June 17, 2025 – An expert witness answering a juror’s question about the frequency of false reports of child sexual abuse remains permissible testimony, a unanimous Wisconsin Supreme Court decided Friday in State v. Molde, 2025 WI 21.

The conclusion reverses precedent binding on the court of appeals from State v. Mader, 2023 WI App 35, that applied the prohibition against vouching for witness credibility in State v. Hazeltine, 120 Wis. 2d 92 (Ct. App. 1984).

“We hold that statistical evidence alone about the prevalence of false reporting does not violate the Hazeltine rule. Dr. Swenson did not, either in answering this question or otherwise, offer an opinion that Lauren was telling the truth,” wrote Justice Brian Hagedorn.

Justice Jill J. Karofsky wrote a concurring opinion that refuted the grounds for the court of appeals in determining “that Lauren lacked credibility.”

“These assertions are as disconcerting as they are misguided. They are predicated upon damaging and victim-blaming misperceptions,” Karofsky summarized.

Statistical Question

A thirteen-year-old girl, whom the court identified by the pseudonym “Lauren,” attempted suicide. After she survived, she reported that when she was seven or eight years old, her father, Jobert Molde, had sexually assaulted her.

Trial evidence centered around Lauren’s trial testimony and her recorded forensic interview. Dr. Alice Swenson, a licensed child abuse pediatrician who supervised Lauren’s forensic interview, testified as an expert.

After Dr. Swenson’s testimony, a juror submitted two questions to the court. One of the questions asked, “how frequent is it for children to make up a story of sexual abuse?”

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

Dr. Swenson had no answer for the second question, which asked why one would falsely report.

The jury found Molde guilty. On postconviction relief, he argued his counsel was ineffective because he should have objected to the testimony “as impermissible vouching.”

The circuit court denied the motion, in part, because the testimony did not comment on Lauren’s credibility.

The court of appeals, using its precedent, reversed and held that the testimony was impermissible vouching.

Assisting the Jury

Vouching is impermissible because it evaluates witness credibility, the job for the fact-finder, which is often the jury. “[T]he jury must decide for itself whether to believe a witness’s testimony in whole, in part, or not at all,” the supreme court explained.

In Hazeltine, a psychiatrist testifying in a case of a father’s sexual assault of his daughter opined that “he had ‘no doubt whatsoever’ that the father sexually assaulted his daughter.”

Such testimony, the court of appeals held, went too far because “[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.”

What Hazeltine allows, however, is “expert testimony that helps the jury assess credibility or understand the victim’s testimony,” such as “expert evidence regarding why incest victims might delay in reporting or recant accusations,” the supreme court explained.

Hazeltine’s progeny identifies “that the main question is whether the testimony assists the jury in assessing the credibility of witnesses, or whether it functionally usurps the jury’s fact-finding role,” the supreme court summarized. “[E]xpert testimony describing typical behavior by those in similar circumstances can serve to assist the jury.”

‘We See It Differently’

Precedent required the court of appeals’ decision holding that Dr. Swenson’s testimony was improper vouching.

State v. Mader held that the testimony of two experts “that 99.2% and 99.33% of victims are truthful” violated Hazeltine because “those percentages amounted to near-mathematical certainty ‘that false reporting simply does not occur.’”

Instead, the supreme court explained, “[s]tatistical evidence alone is precisely the kind of generalized evidence that might assist the jury, not usurp its role” because it does not say which category the witness belongs to.

“The jury still must assess the credibility of the statistical evidence and that of the expert, and then weigh that along with the other evidence in the case.”

Only “the ‘extra step’ of the expert actually opining on the truthfulness of the complainant” violates Hazeltine, the supreme court explained.

Just because such evidence is admissible doesn’t mean it can be in all circumstances.

The other rules of evidence still apply regarding admissibility, expert qualifications and methodology, or whether the evidence creates unfair prejudice. Defendants can still challenge the accuracy of the statistical evidence and use standard methods to attack the credibility of the expert witness.

“In short, statistical evidence alone – even evidence that demonstrates false reports are extremely rare – does not violate Hazeltine’s anti-vouching rule,” the supreme court concluded.

Dr. Swenson’s testimony was permissible, the supreme court explained, because she “did not directly or indirectly comment on the veracity of Lauren’s allegations against her father.” In fact, the juror’s question was statistical in nature.

Nor did Dr. Swenson, in supervising the forensic interview, transform her testimony into “implicit vouching.”

Because the witness testimony was acceptable, the supreme court held that Molde’s claim of ineffective counsel fails.

‘I Believe You’

Summarizing Lauren’s testimony of sexual abuse at the start of her concurrence, Justice Karofsky pointed out, “The jury believed her.”

“The court of appeals did not. The court of appeals overturned Molde’s conviction of first-degree sexual assault of a child, relying in large part on its determination that Lauren lacked credibility.”

Karofsky then emphasized the three fallacies to the court of appeals’ conclusion.

“First, delayed disclosure and a lack of corroborating evidence are the norms in child sexual assault cases,” Karofsky said. Between 70% and 75% of such victims wait at least five years before disclosing the abuse.

The natural result is that “corroborating evidence rarely exists” – no physical injuries, no witnesses.

“Second, victims often cannot perfectly recall and recite their trauma,” Karofsky wrote. Lauren’s testimony had “minor inconsistencies” but otherwise “remained notably consistent.”

“The reason for inconsistency is not dishonesty,” Karofsky explained. “Rather, trauma reshapes the wiring of the brain, which can impact memory.” The victim loses a chronology or details. It’s not a neat story.

“Finally, the number of assaults reported has absolutely nothing to do with credibility,” Karofsky said, pointing to the court of appeals claim “that Lauren lacked credibility because she suffered only one assault.”

“It is difficult to even begin to respond to such a baseless statement, especially because, as noted above, most sexual assault victims underreport, or never report, their abuse,” Karofsky said.

“Lauren defied the odds in reporting her abuse,” Karofsky said.

“Child sexual assault victims must overcome near-insurmountable barriers to reporting abuse and achieving justice. When these brave children speak, courts must ensure they are heard.”

“Lauren, you bravely used your voice,” Karofsky concluded. “I hear you. I believe you.”