                                                             2017 WI 28

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP0366-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Stanley J. Maday, Jr.,
                                  Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 365 Wis. 2d 608, 871 N.W.2d 867
                                  (Ct. App. 2015 – Unpublished)

OPINION FILED:          April 5, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 9, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Columbia
   JUDGE:               Andrew W. Voigt

JUSTICES:
   CONCURRED:           BRADLEY, R. G., J. concurs (opinion filed).
   DISSENTED:           BRADLEY, A. W., J. joined by ABRAHAMSON, J.
                        dissents (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For      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.


       For the defendant-appellant, there was a brief and oral
argument          by   Megan   Sanders-Drazen,   assistant     state   public
defender.
                                                                    2017 WI 28
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2015AP366-CR
(L.C. No.    2011CF442)

STATE OF WISCONSIN                        :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                 FILED
      v.
                                                             APR 5, 2017
Stanley J. Maday, Jr.,
                                                               Diane M. Fremgen
              Defendant-Appellant.                          Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.            Reversed.



      ¶1      MICHAEL J. GABLEMAN, J.     We review an unpublished,
per curiam decision of the court of appeals that reversed the

Columbia County circuit court's1 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).

      ¶2      On January 15, 2013, following a jury trial, Maday was

convicted of three counts of first-degree sexual assault of a

      1
          The Honorable W. Andrew Voigt presiding.
                                                        No.    2015AP366-CR



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.

    ¶3    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 Haseltine2 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.

    ¶4    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

    2
       State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673
(Ct. App. 1984) (prohibiting a witness from "giv[ing] an opinion
that another mentally and physically competent witness is
telling the truth").


                                    2
                                                                           No.    2015AP366-CR



and the use of force because Maday was not prejudiced by that

testimony.

      ¶5     The decision of the court of appeals is, therefore,

reversed.

      ¶6     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.

             I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶7     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.


                                           3
                                                                 No.   2015AP366-CR



         ¶8     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)3    and

§ 948.02(1)(e).4           The case proceeded to trial by jury.

         ¶9     The trial began with the prosecutor calling K.L. to

the stand.           Crying, K.L. read to the jury the letter she wrote

to her mother:

         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, [K.L.]
At 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

         3
       "Whoever has sexual intercourse with a person who has not
attained the age of 12 years is guilty of a Class B felony."
Wis. Stat. § 948.02(1)(b) (2009–10).
         4
       "Whoever has sexual contact with a person who has not
attained the age of 13 years is guilty of a Class B felony."
Wis. Stat. § 948.02(1)(e) (2009-10).


                                            4
                                                              No.   2015AP366-CR



how, on another occasion, she awoke on the top bunk in her

friend's bedroom to Maday touching her.

       ¶10    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.

       ¶11    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 to her.
       ¶12    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.


                                       5
                                                                            No.   2015AP366-CR



       ¶13   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."

       ¶14   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.

       ¶15   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
                                               6
                                                                                 No.    2015AP366-CR



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."

      ¶16     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."

      ¶17     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:
                                                7
                                                                          No.     2015AP366-CR


       [Prosecutor:]   Was there any indication that [K.L.]
       had been coached in any way during her interview?

       [Gainey:]        No.

       [Prosecutor:]   Was there any indication that [K.L.]
       was not being honest during her interview with you?

       [Gainey:]        No.
Maday's counsel did not object to these questions, and these

questions essentially concluded Gainey's testimony.

       ¶18   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.

       ¶19   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-

                                             8
                                                                No.    2015AP366-CR



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.

       ¶20   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."

       ¶21   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.

       ¶22   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
                                        9
                                                                           No.   2015AP366-CR



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.                                   Maday
appealed.

     ¶23     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.                 Id., ¶¶19–20.

     ¶24     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
                                             10
                                                                        No.       2015AP366-CR



training     because        Maday's        first      argument        for     ineffective

assistance of counsel resolved the case.                     Id., ¶20 n.3.

                             II.    STANDARD OF REVIEW

      ¶25   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.

                                   III.    DISCUSSION

      ¶26   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

      ¶27   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
                                             11
                                                                      No.    2015AP366-CR



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.
       ¶28     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
                                              12
                                                                          No.    2015AP366-CR



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.").

      ¶29      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
                                                13
                                                                            No.    2015AP366-CR



& Camparo, supra, at 109–10 (providing a brief description of

the cognitive graphic interview technique).

      ¶30   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).

      ¶31   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
                                              14
                                                                                No.    2015AP366-CR



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.

      ¶32       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."                           Id.
      ¶33       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
                                                15
                                                                             No.    2015AP366-CR



allegations of abuse when such situations arise.                             See Wis. Stat.

§ 907.02 (2013–14).

                                B.    The Haseltine Rule

       ¶34    "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

(1988)    (quoting        State      v.   Haseltine,         120    Wis. 2d 92,       96,    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 (1988).

       ¶35    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
                                                16
                                                                               No.       2015AP366-CR



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.

       ¶36    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
                                                17
                                                                               No.       2015AP366-CR



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.                                Id.

        C.    The Admissibility of Gainey's Testimony Regarding

                       Indications of Coaching and Dishonesty

       ¶37    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.

  1.    Gainey's Testimony Was Limited to Indications of Coaching

       and Dishonesty and Did Not Provide a Subjective Opinion

                               Regarding K.L.'s Truthfulness

       ¶38    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
                                                     18
                                                                       No.   2015AP366-CR



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.

      ¶39    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 answered:

      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
      experienced.
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


                                           19
                                                                                 No.    2015AP366-CR



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.

                2.    Gainey's Testimony May Assist the Jury

       ¶40   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
                                                  20
                                                                               No.   2015AP366-CR



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.

     ¶41    Based on the foregoing, we conclude Gainey's testimony

is admissible.

                  D.     Maday's Arguments Against Admission

            1.     The Question About Indications of Coaching

     ¶42    Maday        first      argues     that,      even      if     testimony         about

indications        of     coaching       is     sometimes           admissible,          it     is

admissible       only    if    it    includes      sufficient           detail       about    what

indications the interviewer is looking for because only then is
the jury able to draw its own conclusions about the child's

allegations.       See id. at 255-56.              Because these details were not

provided    here,       Maday       argues    Gainey's        testimony         violates      the

Haseltine    rule.         Maday      argues       in   his    brief,          "Untethered      to

background information about the typical signs of coaching, an

expert's statement that a child displays no such signs does

little to assist the jury and runs an unacceptable 'risk that

the jury could interpret the testimony as an opinion that the


                                              21
                                                                           No.    2015AP366-CR



complainant is being truthful about the assault,'"                               Jensen, 147

Wis. 2d at 256.

      ¶43    Gainey provided background information as context for

her   testimony      in   regard    to     the    indications         of    coaching          and

dishonesty during the cognitive graphic interview.                                On direct

examination,      defense        counsel      introduced        the    concept           of    a

cognitive     graphic      interview     by      asking    Gainey,         "And    that's       a

rather      highly     structured        interview,         isn't      it?"           Gainey

responded, "Yes."          Defense counsel asked next, "Why do you go

through that kind of structure . . . when interviewing a child?"

