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SCOW to review need for state to have an expert on risk in ch. 980 trials

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity


  1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
  2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?

As explained in our post on the court of appeals decision, the court of appeals rejected Stephenson’s argument that, to prove a person meets the risk standard under ch. 980, the state must have an expert witness who says the person meets the standard. Stephenson’s argument is premised on the case law addressing the constitutionality of commitment schemes like ch. 980, which holds that the “dangerousness” justifying commitment must flow from a person’s mental disorder, and argues that only an expert can testify whether that requirement is met. Obviously, then, the supreme court’s decision will be important to the conduct of ch. 980 trials, whether on an original petition to commit or a petition for discharge.

And it may have an impact beyond ch. 980 cases. Stephenson also relied on the rule that, in certain circumstances (e.g., medical malpractice), expert testimony is required in order for a party to prove its case because the matter to be proven is not within the realm of “ordinary experience and lay comprehension” because it involves “special knowledge, skill, or experience on subjects not within the ordinary experience of mankind.” See, e.g., Kujawski v. Arbor View Health Care Center, 139 Wis. 2d 455, 463, 407 N.W.2d 249 (1987). Thus, the supreme court’s decision may also have something to say about the scope of that rule.

Stephenson added a second issue in his petition regarding the standard of review for whether there was sufficient evidence to deny discharge in a ch. 980 case. The current standard is the same one used in criminal cases. It asks whether the evidence, when viewed most favorably to the state and the commitment, is so insufficient in probative value and force that no trier of fact, acting reasonably, could have found by clear and convincing evidence that the person is dangerous to others as defined in element three. State v. Curiel, 227 Wis. 2d 389, 418, 597 N.W.2d 697 (1999); State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). Curiel rejected the respondent’s argument for a mixed standard of review (with questions of fact being reviewed under the clearly erroneous standard, and the question of whether the facts met the statutory standard being reviewed independently, as a question of law) primarily because of the similarity between ch. 980 and criminal cases.

Stephenson points out that the two proceedings aren’t so similar anymore, that the mixed standard of review is used in reviewing analogous proceedings (ch. 51 extensions, Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783; protective placements, K.N.K. v. Buhler, 139 Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987); revocation of conditional release and commitment to an institution under § 971.17, State v. Jefferson, 163 Wis. 2d 332, 338, 471 N.W.2d 274 (Ct. App. 1991)), and that the due process concerns about commitment under ch. 980 make the sufficiency issue a question of constitutional fact that is best assessed with the mixed standard of review. While this is first and foremost a technical question limited to ch. 980 appellate practice, the court’s discussion of the issue could have implications for the standard of review in cases involving other kinds of civil commitment for treatment.

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