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Expert on child victim reporting behaviors met Daubert standard

State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)

The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).

The ten-year-old who accused Zamora of sexually assaulting her delayed reporting the incident and then recanted; however, she later reaffirmed her allegation and said her delayed reporting and recantation were due to her being afraid. (¶¶2-3). To explain the delayed reporting and recantation to the jury, the state proposed calling Julianne McGuire, a social worker, as an expert to testify about the common reporting behaviors of child victims of sexual abuse, including delayed reporting and recantation. (¶4). The circuit court held the expert satisfied § 907.02(1), based in part on taking judicial notice of transcripts from other cases in the county’s circuit in which that the expert had been permitted to testify as an expert. (¶¶6-7).

Likening this case to State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, the court rejects the claim there was insufficient evidence about the expert’s qualifications:

¶14     In this case, before the Daubert hearing, the State had provided the circuit court and counsel with McGuire’s summary of expected testimony and CV. There was and is no dispute as to the CV’s veracity. It shows that McGuire attained a master’s degree in social work, has been certified by the State of Wisconsin as an Advanced Practice Social Worker, and has worked for fifteen years as a forensic interviewer for the Child Advocacy Center, Children’s Hospital of Wisconsin-Kenosha. The CV also lists over seventy training sessions and conferences generally pertaining to social work, abuse of children, and forensic interviewing. She has affiliations with the American Professional Society on the Abuse of Children and the Wisconsin Professional Society on the Abuse of Children.

¶15     In addition, the State represented to the court that McGuire was the “preeminent authority” in the county regarding the common behaviors of child victims of sexual abuse and that, in the many times that she has testified, the State was unaware of any court rejecting her as an expert under Daubert. Zamora did not challenge any of these representations at the hearing, nor does he challenge them on appeal….

According to the court, Zamora’s specific objection to the witness in the circuit court was that “there was no evidence that she has been peer reviewed with regard to how often children are truthful and how often they recant.” (¶18). But the Daubert standard is nothing if not “flexible”—or more aptly, it’s an “evidentiary porridge,” Seifert v. Balink, 2017 WI 2, ¶54, 372 Wis. 2d 525, 888 N.W.2d 816 (quoting Daniel D. Blinka, The Daubert Standard in Wisconsin: A Primer, Wis. Lawyer, Mar. 2011, at 19)—so “lack of peer review on a narrow issue (if peer review was even possible) does not outweigh the impressive credentials and experience of the witness.” (¶19). See also Smith, 366 Wis. 2d 613, ¶9 (social worker’s testimony regarding common reporting behaviors of child victims did not “neatly fit” the Daubert factors; but other factors established the reliability of the testimony, particularly the extensive experience of the witness).

Zamora also complains about the circuit court taking judicial notice of the transcribed decisions of other circuit court judges, but this complaint is forfeited because he didn’t object in the circuit court. (¶¶20-23). Also forfeited is his claim that rather than talking about common behaviors of child victims in general, the expert’s testimony was focused almost entirely on the credibility of the victim in this case, in violation of State v. Haseltine, 120 Wis. 2d 92, 96, 342 N.W.2d 673 (Ct. App. 1984). Zamora didn’t raise this issue at the Daubert hearing or object to the expert’s testimony at trial. Further, the court says, the expert did testify only about common behaviors, and not about this case specifically. (¶25).

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