Background
Ryan Babcock was convicted after a jury trial of first-degree sexual assault of a child under 12 and exposing a child to harmful material. The victim, A.B., was four years old. Before trial, the circuit court admitted for its truth a recorded forensic interview in which A.B., after a break, said Babcock had caused her to perform oral sex.
Babcock challenged the admission of that recording and sought suppression of statements he made during an approximately 80-minute sheriff’s-office interview. In postconviction proceedings, he also alleged ineffective assistance because trial counsel did not request Wisconsin’s child-witness jury instruction and did not consult or call an expert on child forensic interviews.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the convictions and the order denying postconviction relief. Counsel was not deficient for omitting the child-witness instruction because the general credibility instruction given already conveyed, in all material respects, that the jury should assess a child’s testimony using the same credibility considerations applied to other witnesses. Counsel also reasonably chose to attack the interview through cross-examination and the recording itself rather than retain an expert.
The recorded interview had sufficient statutory indicia of trustworthiness. Although A.B.’s disclosures followed a break in which she may have briefly seen her mother and grandmother, the court concluded that improper coaching would be speculative; the interview was conducted shortly after the alleged offenses and included clear, age-appropriate details. The court also held that Babcock was not in custody before his formal arrest: he had been told he was free to leave, was unrestrained, and was questioned in a low-key, noncoercive manner. Miranda warnings therefore were not required before his statements.
Key Takeaways
- A defense lawyer may reasonably forgo a child-forensic-interview expert when the alleged flaws are apparent from the recording and can be developed through cross-examination.
- A brief, unrecorded break in a child’s forensic interview does not alone defeat trustworthiness under Wisconsin Statute § 908.08.
- Questioning at a sheriff’s office remains noncustodial where the overall circumstances show the suspect was free to leave and not subjected to Miranda-type coercion.
Why It Matters
The decision underscores that challenges to child forensic interviews require more than an opportunity for possible coaching. Courts will evaluate the recording as a whole, including timing, the child’s responses, and the interview circumstances.
It also illustrates the fact-specific nature of Miranda custody analysis: police accusations and discussion of incriminating evidence do not by themselves turn a voluntary interview into custodial interrogation.