Saturday, December 12, 2020

A Decade of Daubert in Wisconsin: State 134, Defense 0

Knightly can't believe the numbers
(Photo by Amy Kushner)
Knightly and I haven’t been posting much as we’ve been hard at work on a new article, The Daubert Double Standard.  I’ll be submitting it in late January to the law reviews for publication, but here’s a sneak peek.

About a decade ago in 2010, Wisconsin lawyers learned that our state would soon be switching to the Daubert reliability standard for the admissibility of expert testimony at trial.  In criminal cases, the prosecutor (not the defense lawyer) uses the vast majority of expert witnesses, so this change from mere relevance to the more stringent reliability was supposed to benefit the defense.  It was supposed to end the prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.

Despite what was supposed to happen, many of us in the criminal defense bar knew better.  In 2010, I complained aloud to anyone that would listen that this new, more stringent Daubert reliability standard would not limit the prosecutor’s use of “experts” in any way; it would only make it more difficult for defendants to use their own, legitimate experts at trial.

Now that nearly a full decade has passed, what happened?

In the article, I identify all 68 cases that have reached the appellate courts on a Daubert issue since Wisconsin adopted the standard.  These 68 cases consist of 134 decisions across all levels of the court system: trial courts, appellate courts, and SCOW.  Even I couldn’t have predicted this back in 2010: in all cases that have been appealed on a Daubert issue, the state is 134-0.  In other words, regardless of the type of case, the type of expert, the party calling the expert, and the procedural posture of the case, no defendant has ever won a Daubert decision at any level of the court system.

Now, as I discuss in the article, there are some inherent limitations in analyzing only cases that reach the appellate court.  (This was the only option, though, as state trial court decisions are not reported unless they get appealed.)  But the question remains: How can a standard that was supposed to benefit the defense produce a record where the state never loses?

In the article I answer that question.  (Short answer: courts have developed or adapted a total of eight different double standards to permit the state’s expert to testify and reject the defendants’ expert testimony.)  I also discuss some legal reforms that our legislature should implement immediately.  And because legal reform happens, if at all, at a glacial pace, I also provide some ideas and a sample motion for defense counsel to litigate Daubert issues at the trial court level.

I expect to post the pre-publication draft of the article somewhere around late February or early March, so stay tuned!  In the meantime, enjoy my other recently published and forthcoming articles, all available on the articles page of my website:

  1. Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Houston L. Rev. Off Rec. 1 (2020)
  2. Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. __ (2020)
  3. Deal Jumpers, 2021 U. Illinois L. Rev. __ (2021)
  4. A Clean Record as Character Evidence, 90 Mississippi L.J. __ (2021)
  5. The New Absurdity Doctrine, 125 Penn State L. Rev. __ (2021)

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