number of fingers Maday
placed inside K.L.'s vagina and (2) the exact dates of
the sexual assaults.
After closing arguments, the circuit court instructed the
members of the jury, for the second time during Maday's
trial, on their role as the sole judges of the credibility of
the witnesses. Specifically, the circuit court instructed the
jury that "[y]ou are the sole judges of the credibility,
that is believability of the witnesses and of the weight to
be given to their testimony."
The jury chose to believe K.L. It found Maday guilty of all
three counts, and the circuit court sentenced Maday to 25
years of initial confinement and 8 years of extended
supervision on the first count, 15 years of initial
confinement and 8 years of extended supervision on the second
count, and 15 years of initial confinement and 8 years of
extended supervision on the third count.
On October 23, 2014, Maday filed a motion for postconviction
relief. In his motion, Maday argued he received ineffective
assistance of counsel, which required the circuit court to
grant him a new trial. Maday claimed his counsel was
ineffective (1) for failing to object to Gainey's
testimony that she observed no indications of coaching or
dishonesty during K.L.'s cognitive graphic interview and
(2) for withdrawing the objection to the introduction of
evidence of Maday's job-related weapons and use-of-force
training. The circuit court denied Maday's motion. In
denying Maday's motion, the circuit court noted that
Gainey's testimony "is about as close as I can
personally envision to the line of what is permissible versus
impermissible." But, it found Gainey's testimony
about the absence of any indications of coaching and
dishonesty during the cognitive graphic interview admissible
because it "dealt specifically with the videotaped
interview." Therefore, there was no deficient
performance. The circuit court also noted that the evidence
of Maday's job-related training in weapons and use of
force was irrelevant but that the evidence was not
prejudicial because it is likely commonly assumed that
correctional officers have this type of training. Thus, the
circuit court found no ineffective assistance of counsel.
The court of appeals reversed the circuit court. Maday,
unpublished slip op., ¶21. It determined that
Gainey's testimony violated the Haseltine rule in that
her testimony vouched for K.L.'s credibility, and that
Maday's counsel was ineffective for failing to object.
The court of appeals did not address whether Maday's
counsel was ineffective for withdrawing his objection to the
evidence of Maday's job-related weapons and use-of-force
training because Maday's first argument for ineffective
assistance of counsel resolved the case. Id.,
STANDARD OF REVIEW
Whether a defendant received ineffective assistance of
counsel is a mixed question of law and fact. State v.
Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999).
"We will not disturb the circuit court's findings of
fact unless they are clearly erroneous." Id.
"[T]he circumstances of the case and the counsel's
conduct and strategy" are considered findings of fact.
State v. Jenkins, 2014 WI 59, ¶38, 355 Wis.2d
180, 848 N.W.2d 786. Whether counsel's performance was
ineffective is a question of law that we review
independently. Erickson, 227 Wis.2d at 768.
In order to assess Maday's claim of ineffective
assistance of counsel, we first address whether Gainey's
testimony about her observations of indications of coaching
and dishonesty made during K.L.'s cognitive graphic
interview violates the Haseltine rule. To answer this
question, we begin with an explanation of forensic interview
techniques and the Haseltine rule. We then address the
admissibility of Gainey's testimony. Second, we address
Maday's claim for ineffective assistance of counsel. A.
Forensic Interview Techniques
Starting with a series of high-profile child sexual assault
cases in the 1980s, the interview techniques used with the
children during the investigation of some of these cases
raised concerns that children were making false allegations
of abuse. See, e.g., McMartin v. Children's Inst.
Int'l, 261 Cal.Rptr. 437 (Ct. App. 1989); State
v. Michaels, 642 A.2d 1372 (N.J. 1994); see also
Sena Garven et al., More than Suggestion: The Effect
of Interviewing Techniques from the McMartin Preschool Case,
83 J. Applied Psychol. 347 (1998). Indeed, a large number of
what turned out to be false allegations caused the public to
perceive children as less-than-credible witnesses because of
their vulnerability to suggestion and coaching. See Michaels,
642 A.2d at 1376 ("[O]ur common experience tells us that
children generate special concerns because of their
vulnerability, immaturity, and impressionability . . .
