On Point blog, page 3 of 5
SCOW: No Haseltine violation where expert tells jury “there’s no indication that victim is not being honest”
State v. Stanley J. Maday, Jr., 2017 WI 28, 4/5/17, reversing a per curiam court of appeals decision, 2015AP366-CR; case activity (including briefs)
This “he said, she said” case resulted in a verdict finding Maday guilty of child sexual assault. Catherine Gainey, the social worker who conducted a “cognitive graphic interview” of K.L., the alleged victim, testified at trial that there “was no indication” that K.L. had been coached or was being dishonest. Maday claimed ineffective assistance of counsel because his lawyer did not object to this Haseltine evidence. SCOW, voting 5-1-2, nixed that claim. The majority, written by Gableman, says Haseltine does not bar “observations of indications of coaching and deceit” that a social worker makes during the course of a forensic interview. It only bars an expert’s subjective opinions about a child’s truthfulness. So expect prosecutors to invoke the magic word “indications” early and often. If you feel like shouting “mayday! mayday!” don’t. The majority may have slammed a door on certain objections to Haseltine evidence, but it has unwittingly flung open a window for defense lawyers.
SCOW: 3-3 split marks change in tie-vote procedure, lost opportunity on Daubert
Ten weeks ago SCOW issued Seifert v. Balink, its first decision interpreting and applying §907.02, the Daubert test for the admissibility of expert testimony. The court split 2-1-2-2 (as in Abrahamson/AW Bradley–Ziegler–Gableman/Roggensack–Kelly/RG Bradley). That generated two On Point posts here and here, an Inside Track article here and a Wisconsin Lawyer article here. Today SCOW split 3-3 in Smith v. Kleynerman, which raised two issues regarding the law governing LLCs and a Daubert issue. Click here to see Kleynerman’s brief.
Retrograde extrapolation survives Daubert challenge—again
State v. Michael Chough, 2016AP406-CR, District 2, 1/25/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Chough’s challenge to the reliability of expert testimony regarding his blood alcohol content at the time he was driving fails under State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687.
Mike Tobin Guest Posts: How Seifert might apply outside the delivery room
Three separate opinions in Seifert v. Balink result in a 5-2 majority upholding admission of expert medical testimony under the Daubert standard. Because Seifert is the first Wisconsin Supreme Court case interpreting this standard for admission of expert testimony, it provides guidance to lower courts and to practitioners regarding the 2011 statutory changes.
SCOW’s maiden decision on Daubert is split 2-1-2-2
Seifert v. Balink, 2017 WI 2,1/6/17, affirming a published court of appeals opinion; case activity (including briefs)
It’s true. SCOW’s first decision on §907.02(1), which adopted the Daubert test for the admissibility of expert testimony is 134 pages long and includes 4 separate opinions, but don’t despair. It’s not the mess you imagine. Reading the first 3 opinions by Abrahamson (joined by A.W. Bradley), Ziegler (solo) and Gableman (joined by Roggensack) feels like the kids’ game “spot the difference between these pictures.” They are more alike than different. You might even wonder why the 5 of them couldn’t just sign on to 1 majority opinion. Or you might not. Bottom line: 5 justices affirmed the admission of a medical doctor’s expert testimony even though it was based on his personal experience, not science.
Defense experts’ testimony about possible blood test errors too speculative to be admitted
State v. Ali Garba, 2015AP1243-CR, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Garba wanted to present testimony from two expert witnesses about possible reliability problems with the gas chromatography tests of his blood, but the circuit court wouldn’t let him. The court of appeals holds the circuit court properly exercised its discretion and rejects Garba’s claim the ruling violated his right to present a defense.
Toxicologist could give opinion about impairment
State v. Lory F. Kerk, 2015AP2608-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t err in allowing the state to elicit testimony from its expert toxicologist that Kerk was impaired by the amount of alcohol and prescription drugs found in her blood.
TPR court didn’t err in admitting children’s hearsay statements or expert “bonding” testimony
State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity
The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.
Circuit court erred in excluding expert testimony on Daubert grounds
Unity Bayer v. Brian D. Dobbins, M.D., 2016 WI App 65; case activity (including briefs)
We note this decision in a civil case because it involves the application of the Daubert test, a still relatively undeveloped area of law, and may assist practitioners in making arguments for (or against) the admission of expert evidence.
Failure to object precludes Daubert analysis; expert on cell phone tracking per se admissible
State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)
This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.