Gainey     answered,      "I'm   specialized,          specially      trained       in    that

technique to not conduct leading interviews of children.                                       We

also videotape and do that format of an interview so the video

can be introduced rather than having the child testify at every

hearing."

      ¶44    On   cross-examination,             the      prosecutor         expanded          on

defense     counsel's       questioning         and     asked    Gainey           about       the

cognitive graphic interview technique that she uses to conduct
forensic interviews:

      Q.     Can you explain more fully the benefits of
             conducting the cognitive graphic type interviews
             with children?

      A.     The benefit most importantly is to have that
             interview done on video so in a matter where the
             case is taken to the criminal level, the video
             can be submitted versus having the child appear
             and testify at multiple hearings.

      Q.     But the interviewing                technique      you    have        been
             trained on?


                                           22
                                                  No.   2015AP366-CR


    A.    Oh, I'm sorry. The technique is to make sure the
          child fully understands the difference between
          truth and lies so they understand if they are
          making up allegations, there are consequences for
          those lies.    Also to make sure that there is
          consistency between what they are telling me or
          have told other people. I'm not sure if there is
          anything else I'm missing from your question.

    Q.    No.   I think that's fully answered my question.
          We did not watch the whole video.        We just
          watched the sort of midsection when you were
          actually discussing the allegations that she had
          made. So at the beginning part of the video that
          we didn't see, you cover the difference between
          truth and lie?

    A.    Yes.

    Q.    And was [K.L.] actually placed under oath?

    A.    She   was.    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 she did, and then we
          have them sign their name to the document as
          well.

    Q.    Did in this instance you also cover consequences
          for not telling the truth?

    A.    Correct.   And I believe with this interview she
          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.

    Q.    How long have you been conducting these kinds of
          interviews?

    A.    I would say [I] probably was trained at least,
          well, probably going on three years.
    ¶45   Gainey also described how she avoids leading questions

because she wants the child to introduce information into the
conversation:

                               23
                                                  No.   2015AP366-CR


    Well, for example, where did your dad touch you.
    Okay, so you are indicating that, as the interviewer,
    I know that this man even though you haven't
    identified him [as] the person that touched you, they
    did touch you.    If the child has not offered that
    information, you don't introduce that information.
Gainey also described how she uses cognitive graphic interview

techniques to "kind of open the door for children to talk about

if something has happened to them" by using body diagrams:

    We show them a body diagram. We go over the different
    body parts, have them use the words that they prefer
    to describe the different body parts.    Then we ask
    them has anybody or do you know what parts on your
    body are okay or not okay for other people to touch.
    Then have them identify those body parts, and then we
    simply ask has anybody touched you anywhere on your
    body.   They can indicate yes or no or where those
    things happened.
    ¶46   After describing how she avoids leading questions and

uses body diagrams, Gainey further testified:

    Q.    And you conduct the interview that way because it
          makes the answers more reliable?

    A.    Yes.

    Q.    Have you had experiences in the past where
          children have been essentially prompted by an
          adult to give a certain type of answer during
          this interview?

    A.    Yes.

    Q.    And does that become apparent when you use the
          proper interview techniques?

    A.    Yes.

    Q.    So using these interview techniques is a way to
          insure that a child who has been coached does not
          continue with the false allegations during the
          interview?


                               24
                                                                             No.    2015AP366-CR


      A.        Yes.
      ¶47       In light of the testimony described above, we conclude

Gainey     did     provide    a    sufficient      contextual         basis        to   testify

about the indications she observed or, more to the point, did

not observe during the course of her cognitive graphic interview

with K.L.         Jensen requires Gainey to provide sufficient detail

about      what    she   is       trained    to    look       for,     see     Jensen,        147

Wis. 2d at 255, and Gainey did so.                      Gainey discussed the truth-

lie discussion she engaged in.                     She described the open-ended

questions she used, and she described how she tried to have K.L.

describe the assaults in K.L.'s own words.

            2.     The Question About Indications of Dishonesty

      ¶48       Second, Maday argues that even if Gainey is allowed to

testify about indications of coaching, Gainey should never have

been allowed to testify about indications that K.L. "was not

being honest."

      ¶49       Viewed in isolation, a question about indications of

whether     a     witness    was    "being   honest"          would    seem        to   go   more
directly to truthfulness than a question about indications of

coaching.         Here, though, we are not viewing Gainey's testimony

in   isolation,        but    rather,   we       view    it    in     the    context         of   a

cognitive graphic interview.                 Gainey was not asked to, and in

fact did not, opine about the veracity of another witness's

testimony.         Rather, Gainey was asked about her observations of

indications of dishonesty during a cognitive graphic interview.

We   honor       the   principle     that    a    jury     normally         needs       no   help
assessing whether a witness is telling the truth.                                  However, we

                                             25
                                                                                No.   2015AP366-CR



must also recognize the development of specialized, technical

interview methods for investigating allegations of child sexual

abuse as well as the case law that                           gives them life in the

courtroom.           See, e.g., Tenn. Code Ann. § 24-7-123 (Supp. 2016)

(allowing the use of a videotaped forensic interview as evidence

if certain conditions are met); Michael H., 970 A.2d at 116

(using a forensic interview to investigate allegations of child

sexual abuse); Hilton, 764 So. 2d 1027, ¶20 (using a forensic

interview at the Jefferson Parish Children's Advocacy Center as

part       of   an    investigation         into       allegations         of    child       sexual

abuse); Wembley, 712 N.W.2d at 790-92 (allowing testimony of a

forensic interview conducted at CornerHouse in a child sexual

abuse case); Champagne, 305 P.3d 61, ¶36 ("The District Court

properly allowed Matkin to testify about a matter to which she

had    training            and     experience:         whether    a        victim      had     been

coached."); Kromah, 737 S.E.2d 490 (outlining the parameters for

admitting testimony of a forensic interview called the "Rapport,

Anatomy, Touch, Abuse Scenario, and Closure" method); Douglas,
671 S.E.2d 606 (evaluating testimony from a forensic interviewer

in     a    case       involving          child    sexual     abuse);           Krueger,        314

Wis. 2d 605 (using a forensic interview called the "Step Wise"

method to investigate allegations of child sexual abuse); see

also       Victor      I.        Vieth,   The     Forensic    Interviewer             at     Trial:

Guidelines           for     the     Admission     and    Scope       of     Expert        Witness

Testimony Concerning an Investigative Interview in a Case of

Child Abuse, 36 Wm. Mitchell L. Rev. 186 (2009).


                                                  26
                                                                      No.   2015AP366-CR



       ¶50     Any concerns we may have that Gainey was commenting on

K.L.'s veracity were addressed during Gainey's testimony in that

Gainey was clear that a cognitive graphic interview helps only

to increase the reliability of allegations from children.                          When

the prosecutor asked, "And you conduct the interview that way

because it makes the answers more reliable," Gainey answered,

"Yes."        Of at least equal importance, Gainey also answered,

"True," in response to defense counsel's question asking, "There

is no way for you when conducting an interview to decide to know

whether or not previous interviews or questioning has influenced

the child's memory."          Gainey never implied, much less said, that

K.L. was telling the truth.            Rather, her testimony was expressly

limited both as to scope (the cognitive graphic interview) as

well     as    to   the     fact   that,    based      upon     her    training     and

experience, she did not see any indications of dishonesty, all

of which the jury was free to either use for assistance or

disregard entirely.

