Wednesday, February 16, 2011

Daubert in Wisconsin -- Seismic or Subtle?

By John DiMotto
Over the past 16 days since, since the Daubert Rule took effect in Wisconsin, I have had numerous conversations with my colleagues about whether this evidentiary rule change will be seismic or subtle. Based on those conversations and my review of statutes and case law, I have come to the "preliminary opinion/conclusion" that it will be subtle because of the considerable overlap between concepts of relevancy and reliability. Let me explain.
Black's Law Dictionary, 5th Edition, defines relevancy as follows:
"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. Two facts are said to be relevant to each other when so related that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."
"Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue."
"Relevancy of evidence refers to its probative value in relation to the purpose for which it is offered. ... Term describes the logical relationship between a proffered item of evidence and a proposition that is material or provable in a given case."
Black's Law Dictionary, 5th Edition, defines reliable as follows:
"Trustworthy, worthy of confidence."
I believe that these two definitions must be read together and, if done, the reader will arrive at the inescapable conclusion that to be "relevant" the evidence in question must, in some measure, be "reliable." How can evidence be "probative", that is, "have the effect of proof" or the ability to "prove a fact or hypothesis" unless it has reliability?
I believe that an examination of Wisconsin statutory and case law reinforces my opinion/conclusion/proposition that to be relevant, evidence must have reliability.
The Wisconsin Rules of Evidence address "relevant evidence" in 904.01 The definition is in accord with the definition of relevancy in Black's Law Dictionary. It sets forth:
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
If evidence is to have "any" tendency to make something "more" or "less" probable, doesn't the evidence to have some indicia of reliability?
In State v. Payano, 320 Wis.2d 348 (2009), the Wisconsin Supreme Court reiterated that relevance has two components:
1) The evidence must go to a consequential proposition and,
2) The evidence must make the consequential proposition more probable or less probable.
If the evidence can make the consequential proposition more or less probable, doesn't it stand to reason that it must be reliable?
In State v. Ross, 260 Wis.2d 291 (Ct. App. 2003), the Court of Appeals, in addressing the concept of relevancy stated:
"In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case."
In order for the evidence to make the logical or rational connection, doesn't it stand to reason that it must be reliable?
In Winnebago County v. Harold W., 215 Wis.2d 521 (Ct. App. 1997), the Court of Appeals, in addressing relevancy stated:
"Relevancy is an elastic concept which must be assessed in light of the nature of the proceedings."
Doesn't this definition imply the need for the evidence to have some reliability? And, if it does, then shouldn't it be admitted and let the trier of fact give it such weight as it deems the evidence is entitled to receive?
Finally, I believe that a re-reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), supports my opinion/conclusion/proposition.
1) SCOTUS stepped back from the rigid "general acceptance" rule of Frye.
a) The drafting history of Rule 702 makes no mention of Frye and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the tradition barriers to 'opinion' testimony.
2) SCOTUS held that the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issue.
However, and most significantly,
3) SCOTUS made it clear that:
a) This is a flexible inquiry;
b) Rule 702 will not create a "free for all"; and,
c) [1] Vigorous cross examination, [2] presentation of contrary evidence and [3] careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.
I believe that SCOTUS intended to make the introduction of expert testimony easier.
I believe that the thrust of Daubert is that SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.
I believe that while the Wisconsin Walstad Relevancy Rule is more liberal than the Daubert Reliability Rule, that the differences are not very great and that Daubert will not dramatically change the landscape when it comes to the introduction of expert testimony.
In terms of the necessity for and extent of 901.04 (1) hearings, I believe that trial judges need not "re-invent the wheel" when it comes to the qualifications of the expert and the expert principle at issue. If the expert and/or the principle have previously been litigated, I believe that the trial court can rely on "past precedent." For example, I do not think any judge need conduct an extensive hearing as to whether DNA evidence will be admissible. I believe that the reliability of DNA evidence has been decided. With respect to other areas there may be a need for 901.04(1) hearings. However, the trial judge must be mindful that, based on the strong language in Daubert, the threshold for admissibility is a low one. Trial judges must always remember that, for the most part, "weight of evidence" is left to the sound decision of the trier of fact.
Seismic or subtle?
I say subtle.


  1. In your professional opinion, is a circuit court judge required to conduct a Daubert hearing every time an expert testifies?

    You had blogged that "[a]bsent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted."

    The following handout takes the position that the Daubert hearing must be triggered by motion.,%20Montreal%20July%202001.pdf

    That handout takes the position that the trial court has the discretion both to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted(i.e. CH. 51 Commitment hearing where the experts are appointed by the court), and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.

    Any insight would be much appreciated!

  2. I do not believe that a Daubert hearing is required every time an expert testifies. First, there may be instances where a judge has previously conducted a hearing with respect to the prinicple and expert and found the testimony to be admissible. I do not think a judge must "reinvent the wheel." Second, a judge does have discretion as to how he/she wants to proceed. A judge could "take a chance" and say that the Daubert hearing will be made when the testimony is offered at trial. Third, a judge could ask for an offer of proof. Fourth, a judge could handle it via summary judgment. Fifth, while a Daubert hearing should be triggered by motion, I take the position that a judge should confront the issue head on lest it create an appellate issue. Particularly in a criminal case, I would want to head off a claim of Ineffective Assistance of Counsel."