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SCOW: expert testimony needn’t meet Daubert if it’s not “opinion,” Miranda violation was harmless

State v. Timothy E. Dobbs, 2020 WI 64, 7/3/20, affirming an unpublished per curiam court of appeals opinion, 2018AP319; case activity (including briefs)

There’s really only one important holding here: despite adoption of the Daubert standard, Wisconsin continues to permit expert testimony in the form of “dissertation or exposition.” That is, an expert can educate the jury about the principles or findings of his or her field without talking about the facts of the case, and an expert who does so is not subject to the requirement that he or she “appl[y] the principles and methods” of that field “reliably to the facts of the case.” Though the court also decides a separate Miranda issue, the discussion is fact-intensive and breaks no legal ground. What’s notable (and regrettable) about the Miranda decision is a meandering three-justice concurrence that repeats the court’s error in State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, by grafting a third step onto the familiar two-part Miranda-custody inquiry.

The Daubert dispute springs from the familiar language of the statute (and many similar ones nationwide). If certain criteria are met, the statute permits an expert to testify

in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

Wis. Stat. § 907.02(1).

Going to spoil things here and just say that it’s obvious, as a linguistic matter, that the conditions following the “if” can’t qualify “in the form of an opinion” but not “or otherwise.” It’s still less plausible to claim that of the three conditions, the first two apply to both “opinion” and “otherwise,” but the final one–“the witness has applied the principles and methods reliably to the facts of the case”–applies only to “opinion,” not “otherwise.” Can’t be done, in English!

But, various authorities have assured us over the years that the Daubert formulation is not meant to exclude “exposition” testimony even though, logically, it can’t involve applying expertise “reliably to the facts of the case” since by definition it doesn’t concern the facts of the case at all. Relying on these authorities, and arguing that a contrary result would render the phrase “or otherwise” surplusage, the majority says this exposition testimony is still allowed. If, in your mind, this result will “alienate the people from their law just a smidgen more,” even if it fails to send “tremors … through our republic,” you are not alone, and you may wish to read the concurrence. For the practitioner, though, the takeaway here is “expert exposition testimony is OK.”

But not all exposition testimony. Even the most unassailably reliable scientific or technical evidence still has to have some logical connection to the facts of the case and the issues before the jury. The term of art is “fit.” And, all the justices agree, Dobbs’s proffered expert testimony didn’t fit the case. Dobbs wanted to call an expert on false confessions to testify generally about the sorts of things that tend to lead to false confessions: lengthy interrogations, various Reid techniques, and the like. Dobbs’s problem is that most of the factors the expert would have talked about weren’t present for his confession. And even if one or two factors were present, the majority says, the “erroneous exercise of discretion” standard of review is forgiving enough to accommodate the trial court’s conclusion that the “fit” wasn’t there.

Now, Miranda. An officer seized Dobbs on suspicion of having jumped a curb and killed a pedestrian. There was reason to think he was intoxicated. Dobbs was handcuffed, placed in the back of a squad car, and questioned. He noted to the officer that he figured he was going to jail; the officer didn’t respond. This all went on for an hour or so before Dobbs was given FSTs and then taken to the hospital for a blood draw. The majority has no problem looking at all these (and additional) facts and concluding that Dobbs was in “custody” such that the Miranda protections kicked in, and the officer shouldn’t have interrogated Dobbs without giving the warnings. (¶¶61-67). Perhaps it helped that the state, quite reasonably, conceded as much. But, the majority says, this violation was harmless, because Dobbs gave similarly (or more) incriminating statements several times, unprompted, afterward to various people. (¶¶69-70).

This is where things get weird. The majority opinion goes to some length to belabor an obvious proposition: that the inquiry about Miranda “custody” is a different one from the Fourth-Amendment questions about “seizures”–that is, whether a person has been subjected to a Terry stop or an arrest. It’s clearly a response to the concurrence, but the concurrence’s point is … opaque. For one thing, the concurrence seems to think the distinction or relationship between the two types of analysis is dividing courts nationwide. It’s not. The cited passages of this nationwide “split” are entirely consistent with each other. (¶¶99-100). Also, this discussion is really beside the point–nobody’s saying a Terry stop = Miranda custody. It’s an odd passage that would be at home (if still wrong) in a petition for certiorari, but doesn’t make a lot of sense here.

Things get more troubling as the concurrence goes on to claim that Miranda custody requires more than either (1) a formal arrest or, absent that, (2) restraint on freedom of action to a “degree associated with a formal arrest.” It would add to these tests a requirement that “the relevant environment present[ed] . . . inherently coercive pressures.” This is a misreading of Howes v. Fields, 565 U.S. 499 (2012). That case involved the questioning of someone who was already in prison–that is, a person who would always have his or her freedom “restrained” as that term is used in Miranda. For such a person, the Court said, this didn’t amount to “custody”; there would have to be “inherently coercive pressures” in the interrogation’s “environment.” The Court didn’t say that this requirement applies to everyone. If you’re formally (or, under the second prong, “informally”) arrested and then interrogated, Miranda applies. Here’s hoping SCOW takes the next opportunity to withdraw the ill-considered Bartelt language saying otherwise.

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