State v. Anthony Jones , 381 Wis. 2d 284 ( 2018 )

2018 WI 44
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2665
COMPLETE TITLE: In re the commitment of Anthony Jones:
State of Wisconsin,
Petitioner-Respondent,
v.
Anthony Jones,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
(no cite)
OPINION FILED: May 4, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 21, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Rhonda L. Lanford
JUSTICES:
CONCURRED: R.G. BRADLEY, J., concurs, joined by ABRAHAMSON,
J., and KELLY, J. (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by and an oral argument by Andrew R. Hinkel, assistant
state public defender.
For the petitioner-respondent, there was a brief filed by
Amy C. Miller, assistant solicitor general, with whom on the
brief were Brad D. Schimel, Attorney General, and Misha
Tseytlin, solicitor general. There was an oral argument by Amy
C. Miller.
2018 WI 44
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2665
(L.C. No. 2013CI4)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Anthony Jones:
State of Wisconsin,
FILED
Petitioner-Respondent,
MAY 4, 2018
v.
Sheila T. Reiff
Anthony Jones, Clerk of Supreme Court
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished, unauthored summary affirmance of the court of
appeals, State v. Jones, No. 2015AP2665, unpublished order (Wis.
Ct. App. Apr. 10, 2017), affirming the Dane County circuit
court's1 judgment finding Anthony Jones ("Jones") to be a
1
The Honorable Rhonda L. Lanford presided.
No. 2015AP2665
"sexually violent person" under Wis. Stat. § 980.02(1)(a) (2015-
16).2
¶2 On November 29, 1993, Jones was convicted of three
counts of second-degree sexual assault, use of force, under Wis.
Stat. § 940.225(2)(a), and was scheduled to be released from
custody on August 15, 2013. On August 9, 2013, the State filed
a petition to commit Jones as a sexually violent person,
pursuant to Wis. Stat. ch. 980. Prior to the commitment trial,
Jones filed a motion in limine to exclude testimony pertaining
to the Minnesota Sex Offender Screening Tool-Revised
("MnSOST-R") and the Rapid Risk Assessment for Sexual Offense
Recidivism ("RRASOR"),3 which are actuarial instruments designed
to measure an offender's risk of reoffending. He argued that
testimony as to the results produced by these instruments was
not admissible under Wis. Stat. § 907.02 because it was not
based on sufficient facts or data, was not the product of
reliable principles and methods, and was not reliably applied to
the facts of his case. The circuit court denied the motion,
finding that such testimony was admissible. After a four-day
trial, the jury found that Jones was "a sexually violent person,
as alleged in the petition." Jones appealed.
2
All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise noted.
3
Jones also sought to exclude testimony pertaining to the
Static Risk Assessment 99 ("Static-99"), but he does not renew
his challenge to that testimony here.
2
No. 2015AP2665
¶3 The court of appeals affirmed. It held that the
circuit court had not erroneously exercised its discretion in
admitting the testimony because the circuit court applied the
proper standard and found that the instruments were the product
of sufficient facts or data, that the instruments were the
product of reliable principles and methods, and that the
instruments had been the subject of extensive review. The court
of appeals further noted that Jones' arguments went to weight,
not admissibility, and that, therefore, he had had the
opportunity to discredit the testimony through cross-
examination. Jones petitioned for review.
¶4 We consider one issue on review: whether the circuit
court erroneously exercised its discretion under Wis. Stat.
§ 907.02(1) when it admitted expert testimony based on the
results of the MnSOST-R and the RRASOR tests. We conclude that
the circuit court did not erroneously exercise its discretion
because it evaluated the relevant facts under the proper
standard and articulated a reasonable basis for its decision.
¶5 Thus, we affirm the decision of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Statutory History
¶6 The admissibility of expert testimony is governed by
Wis. Stat. § 907.02. Prior to 2011, § 907.02 read as follows:
Testimony by experts. If scientific, technical
or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education,
3
No. 2015AP2665
may testify thereto in the form of an opinion or
otherwise.
Wis. Stat. § 907.02 (2009-10). This was a liberal standard.
Under this prior standard
"questions of the weight and reliability of relevant
evidence [were] matters for the trier of fact." State
v. Fischer, 2010 WI 6, ¶7, 322 Wis. 2d 265, 778
N.W.2d 629. "[E]xpert testimony [was] generally
admissible in the circuit court's discretion if the
witness [was] qualified to testify and the testimony
would help the trier of fact understand the evidence
or determine a fact at issue." State v. Kandutsch,
2011 WI 78, ¶26, 336 Wis. 2d 478, 799 N.W.2d 865.
Seifert v. Balink, 2017 WI 2, ¶174, 372 Wis. 2d 525, 888
N.W.2d 816 (Ziegler, J., concurring) (alterations in original).
