Wisconsin Adopts Daubert and Federal Rule 702

While the recent legislative activity ( passage of special session bill #1) caused a fair amount of controversy, a section of the bill specifically addressed a long time concern for criminal practitioners. Wisconsin amended its rule of evidence governing expert testimony (907.02) to come into conformity with Federal Rule 702, effectively adopting the Daubert standard. Due to an adherence to the relevancy standard since the decision in State v. Walstad, 119 Wis. 2d 483 (1984), Wisconsin trial courts have routinely admitted 'expert testimony' in criminal cases that I would characterize as 'junk science." Police or other law enforcement advocates would be qualified as experts and be allowed to describe the character traits of undefined third parties (defendants or complaining witnesses/victims) in other cases (undefined and undisclosed) they were involved in and opine that the present case was 'consistent' was those character traits. Simply put, they were allowed to opine that the facts of the present case fit the same pattern of other cases involving guilty defendants. Hopefully, the above change will encourage trial judges to exercise some independent judgment and scrutinize this type of testimony with some skepticism.

For those unfamiliar with the Federal Rule and its potential impact, a good case to read as a starting point is the 2nd Circuit's decision in U. S. v. Mejia, 545 F.3d 179 (2nd Cir. 2008). The court begins the decision with a survey of the development of officer expert testimony in the 1980s and court's generally favorable response to the same. It noted that courts had analogized the testimony of agents regarding gangs similar to that of anthropologists. Such an analogy is flawed because social science research is subjected to peer review, sometimes with a contrary viewpoint that examine the methodologies used. In sharp contrast, police experts are generally seeking information that will bolster the likelihood of conviction and their methodology and opinions are not objectively critiqued.

Bottom line is that this provides an opportunity for good counsel to do good work on behalf of one's client.

Jeff Fisher at it Again

Heads up....a petition for cert is pending in the case of Barbour v. State of Louisiana. Petitioner was convicted of attempted second degree murder by a less than unanimous jury. On behalf of the petitioner, Jeff Fisher seeks to have the court revisit its decision in Apocada v. Oregon, 406 U.S. 404 (1972) which held that state criminal convictions are not required by the U.S. Constitution to be unanimous. Jeff's petition simply states the issue as follows: "Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict." Jeff is joined by two powerful amici; the National Association of Criminal Defense Lawyers and the American Bar Association. It is time that this anomaly be corrected.

Jeff after you finish this issue, how about joining me in taking on the lack of a reasonable doubt instruction (and a prohibition on arguing its meaning) in the Seventh Circuit?