Issues (composed by On Point)
Does the filing of a petition for discharge or supervised release under ch. 980 after the effective date of the adoption of 2011 Wisconsin Act 2 “commence” an action or proceeding such that the Daubert standard for expert witness testimony applies to the discharge or supervised release proceeding?
If the filing of a discharge or supervised release petition after the effective date of Act 2 does not commence a new proceeding, does it violate due process or equal protection to refuse to apply the Daubert standard to the proceedings on those petitions?
The decisions in these cases will obviously be important to anyone handling post-commitment proceedings in ch. 980 cases where the original commitment petition was filed before February 1, 2011, the effective date of the adoption of the Daubert standard by 2011 Wisconsin Act 2. That’s because in these two cases the court of appeals held that the Daubert standard for expert testimony does not apply to any proceedings in a ch. 980 case if the original petition for commitment was filed before February 1, 2011. The court also held there were no due process or equal protection problems in applying one evidentiary standard to cases in which the original petition was filed before that date and a different evidentiary standard to cases filed after that date. For more detailed explanations and critiques of the court of appeals’ reasoning, see our posts on the decisions. Alger is here; Knipfer, here.