"This was a 'low threshold.'" Id. (citations omitted).
¶7 In 2011, the legislature amended the statute,4 which
now reads as follows:
Testimony by experts. (1) If scientific,
technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if the testimony is based upon
sufficient facts or data, the testimony is the product
of reliable principles and methods, and the witness
has applied the principles and methods reliably to the
facts of the case.
(2) Notwithstanding sub. (1), the testimony of
an expert witness may not be admitted if the expert
witness is entitled to receive any compensation
contingent on the outcome of any claim or case with
respect to which the testimony is being offered.
4
See 2011 Wis. Act 2, §§ 34m, 37.
4
No. 2015AP2665
Wis. Stat. § 907.02. These changes adopted the federal
standard, which incorporates the analysis promulgated in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See
Seifert, 372 Wis. 2d 525, ¶6.5
¶8 In Daubert, the United States Supreme Court concluded
that Federal Rule of Evidence 702 imposed two requirements for
the admission of expert testimony: (1) that "[t]he subject of
an expert's testimony must be 'scientific . . . knowledge'"; and
(2) that "the evidence or testimony [must] assist the trier of
fact to understand the evidence or to determine a fact in
issue." Daubert, 509 U.S. at 589-91. In determining whether
expert testimony meets this standard, the Court set forth a
nonexclusive list of questions courts should consider when
making these determinations:
 whether the evidence can be (and has been) tested;
 whether the theory or technique has been subjected to
peer review and publication;
 the known or potential rate of error;
 the existence and maintenance of standards controlling
the technique's operation; and
5
Although there was no majority opinion in Seifert v.
Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, a majority
of the court agreed that the amendment of Wis. Stat. § 907.02
adopted the federal Daubert standard. See Seifert, 372
Wis. 2d 525, ¶6 (lead opinion); id., ¶169 (Ziegler, J.,
concurring); id., ¶¶193, 257 (Gableman, J., concurring, joined
by Roggensack, C.J.); id., ¶¶263 n.3, 296 (Kelly, J.,
dissenting, joined by R. Grassl Bradley, J.).
5
No. 2015AP2665
 the degree of acceptance within the relevant scientific
community.
Id. at 593-94. The Court later held that Daubert's general
principles were not limited to "scientific" knowledge, and that
the analysis applies to all expert testimony. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999).
B. Factual and Procedural Background
¶9 As noted above, this case arises from Jones' three
convictions for second-degree sexual assault on November 29,
1993. Jones was sentenced to 15 years probation for these
convictions, but Jones' probation was revoked when he committed
another sexual assault. He was then sentenced to 10 years
imprisonment and was due to be released on August 15, 2013.
¶10 Just before his release date, on August 9, 2013, the
State filed a petition to commit Jones as a "sexually violent
person." Wis. Stat. §§ 980.02(1)(a), 980.01(7). The State
based its petition on the report of Anthony Jurek, Ph.D., which
documented Jones' history of sexual and non-sexual arrests,
charges, and convictions, his misconduct as an inmate, his
probation violations, and his scores on four actuarial
instruments:
 On the RRASOR, Jones scored a 5, which corresponds to a
49.8 percent rate of reconviction for sexual offenses
within 5 years and a 55.3 percent rate within 10 years.
 On MnSOST-R, Jones scored an 11, which corresponds to a
30 percent rate of recidivism within 6 years.
6
No. 2015AP2665
 On the Static Risk Assessment 99 ("Static-99"), Jones
scored a 9, which corresponds to a 39 percent rate of
reconviction for sexual offenses over 5 years, a 45
percent rate within 10 years, and a 52 percent rate
within 15 years.
 On the Static-99R, Jones scored an 8, which corresponds
to a 45 percent rate of re-arrest and reconviction within
5 years, and a 55.3 percent rate within 10 years.
The State alleged that these scores "support [Dr. Jurek's]
conclusion that [Jones] is 'more likely than not' to commit a
sexually violent offense in the future."
¶11 On August 23, 2013, the circuit court held a probable
cause hearing, found "probable cause to believe that [Jones] is
a sexually violent person within the meaning of Wis. Stat.
§ 980.01(7)," and ordered that Jones remain in custody pending
the outcome of the commitment proceedings.
