On Point: d. Expert

State v. Jamie Lane Stephenson, 2020 WI 92, 12/18/20, affirming a published decision of the court of appeals; case activity (including briefs)

A five-justice majority of the supreme court holds that the state does not need to present expert opinion testimony that a person subject to commitment under Chapter 980 is dangerous to others because his mental disorder makes it more likely than not that he will engage in one or more future acts of sexual violence.

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity

Issues:

1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?

State v. Jamie Lane Stephenson, 2019 WI App 63, petition for review granted, 3/17/20, affirmed, 2020 WI 92; case activity (including briefs)

At a hearing on a committed person’s petition for discharge from a ch. 980 commitment, the state has the burden of proving the person is still a sexually violent person—that is, that the person: (1) has a mental disorder; and (2) is dangerous because that mental disorder makes it more likely than not the person will commit sexually violent offenses in the future. § 980.09(3). The court of appeals holds that even though the state needs an expert to prove the person has a mental disorder, it doesn’t need an expert to prove the person is dangerous because of the mental disorder.

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶18      Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch.

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:

¶10      First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial.

State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth

Issue: Whether a probation and parole agent was properly allowed to give an opinion regarding the likelihood of the respondent reoffending.

Holding:

¶29. The fact that Kittman was not a psychologist or mental health specialist did not preclude his testimony. Under Wis. Stat. § 907.02 (1997-98), relevant experience,

State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate

Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter to cross-examine on the instruments). ¶20. In Wisconsin, trial courts have a limited “gatekeeper”

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.

Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29.

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.

Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge,

State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999)
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.

Issue/Holding: Prediction of future dangerousness may be made of a juvenile in a Ch. 980 proceeding.

The state’s experts assessed Matthew’s dangerousness by using the “Doren criteria,” which were developed through research involving adults. Moreover, Matthew adduced evidence “that juveniles have a lower propensity to reoffend in sexual violence situations.”