       ¶51     Therefore,     Gainey's     testimony     does    not    violate     the
Haseltine rule because her testimony was limited to commenting

on observations of indications she made during her cognitive

graphic       interview     with   K.L.    and   her    testimony      included     the

foundation of her training and experience.

                    E.     The Circuit Court's Instructions

       ¶52     The circuit court instructed the jury on two occasions

that it, the jury, was the sole judge of credibility of the

witnesses.          We    generally   assume     that    the    jury    follows     its
instructions.            E.g., State v. Anthony, 2015 WI 20, ¶89, 361
                                           27
                                                                                 No.    2015AP366-CR



Wis. 2d 116,         860        N.W.2d 10.           With     no        reason    to     set     this

assumption aside, we assume here that the jury fulfilled its

role    as    the        sole    judge      of     credibility           and     determined       the

credibility         of    K.L.'s      testimony         for   itself.            While    Gainey's

testimony is admissible, the circuit court's proper instruction

of    the    jury    helps       us    in    reaching        our    conclusion         because     it

provides      additional          assurance        that      Gainey       did    not    usurp     the

jury's role as the sole judge of credibility of the witnesses.

       F.     Maday's Claim of Ineffective Assistance of Counsel

       ¶53    Maday claims his counsel was ineffective for failing

to object to Gainey's testimony and for withdrawing an objection

to the introduction of evidence of Maday's job-related training

in weapons and use of force.                     We address each claim in turn, and

ultimately,         we      conclude          that       neither         claim      results        in

ineffective assistance of counsel.

                                 1.     The Strickland Test

       ¶54    Under        the     Sixth      Amendment            of    the     United        States

Constitution         and        Article       I,     Section        7     of     the     Wisconsin
Constitution, a criminal defendant has the constitutional right

"to    the     effective           assistance           of    counsel,"          Strickland        v.

Washington,         466     U.S.       668,      686     (1984)         (quoting        McMann     v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).                                    Thus, a criminal

defendant is denied his constitutional rights when he or she

receives      ineffective             assistance        of    counsel.            The     test     to

determine ineffective assistance of counsel is a two-prong test

commonly      known        as     the       "Strickland        test."            Erickson,        227
Wis. 2d at 768.            Under the first prong, the defendant must show
                                                   28
                                                                         No.    2015AP366-CR



that    counsel's      performance         was   deficient.        Id.          Here,    the

question for the court is whether counsel's performance fell

below an objective standard of reasonableness.                         State v. Thiel,

2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305.                              Under the

second prong, the defendant must show that he was prejudiced by

counsel's deficient performance.                 Erickson, 227 Wis. 2d at 768.

Here,    the    question     for     the    court     is     whether     the     deficient

performance undermines confidence in the outcome.                             Id. (quoting

Strickland, 466 U.S. at 694).                Both prongs must be satisfied in

order to find ineffective assistance of counsel.                       Id.

  2.    Counsel's Failure to Object to Gainey's Testimony Is Not

                       Ineffective Assistance of Counsel

       ¶55     It follows that Maday's counsel was not deficient for

failing to object to Gainey's testimony because we hold that her

testimony is admissible.             State v. Johnson, 2004 WI 94, ¶24, 273

Wis. 2d 626, 681 N.W.2d 901.                 Counsel's performance cannot be

considered       deficient      for    failing        to     object      to     admissible

evidence.        See    State   v.    Maloney,        2005    WI   74,    ¶¶25-30,       281
Wis. 2d 595, 698 N.W.2d 583.                Even though the admissibility of

Gainey's     testimony     at   the    time      of   the     trial    may      have    been

unclear, this does not mean counsel was required to object to

Gainey's testimony.          Id. (discussing that counsel has no duty to

object to every possible violation, particularly when the state

of the law is unsettled or unclear).                    In fact, it is axiomatic

that "[c]ounsel is not required to object and argue a point of

law that is unsettled."            Id., ¶28 (quoting State v. McMahon, 186
Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994)).
                                            29
                                                                            No.    2015AP366-CR



       ¶56     In sum, Maday did not receive ineffective assistance

of    counsel    because       counsel's     performance         was    not       deficient.

There is no need to analyze prejudice because his claim for

ineffective assistance of counsel cannot satisfy both prongs.

Id., ¶14 ("We need not address both components of the inquiry if

the defendant makes an insufficient showing on one.").

  3.    Counsel's Withdrawn Objection to the Training Evidence Is

                     Not Ineffective Assistance of Counsel

       ¶57 In        addition    to    claiming       ineffective           assistance      of

counsel based on his counsel's failure to object to Gainey's

testimony,       Maday     claims      his        counsel      was     ineffective         for

withdrawing an objection to the introduction of evidence of his

job-related      training       in    weapons      and   use    of     force.         Because

neither party disputes that this evidence is irrelevant, we will

assume without deciding that counsel's performance was deficient

when he withdrew his objection to introduction of the evidence.

See    State    v.    Smith,    207    Wis. 2d 258,         274–75,     558       N.W.2d 379

(1997).       Thus, the first prong is assumed to be satisfied, and
we move to the second prong to look for prejudice.

       ¶58 When       determining       if   counsel's         deficiency         undermines

confidence in the outcome of the trial and amounts to prejudice,

"a    court    hearing    an    ineffectiveness          claim       must    consider      the

totality of the evidence before the judge or jury."                               Strickland,

466 U.S. at 695.

       ¶59 The totality of the evidence before the jury in this

case shows no reason why our confidence in the outcome should be
undermined.          Before     the    training      evidence        even     entered      the
                                             30
                                                                           No.    2015AP366-CR



courtroom, K.L. testified that she did not report the sexual

assaults earlier because she was afraid of Maday and because she

knew he had weapons.             Further, the jury's perception of Maday

likely   did     not    change    by    hearing      testimony        of    his     training

because,    as    the    circuit       court      noted,    it   is   likely        commonly

assumed that someone of Maday's position, i.e., a correctional

officer, has training in weapons and use of force.                               Thus, there

is no prejudice here, and Maday cannot meet the second prong.

We are not persuaded that admitting evidence of Maday's training

in weapons and use of force undermines confidence in the outcome

given the totality of the evidence before the jury.

        ¶60 In short, Maday cannot show he received ineffective

assistance of counsel.           As to his first claim, we conclude there

is no deficient performance, and as to his second claim, we

conclude there is no prejudice.

                                 IV.        CONCLUSION

    ¶61     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, Gainey's testimony may assist the

jury.      Accordingly, we conclude that Maday's counsel was not
ineffective      for     failing       to      object      to    Gainey's         testimony.
                                             31
                                                              No.   2015AP366-CR



Counsel's    performance     was     not   deficient      because     Gainey's

testimony is admissible.

    ¶62     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.

    By    the   Court.—The    decision     of   the   court   of    appeals    is

reversed.




                                      32
                                                                       No.    2015AP366-CR.rgb


       ¶63   REBECCA GRASSL BRADLEY, J.                     (concurring).        I join the

majority opinion's reversal of the decision of the court of

appeals and also join its ineffective assistance analysis in

part F.      I write separately for two reasons:                              (1) this case

should have been analyzed only under the ineffective assistance

test, and (2) the third factor the majority uses to support its

Haseltine analysis signals a change in the law where none was

intended.

