Monday, February 7, 2011

Daubert In Wisconsin -- Initial Applicability to Criminal and Civil Cases

By John DiMotto
2011 Wisconsin Act 2, which became effective on February 1, 2011, brought the Daubert "Reliability"Rule with respect to the introduction of expert evidence to Wisconsin, replacing the Walstad "Relevancy" Rule. A crucial question that the legislation has prompted is whether the Daubert Rule applies prospectively in all cases commenced on the effective date of the act or just civil cases. An attempt to answer this questions raises more questions.
Initial Applicability
Section 45 of the bill addresses the initial applicability of the various provisions in the bill. As it pertains to the Daubert Rule (907.01 - 907.03) the legislation reads as follows:
"Section 45(5) CIVIL ACTIONS. The treatment of ...907.03, the renumbering and amendment of sections 907.01 and 907.02 of the statutes, and the creation of sections 907.01(3) and 907.02(2) of the statutes first apply to actions or special proceedings that are commenced on the effective date of this subsection."
Is this a definitive statement that the Daubert Rule applies only to civil cases commenced after January 31, 2011, that is, prospectively, but that it applies to all criminal cases that is, "retroactively" as well as "prospectively" regardless of when they are commenced?
In order to seek out an answer to this question, it is necessary to look at statutory language and case law regarding construction of laws.
Statutory Construction
Chapter 990 is entitled "Construction of Statutes." 990.001(6) addresses statutory titles and history notes. It specifically states:
"The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes."
Does this means that the title to (5): "CIVIL ACTIONS" is not technically part of the statute and not to be given any weight? If it is not part of the law, does that mean that the Daubert Rule which applies to "actions and special proceedings" applies to criminal actions as well as civil actions which are commenced after January 31, 2011, that is "prospectively" and not "retroactively?"
Case Law
In Betthauser v. Medical Protective Co., 172 Wis.2d 141 (1992), the
Wisconsin Supreme Court referenced that:
"The general rule in Wisconsin is that legislation is presumptively prospective unless the statutory language clearly reveals either expressly or by necessary implication an intent that the statute apply retroactively."
In Steffen v. Little, 2 Wis.2d 350 (1957), the Wisconsin Supreme Court set forth that:
"While statutes in general are construed prospectively the rule is otherwise with statutes whose operation is procedural or remedial."
However, the Court also recognized that:
"it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment." see State ex rel. Schmidt v. District No. 2 (1941), 237 Wis.186.
Daubert Rule
Four more questions that are prompted by 990.001, Betthauser and Steffen are:
1) Does 990.001 evince an intent that the statute apply retroactively to criminal cases?
2) Is the Daubert Rule procedural or remedial?
3) Would retroactive application impair contracts or disturb vested rights?
4) Did the legislation intend to have a Rule apply differently with respect to civil cases vis a vis criminal cases?
These are questions that will undoubtedly be raised and which must be addressed by courts throughout Wisconsin in the coming months.


  1. Given the explicit historical rejection of the Daubert rule by the Wisconsin Supreme Court, I would assume that a retroactive application of Daubert would be most unlikely.
    Mark A. Frankel
    Reserve Judge

  2. As I see it, the question is not whether Daubert applies prospectively or retroactively. I don't see any possibility that it will apply to trials that took place before its effective date.

    Rather, the question is whether, given that Daubert is an issue of evidence at trial, it is rational to base its application on when an action is commenced. Why should it matter when the action was commenced, or when the cause of action arose, when the rule at issue applies only to what evidence is admissible at trial?

    For example. Two cases could arise on based on the same incident and ultimately may be tried on the same date. Yet, if we read Section 45(5) literally, Daubert would apply in one if it was filed after January 31, 2011 but not in the other if it was filed on January 29, 2011.

    It seems to me that this fails even the permissive rational basis test for equal protection and substantive due process.

    Robert Henak

  3. This is what happens when people who know nothing about the law make the law.

  4. I think Rob is correct, and that the Daubert rule applies to any pending criminal case, whether filed before or after January 31, 2011. "A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases..." Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Wisconsin has adopted the Griffith rule in State v. Koch, 175 Wis2d 684 (1993) and State v. Lagundoye, 2004 WI 4.

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