Expert Testimony, Hearsay and the Electronic Monitoring Device

This post examines a Wisconsin DUI (or OWI) case that raised a couple of interesting issues concerning Electronic Monitoring Devices (EMDs).

The case is State v. Kandutsch, __ N.W.2d __, 2011 WL 2820791 (Wisconsin Supreme Court 2011), and this is how it arose:

At 10:23 p.m. on June 19, 2006, several City of Wausau police officers and two Marathon County deputies responded to a 911 call from [Gregg] Kandutsch's estranged wife that someone was trying to break into her home. When the officers arrived . . . they discovered Kandutsch inside the home, having sustained serious injuries from breaking a glass door.

Kandutsch was transported to the hospital for treatment of his injuries, and a blood draw there revealed a blood alcohol content of .23 percent. . . . [H]e was [arrested] for operating while intoxicated. The police concluded Kandutsch had driven a vehicle while intoxicated because, when asked how [he] arrived at her home, [his] wife [said] he would have driven a green van, and later identified the vehicle parked in a nearby lot.

Kandutsch was charged with operating a motor vehicle on a highway while under the influence of an intoxicant, fifth and subsequent offense, contrary to Wisconsin Statutes §§ 346.63(1)(a), 346.65(2)(cm)5 and 939.50(3)(h).

State v. Kandutsch, supra.

The case went to trial before a jury, and at the trial the (apparently only) disputed issue

concerned whether Kandutsch operated the vehicle before or after he consumed alcohol. . . . Kandutsch was supervised by an electronic monitoring system through the DOC [Department of Corrections]. The State relied on a computer report generated by the EMD that purported to show when [he] was in and out of range of a monitor in Rib Mountain on the day in question to establish a timeframe showing that Kandutsch must have been intoxicated at the time he drove to his wife's home.

The report included a notation showing Kandutsch was `out of range’ at 22:03, or 10:03 p.m., on June 19, 2006. The distance between [his] mother's home, in Rib Mountain, to his wife's home, in Wausau, was approximately a 15-minute drive. The 911 call from Kandutsch's wife was received at 10:23 p.m. on the night in question. Because Kandutsch was highly intoxicated at the time the officers arrived on the scene, shortly after the 911 call, the State theorized that Kandutsch must have been intoxicated before he left his mother's home and began driving.

State v. Kandutsch, supra.

Kandutsch, on the other hand, maintained that he did not become intoxicated until

after he had driven to his wife's home. He testified . . . that he left his mother's home a little after 9:00 p.m., arriving at his wife's around 9:35 p.m. When he knocked on his wife's door, no one answered, so he walk[ed] to a tavern called the Cop Shop about three blocks away.

Kandutsch . . . consumed $20.00 worth of Southern Comfort whiskey liqueur and a pitcher of beer. After consuming the alcohol, he walked back to his wife's home, and it was at that point the break-in occurred. Kandutsch testified that, although he was out of range at 10:03 p.m., the EMD report was inaccurate, because he actually left his mother's home at 9:10 p.m. He . . . concede[d] on cross examination that the other times listed on the report showing . . . were all accurate.

State v. Kandutsch, supra.

Kandutsch’s probation agent, Amy Klarkowski’s testimony provided the foundation for admitting the EMD report into evidence. State v. Kandutsch, supra. She described the program as a system

consisting of a home monitoring unit and a radio frequency device, usually attached to the person's ankle. Klarkowski [said] the monitoring unit has a range of about 150 feet and is connected by telephone to an electronic monitoring center staffed by the DOC. . . .

[She said] any movement by the radio frequency device in and out of the monitoring unit's range is noted on computer-generated reports at the DOC monitoring center. . . . Klarkowski [said] . . . [t]he system is designed to keep working despite power outages or attempts to remove the ankle bracelet. [She] had . . . supervised 30-35 individuals . . . [and] not only had never had any problems with a unit herself, but had never heard of a unit generating a false report.

State v. Kandutsch, supra. Klarkowski’s supervisor, who had used the system for twenty years, provided similar testimony. State v. Kandutsch, supra.

When the prosecution then moved to introduce the EMD reports from Kandutsch’s unit for the night in question, he objecting, arguing (i) that the prosecution had not supplied an adequate foundation for the reports to be admitted and/or (ii) the reports were inadmissible hearsay. State v. Kandutsch, supra. The trial judge admitted the reports and the jury convicted Kandutsch of “driving under the influence of alcohol, fifth . . . offense.” State v. Kandutsch, supra.

Kandutsch appealed his conviction – raising the same arguments as to why the reports should not have been admitted -- to the Wisconsin Court of Appeals, which affirmed. He then appealed to the Wisconsin Supreme Court. State v. Kandutsch, supra.

