Daubert standard in Wisconsin

2026The court denied Fuller’s motion without a Daubert hearing, stating it would give Fuller “wide latitude in [his] cross-examination of the witness as to how they came to their conclusions and why.” At trial, the firearms and toolmarks expert testified that all seven casings and seven bullets she examined that were discovered at the scene or retrieved from Kathy’s gunshot wounds, were fired from the Makarov firearm that was retrieved by law enforcement. 4 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 4 No. 2023AP2256-CR ¶9 Sheila and Fuller’s cousins testified at trial.

2026The court denied Fuller’s motion without a Daubert hearing, stating it would give Fuller “wide latitude in [his] cross-examination of the witness as to how they came to their conclusions and why.” At trial, the firearms and toolmarks expert testified that all seven casings and seven bullets she examined that were discovered at the scene or retrieved from Kathy’s gunshot wounds, were fired from the Makarov firearm that was retrieved by law enforcement. 4 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 4 No. 2023AP2256-CR ¶9 Sheila and Fuller’s cousins testified at trial.

2018Kumho Tire emphasized that the application of the Daubert factors is a flexible inquiry: "[T]he law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire , 526 U.S. at 142 , 119 S. Ct. 1167 .

2018Kumho Tire emphasized that the application of the Daubert factors is a flexible inquiry: "[T]he law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire , 526 U.S. at 142 , 119 S. Ct. 1167 .

2026State v. Giese, 2014 WI App 92, ¶17 , 356 Wis. 2d 796 , 854 N.W.2d 687 . 2 No. 2024AP1105-CR excluded Frederick as an expert witness after determining that he was not qualified to critique the forensic interview and that his opinion was unreliable. ¶4 Wristen, a forensic nurse and sexual assault nurse examiner (SANE), would have offered her opinion about the sexual assault exam conducted on Nicola (the SANE exam), the quality of Nicola’s forensic interview, and the therapy that Nicola participated in after the forensic interview.3 The circuit court also held a Daubert hearing on the admissibil

2026State v. Giese, 2014 WI App 92, ¶17 , 356 Wis. 2d 796 , 854 N.W.2d 687 . 2 No. 2024AP1105-CR excluded Frederick as an expert witness after determining that he was not qualified to critique the forensic interview and that his opinion was unreliable. ¶4 Wristen, a forensic nurse and sexual assault nurse examiner (SANE), would have offered her opinion about the sexual assault exam conducted on Nicola (the SANE exam), the quality of Nicola’s forensic interview, and the therapy that Nicola participated in after the forensic interview.3 The circuit court also held a Daubert hearing on the admissibil

2022See Seifert v. Balink, 2017 WI 2, ¶¶62, 65 , 372 Wis. 2d 525 , 888 N.W.2d 816 (the trial court “may consider some, all, or none” of the Daubert factors to determine whether expert evidence is reliable). ¶23 The admission of expert testimony is within the discretion of the trial court, and that discretion is properly exercised “if it has a rational basis and was made in accordance with accepted legal standards in view of the facts in the record.” See State v. Smith, 2016 WI App 8, ¶4 , 366 Wis. 2d 613 , 874 N.W.2d 610 (citation omitted).

2022See Seifert v. Balink, 2017 WI 2, ¶¶62, 65 , 372 Wis. 2d 525 , 888 N.W.2d 816 (the trial court “may consider some, all, or none” of the Daubert factors to determine whether expert evidence is reliable). ¶23 The admission of expert testimony is within the discretion of the trial court, and that discretion is properly exercised “if it has a rational basis and was made in accordance with accepted legal standards in view of the facts in the record.” See State v. Smith, 2016 WI App 8, ¶4 , 366 Wis. 2d 613 , 874 N.W.2d 610 (citation omitted).

2024Thus, when evaluating counsel’s decision not to investigate, we avoid the “distorting effects of hindsight,” id. at 689 , and “assess the decision’s reasonableness in light of ‘all the circumstances,’ ‘applying a heavy measure of deference to counsel’s judgments,’” State v. Carter, 2010 WI 40, ¶23 , 324 Wis. 2d 640 , 782 N.W.2d 695 (citation omitted). ¶23 Given the information available to counsel at the time of Teasdale’s trial—namely, counsel’s general familiarity with the COV and PCW theories, counsel’s knowledge that the theories had been regularly accepted in Wisconsin courts, and counsel

2023The defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoted source omitted). ¶6 Wild first contends that trial counsel performed deficiently by failing to request a Daubert hearing to test the admissibility of expert testimony by the forensic interviewer who interviewed A.B.

2020See id. at 1109. ¶72 Because the Supreme Court of Colorado did not consider the canine evidence in Brooks to be sufficiently “scientific,” it declined to apply either the Daubert standard for admissibility or the more permissive “general acceptance” test of its predecessor, Frye v. United States, 293 F. 1013 (D.C.

