On Point: 5. Daubert

State v. R.D.J., 2017AP547, 8/7/18, District 1 (one-judge decision; ineligible for publication); case activity

R.D.J. appeals the termination of his parental rights to his daughter, T.S.J. He argues that his lawyer was ineffective for not challenging the state’s expert’s report on Daubert and undue prejudice grounds, that his due process rights were violated because T.S.J.’s removal from the home made it impossible for him to show a substantial parental relationship, and that the CHIPS order itself established that such a relationship existed.

State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system. 

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.

State v. Dakota R. Black, 2017AP837, 3/22/18, District 4 (not recommended for publication); case activity (including briefs)

A jury convicted Black of the homicide of B.A.T., a five-year-old child in his care; the child was bruised and died of subdural hemorrhages. Black defended on the theory that the child’s injuries came in a fall, either on the stairs or on the playground.

City of West Bend v. Rebecca L. Smith, 2016AP2170, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Smith appeals her jury-trial conviction for OWI. She argues that the court erroneously admitted, over hearsay objection, the computer aided dispatch activity report indicating the times that the police took various actions. She also seeks reversal based on the admission of expert testimony opining as to her BAC by the technique of retrograde extrapolation.

State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)

The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).

Review of a summary order of the court of appeals; affirmed 5/4/18; case activity (including briefs)

Issues (from the petition for review):

Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?

If California and Texas can do it, can Wisconsin do it too? Click here to see Professor Edward Imwinkelried’s new article on revising postconviction relief statutes to cover convictions resting on subsequently invalidated expert testimony. Who can name a type of expert testimony that has been recently invalidated?

State v. S.D., 2016AP1701-1702, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity

This TPR appeal raises a number of interesting issues ranging from a Daubert challenge to the State’s psychologist and “parenting capacity assessment” to an ineffective assistance of counsel claim for failure to raise an “unconstitutional as applied” challenge to the standard jury instruction on “failure to assume parental responsibility.”

State v. Brandon Arthur Millard, 2016AP1474-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

¶10     This court has previously rejected arguments that Daubert applies to a law enforcement officer’s testimony regarding HGN. See State v. VanMeter, No. 2014AP1852, unpublished slip op. (WI App Nov. 24, 2015), and State v. Warren,