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Expert Witness – Conclusion as to Ultimate Fact

State v. Louis H. LaCount, 2007 WI App 116, affirmed, 2008 WI 59, ¶20
For LaCount: T. Christopher Kelly

Issue/Holding:

¶19      Under Wis. Stat. § 907.04, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See, e.g., State v. Elm, 201 Wis.  2d 452, 459, 549 N.W.2d 471 (Ct. App. 1996). An expert opinion on an ultimate fact is permissible in situations “[w]here evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case.” Rabata v. Dohner, 45 Wis. 2d 111, 123-24, 172 N.W.2d 409 (1969) (citation omitted).…

¶21      LaCount’s attorney made sure jurors understood Cohen was merely assuming facts in giving his opinion. … Therefore, Cohen was properly allowed to testify as to the basic factual characteristics of an investment contract. …

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