."). Research on detecting false allegations from
children following in the wake of these cases led to a marked
improvement in the quality of forensic interview techniques
used in child sexual assault investigations, allowing
forensic interviewers to better meet the unique situations
present in these instances. See Garven et al., supra.
The forensic interview techniques used today are accepted
among experts and courts as effective tools for investigating
child sexual assault allegations because these methods
minimize the risk of false allegations of abuse that result
from a child's vulnerability to suggestion and coaching.
See Karen J. Saywitz & Lorinda B. Camparo, Contemporary
Child Forensic Interviewing: Evolving Consensus and
Innovation over 25 Years, in Children as Victims, Witnesses,
and Offenders: Psychological Science and the Law 102, 105-06
(Bette L. Bottoms et al. eds., 2009); see also State v.
Michael H., 970 A.2d 113, 120 (Conn. 2009) ("In
order to discover child abuse, investigators often rely on
forensic interviews . . . ."). Indeed, allegations made
by children present such a unique circumstance that forensic
interview techniques are useful, even necessary, to combat
the problems that arise with allegations of abuse made by
children. Cf. Michaels, 642 A.2d at 1377 ("That an
investigatory interview of a young child can be coercive or
suggestive and thus shape the child's responses is
generally accepted. If a child's recollection of events
has been molded by an interrogation, that influence
undermines the reliability of the child's responses as an
accurate recollection of actual events.").
The forensic interview techniques used today, including the
cognitive graphic interview technique Gainey used in this
case, are designed to address the reliability problems that
arise with allegations of abuse made by children and to avoid
the problems caused by the interview techniques used
previously. See Saywitz & Camparo, supra, at
103. There are a variety of types of forensic interview
techniques used to accomplish these results. For example, the
court of appeals dealt with the "Step Wise" method,
State v. Krueger, 2008 WI.App. 162, ¶5, 314
Wis.2d 605, 762 N.W.2d 114, and the Supreme Court of South
Carolina dealt with the "Rapport, Anatomy, Touch, Abuse
Scenario, and Closure" method, State v. Kromah,
737 S.E.2d 490, 499 (S.C. 2013). Here, though, Gainey used a
type of forensic interview called the "cognitive graphic
interview." See Saywitz & Camparo, supra,
at 109-10 (providing a brief description of the cognitive
graphic interview technique).
These different types of forensic interview techniques are
marked by some common characteristics. Id. at
105-06. First, forensic interview techniques use open-ended
questions and avoid leading questions in an effort to allow
the child to tell the story in his or her own words. See
State v. Hilton, 764 So.2d 1027, ¶20 (La. Ct.
App. 2000), cert. denied, 786 So.2d 113 (La. 2001). Second,
forensic interview techniques employ truth-lie discussions
wherein the interviewer evaluates the child's
understanding of truth and lies and the child's
understanding of the consequences for telling lies. See
State v. Douglas, 671 S.E.2d 606, 607 (S.C. 2009).
The interviewer trained in a forensic interview technique
looks for indications that a child has been coached to make
the allegations of abuse or indications that the child is
being dishonest in making the allegations of abuse. See
State v. Wembley, 712 N.W.2d 783, 790-91
(Minn.Ct.App. 2006), aff'd, 728 N.W.2d 243 (Minn. 2007).
For example, a trained forensic interviewer looks at what
information the child introduces into the conversation in
response to questioning and looks for a child to communicate
this information using a vocabulary and understanding
consistent with the child's age. See August Piper,
Investigating Child Sex Abuse Allegations: A Guide to Help
Legal Professionals Distinguish Valid from Invalid Claims, 36
J. Psychiatry & L. 271, 302-03 (2008). The less
information a child can produce on his or her own, the more
likely a forensic interviewer will take this as an indication
that the allegations of abuse are false. The same holds true
for how the child communicates that information. Id.
at 308. In other words, a forensic interviewer evaluates
whether a child's recollection of abuse is "told
from a child's viewpoint, and [whether] sexual knowledge
in the child's statements or behavior . . . is beyond
that expected for the child's developmental stage."
Id. The more "adult" the child's
language, the more likely a forensic interviewer will
consider the language to be an indication that the
allegations of abuse are false.
