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State v. Anthony Jones, 2015AP2665, petition for review granted 9/11/2017

Review of a summary order of the court of appeals; case activity (including briefs)

Issues (from the petition for review):

Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?

Last term, in Seifert v. Balink, the supreme court for the first time addressed the amended Wis. Stat. § 907.02(1), which adopted the Daubert standard for expert testimony in Wisconsin courts. As our post on the case noted, the result was a 2-1-2-2 split decision. One area of agreement, though, was that the case dealt only with testimony of medical experts, and specifically doctors. So this case will be the first time our supreme court addresses the new(ish) standard outside the medical context. The specific actuarial instruments at issue will be known to ch. 980 petitioners as some of the very first ones developed–part of Jones’s challenge is that the passage of time and advances in the study of recidivism have rendered them so outdated as to be unreliable. As we’ve noted, there are exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert; we’ll see whether this is the case where our state’s new evidentiary standard finally shows some of those alleged “teeth.”

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