State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:
¶10 First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial. During the course of that trial, the issue of whether Smalley was “more likely than not” to reoffend was a main point of contention, and there was a great deal of testimony on it. For example, another of the state’s witnesses, also a psychologist, testified that “more likely than not” means more than 50% chance of reoffense. ……
¶12 “More likely than not” is not an obscure or specialized term of art, but a commonly-used expression. It is hard to think of a clearer definition of the term than the term itself; though perhaps its expansion to “more likely to happen than not to happen” is more explicit. We find it difficult to imagine that any juror was without an understanding of the phrase’s meaning before, during or after the trial, or that any juror thought that the phrase meant something other than “more likely to happen than not to happen.” Given that Dr. Jurek is a psychologist with much experience related to Wis. Stat. ch. 980, a juror might have been willing to take his word on psychological testing, mental disorders, and the like. This does not mean, however, that the same juror would believe Dr. Jurek if he said that the phrase “more likely than not” means “any chance greater than zero” or “at all possible.” Everyone would readily agree that a person who buys a state lottery ticket has a chance greater than zero of winning the jackpot – that is, that winning the lottery, however unlikely, is possible. But no reasonable person would say that it is “more likely than not.” We simply cannot believe that Dr. Jurek’s ambiguous and confusing misstatement would convince a reasonable person to the contrary.