In ruling on the second issue, the Supreme Court explained that under Wisconsin law, expert testimony is a condition that must be met before evidence can be admitted only if “the issues before the jury are `unusually complex or esoteric’”. State v. Kandutsch, supra (quoting White v. Leeder, 149 Wis.2d 948, 440 N.W.2d 557 (1989)). “In other words, the [trial judge] must find that the underlying issue is `not within the realm of the ordinary experience of mankind.’” State v. Kandutsch, supra (quoting Cramer v. Theda Clark Mem. Hosp., 45 Wis.2d 147, 172 N.W.2d 427 (1969)).

The Supreme Court noted that in determining what constitutes the “`ordinary experience of mankind,’” courts should evaluate the need for expert testimony on a case-by-case basis. State v. Kandutsch, supra. It also noted that “[w]hen an issue can be determined `by common knowledge’” the trial judge “should allow the issue to go to the jury without first requiring expert testimony.” State v. Kandutsch, supra.

Kandutsch relied on Wisconsin cases that involved the need for expert testimony to establish a foundation for the use of and/or results of various medical devices, but the Supreme Court found these cases were not on point. State v. Kandutsch, supra. It therefore rejected Kandutsch’s argument that “while radio signals and telephone connections are well-known technologies easily understood by jurors without the aid of experts, the interplay of these technologies in effect creates a `new’ technology that is not so readily understood.” State v. Kandutsch, supra. It also found that the analogy the Court of Appeals relied on was “directly on point” and provided “a common sense perspective” on the admissibility of the EMD reports. State v. Kandutsch, supra.

As the court of appeals noted. . . . [t]he cordless telephone, in existence for over three decades, uses the same technologies as the electronic monitoring system. The base station of the phone converts information it receives over a standard phone connection to an FM radio signal which is broadcasted to a wireless handset, and vice versa. . . . [T]he telephone company documents calls placed and received on a bill that, like the daily summary reports at issue in this case, is generated by computer.

State v. Kandutsch, supra.

The Supreme Court therefore concluded that the “intersection of radio signals and telephone connections does not convert the EMD into an issue so `unusually complex or esoteric’ that the jury required the aid of expert testimony to interpret the information. Accordingly, we decline to take the extraordinary step of requiring expert testimony to introduce evidence of the EMD at issue here.” State v. Kandutsch, supra.

It then addressed Kandutsch’s related argument that the prosecution hadn’t established an adequate foundation for admitting the evidence. State v. Kandutsch, supra. It began its analysis of this issue by noting that even when expert testimony is not required, “the proponent of non-testimonial evidence is usually required to lay the foundation for the admissibility of that evidence through lay witnesses” and that such a foundation “is laid . . .`by evidence sufficient to support a finding that the matter in question is what the proponent claims.’” State v. Kandutsch, supra. After reviewing relevant cases, the court found that the testimony of Klarkowski and her supervisor established the necessary foundation. State v. Kandutsch, supra.

The court then took up Kandutsch’s argument that the EMD reports were inadmissible hearsay. State v. Kandutsch, supra. As I’ve explained in earlier posts, hearsay is basically second-hand evidence, i.e., it’s an out of court statement by someone who doesn’t testify at trial that is admitted to prove the truth of the speaker asserts. As I’ve also explained, hearsay isn’t admissible unless it falls within certain, clearly specified exceptions to the rule barring its use.

The prosecution argued that the hearsay rule “encompasses only human declarants, not machines or automatic processes”, but the Supreme Court noted that most federal courts have “considered computer reports as hearsay.” State v. Kandutsch, supra. It also noted that some courts (and the U.S. Department of Justice) draw a distinction between computer-stored records, which are considered hearsay because they store the statements of a human being, and computer-generated records, which are “the self-generated record or a computer’s operations” resulting from its programming. State v. Kandutsch, supra. It explained that the courts that take this position have held that computer-generated records are not hearsay. State v. Kandutsch, supra.

The Wisconsin Supreme Court had not addressed this issue before, but it ultimately decided to go with the latter group of courts, and distinguish between computer-stored records (hearsay) and computer-generated records (not-hearsay). State v. Kandutsch, supra. It noted that the rule against hearsay is intended to protect against “`ambiguity, insincerity, faulty perception, and erroneous memory’”. State v. Kandutsch, supra (quoting Laurence Tribe, Triangulating Hearsay, 87 Harvard Law Review 957 (1974)).

The court found that computer-generated records suffer from none of these, noting that Klarkowski “perhaps summarized it best when she testified regarding the EMD, `It doesn't have a mind of its own, it's a computer device, it's a high-tech device, it reports things when they happen.’" State v. Kandutsch, supra. It therefore rejected Kandutsch’s arguments and affirmed his conviction. State v. Kandutsch, supra.