                                                 I

       ¶64   Maday's         issues      should       be    reviewed      only      under     an

ineffective      assistance         of    counsel       analysis      because       his     trial

counsel:     (1) failed to object when the prosecutor asked Gainey

the    two   questions        Maday       argues       violate       Haseltine,       and    (2)

withdrew an objection to the questions on Maday's use of weapons

and force training.                See State v. Carprue, 2004 WI 111, 274

Wis. 2d 656, ¶¶36-47, 683 N.W.2d 31 ("[A]bsence of any objection

warrants     that       we   follow       'the       normal    procedure       in     criminal

cases,'"     which      is    to   address       the       alleged    error     "within      the
rubric of the ineffective assistance of counsel." (quoted and

cited sources omitted)); see also Kimmelman v. Morrison, 477

U.S. 365, 374-75 (1986) (in absence of objection, error should

be    analyzed   under        ineffective-assistance-of-counsel                     standards,

even when error is of constitutional dimension).                               The majority

analyzed the Haseltine issue on the merits, independently from

an ineffective assistance review, and after deciding the merits

of    the    Haseltine        issue,       proceeded          to     analyze     ineffective
assistance.         I    disagree        with    this      approach     for    many    of    the

                                                 1
                                                                    No.     2015AP366-CR.rgb


reasons this court expressed in Carprue.                      It also unnecessarily

lengthens the opinion and may lead to problematic consequences.

In particular, this court's use of an altered standard of review

in unobjected-to error cases could create a lack of certainty

for the bench and bar as to when a case like Maday's will be

limited to ineffective assistance review and when an unobjected-

to error will be decided on the merits.                       The majority opinion's

independent Haseltine analysis worked here because it concluded

there    was    no    Haseltine     violation.          If    the     majority     opinion

concluded Haseltine was violated, what would have been the next

step?     Under       the   proper       ineffective     assistance          review,     our

analysis would proceed to the second prong of the ineffective

assistance test.

    ¶65        Although this court may in limited situations overlook

a forfeited or waived issue, see State v. Long, 2009 WI 36, ¶44,

317 Wis. 2d 92, 765 N.W.2d 557 (this court may address a waived

issue    in      certain       circumstances);          see     also        Carprue,     274

Wis. 2d 656,         ¶¶36-39     (discussing       reasons      why    this      court   is
reluctant to overlook non-objected-to error in criminal cases),

the majority does not explain why it did not follow this court's

normal    procedure         of    limiting        our    review        to     ineffective

assistance.

    ¶66        Our    review     under     the    ineffective         assistance       test

requires a defendant to show:                    (1) deficient performance; and

(2) prejudice.         See Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, ¶¶35-37,
848 N.W.2d 786.         To prove deficient performance, Maday must show

                                            2
                                                              No.    2015AP366-CR.rgb


specific acts or omissions by trial counsel that are "outside

the wide range of professionally competent assistance."                           See

Strickland, 466 U.S. at 690.                To prove prejudice, Maday must

demonstrate his trial counsel's errors were so serious that he

was deprived of a fair trial and a reliable outcome.                    See id. at

687.     To satisfy the Strickland prejudice prong, Maday "must

show    that    there   is    a    reasonable      probability      that,   but   for

counsel's unprofessional errors, the result of the proceeding

would    have    been   different.          A    reasonable   probability      is   a

probability sufficient to undermine confidence in the outcome."

See id. at 697.         We need not address both deficient performance

and prejudice if Maday fails to prove either one.                       See id. at

697.     This     court's     review   of       ineffective   assistance     claims

presents mixed questions of law and fact:                (1) findings of facts

will not be disturbed unless clearly erroneous, and (2) the

legal    conclusions         "of    whether       counsel's      performance      was

deficient and prejudicial to the defense are questions of law

which this court reviews independently."                 State v. Johnson, 153
Wis. 2d 121, 127-28, 449 N.W.2d 845 (1990).

       ¶67     The majority opinion followed our normal procedure in

reviewing Maday's weapons-training claim by analyzing that claim

only under ineffective assistance.                 As noted, I join that part

of the majority's opinion. My analysis focuses on the alleged

ineffective assistance based on a violation of Haseltine.                           I

conclude Maday failed to establish ineffective assistance here

because his trial counsel's decision to withhold objections to
the two questions asked of Gainey during cross-examination was

                                         3
                                                                           No.    2015AP366-CR.rgb


not     outside        the     wide       range          of    professionally           competent

assistance and therefore not deficient.                            This was not deficient

performance because, as the majority explains at great length,1

the answers did not cross the Haseltine line.                                     The Haseltine

rule       provides:         "No    witness,        expert       or     otherwise       should    be

permitted        to    give        an     opinion         that     another        mentally       and

physically competent witness is telling the truth."                                      State v.

Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984).

Asking       Gainey    whether          she   saw        any     indications,       during       the

cognitive graphic interview of K.L., that K.L. had been coached

or was not being honest did not elicit a subjective opinion that

K.L. was telling the truth or that the sexual assault occurred.

Gainey did not convey to the jury that she personally believed

K.L.'s testimony or that Maday committed the sexual assaults.

Gainey's testimony was limited to her observations that during

the    cognitive       graphic          interview,        she     saw    no      indications      of

coaching or suggestion or dishonesty.                             This testimony does not

cross      the   Haseltine         line    and      is    permissible.            See    State    v.
Krueger, 2008 WI App 162, ¶14, 314 Wis. 2d 605, 762 N.W.2d 114

(explaining       that       precedent        and    logic       both    support        permitting

"expert testimony on typical signs of whether a child has been

coached or evidences suggestibility and whether the complainant

child exhibits such signs").                     Because the failure to object was

       1
       I agree with much of the majority's analysis on the
cognitive graphic interview; I also agree with the reasons the
majority opinion sets forth in ¶¶39-40 as to why Gainey's
testimony did not violate Haseltine.     See State v. Haseltine,
120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984).


                                                 4
                                                                        No.    2015AP366-CR.rgb


not    deficient,         it     is    not     necessary    to    analyze       whether      the

failure to object prejudiced Maday.

                                                 II

       ¶68        My    second        concern    with     the     majority's         Haseltine

analysis          involves     the     third     factor    it    uses     to    support      its

independent            Haseltine       analysis:        "Third,     testimony,        such    as

Gainey's,         may    assist       the    jury."      Majority       op.    ¶3;   see   also

majority op. ¶61.              I have no doubt this is true.                  Testimony like

Gainey's will assist the jury.                       However, neither party raised a

concern under Wis. Stat. § 907.022 or argued the testimony would

not assist the jury.

       ¶69        Maday raised the issue of whether his counsel should

have       objected      on    the     basis    that    Gainey's    testimony        violated

Haseltine—not whether Gainey's testimony satisfied Wis. Stat.

