On Point blog, page 6 of 12
Testing the EDTA evidence in Steven Avery’s case
Some interesting posts on this subject have popped up around the blogosphere. In this “introductory post” on EDTA testing, evidence professor Colin Miller explains the flaw in the State’s contention that the FBI’s EDTA testing proved that the blood in Halbach’s car did not come from the tube of Avery’s blood that someone tampered with. And in this post, he discusses cases addressing the admissibility (or inadmissibility) of EDTA testing.
Erroneous exclusion of expert testimony about false confession merits new trial
United States v. Antonio West, 7th Circuit Court of Appeals Case No. 14-2514, 12/30/15
The trial court erroneously excluded expert evidence that West sought to admit regarding factors that made him susceptible to making an unreliable confession to a crime.
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
Officer’s testimony regarding HGN test is lay, not expert, opinion
State v. Joseph J. VanMeter, 2014AP1852-CR, 11/24/15, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Following the footsteps of State v. Warren, No. 2012AP1727-CR, unpublished slip op. (WI App Jan. 16, 2013), the court of appeals holds that an officer’s testimony about how a defendant performed on an HGN test is not subject to the Daubert test for the admissibility of expert testimony.
Evidentiary challenges spurned; ERP/CIP ineligibility upheld
State v. Tiron Justin Grant, 2014AP2965-CR, District 1, 11/24/2015 (not recommended for publication); case activity (including briefs)
The court serially takes up and rejects each of Grant’s challenges to his conviction, at trial, of possessing cocaine with intent to deliver, as well as the sentencing court’s denial of ERP/SAP and CIP eligibility.
SCOW grants review of Daubert issue in civil case
Seifert v. Balink, 2015 WI App 59, petition for review granted 11/4/15; affirmed, 2017 WI 2; case activity (including briefs)
While this case involves a medical malpractice claim rather than an issue of criminal law, On Point thought it worth noting because it will be the first time the Wisconsin Supreme Court will address the admissibility of expert opinion evidence since § 907.02(1) was revamped to adopt Federal Rule of Evidence 702 and, by extension, the interpretation of FRE 702 by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Court of appeals rejects multiple challenges to conviction for failure to pay child support
State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)
Phillips challenges his conviction for failing to pay child support because: (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing. The court of appeals rejects all of Phillips’s claims.
Circuit court’s Ch. 51 decision appropriately relied upon expert report that was based upon hearsay
Walworth County DHS v. M.M.L., 2014AP2845, 7/15/15, District 2 (one-judge opinion, ineligible for publication); case activity (including briefs)
The court of appeals affirms the involuntary commitment for M.M.L. under § 51.20(1)(a)2.c., which requires evidence of impaired judgment based on recent acts or omissions showing a substantial probability that she would physically impair or injure herself or others. It rejects her challenges to the sufficiency of evidence and the testifying examiner’s references to hearsay he relied on when forming his opinion.
Circuit court erred in telling jurors they would decide if witness was qualified as expert, but error was harmless
State v. Aaron Schaffhausen, 2014AP2370-CR, District 3, 7/14/15 (not recommended for publication); case activity (including briefs)
It was error for the circuit court to tell jurors at the mental-responsibility phase of Schaffhausen’s NGI trial that they would decide whether a defense psychiatrist and psychologist were qualified as expert witnesses, but the error was harmless. In addition, the circuit court did not misuse its discretion in denying the jury’s request during deliberations to provide it with the expert witnesses’ reports.
It doesn’t take an expert to make a map using cell phone tower data provided by phone company
State v. Lance Donelle Butler, Jr., 2014AP1769-CR, District 1, 6/9/15 (not recommended for publication); case activity (including briefs)
Using cell phone tower data provided by Butler’s cell phone service provider to make a map of where Butler had used his cell phone on the day of the crime didn’t require “scientific, technical, or other specialized knowledge” under § 907.02(1); thus, the police officers who created the map didn’t need to be qualified as experts under the statute and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).