As another example, an expert trained in forensic
interviewing remains alert for consistency with
"explicit details." Id. at 307. "[A]
vague or inconsistent account, delivered evasively or using
the same rote phrases, detracts from the child's
credibility." Id. "[A] child's refusal
to discuss details of the abuse should alert the interviewer
to the possibility of a fabricated allegation."
These indications are often observable only within the
context of a forensic interview and only to a trained
interviewer and thus, taken as a whole, fall outside the
realm of common knowledge. E.g., Williams v. State,
970 So.2d 727, ¶¶24-27 (Miss. Ct. App. 2007)
(admitting a forensic interviewer as an expert because her
training in forensic interviewing gave her specialized
knowledge). Accordingly, a jury could benefit from an
expert's assistance when interpreting and identifying the
indications bearing on the independence of a child's
allegations of abuse when such situations arise. See
Wis.Stat. § 907.02 (2013-14).
"Under Wisconsin law, a witness may not testify
'that another mentally and physically competent witness
is telling the truth.'" State v. Jensen,
147 Wis.2d 240, 249, 432 N.W.2d 913');">432 N.W.2d 913 (1988) (quoting State
v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673');">352 N.W.2d 673 (Ct.
App. 1984)). Often called the "Haseltine rule, "
this principle is rooted in the rules of evidence that say
"expert testimony must 'assist the trier of fact to
understand the evidence or to determine a fact in
issue.'" State v. Pittman, 174 Wis.2d 255,
267, 496 N.W.2d 74 (1993) (quoting Wis.Stat. § 907.02).
"Expert testimony does not assist the fact-finder if it
conveys to the jury the expert's own beliefs as to the
veracity of another witness." Id. The jury is
the sole judge of credibility of the witnesses, and a witness
who comments on the veracity of another witness usurps this
role instead of assisting the jury in fulfilling it.
State v. Romero, 147 Wis.2d 264, 278, 432 N.W.2d 899
Accordingly, in State v. Krueger, the court of
appeals recognized that expert testimony from a social worker
about her observations made during a forensic interview
"on typical signs of whether a child has been coached or
evidences suggestibility and whether the complainant child
exhibits such signs" was admissible. Krueger, 314 Wis.2d
605, ¶14. This was so because it would assist the jury
to assess the credibility of the child's allegations of
sexual assault. Id., ¶¶14-15. The social
worker's testimony in Krueger was ultimately found
inadmissible, though, because it went a step too far in that
the social worker testified that she did not believe the
child could maintain her story "unless it was something
that she had experienced." Id., ¶15. This
had the effect of the social worker providing her opinion as
to the truth of the child's allegations. Id.,
¶16. Thus, the social worker's testimony went beyond
that of observations of indications of coaching and deceit
she made during her forensic interview with the child and,
rather, provided a subjective opinion that had the effect of
stating that the child was truthful. Id., ¶14.
Her testimony violated the Haseltine rule because it usurped
the jury's role as sole judge of credibility of the
witness as opposed to merely assisting the jury in that role.
It is fairly said, then, that while observations of
indications of coaching and deceit the interviewers make
during the course of forensic interviews may be received into
evidence, statements of subjective opinion about the
child's truthfulness are not to be received.
Other jurisdictions, with a rule similar to our Haseltine
rule, have allowed an expert such as Gainey to testify about
observations made during the course of a forensic interview.
E.g., Wembley, 712 N.W.2d at 790-92; Williams, 970
So.2d 727, ¶¶15-17; State v. Champagne,
305 P.3d 61, ¶¶33-36 (Mont. 2013). For example, in
State v. Kromah, the Supreme Court of South Carolina
determined that those who are so trained may testify as to
"any personal observations regarding the child's
behavior or demeanor" during the forensic interview.
Kromah, 737 S.E.2d at 500. An opinion from a forensic
interviewer, though, may not include the expression of the
expert's belief that the child was being truthful.
Admissibility of Gainey's Testimony Regarding Indications
of Coaching and Dishonesty
We turn now to the application of the foregoing principles to
the particular testimony at issue in this case in order to
determine whether Gainey's testimony about
"indications" of coaching and
"indications" of dishonesty during the cognitive
graphic interview violated the Haseltine rule.
