State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke
Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.
¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. The representation must fall below an objective standard of reasonableness as measured against prevailing professional norms. Id. at 688. The State argues that Van Buren’s counsel could not be ineffective because there are no published Wisconsin cases stating that expert testimony on false confessions is admissible, and the authorities in other states are split. Because a criminal defense attorney “is not required to object and argue a point of law that is unsettled,” State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), the State argues, failing to adduce expert testimony when that testimony’s admissibility is not firmly established can never be ineffective assistance of counsel.
¶19 Van Buren responds that even if there is no Wisconsin holding squarely allowing false-confession expert testimony at trial, the cases disallowing it come from jurisdictions that adhere to the much more restrictive Daubert  standard for scientific evidence. He argues that the evidence should and would come in under Wisconsin’s lower standard. See City of West Bend v. Wilkens, 2005 WI App 36, ¶¶23-24, 278 Wis. 2d 643, 693 N.W.2d 324. However, we must keep in mind that this is an ineffective assistance claim. The issue is not whether the evidence could have come in, but whether Van Buren’s counsel, by not offering it, fell below an objective standard of reasonableness as measured against prevailing professional norms. Strickland, 466 U.S. at 688. Even if Van Buren is correct and false-confession expert testimony should be admitted, the published and unpublished cases contain only one instance of its introduction at a trial in Wisconsin, nearly fifty years ago.  Given this fact, we could not hold that the failure to introduce such testimony falls below “prevailing professional norms.”
The State increasingly says: The asserted deficiency involved a strategy too novel to hold counsel accountable for overlooking; to which the court says: You betcha! E.g., State v. John R. Maloney, 2005 WI 74, ¶¶23-30 (“In State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W.2d 811, the court of appeals recognized that ‘counsel is not required to argue a point of law that is unclear.’ … Given the unclear and unsettled nature of SCR 20:4.2’s applicability in Wisconsin to the pre-charging criminal investigative setting, we conclude that trial counsel’s failure to challenge the admissibility of the videotape evidence on this ground did not constitute deficient performance.”); State v. Jennifer Wery, 2007 WI App 169, ¶17 (“Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial.”)
Once might be an outlier, but two or more instances of such behavior establish, as courts like to say in the § 904.04 context, a pattern of conduct. Which is to say, a worrisome and undoubtedly recurrent development, if not in the abstract then at least when applied to contexts such as this one. Consider: no one claimed here that the expert testimony would have been inadmissible, just that there’s a deficit of published appellate discussion on expert testimony and false confessions. So what? Perhaps the absence of appellate litigation illustrates not the issue’s novelty but its very acceptance at the trial court level. Perhaps, in other words, this type of evidence readily comes in, obviating the need for appellate litigation. A perfectly reasonable assumption, especially in light of Van Buren’s altogether correct observation that Wisconsin isn’t even a Daubert state, that we freely admit expert testimony that might not be admissible elsewhere. And that leads to a subsidiary point, implicit if not explicit in Van Buren’s argument: you start with an assumption of admissibility and work backward from there. The question isn’t whether there was a horribly complex admissibility problem—clearly, there wasn’t—but simply whether reasonably proficient defense counsel would have perceived a need to attack the confession as false; and it is precisely that elementary question that the court now unconvincingly sidesteps.
Federal habeas practitioners may recognize the subtle absorption of an AEDPA-type limitation: unless you can point to exactly controlling precedent, you can’t even engage in a process of review. And without the benefit of statutorily-imposed limitations, or straitened review under notions of comity or collateral attack. In any event, the answer might be to put on expert attorney testimony to establish that, notwithstanding precisely binding case law, the normally prudent practitioner would have performed differently. In any event, if your claimed deficiency involves something even arguably novel you’re going to have to anticipate this issue as part of your postconviction strategy.