§ 907.02.          My concern is that the majority's use of the "assist

the jury" factor may suggest to the bench and bar that this

court       has    changed       the    Haseltine       test.      We    have     not.       The


       2
       Wisconsin Stat. § 907.02(1) limits the admission of expert
testimony:

       If   scientific,   technical,   or  other   specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience,   training,   or  education,  may   testify
       thereto in the form of an opinion or otherwise, if the
       testimony is based upon sufficient facts or data, the
       testimony is the product of reliable principles and
       methods, and the witness has applied the principles
       and methods reliably to the facts of the case.

(Emphasis added.)


                                                 5
                                                No.    2015AP366-CR.rgb


Haseltine test remains the same.      The majority's use of the

"assist the jury" factor was not intended as a stand-alone,

independent factor.   Rather, the majority declares that Gainey's

testimony did not violate Haseltine because all three of the

factors it lists in ¶¶3 and 61 are present here.3

     ¶70   For these reasons, I respectfully concur.




     3
       Although this court discussed Wis. Stat. § 907.02 (1985-
86) in State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988),
it did so in a very different context. The challenged testimony
involved a school guidance counselor testifying that the
victim's reactive behavior was consistent with victims of sexual
abuse.   Id. at 248-49.  The defense used the reactive behavior
to argue the complainant fabricated the sexual assaults. Id. at
251-52.   The State used the testimony to counter that defense,
suggesting the reactive behavior was caused by sexual assault.
Id. at 252.     This court held, in that context, "an expert
witness may be asked to describe the behavior of the complainant
and then to describe that of victims of the same type of crime,
if the testimony helps the jury understand a complainant's
reactive behavior." Id. at 257. Maday's case does not present
the same context.


                                 6
                                                                         No.   2015AP366-CR.awb


      ¶71    ANN WALSH BRADLEY, J.                      (dissenting).           The State of

Wisconsin seeks review of an unpublished per curium decision of

the court of appeals that reversed the conviction of Stanley

Maday,      granting       him    a        new    trial.         The    court       of       appeals

determined that the State violated what heretofore has been a

rule in Wisconsin held sacrosanct——under no circumstances may an

expert      witness     opine         on     whether         another    witness       is       being

truthful.

      ¶72    At issue is whether a social worker's expert testimony

at trial impermissibly vouched for the credibility of a child

witness.      Until today, the fundamental premise that the jury is

"the lie detector in the courtroom" has properly limited the

admissibility         of     expert          testimony          regarding       a        witness's

credibility.           State      v.       Haseltine,         120    Wis. 2d 92,             96,   352

N.W.2d 673 (1984) (citing United States v. Barnard, 490 F.2d

907, 912 (9th Cir. 1973)).

      ¶73    However,        in        this        case       the      majority          concludes

otherwise.        It       determines            that   Haseltine       permits          a    social
worker's expert testimony that she saw no indication that the

witness was dishonest during her interview.                                Additionally it

puts its imprimatur on testimony that she saw no indication that

the     witness   had       been       coached          to    make     false     allegations.

Majority op., ¶3.

      ¶74    In reaching its conclusion, the majority misconstrues

Wisconsin      precedent,         distorting            and     expanding       the          limited

exceptions allowing for expert testimony until they swallow the
rule.    As a result, it allows social science to usurp the jury's

                                                   1
                                                                         No.    2015AP366-CR.awb


role as the lie detector in the courtroom.                             The majority further

errs in reconfiguring the expert's testimony by creating out of

whole cloth the necessary foundational facts, which even the

State concedes are nonexistent in this record.

      ¶75     Contrary to the majority, I conclude that the social

worker's      expert          testimony          that    she    saw    no   indications      of

dishonesty      crossed              the     line       drawn     by     Haseltine.           It

impermissibly vouched for the credibility of the child witness.

      ¶76     Similarly, I determine that the testimony addressing

indications      of       coaching          was        impermissible.           Although    our

precedent establishes that coaching testimony may fall within a

Haseltine      exception             if     the     proper      factual        foundation     is

established, no such foundation exists in this record.

      ¶77     Because I further conclude that Maday's trial counsel

was ineffective by failing to object to this vouching testimony,

I    would     affirm          the     court       of     appeals.          Accordingly,       I

respectfully dissent.

                                                   I
      ¶78     From     the       outset,          the    majority       misconstrues       well-

established Wisconsin precedent, distorting and expanding the

limited      exceptions         allowing          for    expert   testimony        until    they

swallow the rule.

      ¶79     Thus,       I    begin        as    the    majority       should    have,     with

Haseltine's rule that "[n]o witness, expert or otherwise, should

be   permitted       to       give     an    opinion       that   another        mentally   and

physically competent witness is telling the truth."                                 Haseltine,
120 Wis. 2d at 96.

                                                   2
                                                                     No.    2015AP366-CR.awb


      ¶80      Because the majority opinion substantially alters the

limited exceptions permitting expert testimony, I pause to set

those forth here.             Haseltine determined that in only limited

circumstances will expert testimony aid a jury.                            Id. at 96-97.

For example, the Haseltine court explained that an incest victim

may exhibit behaviors, such as not immediately reporting the

incest    or    recanting       allegations,      which       might    lead     jurors   to

believe that the victim is not telling the truth.                              Id. at 97.

It reasoned that an expert "could explain that such behavior is

common among incest victims as a result of guilt, confusion, and

a reluctance to accuse a parent."                Id. at 97.

      ¶81      In     State     v.    Jensen,     147     Wis. 2d 240,          244,     432

N.W.2d 913 (1998), this court permitted a guidance counselor to

testify regarding specific changes in the victim's behavior at

school,     such      as   acting     out   in   class    and    noncompliance         with

homework.       After addressing the specific behaviors exhibited by

children who had been sexually abused, the guidance counselor

testified that the victim's behavior was consistent with the
behavior of child sexual abuse victims.                   Id. at 246-48.

      ¶82      The     Jensen    court      concluded         that    the     counselor's

testimony       was        permissible      because      "the        expert      witness's

knowledge and experience might have assisted the jury in this

case."      Id. at 246.              It determined that "the reactions and

behavior of sexually abused children are not ordinarily matters

of   common     knowledge       and    experience       and    that    the     jury    might

therefore be aided by the witness's specialized knowledge in
this area."          Id.

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                                                                        No.   2015AP366-CR.awb


       ¶83     Thus,      Jensen     explained         that     "an    expert       opinion   is

useful for disabusing the jury of common misconceptions about

the behavior of sexual assault victims."                              Id. at 251.        Jensen

was explicit, however,                that "the expert witness must not be

allowed to convey to the jury his or her own beliefs as to the

veracity of the complainant with respect to the assault."                                     Id.

at 256-57.

       ¶84     More       recently,      in    State     v.     Krueger,      the    court    of

appeals permitted "expert testimony on typical signs of whether

a child has been coached or evidences suggestibility and whether

the complainant child exhibits such signs."                              2008 WI App 162,

¶14,     314      Wis. 2d 605,        762      N.W.2d 114.             The    Krueger    court

observed       that      testimony       about    a    child's       consistency,       coupled

with   testimony          regarding      the     behavior       of    like-aged      children,

could help the jury understand the interview and rebut a defense

theory of coaching or suggestion.                        Id., ¶15.            Thus, Krueger

explained that "[s]igns of coaching or suggestion could fall

into the realm of knowledge that is outside that of a lay-person
jury."    Id.

