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Sexually Violent Persons — expert testimony

Wisconsin Court of Appeals

Criminal

Sexually Violent Persons — expert testimony

Section 907.02(1), which adopted the reliability standard for expert testimony set forth in Daubert, does not apply to petitions for discharge from a Chapter 980 commitment that was filed prior to February 1, 2011.

“Alger argues this holding will produce absurd results.  He observes that, under our rationale, ‘if Alger were still committed pursuant to the original commitment order when he reached his eightieth birthday in 2040, the amended version of [WIS. STAT.] § 907.02(1) still would not govern the proceedings conducted on any discharge petition he filed, even though that amendment would have been enacted 29 years earlier.’  Alger contends this result is absurd because, ‘[a]fter having apparently concluded that the prior standard needed to be jettisoned because it too often allowed unreliable evidence to be admitted,” the legislature could not have “intended that standard to remain applicable to some proceedings conducted years or even decades into the future[.]’”

“We do not agree with Alger that it is absurd to continue applying the old admissibility standard for expert testimony in actions commenced before the new standard went into effect.  Alger’s argument is premised on the idea that the legislature ‘could not have envisioned that unreliable expert testimony would continue to be admitted at proceedings conducted decades after [WIS. STAT. § 907.02] was revised.’  However, Alger does not cite any legislative history or other extrinsic evidence relevant to what the legislature did or did not intend.”

Affirmed.

Recommended for publication in the official reports.

2013AP225 State v. Alger

Dist. III, Outagamie County, Des Jardins, J., Stark, J.

Attorneys: For Appellant: Phillips, Steven D., Madison; For Respondent: Noet, Nancy A., Madison; Schneider, Carrie A., Appleton

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