Gainey's Testimony Was Limited to Indications of Coaching
and Dishonesty and Did Not Provide a Subjective Opinion
Regarding K.L.'s Truthfulness
As the circuit court found, and as the record bears out,
Gainey's testimony was limited only to observations of
the indications of coaching and dishonesty she made during
the cognitive graphic interview she conducted with K.L. The
prosecutor first asked, "Was there any indication that
[K.L.] had been coached in any way during her
interview?" (Emphasis added). The prosecutor then asked,
"Was there any indication that [K.L.] was not being
honest during her interview with you?" (Emphasis added).
Importantly, both questions are limited to indications.
Neither question asked Gainey about her opinion or belief. By
limiting it to her observations of indications during the
cognitive graphic interview, Gainey's testimony in
response to these questions did not provide an opinion about
the truth of K.L.'s allegations. Rather, Gainey provided
an opinion about indications she is trained to observe during
a cognitive graphic interview, an interview technique
developed specially for dealing with allegations of abuse
made by children. As such, Gainey was not "allowed to
convey to the jury . . . her own beliefs as to the veracity
of the complainant with respect to the assault, "
Jensen, 147 Wis.2d at 256-57.
Unlike the social worker in Krueger, Gainey did not take that
extra step that turned her testimony into a subjective
opinion about K.L.'s veracity, and thus into a violation
of the Haseltine rule. The State posed the following question
in Krueger, "Based upon that, did you form an opinion as
to whether or not [S.B.] was the product of any
suggestibility or any coaching?" Krueger, 314 Wis.2d
605, ¶5 (alteration in original). The social worker
I did not get a sense from this child that she demonstrated a
level of sophistication that [she] would be able to maintain
some sort of fabricated story, for lack of a better way of
describing it. She did not appear to me to be highly
sophisticated so that she could maintain that kind of
consistency throughout unless it was something that she had
Id. (emphasis added). The exchange between the
prosecutor and Gainey in this case is considerably different.
The prosecutor did not ask Gainey for an opinion of whether
K.L.'s testimony "was the product" of
suggestibility or coaching but, rather, asked Gainey about
observable indications of coaching or dishonesty. Further,
Gainey did not testify that K.L. could only maintain the
consistency of her allegations "unless it was something
that [K.L.] had experienced." Rather, Gainey provided
testimony grounded in her training as a forensic interviewer
by limiting her testimony to the indications she is trained
to look for and, by testifying to a lack of any indications
of coaching or dishonesty, Gainey avoided giving an opinion
as to whether K.L.'s allegations were, in fact, true.
Gainey's Testimony May Assist the Jury
Gainey's testimony may have assisted the jury in
assessing the credibility of K.L.'s allegations and did
not usurp the jury's role as the sole judge of
credibility of the witness. The indications a forensic
interviewer, like Gainey, is trained to look for often fall
outside the realm of common knowledge. See, e.g.,
Jensen, 147 Wis.2d at 250-52 (allowing expert
testimony about the typical behavior of child sexual assault
victims); Krueger, 314 Wis.2d 605, ¶9
(examining expert testimony regarding signs of coaching).
Forensic interviewers are required to complete training in
using such interview techniques, and given the unique
circumstances present with assessing allegations of abuse
made by children, it is, at a minimum, possible that the jury
could benefit from the testimony of a forensic interviewer to
help them more accurately assess the credibility of a
child's allegations. See Jensen, 147 Wis.2d at
256 ("While an expert's description of the behavior
of victims of crime may assist the jury to understand the
evidence in the case or to determine a fact in issue, an
expert may be no more qualified to compare behavior patterns
than the jury. The jury may be able to draw the requisite
inferences itself without the assistance of an
expert."). Accordingly, it is at least possible that
Gainey, as a trained forensic interviewer, was able to
assist, as opposed to usurp, the jury in its role as the sole
judge of credibility of the witnesses. As the reasoning of
Jensen makes clear, and as we recognize, juries are free
either to make use of such testimony or disregard it and rely
solely on their own collective wisdom and experience, in
accord with the instructions provided to them by the circuit
court. See id.
Based on the foregoing, we conclude Gainey's ...