       ¶85     The Krueger court provided specific guidance regarding

the    bounds       of    permissible         testimony.         Appropriate         testimony

addresses "objective signs or behavior indicative of whether the

child's rendition is of the child's own making——whether truthful

or not."          Id., ¶15 n.10.               Krueger further detailed that in

addition       to     patterns      of    consistency,          examples       of    objective

behaviors         include     the     child's         ability    to     supply      peripheral
details      of     the    alleged       incident,       the    use     of    language    that

                                                 4
                                                                           No.    2015AP366-CR.awb


reflects      the    word   usage      of     an     adult,         or    the     reporting      of

information not appropriate for the developmental level of the

child.    Id.

       ¶86    The     majority        misconstrues            Wisconsin           precedent       by

ignoring that Krueger, and not Jensen, addressed the type of

coaching testimony at issue in this case.                                Krueger makes clear

that an expert must testify to objective signs or behaviors of

coaching      before    offering       an     opinion          as    to    whether       a    child

witness exhibited those signs or behaviors.                                  Id.        Yet, this

requirement is absent from the majority opinion, which contends

that under Jensen an expert's qualifications provide sufficient

foundation for her testimony.

       ¶87    Discussing Jensen, the majority asserts that it simply

"requires [the social worker] to provide sufficient detail about

what   she    is     trained     to    look        for, . . . and            [she]      did     so."

Majority op., ¶47 (citing Jensen, 147 Wis. 2d at 255).                                       In its

analysis,      the     majority       quotes       at     length         from     the    expert's

testimony regarding her training and experience in conducting
this   type     of   interview.         Majority          op.,       ¶¶44-46.           Thus,    the

majority      concludes        that     the        social       worker           "provide[d]      a

sufficient contextual basis to testify about the indications she

observed     or,     more   to   the    point,          did    not       observe     during     the

course of her cognitive graphic interview with K.L."                                     Majority

op., ¶47.

       ¶88    The    majority     distorts          the       Jensen      exception       because

Jensen does not require that an expert testify only about the
methods she uses in interviewing a child witness or her training

                                               5
                                              No.   2015AP366-CR.awb


in using these methods before offering a conclusion.      A social

worker's interview methods, as well as training in using these

methods, certainly pertain to her qualifications as an expert.

However, whether the social worker was properly qualified as an

expert witness is not at issue here.1    What is in dispute is




    1
       At the outset of this dissent I observe that we are
reviewing an unpublished per curium opinion of the court of
appeals. In accepting review of such opinions, this court runs
the risk of unwittingly changing or developing the law in
unintended ways. Such appears to be the case here.

     Without citing to Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), the majority opinion decides that the social
worker in this case is a qualified expert witness based on the
forensic interview technique she used in eliciting testimony
from the child witness. According to the majority, the forensic
interview techniques used today are accepted by experts and
courts to reliably test the accuracy of a child's allegations of
sexual assault. See, e.g., majority op., ¶¶28, 29, 49, 50.

     However, no case cited by the majority in its lengthy
opinion has even addressed, much less recognized as reliable,
the "cognitive graphic interview" technique. The only time that
the "cognitive graphic interview" technique appears in Wisconsin
jurisprudence is over 14 years ago in a case where the
conviction was reversed because the circuit court precluded the
defense from challenging the reliability of the technique.
State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643
N.W.2d 777.

     Undaunted by this reality, the majority sua sponte cloaks
this technique with the patina of reliability and asserts that
"we must [] recognize the development of specialized, technical
interview methods for investigating allegations of child sexual
abuse as well as the case law that gives them life in the
courtroom." Majority op., ¶49.

     What supplemental information does the majority provide to
support its assertion that this is a reliable standard? None.

                                                      (continued)
                               6
                                                                No.   2015AP366-CR.awb


whether      the   expert's    testimony       impermissibly     vouched    for     the

credibility of the child witness.

       ¶89    Haseltine, Jensen and Krueger, do not allow a social

worker to offer an opinion as to whether a witness showed signs

of dishonesty.         Instead, our precedent permits an expert to

testify      about    the    behaviors     of    victims   of     abuse     and    the

objective signs or behaviors of coaching.                  An expert may offer

an opinion regarding whether a witness showed signs of coaching

only   after       providing   a   foundation       by   testifying       about    the

objective signs or behaviors of coaching and whether a witness

exhibited those signs.          Krueger, 314 Wis. 2d 605, ¶15 n.10.

       ¶90    Under    the    majority's       expansion   of    the    law,      every

qualified expert could offer a conclusion regarding whether a

witness showed signs of dishonesty or coaching provided that she



     All we know from the social worker's testimony is that in
addition to using non-leading questions and a body diagram, the
technique consists of the following three component parts: (1)
make sure the child understands the difference between truth and
lies, and the consequences of a lie; (2) assess the consistency
in the child's story; and (3) administer an oath to the child to
tell the truth.    There is nothing special or scientific about
these component parts (As a parent of four children I had
several occasions to use this approach, although I usually did
not administer an oath.).

     Whether a witness qualifies as an expert under the Daubert
standard is engendering substantial debate and litigation in
this state.     However, it is not at issue in this case.
Nevertheless, the majority reaches out——without benefit of
briefs or oral argument——to analyze and decide whether this
witness, employing the "cognitive graphic interview" technique,
is a qualified expert witness. In determining that she is, the
majority appears to be implicitly deciding that her testimony
meets the Daubert standard.


                                           7
                                                                    No.   2015AP366-CR.awb


was properly qualified as a witness.                    The Haseltine rule, which

the    majority    purports        to   follow,      would     be   swallowed      by    the

exceptions.

                                           II

       ¶91   I turn next to address whether the testimony in this

case   is    permissible      under     the       Haseltine    rule    or    one    of   the

limited exceptions set forth in Haseltine, Jensen and Krueger.

The expert testified that during the interview there was                                  no

indication     that    the    witness         was    dishonest.             Additionally,

without any foundational testimony regarding the objective signs

or behaviors of coaching, the expert confirmed that there was no

"indication     that   [the        witness]       had   been    coached      in    any   way

during her interview."             I address each in turn.

                                              A

       ¶92   In determining the expert could testify that she saw

no indication of dishonesty, the majority violates the essential

Haseltine rule and allows purported social science to usurp the

jury's role as the lie detector in the courtroom.
       ¶93   The   majority         acknowledges        that    when      "[v]iewed       in

isolation, a question about indications of whether a witness was

'being honest' would seem to go more directly to truthfulness

than a question about indications of coaching."                           Majority op.,

¶49.    However, the majority excuses this testimony by reasoning

that "[h]ere, though, we are not viewing Gainey's testimony in

insolation, but rather, we view it in the context of a cognitive

graphic interview."          Id.



                                              8
                                                                    No.    2015AP366-CR.awb


    ¶94     It   reasons       that    "[a]ny       concerns       we     may   have     that

Gainey was commenting on K.L.'s veracity were addressed during

Gainey's testimony in that Gainey was clear that a 'cognitive

graphic     interview'        technique          helps     only     to     increase       the

reliability of allegations from children."                        Id., ¶50.      According

to the majority, "[t]he 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."

Id., ¶28.