1. The Daubert hearing
¶12 On June 17, 2014, Jones filed a motion to bar
testimony pursuant to Wis. Stat. § 907.02. In general, he
argued that expert testimony regarding any results of the
MnSOST-R, the RRASOR, and the Static-99 should be excluded
because they are not based on sufficient facts or data, they are
not the product of reliable principles and methods, and they
were not applied reliably to the facts of Jones' case.
"Specifically, [Jones argued that] all three actuarial risk
instruments have obsolete norms and fail to adequately take into
7
No. 2015AP2665
account the correlation between age and recidivism risk." He
argued that the MnSOST-R is particularly flawed because it has
not been published in an academic journal, was developed using
inadequately small and unrepresentative samples (256 offenders),
and excludes offenders known to have lower recidivism rates.
Similarly, Jones argued that the RRASOR has not been published
in an academic journal, was developed using inadequately small
and unrepresentative samples (2,592 offenders), and its 10-year
reconviction rate is just a factor of the 5-year reconviction
rate, that is, it is not based on empirical data.
¶13 On August 20, 2014, the State filed its response. It
noted that Jones did not appear to be challenging the use of
actuarial instruments in general, or the qualifications of
Dr. Jurek or the State's other expert, Bradley Allen, Ph.D. The
State then argued that the MnSOST-R, RRASOR, and Static-99
have all been carefully researched, widely discussed
and dissected in the professional literature. They
are the product of sophisticated, but hardly novel,
statistical techniques for the analysis of large
amounts of data. Experts may disagree on the
application, scoring, interpretation and weight to be
given to the various actuarial instruments . . . but
that is a different matter than claiming that the
instruments themselves are not the product of reliable
data, and principles.
In this regard, the State observed that all of the experts——
Jones' included——rely on substantially the same risk assessment
methodology, but give weight to different factors during that
process. It argued that "these differences are not a matter of
admissibility," but rather that they are matters "best resolved
8
No. 2015AP2665
through cross-examination and the presentation of contrary
evidence."
¶14 On August 25 and 26, 2014, the circuit court held a
hearing on the motion. At the hearing, Dr. Jurek and Dr. Allen
testified for the State, and Richard Waller, Ph.D., testified
for Jones.
¶15 Dr. Jurek testified that his evaluations incorporate a
review of records from the police, the Department of
Corrections, and probation officers, as well as a social
history, substance abuse history, sexual history, and treatment
history, along with the actuarial assessments. He explained
that "an actuarial assessment is the use of particular
demographic variables that you can score a particular individual
on, and then compare their score to individuals in a sample
population who have a known rate of recidivism." He also
explained that all of the instruments have limitations, and, at
best, have "moderate" predictive accuracy, but that evaluators
incorporate the results from these instruments into their
reports because "[u]sing the actuarials has been proven to be
more accurate." In this regard, Dr. Jurek noted that there is
no one best instrument, that every instrument has limitations,
and that which instrument to use is a matter of preference and a
matter of how evaluators weigh the results in the process of
their evaluation. He then testified regarding each of the four
actuarial instruments that he used in his evaluation of Jones.
¶16 With regard to the MnSOST-R, Dr. Jurek testified that,
although there is no definitive academic paper on the test, 12
9
No. 2015AP2665
research inquiries have found it to have a positive relationship
to sexual recidivism. He also testified that the MnSOST-3——a
more recent instrument published by the creators of the
MnSOST-R——is not a replacement because its sample is made up of
different kinds of offenders than were included in the sample
for the MnSOST-R. In this regard, he was aware of the criticism
that the purposeful exclusion of offenders known to be low-risk
(intrafamilial and non-contact offenders) resulted in a sample
biased to overestimate risk, but testified that selective
sampling can be useful if the goal is to homogenize the sample
to improve predictive accuracy for a more specific population of
people. He was also aware of the criticism that the dichotomous
way in which the MnSOST-R accounts for age6 is inadequate because
it fails to account for the observed trend that the risk of
recidivism continues to decline in a linear fashion as offenders
age, but testified that accounting for age differently does not
mean that the test inadequately accounts for age. Ultimately,
Dr. Jurek testified that the MnSOST-R is based on sufficient
facts and data, and that it is the product of reliable
principles and methods.
¶17 With regard to the RRASOR, Dr. Jurek testified that,
although the test was not originally published in a peer-
reviewed journal, he used it because it has an established
6
In applying the MnSOST-R, evaluators add a point to an
offender's score if he or she is less than 30 years old and no
points are added or subtracted if he or she is more than 30
years old.