2020See id. at 1109. ¶72 Because the Supreme Court of Colorado did not consider the canine evidence in Brooks to be sufficiently “scientific,” it declined to apply either the Daubert standard for admissibility or the more permissive “general acceptance” test of its predecessor, Frye v. United States, 293 F. 1013 (D.C.

2017The circuit court also determines whether the witness faithfully and properly applied the reliability principles and methodology to the facts of the case.48 46 Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S. at 152 ). 47 "[T]he law grants the district court great discretion regarding the manner in which it conducts that evaluation" of the admissibility of expert testimony. "[W]e have not required that the Daubert inquiry take any specific form . . . ." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009). 48 Blinka, supra note 5, at 19, 60 (citing Federal Rule Evidence 702 Advisor

2017The circuit court also determines whether the witness faithfully and properly applied the reliability principles and methodology to the facts of the case.48 46 Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S. at 152 ). 47 "[T]he law grants the district court great discretion regarding the manner in which it conducts that evaluation" of the admissibility of expert testimony. "[W]e have not required that the Daubert inquiry take any specific form . . . ." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009). 48 Blinka, supra note 5, at 19, 60 (citing Federal Rule Evidence 702 Advisor

2017See Joiner, 522 U.S. at 144-46 .

2017See Joiner, 522 U.S. at 144-46 .

2017Co., 397 F.3d 1183, 1196 (9th Cir. 2005).17 ¶60 Although the Daubert Court focused its discussion on scientific testimony, the Supreme Court later clarified that Daubert's inquiry applies not just to scientific evidence, but to all expert opinions, "whether the testimony reflects scientific, technical, or other specialized knowledge." Kumho Tire, 526 U.S. at 149 . ¶61 The reliability standard "entails a preliminary assessment of whether the reasoning or methodology is scientifically valid." Daubert, 509 U.S. at 592-93 .

2017Co., 397 F.3d 1183, 1196 (9th Cir. 2005).17 ¶60 Although the Daubert Court focused its discussion on scientific testimony, the Supreme Court later clarified that Daubert's inquiry applies not just to scientific evidence, but to all expert opinions, "whether the testimony reflects scientific, technical, or other specialized knowledge." Kumho Tire, 526 U.S. at 149 . ¶61 The reliability standard "entails a preliminary assessment of whether the reasoning or methodology is scientifically valid." Daubert, 509 U.S. at 592-93 .

2017Unlike in Wisconsin, where the Daubert standard heightened the level of scrutiny to apply to expert witnesses, in the federal system, Daubert loosened the standard for admission of expert testimony. ¶172 To begin with, while the federal rule, Rule 702, may "embod[y] a liberal standard of admissibility for expert opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005), it is liberal as compared to the standard it "superseded," namely the so-called Frye "'general acceptance' test," Daubert, 509 U.S. at 585-87 (named for Frye v. United 2 No. 2014AP195.akz States, 293 F. 1013 (D.C.

2017Unlike in Wisconsin, where the Daubert standard heightened the level of scrutiny to apply to expert witnesses, in the federal system, Daubert loosened the standard for admission of expert testimony. ¶172 To begin with, while the federal rule, Rule 702, may "embod[y] a liberal standard of admissibility for expert opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005), it is liberal as compared to the standard it "superseded," namely the so-called Frye "'general acceptance' test," Daubert, 509 U.S. at 585-87 (named for Frye v. United 2 No. 2014AP195.akz States, 293 F. 1013 (D.C.

2017See, e.g., Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must also, in keeping with its gatekeeper's duty, assess the reliability of the methodology the expert has employed in arriving at his opinion."). 3 No. 2014AP195 the principles and methods reliably to the facts of the case.5 These three aspects of the Daubert standard are often referred to as the "reliability standard." ¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was

2017See, e.g., Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must also, in keeping with its gatekeeper's duty, assess the reliability of the methodology the expert has employed in arriving at his opinion."). 3 No. 2014AP195 the principles and methods reliably to the facts of the case.5 These three aspects of the Daubert standard are often referred to as the "reliability standard." ¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was

2017See, e.g., Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must also, in keeping with its gatekeeper's duty, assess the reliability of the methodology the expert has employed in arriving at his opinion."). 3 No. 2014AP195 the principles and methods reliably to the facts of the case.5 These three aspects of the Daubert standard are often referred to as the "reliability standard." ¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was

2017See, e.g., Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must also, in keeping with its gatekeeper's duty, assess the reliability of the methodology the expert has employed in arriving at his opinion."). 3 No. 2014AP195 the principles and methods reliably to the facts of the case.5 These three aspects of the Daubert standard are often referred to as the "reliability standard." ¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was