    ¶95     There is no basis for the flexibility the majority

finds in the law.            Wisconsin precedent is clear and unambiguous

that "[u]nder no circumstances may the expert venture an opinion

about whether the subject is being truthful or whether the crime

occurred."       7    Daniel     D.    Blinka,       Wisconsin       Practice      Series:

Wisconsin Evidence § 608.3, at 489-90 (3rd ed. 2008); see also

Haseltine,    120     Wis. 2d at       96;    Jensen,       147    Wis. 2d at      256-57;
Krueger, 314 Wis. 2d 605, ¶19; State v. Romero, 147 Wis. 2d 264,

278, 432 N.W.2d 899 (1988).

    ¶96     The law does not place as much faith in interview

techniques    as      does    the     majority.           Social     science,      as     the

majority     acknowledges,          may      be     deemed       reliable       today     and

unreliable in the future.             See majority op., ¶27.

    ¶97     Indeed,      experts       and        commentators      agree       that     "the

fields of [mind sciences] have not developed to a point where
these     practitioners        are     likely        to     be     better       judges     of

                                             9
                                                                 No.   2015AP366-CR.awb


truthfulness than a lay jury."                   7 Daniel D. Blinka, Wisconsin

Practice       Series:          Wisconsin     Evidence         § 608.3,      at     485.

Consequently, the law of evidence "remains justifiably skeptical

of    the   role      of    the     various      mind    sciences      in    assessing

credibility, as best seen in the blanket exclusion of polygraph

evidence."      Id. at 485-86.

      ¶98   This court has recognized that a psychiatrist has "no

specialized ability to assess the truthfulness of [a witness's]

account."      State v. Kleser, 2010 WI 88, ¶105, 328 Wis. 2d 42,

786 N.W.2d 144 (citing State v. Moran, 728 P.2d 248, 255 (Ariz.

1986) (citing People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984)

("Psychologists and psychiatrists are not, and do not claim to

be, experts at discerning the truth.                    Psychiatrists are trained

to accept facts provided by their patients, not to act as judges

of    patients'       credibility.")).            As    Haseltine      cautioned,        an

expert's    opinion        on    truthfulness     provides      only    an   "aura       of

scientific reliability," which must not replace the jury as the

lie detector in the courtroom.              See 120 Wis. 2d at 95.
      ¶99   Accordingly, it the proper role of the jury, and not

an expert witness, to determine whether a witness is truthful.

Id. at 96.          The jury in this case had the opportunity to watch

the    child    witness's         videotaped      testimony      and      observe    her

testimony      at    trial.        By   concluding      that    the    context      of    a

"cognitive graphic interview" permits an expert to testify about

a witness's truthfulness, the majority allows social science to

usurp the jury's role as lie detector in the courtroom.



                                            10
                                                                     No.    2015AP366-CR.awb


      ¶100 The       majority         repeatedly        contends,          however,          that

because the expert did not use the word "opinion," and instead

said that she saw no "indications" of dishonesty, her testimony

will aid the jury.            It errs because as this court has explained,

the vouching rule does not become "inapplicable simply because a

witness does not use specific words such as 'I believe X is

telling     the    truth' . . . "              Kleser,       328     Wis. 2d 42,         ¶102.

Indeed, "[t]here is no requirement that an expert explicitly

testify that she believes a person is telling the truth for an

expert's     opinion     to     constitute         improper    vouching          testimony."

Id.

      ¶101 A      "requirement        that     specific       words        be    used    would

permit     the    rule   to    be    circumvented       easily."           Id.         That    is

exactly what the majority allows the State to do here, when it

determines        that   the        expert's       testimony        that        she    saw    no

indications of dishonesty is admissible.

      ¶102 Contrary to the majority's assertions, this testimony

is not admissible even if it addresses a witness's truthfulness
only in the context of a cognitive graphic interview.                                 Haseltine

prohibits expert testimony regarding a witness's credibility and

therefore    prohibits         the    expert's       testimony      about        whether      the

witness was being honest during her interview.                             120 Wis. 2d at

96.   A unanimous court of appeals determined that this testimony

clearly crossed the Haseltine line.                   I agree.

                                              B

      ¶103 Next I address whether the expert's testimony that she
saw   no    indications        that     the        witness    had    been        coached      is

                                              11
                                                                          No.       2015AP366-CR.awb


permissible under one of the limited exceptions set forth in

Haseltine,         Jensen     and      Krueger.         I     begin       by        invoking      and

paraphrasing the maxim:                the majority may be entitled to develop

its own opinion, but it is not entitled to develop its own

facts.        Out     of    whole      cloth,    the    majority         develops          its    own

factual record, which even the State concedes is nonexistent.

       ¶104 Haseltine and Jensen permit expert testimony about the

typical behavior of victims of abuse.                        Haseltine, 120 Wis. 2d at

97; Jensen, 147 Wis. 2d at 246.                      The expert's testimony in this

case did not address the typical behavior of victims of abuse,

such     as    a    delay         in   reporting       or     acting          out     in    school.

Consequently, I need not further address this limited exception.

Instead, the testimony here focused on the interview process.

Thus, I examine the limited exception for coaching testimony

derived from an interview and permitted under Krueger.

       ¶105 Krueger          reasoned        that      testimony         about         whether      a

child's       behavior       during     an   interview        is     consistent            with   the

behavior of like-aged children could both help a jury understand
the    interview       and    rebut     a    defense        theory      of    coaching.           314

Wis. 2d 605, ¶14.            Under Krueger, admissible testimony addresses

"objective         signs     or    behavior"     such       as   a      child's        ability     to

supply peripheral details of the alleged incident, the use of

language       that    reflects        the   word      usage       of    an     adult,      or    the

reporting of information not appropriate for the developmental

level of the child.               Id., ¶15 n.10.

       ¶106 The expert in this case gave none of the foundational
testimony       that       Krueger      requires.           Without          any     foundational

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testimony     regarding         the   objective      signs     or    behaviors    of

coaching, the expert witness baldly concluded that there was no

indication that the witness had been coached in any way during

her interview.

    ¶107 To         fill    a    void    in    the     record,       the     majority

reconfigures the expert's testimony here.                    It asserts that she

"provided background information as context for her testimony in

regard to the indications of coaching and dishonesty during the

cognitive graphic interview."             Majority op., ¶43.            Not only is

there no support for this assertion in the trial transcript,

even the State did not contend that she testified about any

objective signs or behaviors of coaching.

    ¶108 At     oral       argument,    counsel   for    the    State      repeatedly

conceded that the proper foundation had not been laid for the

social   worker's      conclusions      that   she      saw    no    indication   of

coaching.      When the State's counsel was asked what objective

indications the expert observed, he responded:

            "I understand that we didn't have the foundation.                      I
             concede that.        We don't have the foundation. It's not

             there."

            "If you're asking what is the foundation in this case,

             there wasn't very much of a foundation."

            "Well this gets back to Justice Abrahamson's question

             about whether there was this foundation here and I'd

             have to say that I don't know, the record doesn't tell

             us."



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       ¶109 Rather than determine that the expert impermissibly

opined that the witness showed no indications of coaching, the

majority    over-reaches     by     sua    sponte      attempting          to   lay   the

foundation for the testimony.              Indeed, the majority tells the

reader everything the expert should have told the jury, but did

not.