10
No. 2015AP2665
history of use, with approximately 35 studies demonstrating a
positive relationship to sexual recidivism. He was aware of the
criticism that the sample had not been updated since 1997 (when
it was first published), but testified that, even "if the
general norms for sexual recidivism[] go down, [if] you're
working in a [high-risk] population, the newer norms don't do
you any good." He was also aware of the criticism that the 10-
year recidivism rates are simply a multiplication factor of the
5-year recidivism rates (i.e., are not based on empirical data),
but disagreed that that was actually the case. Additionally,
the same criticism raised regarding age against the MnSOST-R was
raised against the RRASOR, but, as he had testified regarding
the MnSOST-R, Dr. Jurek testified that the dichotomous age7
metric did not render the instrument ineffective. Ultimately,
Dr. Jurek testified that the RRASOR is based on sufficient facts
and data, and that it is the product of reliable principles and
methods.
¶18 Dr. Allen also testified for the State. He testified
primarily with regard to the Static-99 and the Static-99R, which
were the instruments he had relied on in conducting his
evaluation of Jones. He did, however, testify that he did not
use the RRASOR because he believed it to be outdated, but that
there was nothing unreliable about the data used to construct
7
In applying the RRASOR, evaluators add a point to an
offender's score if he or she is less than 25 years old and no
points are added or subtracted if he or she is more than 25
years old.
11
No. 2015AP2665
it. Specifically, on the issue of measuring the effect of age
on the risk of recidivism, Dr. Allen testified that, "although
age [] is definitely a factor to consider, we don't know why."
He suggested that it could be because older offenders are
underreported, or it could be related to declining health in
older offenders. He acknowledged that "[k]nowing why age and
recidivism are correlated . . . is not needed to conclude that
incorporating age can improve risk assessment measures," but
testified that the fact that there is a debate about how to
incorporate the age factor does not equate with unreliability or
invalidity. Ultimately, he concluded that responsible examiners
may responsibly use different actuarial instruments and that it
is "somewhat prudent to look at all the different assessments,
and all the different factors and consider them for a particular
individual."
¶19 Dr. Waller testified for Jones and testified about all
four tests. He prefaced his testimony by noting that he had not
himself evaluated Jones; rather, his testimony was based on the
evaluations of Drs. Jurek and Allen, and his own expertise,
given his approximately 30 years in the field.
¶20 With regard to the MnSOST-R, Dr. Waller testified that
it was not based on sufficient facts and data and was not based
on reliable principles and methods because it had not been peer
12
No. 2015AP2665
reviewed,8 the sample on which it is based is small, biased, and
unrepresentative as applied to Jones, and no one has ever
analyzed which of the 16 factors the MnSOST-R accounts for are
actually related to recidivism. In particular, the biased
nature of the sample "virtually guarantees a high false positive
rate over estimating the probability of recidivism."
¶21 With regard to the RRASOR, Dr. Waller testified that
it was not based on sufficient facts and data and was not based
on reliable principles and methods because its dichotomous means
of accounting for age is inadequate, its data set is many years
old, and the 10-year rates are simply the 5-year rates
multiplied by a factor of 1.5, which is a serious problem
because actual empirical data indicates that the farther out you
go the less likely offenders are to reoffend.
¶22 Despite these criticisms, Dr. Waller acknowledged that
not all offenders are alike, that different subgroups have
different risks, and that the best way to determine the risk of
recidivism is to compare the individual to a similar subgroup.
Additionally, Dr. Waller acknowledged that actuarial assessment
is a complex task, that there is more than one way to conduct an
actuarial assessment, and that all actuarial instruments have
8
Dr. Waller defined "peer review[ed]" as "a method of
judging the merits of a scientific article, and making a
determination of whether it meets the standards of a journal."
On cross-examination, however, he agreed that there is more than
one way to peer review, including that "it can be peer-reviewed
if it's given at a, say, conference, but it doesn't have the
same weight."
13
No. 2015AP2665
limits. In this regard, he agreed with Dr. Jurek that the
instruments all report error rates and, at best, have moderate
predictive accuracy.
¶23 After hearing brief closing arguments from counsel,
the circuit court concluded that testimony as to the results
from the MnSOST-R and the RRASOR was admissible. In doing so,
it explained the standard it was applying as follows:
[Wisconsin Stat. § 907.02] was revised in 2011
and tracks federal rule 702 also known as the Daubert
standard . . . named after Daubert versus Merrell Dow
Pharmaceuticals, 509 U.S. 579, 1993. It is axiomatic.