2015In the present cases, that general rule is inapplicable because the legislature explained that the Daubert standard would "first apply to actions or special proceedings that are commenced on the effective date of this subsection." 2011 Wis. Act 2, § 45(5). 13 Nos. 2013AP225 & 2013AP578 rejects the notion that the pre-Daubert standard was so deficient that its continued application would be absurd. ¶26 We conclude that the Daubert evidentiary standard under Wis. Stat. § 907.02 (1) does not apply to expert testimony in Alger's and Knipfer's Chapter 980 discharge petition trials because their Cha

2015In the present cases, that general rule is inapplicable because the legislature explained that the Daubert standard would "first apply to actions or special proceedings that are commenced on the effective date of this subsection." 2011 Wis. Act 2, § 45(5). 13 Nos. 2013AP225 & 2013AP578 rejects the notion that the pre-Daubert standard was so deficient that its continued application would be absurd. ¶26 We conclude that the Daubert evidentiary standard under Wis. Stat. § 907.02 (1) does not apply to expert testimony in Alger's and Knipfer's Chapter 980 discharge petition trials because their Cha

2026According to McCulloch, although defense counsel objected to Harris’s testimony, and convinced the circuit court to hold a Daubert hearing, counsel should have challenged the testimony as exposition testimony under State v. Dobbs, 2020 WI 64, ¶43 , 392 Wis. 2d 505 , 27 No. 2024AP56-CR 945 N.W.2d 609 , rather than WIS.

2026According to McCulloch, although defense counsel objected to Harris’s testimony, and convinced the circuit court to hold a Daubert hearing, counsel should have challenged the testimony as exposition testimony under State v. Dobbs, 2020 WI 64, ¶43 , 392 Wis. 2d 505 , 27 No. 2024AP56-CR 945 N.W.2d 609 , rather than WIS.

2026State v. Hogan, 2021 WI App 24, ¶18 , 397 Wis. 2d 171 , 959 N.W.2d 658 . [E]mbodied in § 907.02(1) are three threshold requirements for admitting expert witness testimony: the witness must be qualified (“a witness qualified as an expert by knowledge, skill, experience, training, or education”); the witness’s testimony must be relevant (“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue”); and, per the 2011 amendment adopting the Daubert standard, the witness’s testimony must be reliable (“if the t

2026State v. Hogan, 2021 WI App 24, ¶18 , 397 Wis. 2d 171 , 959 N.W.2d 658 . [E]mbodied in § 907.02(1) are three threshold requirements for admitting expert witness testimony: the witness must be qualified (“a witness qualified as an expert by knowledge, skill, experience, training, or education”); the witness’s testimony must be relevant (“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue”); and, per the 2011 amendment adopting the Daubert standard, the witness’s testimony must be reliable (“if the t

2023Cameron, 370 Wis. 2d 661, ¶12 . ¶14 In his reply brief, Sullivan disclaims any intent to challenge admissibility, asserting his “discussion of the Daubert standard and … WIS.

2023Cameron, 370 Wis. 2d 661, ¶12 . ¶14 In his reply brief, Sullivan disclaims any intent to challenge admissibility, asserting his “discussion of the Daubert standard and … WIS.

2022The court recognized that its role as a “gatekeeper” was “to ensure that an expert’s opinion is based on a reliable foundation and is relevant to the material issues in the case.” As to the issue of reliability, the court stated that it must “focus on the principles and methodology the expert relies upon, not on the conclusions generated.” Notwithstanding the “heightened diligence” required under the Daubert framework, the court also noted the continued importance of the “adversarial process” in addressing expert testimony, explaining that “[s]haky but admissible evidence” should not be exclud

2022The court recognized that its role as a “gatekeeper” was “to ensure that an expert’s opinion is based on a reliable foundation and is relevant to the material issues in the case.” As to the issue of reliability, the court stated that it must “focus on the principles and methodology the expert relies upon, not on the conclusions generated.” Notwithstanding the “heightened diligence” required under the Daubert framework, the court also noted the continued importance of the “adversarial process” in addressing expert testimony, explaining that “[s]haky but admissible evidence” should not be exclud

2026See Berggren, 320 Wis. 2d 209, ¶21 .

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.

2025Compare Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24 , 323 Wis. 2d 682 , 781 N.W.2d 88 (“whether expert testimony is necessary to prove a given claim is a question of law that we review de novo” (citing Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26 , 289 Wis. 2d 252 , 710 N.W.2d 680 )), with State v. Burch, 2021 WI 68 , ¶28, 398 Wis. 2d 1 , 961 N.W.2d 314 (“What falls within the (continued) 9 No. 2024AP1492 ¶22 But I need not decide whether testimony that Khoury appeared prepared to offer could meet the Daubert standard embodied in WIS.