On Point blog, page 9 of 12
SVP – Sexually Motivated Offense; Admissibility, No-Contest Plea; Expert Opinion – Reliance on Hearsay
State v. Albert M. Virsnieks, 2010AP1967, District 2 / 1, 6/21/11
court of appeals decision (not recommended for publication); pro se; case activity
Virsnieks’ plea-based conviction for burglary supported ch. 980 commitment.
¶35 A Wis. Stat. ch. 980 petition must allege, among other things, that a “person has been convicted of a sexually violent offense.”[5] Wis. Stat. § 980.02(2)(a)1. A “[s]exually violent offense” is defined,
2011 Wis Act 2 (Daubert)
Join Mr. Badger in Welcoming Daubert to the Badger State
2011 Wis Act 2 (Senate Bill 1, Special Session Jan. 2011) brings Wisconsin into line with FRE 702 (“Daubert” rule). The Act was signed into law 1/27, but won’t take effect until published (which will be no later than 2/10). A potential sea change in expert witness admissibility is in the offing; see, e.g., State v.
State v. Gregg B. Kandutsch, No. 2009AP1351-CR, review granted 1/11/11
decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity
Issues (formulated by On Point):
Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.
Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.
Kandutsch, while under electronic monitoring,
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Pre-“Daubert” Expert-Opinion Caselaw
Caselaw prior to amendments to §§ 907.01-.03 may be found: here. These sections were amended by 2011 Wis Act 2 (eff. date 2/1/11), as follows:
907.01 Opinion testimony by lay witnesses. (intro.) If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally all of the following:
(1) Rationally based on the perception of the witness and helpful.
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2); Comment on Truthfulness; Self-Incrimination – Waiver – Examination by Expert
State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally
¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection.
State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska
Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10. Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis.
Opinion & Expert Testimony – “Death Scene” Analysis
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue: Whether “death scene” analysis from an FBI agent was admissible to establish cause of simultaneous death of two elderly individuals found dead in their home.
Holding:
¶25 The general field of crime scene analysis has been recognized as being a body of specialized knowledge. United State v.