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State v. McDowell - 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500

Rule:

Defense counsel may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. Attorneys must advise the client, opposing counsel, and the circuit court of the change of questioning style prior to use of the narrative.

Facts:

The State built its sexual assault case against defendant Derryle S. McDowell on a sample of the victim's saliva containing semen with McDowell's DNA. In opening, counsel explained that the night before the assault, McDowell had oral sex with his girlfriend in the same area and had ejaculated, which accounted for his semen at the scene. When McDowell testified, counsel converted to narrative questioning and at a Machner hearing, defense counsel conceded that he did so without advising McDowell of the change or having concluded that McDowell intended to lie. McDowell was convicted of robbery, kidnapping, and five counts of sexual assault while using a dangerous weapon, all as party to a crime.  McDowell, sought appellate review of a published decision of the court of appeals affirming a judgment of conviction and order denying postconviction relief. On appeal, McDowell contended that he was afforded ineffective assistance of trial counsel that was both deficient and prejudicial. Additionally, McDowell asserted that the circuit court erred in failing to permit him new counsel.

Issue:

May a defense counsel substitute narrative questioning for the traditional question and answer format without knowledge that the client intends to testify falsely?

Answer:

No

Conclusion:

The Supreme Court of Wisconsin agreed with the court of appeals, which affirmed defendant's judgment of conviction and order denying postconviction relief, even though defense counsel's performance was deficient and that the testimony could have been enhanced through questioning. The deficiency was not prejudicial, however, given the strength of the DNA evidence. The Court announced the rule that defense counsel could not use narrative questioning without specific knowledge that the client intended to testify falsely. Absent extraordinary circumstances, such knowledge had to be based on the client's expressed admission. Also, an attorney had to advise the client, opposing counsel, and the circuit court of the change of questioning style prior to use of the narrative. There was no error in the denial of new counsel.

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