On Point blog, page 2 of 5
Expert on child victim reporting behaviors met Daubert standard
State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)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).
Petitioner isn’t required to present testimony of a physician or psychologist at a ch. 51 extension hearing
Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity
Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.
Court of appeals again holds officer’s HGN testimony isn’t subject to Daubert
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 See State v. VanMeter, No. 2014AP1852, unpublished slip op.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,
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.
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.
Counsel’s failure to object to hearsay and opinion evidence was not ineffective
State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)
B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.
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.
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.
State v. Stanley J. Maday, Jr., 2015AP366-CR, petition for review granted 2/11/16
Review of a per curiam court of appeals decision; case activity (including briefs)
Issue (copied from the State’s petition for review):
No witness, expert or otherwise, may give an opinion at a trial that another mentally and physically competent witness is telling the truth. Here, the social worker who interviewed a child regarding her claim that she had been sexually assaulted testified that there was no indication that the child had been coached and no indication that the child was not being honest during the interview. Did the social worker’s testimony constitute a prohibited opinion that, during this interview, the child was telling the truth?