       ¶110 Relying on a journal article, the majority informs the

reader that a child's inability to supply information on her

own, the use of adult language, giving vague or inconsistent

accounts, and refusing to discuss details of the abuse are all

objective indications of coaching or suggestibility.                            Majority

op., ¶¶31-32 (citing 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)).

       ¶111 Given    its   lengthy    recitation           of   the    indications     of

coaching an expert might identify during a cognitive graphic

interview, the majority opinion might lead the reader to believe
that the expert discussed these indications during her trial

testimony.     She did not.       Although the majority's discussion may

be informative, it does not remedy the fact that none of the

objective signs or behaviors of coaching was presented to the

jury.

       ¶112 Without the necessary foundation, the social worker's

testimony    does    not   assist    the       jury   in    making     a   credibility

determination——it instead makes that determination for the jury.
All that the jury was told is that the expert concluded that she

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saw no indications of coaching.                      This contravenes Haseltine's

prohibition      because     it      does      not     fall      within        the    limited

exception     allowing       for     objective         signs      of     coaching          under

Krueger.

      ¶113 The       Krueger       court           provided      specific            guidance,

carefully circumscribing the bounds of permissible testimony.

It cautioned that "testimony regarding coaching may more readily

border on truthfulness, as compared to the analysis of reactive

behavior."    314 Wis. 2d 605, ¶15 n.10; see also id., ¶21 (Brown,

C.J., concurring).         Unfortunately, the majority heeded neither

the   caution       nor      the     bounds          of      permissible           testimony.

Accordingly, the coaching testimony here is inadmissible because

without the necessary foundational testimony, it violates the

Haseltine rule.

                                            III

      ¶114 Because I conclude that the social worker's testimony

impermissibly     vouched      for      the    credibility        of     the       witness,    I

address next whether Maday received ineffective assistance of
counsel when his trial counsel failed to object to the expert

testimony.

      ¶115 Maday      must     demonstrate            that      his     trial        counsel's

performance    was    deficient         and    that       the   deficient       performance

prejudiced    his    defense       in    order       to    prevail       on    a     claim    of

ineffective assistance of counsel.                        Strickland v. Washington,

466 U.S. 668, 687 (1984).               To show prejudice, a defendant must

demonstrate that there is "a reasonable probability that, but
for   counsel's       unprofessional               errors,      the     result        of     the

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proceeding would have been different.                          A reasonable probability

is   a    probability         sufficient       to    undermine         confidence           in    the

outcome."      Id. at 694.

         ¶116 Several        Wisconsin       cases      have        addressed      whether        the

admission of impermissible                 Haseltine           testimony is prejudicial

pursuant     to     Strickland         when    a    defendant's          trial        is    a    pure

credibility contest.              See, e.g., Haseltine, 120 Wis. 2d at 96;

Krueger, 314 Wis. 2d 605, ¶¶17-19.                       All have concluded that such

testimony is prejudicial because it undermines confidence in the

reliability of the outcome of the trial.                              See, e.g., Krueger,

314 Wis. 2d 605, ¶20; Haseltine, 120 Wis. 2d at 96.

         ¶117 Of particular import, the Krueger court concluded that

whether the victim's account of a sexual assault is corroborated

by       independent         evidence         is     significant             in     determining

performance       and    prejudice.           314       Wis.    2d    605,     ¶18.         Krueger

explained      that       because       the        issue       at     trial       was      one     of

credibility, the expert's opinion, "with its aura of scientific

reliability,        creates      too    great       a    possibility           that      the     jury
abdicated its fact-finding role to the psychiatrist and did not

independently          decide    [the    defendant's]            guilt."           Id.     (quoting

Haseltine, 120 Wis. 2d at 96).

         ¶118 The      court     in    Krueger       concluded         that       the      risk    of

prejudice     was      too     great    in    a     one-on-one        credibility           battle:

"[t]here          is      a       significant              possibility              that          the

jurors . . . simply             deferred      to    witnesses          with       experience       in

evaluating the truthfulness of victims of crime.").                                        Id., ¶18
(citing Romero, 147 Wis. 2d at 279).                            This "possibility gives

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rise to the reasonable probability that, but for trial counsel's

error, the jury would have had a reasonable doubt respecting

guilt."      Id. (citing Strickland, 466 U.S. at 695).

       ¶119 Here, there was no physical or DNA evidence introduced

at trial so the main issue was whether the child or Maday was

more credible.        This scenario, as discussed above, enhances the

risk    of    prejudice.        To     tip    the     balance,     Maday     offered

inconsistencies       between   the    child    witness's    testimony        in   the

videotaped interview and her testimony at trial.                      However, such

evidence     pales    in   comparison    to     the   potency    of    an   "expert"

vouching for the credibility of the child.

       ¶120 The      prosecutor's     closing    argument   further         amplified

the improper influence of the expert's testimony by emphasizing

that the expert did not observe indications that the victim "was

lying":

       You [] got to hear from a social worker who was
       specially trained to conduct these interviews. She
       told you there was nothing that she saw that indicated
       that [the witness] had been coached or that she was
       lying. Neither of those things were present during her
       interview with [the witness].

       In fact, one of the purposes of that specific
       interview technique that she uses is to remind the
       child there are consequences for lying. . . . [A]nd
       again, there was nothing to indicate that [the
       witness] was making anything up. That’s called
       reliability, and it makes [the witness's] account more
       credible.
This testimony that the witness was not lying or making anything

up "clouded the crucial issue of credibility."                         Romero, 147

Wis. 2d at 267.



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     ¶121 Thus, similar to Krueger, there is too great of a risk

that the jury abdicated its fact-finding role to the expert

witness.      Contrary     to     the    majority's        assertion,        a   standard

instruction advising the jury that it is to be the sole judge of

credibility is insufficient to cure the problem.                           This standard

instruction was likely given in every case where an expert's

testimony     was      deemed      impermissible           under          Haseltine      and

prejudicial under Strickland.

     ¶122 The risk that the jury abdicated its fact-finding role

to the expert gives rise to the reasonable probability that, but

for trial counsel's error, the jury would have had a reasonable

doubt   regarding      Maday's     guilt.        Because       counsel's         error    is

sufficient      to    undermine       confidence      in      the    outcome      of     the

proceeding, I determine that Maday was prejudiced.                          See Krueger,

314 Wis. 2d 605, ¶18 (citing Strickland, 466 U.S. at 694).

     ¶123 In sum, I conclude that the social worker's expert

testimony impermissibly vouched for the credibility of the child

witness.        The    testimony        that    she     saw    no     indications         of
dishonesty simply crosses the line drawn by Haseltine.                           Although

the testimony addressing indications of coaching may fall within

a   Haseltine    exception       if     the    proper      factual        foundation      is

established, no such foundation exists in this record.

     ¶124 I     further    conclude       that     Maday's      trial       counsel      was

ineffective by failing to object to this testimony.                               Thus, I

would affirm the court of appeals opinion reversing a circuit

court order denying Maday's motion for postconviction relief.
Accordingly, I respectfully dissent.

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    ¶125 I   am   authorized   to   state   that   Justice   SHIRLEY    S.

ABRAHAMSON joins this dissent.




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