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Expert Testimony – Opinion as to Issue of Domestic Law

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

Issue: Whether the circuit court erroneously admitted an attorney’s expert opinion testimony that LaCount had engaged in a securities transaction.


¶19 As noted previously, appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court’s decision to admit expert testimony. We are satisfied that the circuit court did not erroneously exercise its discretion in admitting Cohen’s testimony, because the circuit court’s decision rested on a reasonable basis and was in accordance with both accepted legal standards and the facts in the record. Cohen’s testimony was the type of expert testimony that was envisioned by Wis. Stat. § 907.02, because it encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented at LaCount’s trial. Such testimony also could assist the jury in determining a fact in issue in the case, here, whether LaCount’s transaction with Wills involved a security.

The general rule is that “no witness may testify as an expert on issues of domestic law,”  State v. Derryle S. McDowell, 2003 WI App 168, ¶62 n. 20,  affirmed,  2004 WI 70. (The court of appeals, unlike the supreme court, acknowledged the general rule but declined to reach the merits under a harmless error analysis, 2007 WI App 116, ¶¶15-17.) How does this case square with the general rule? You decide:

¶22 We are further satisfied that Cohen did not impermissibly testify on a legal issue, contrary to LaCount’s claim that Cohen improperly testified on the definition of an investment contract. Cohen did testify that the basic features of an investment contract were someone “handing over some money,” while “expecting the other person or some other person besides [themselves] to do something to generate a return for [them] on that money.”¶23 However, even if Cohen’s statement that a security covered basically everything “you can’t figure out” was overly broad, the jurors were properly instructed that they were not bound by any expert’s opinion, that they were the sole judges of the facts, and that the court was the sole judge of the law. Jurors are presumed to have followed jury instructions. See State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Cohen’s testimony was generally consistent with the jury instructions that were given and, thus, with Wisconsin law. Under such circumstances, “[w]e are unable to perceive any prejudicial error.” State v. DiMaggio, 49 Wis. 2d 565, 580, 182 N.W.2d 466 (1971). In that case, we emphasized the therapeutic effect of the circuit court’s correct instructions. size=3> Id. at 579-80.


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