Join Mr. Badger in Welcoming Daubert to the Badger State
2011 Wis Act 2 (Senate Bill 1, Special Session Jan. 2011) brings Wisconsin into line with FRE 702 (“Daubert” rule). The Act was signed into law 1/27, but won’t take effect until published (which will be no later than 2/10). A potential sea change in expert witness admissibility is in the offing; see, e.g., State v. Christopher D. Jones, 2010 WI App 133, discussing the limited judicial “gatekeeping” function under the pre-Daubert regime.
Under current law, if scientific, technical, or other specialized knowledge will assist the trier of fact (the judge or the jury) to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify regarding that knowledge in the form of an opinion or otherwise. [s. 907.02, Stats.]
Under the bill, an expert may testify, as described above, if all of the following are true:
1. The testimony is based upon sufficient facts or data.
2. The testimony is the product of reliable principles and methods.
3. The witness has applied the principles and methods reliably to the facts of the case.
Senate Amendment 1 deletes “all of the following are true” from the above provision and instead provides that an expert may testify if the three conditions are met. This language is identical to the language of Rule 702 of the Federal Rules of Evidence.
Under current law, if a witness is not testifying as an expert, the witness’s testimony is limited to those opinions that are rationally based on the perception of the witness and helpful to a clear understanding of the witness’s testimony or of a fact at issue in the case. This bill adds the additional limit that a nonexpert’s testimony may not be based on scientific, technical, or other specialized knowledge of the witness.
Current law allows the testimony of an expert witness if that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue in the case. This bill limits the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principles and methods, and that is based on the witness applying those principles and methods to the facts of the case. The bill also prohibits the testimony of an expert witness who is entitled to receive any compensation contingent on the outcome of the case.
Currently, the facts or data in a particular case on which an expert witness bases his or her opinion may be made known to the expert at or before the case hearing, but if those facts or data are reasonably relied upon by experts in the field in forming opinions about the subject, they do not need to be admissible into evidence in the case. This bill adds that facts or data that are otherwise inadmissible may not be disclosed to the jury unless the court determines that their value in assisting the jury to evaluate the expert’s testimony outweighs their prejudicial effect.
For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.
“Daubert on the Web” was a very useful resource, unfortunately no longer updated, but it may still provide a handy introduction.