Expert Witness Blog
Appellant was convicted of multiple counts of sexual assault on a child. The appellant appeals the decision, stating that the trial court should not have allowed the expert witness called by the State. The court affirmed the ruling.
Facts: This case (State of Wisconsin v. Larry J. Smith – State of Wisconsin Court of Appeals – December 9th, 2015) is an appeal from a conviction on multiple counts of child sexual assault. The appellant appealed the lower court opinion, stating that the trial court erroneously allowed the testimony of Paula Hocking, a child sexual abuse expert witness.
At the trial level, the State proffered the intent to call Hocking as an expert witness who would offer her opinion on the reactive behaviors of child abuse victims such as recantation, delayed disclosure, and minimization by the victim. The state noted that Hocking would not opine of the specifics of the present case but would testify on what she sees victims of abuse do as well as the reactions to abuse, such as becoming withdrawn, academic struggles, and more. She would also testify on the range of behaviors that are common in sexual abuse cases.
Discussion: The appellant challenged the testimony, stating that it did not meet the necessary requirements under Daubert and the relevant Wisconsin statute. Even though the lower court agreed that Hocking’s testimony did not meet the 5 factors under Daubert, it could use other instances of reliability. It stated that Hocking’s testimony should be admitted as it had previously been allowed in Wisconsin and other jurisdictions that rely on Daubert and that she had significant experience, skill, training, and education which would qualify her as an expert.
The appeals court stated that the factors in Daubert were made to be flexible and pointed to another case where they affirmed admittance of expert witness testimony on similar grounds. In that case, Seifert ex rel. Scoptur v. Balink, a medical expert witness was allowed even though it did not align with the Daubert factors. The expert in that case opined that the defendant’s actions fell below the standard of care, which resulted in increased risk or injury. The defendant argued that the experts testimony was not founded on reliable principles required by state statute and Daubert. The lower court disagreed and relied on other factors (such as experience and knowledge) which would allow the testimony. The appeals court agreed with the lower court and affirmed their opinion.
The court opined that the present testimony is related. Even though Hocking’s testimony did not fit neatly into the Daubert mold, they were allowed to consider other factors that would make her a reliable witness. In addition, Hocking’s testimony was similar to what had been allowed in other courts subject to Daubert.
The appellant also argued that the state did not sufficiently establish Hocking’s qualifications as an expert witness. The appeals court disagreed again, stating that the courts have broad discretion in this matter. The court noted that the state had submitted a curriculum vitae that showed her education, work experience, and training in her field.
Held: The opinion of the lower court, allowing the testimony of Paula Hocking, was affirmed.