Wednesday, April 27, 2011

Law Enforcement Experts in a Daubert Wisconsin

A recent Arson case has caused me to put a fair amount of thought into the future of police experts in Wisconsin. The case was filed before the effective date of Daubert in Wisconsin (February 2011) but the issues presented are important under either type of expert rule, i.e. a relevancy test or a Daubert test.

Say for example, an expert opines that the defendant started the fire. Or from a different case, the defendant was speeding causing the vehicular homicide. A detailed examination of the bases for the opinions reveals that a portion of each opinion is driven by a credibility determination made by the expert as some other witness. For example, the state fire marshal concludes that the defendant has lied about being present at the scene when the fire commenced, or the accident reconstruction expert has been told by a witness that they observed the defendant speeding a half mile up the road from the accident. In essence, a portion of the expert's ultimate opinion is a result of a credibility determination, which is clearly an inadmissible conclusion per State v. Haseltine, 120 Wis.2d 98 (Ct. App. 1984). However, 907.03 explicitly states:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

But wait a minute, just how poisoned are the ultimate conclusions(fire set by defendant, accidnet caused by defendant speeding) by this inadmissible evidence? Does the new 907.02 (or did the old?--I would argue it did) act as roadblock to allowing introduction of this expert's opinion because the well has been poisoned?

The Federal Advisory Committee had a inkling of this problem when the amendments to 702 were implemented in 2000. They wrote as follows:

"There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert's testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast, the ''reasonable reliance'' requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient basis of information - whether admissible information or not - is governed by the requirements of Rule 702."

In other words, just because there is compliance with 907.03, doesn't mean automatic admissibility of the ultimate conclusion by the expert as to causation. As always it is time for advocacy.