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Great expert-tations

Attorney Steven Kohn stands in his office at Kohn & Smith Law Offices in Milwaukee. Kohn says new expert witness standards will level the playing field in sexual assault trials. (Photo by Kevin Harnack)

Attorney Steven Kohn stands in his office at Kohn & Smith Law Offices in Milwaukee. Kohn says new expert witness standards will level the playing field in sexual assault trials. (Photo by Kevin Harnack)

During her recent defense of a client accused of sexually assaulting a child, attorney Donna J. Kuchler was reminded of the minimal threshold for someone to qualify as an expert witness in Wisconsin.

Prosecutors in the case were trying to prove that a photo of a male’s genitals matched those of the defendant.

“The state brought someone in who claimed to be an expert in penis identification,” Kuchler said. “The argument was that because the person was a prostate doctor, he could determine whether the one in the picture was my client’s.”

Kuchler challenged the credibility of the witness on the ground that it was “junk science,” but the doctor was allowed to testify and her client was convicted.

But recent law changes could make it easier for attorneys like Kuchler to successfully challenge the credibility of witnesses in child sexual assault cases. Amendments to Wis. Stat. 907.02 took effect on Feb. 1 and require that testimony be based on facts and reliable research and that the witness have experience applying those principles.

The so-called “Daubert Standards,” established after the decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), are used in federal court and by 30 other state courts in the country.

Previously in Wisconsin, someone could essentially offer a relevant “opinion” based on “scientific, technical or other specialized knowledge.”

Kuchler said that under the new law, the doctor who testified in her case probably wouldn’t meet the tougher standard.

“I don’t think there would be such a person,” she said.

The new law means that certain types of experts, such as police officers who investigate a child sexual assault case, that have traditionally been used by prosecutors as experts to strengthen their sexual assault cases will have a harder time holding up to scrutiny.

Madison attorney Charles Kenyon said that under the new standards, qualified witnesses are those who work for independent organizations or have eyewitness experience.

“I would try to get researchers that are not litigation-based,” Kenyon said. “Eyewitness testimony and identification is a scientific examination of what factors are involved in the case.”

In his experience defending clients accused of sexually assaulting children, Milwaukee attorney Steven R. Kohn said that prosecutors often bring in questionably qualified experts with an “agenda.”

He said that social workers or people in the sexual assault units in the medical profession do nothing but treat individuals who they view as victims.

While many are, some are not, Kohn argued, but regardless, their personal philosophy is that everyone is a victim of some type of sexual assault and “by golly, we’ll find it and tell the jury.

“In one-on-one testimony, bringing in what I believe are unqualified individuals to talk about their subjective feelings about whether sexual assault occurred is very damaging,” he said. “I welcome the legislative efforts to make it fair.”

But Milwaukee prosecutor Miriam S. Falk took issue with the notion that the previous law skewed in favor of the state.

As the primary witnesses, children tend to be easy targets in cross-examination, which makes expert testimony crucial, Falk said.

She also argued that testimony in child sexual assault cases is not necessarily based in “hard science” and therefore it’s more difficult to determine how the new law will apply to witnesses used in those cases.

“I can’t tell you how many times it is expected that if a female child was sexually abused, that she should be all ripped up,” Falk said. “That is completely incorrect.”

Delayed reporting of sexual abuse is also common in situations where the child may know the offender and often times a victim is not hysterical, but numbed by the incident.

Frequently, a child “doesn’t look like a rape victim is supposed to look,” Falk said, and rape counselors, sexual assault nurse examiners and sufficiently trained police officers have enough experience to qualify as experts in those cases.

“I think it’s a sad result if cases aren’t brought because they would require that kind of explanation and were shut down by the law,” Falk said.

Interpretation of the new law will largely fall on judges. Under the Daubert standard, judges serve as “gatekeepers” in determining the credibility of witnesses prior to trial.

Judge Dennis R. Cimpl, who is one of three judges in Milwaukee County’s Felony Division who handles sexual assault cases, said that when he receives cases filed under the new law, he expects to hold a Daubert hearing to evaluate witness credibility.

In talking with defense attorneys, Cimpl said some have raised concerns about “hocus-pocus” testimony, and he anticipates an increase in challenges.

“I’ve read up on the law in anticipation of filings on expert witnesses, especially on sexual assault experts,” he said. “I’ll conduct hearings and make a decision.”

Falk wasn’t sure whether the law change would require bringing in experts earlier in the investigation, before the case is even brought to trial, but on the defense side, Kuchler said if prosecutors try to admit more experts, it will make it more expensive to challenge witnesses under Daubert.

“If we have to be involved in more motion hearings and mount an effective challenge, do we need to hire someone to bring in as an expert to talk about why their person isn’t qualified?” she said. “That will definitely be costly.”

But given that the state has the higher burden of proof, Kuchler expected that the law change will force prosecutors to take a closer look at who they are bringing into to testify at the outset of a case and decide whether that person qualifies as an expert.

“I will definitely be challenging people who try to testify outside of what true experts should be under the law,” she said.

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

New witness standards will affect product liability cases as well

New laws strengthening the standard for expert testimony could make it harder for consumers to hold manufacturers accountable for defective products.

Amendments to Wis. Stat. 907.02 took effect on Feb. 1 and require that testimony be based on scientific facts and reliable research, rather than theory and opinion. The “Daubert Standards,” established after the decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), are used in federal court and also by 30 other state courts in the country.

Herrling Clark attorney Kevin Lonergan said in the past, judges merely determined the relevancy of expert witness testimony in products liability cases, but they will now have to decide whether testimony is reliable.

“The frustrating thing is I don’t know how it’s going to be applied,” he said. “Will I put a case together and two weeks before trial have a judge say, ‘this key expert cannot testify?'”

The answer to that question could be yes, as defense attorneys expect the new law will reduce the number of “novel or fringe” theories they have to respond to in court.

Godfrey & Kahn’s Josh Johanningmeier said plaintiffs often argue that if a product had been engineered or manufactured to include an additional part, injury could have been prevented.

But the testimony didn’t have to be based on actual research or experience.

Johanningmeier likened the standard to that of having someone who drove a car all their lives testify as an auto design expert.

“I think this will strengthen defense of these cases, because you can only go so far with getting a better expert to give the same bad opinions,” he said. “If it doesn’t have basis that can be supported in a Daubert hearing, it’s not going to go before the jury.”

The “jack-of-all-trades” experts will be routinely challenged, said Quarles & Brady attorney Jeffrey R. Spoerk.

In his defense of manufacturers in product liability cases, Spoerk has shown up to depositions where the plaintiff’s expert never worked on or had even seen the defective product in question.

“They spent four hours on cases and done nothing in their professional career to make themselves an expert on this product,” he said. “The change is going to require that experts do their homework.”

Spoerk argued that the new standard will mandate better witnesses for both the plaintiffs and the defense.

But Lonergan is concerned that the law will insulate manufacturers from proving why their product isn’t defective.

Manufacturers and engineers have codes and standards on which to base the safety of a product.  Lonergan questioned whether experts will be prohibited from giving “common sense” testimony on a better way to build a product if it hasn’t been widely scrutinized by the scientific community.

“It’s ludicrous that a victim is going to have a higher burden to prove that a product was defective than what was required of the manufacturer at the time they designed and built the product,” Lonergan said.

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

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