The Court can look to federal cases interpreting
[this] rule[.] Because there is a dearth of case law,
this Court will look primarily at federal law . . . .
Judges may admit testimony resting on scientific,
technical or otherwise specialized knowledge that will
assist the trier of facts. . . . [R]ule 702 states
that it does not condition admissibility on the State
of the published literature and the complete and flaw
free set of data, that a witness is qualified as an
expert by knowledge, skill, experience, training, or
education, and that expert may testify in the form of
an opinion if the testimony is based upon sufficient
facts or data. The testimony is principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the
case . . . . Daubert makes clear, [it does] not
constitute a definitive checklist or test. Daubert
adds that the gatekeeping inquiry must be tied to the
facts of a particular case.
The circuit court then concluded that:
The evidence at the hearing through the witnesses
show[s] that all of the tests and the testimony
offered were the product of sufficient facts or data
and the product of reliable [principles] and
methods. . . .
[W]hile publication in a journal is the most rigorous,
it is not the only way to peer review. The witnesses
14
No. 2015AP2665
testified that these tests are routinely published []
both in journals and in published papers. . . . All of
the instruments were subject of extensive review.
They have been written about, and even criticized [in]
the papers that [were] submitted.
They have also been used in other cases, in other
jurisdictions, and the Court was not able to find any
cases where these tests were stricken based on
admissibility or based on a Daubert challenge. The
tools have been debated, reviewed, and revised. This
is not junk science, which is what Daubert sought to
reject. These actuarial tools are widely used in
predicting recidivism in sex offenders. . . . Both
Dr. Jurek, and Dr. Allen testified that
they . . . reviewed Mr. Jones' records and all the
information they had and testified that this is the
type of information reasonably relied upon by experts
in their field.
And there was no evidence suggesting or even
challenging that they administered the test
incorrectly or interpreted the actuarial data
incorrectly.
The circuit court additionally noted:
[T]he State proceeds at its own peril if Mr. Jones,
through cross-examination can convince a jury that
Dr. Jurek and Dr. Allen's [testimony] is
antiquated . . . . [But] Mr. Jones' criticisms of the
actuarial tools are only that, criticisms, and cannot
form the basis for this court to exclude this
testimony.
The weight to give this testimony is for the jury
to decide. This is a weight, not an admissibility
analysis. . . . The Court is satisfied that this
testimony presented meets all of the requirements for
admissibility, and Mr. Jones' motion to exclude is
denied.
2. Trial and appeal
¶24 On September 29, 2014, Jones' trial for commitment as
a sexually violent person under chapter 980 began. At trial,
15
No. 2015AP2665
three experts testified: Dr. Jurek and Dr. Allen testified for
the State, and Thomas Zander, Ph.D., testified for Jones.
Dr. Jurek was "the only psychologist in this case to have used
the RRASOR and [the] MnSOST-R to evaluate Mr. Jones' risk." On
October 2, 2014, the jury returned a special verdict finding
that Jones was "a sexually violent person, as alleged in the
petition." Jones appealed.
¶25 On appeal, Jones challenged his commitment on the
basis that the circuit court's admission of testimony based on
the MnSOST-R and the RRASOR was reversible error. On April 10,
2017, the court of appeals summarily affirmed. Jones,
No. 2015AP2665. The court of appeals held that the circuit
court had not erroneously exercised its discretion because it
considered the Daubert factors and found that the instruments
were the product of sufficient facts and data, that the
instruments were the product of reliable principles and methods,
and that the instruments had been the subject of extensive
review. Id. The court of appeals further noted that Jones'
arguments went to weight, not admissibility, and that,
therefore, he was able to discredit the testimony through cross-
examination. Id. Jones petitioned for review.
¶26 On September 11, 2017, Jones' petition for review was
granted.
16
No. 2015AP2665
II. STANDARD OF REVIEW
¶27 "Questions regarding the admissibility of evidence are
within the circuit court's discretion." Nat'l Auto Truckstops,
Inc. v. DOT, 2003 WI 95, ¶12, 263 Wis. 2d 649, 665 N.W.2d 198.
Where this court is asked to review such rulings, we
look not to see if we agree with the circuit court's
determination, but rather whether the trial court
exercised its discretion in accordance with accepted
legal standards and in accordance with the facts of
record. A circuit court properly exercises its
discretion when it considers the relevant facts,
applies the correct law, and articulates a reasonable
basis for its decision.
Id. (citations omitted). Whether the circuit court applied the
correct law, however, requires us to interpret the statute.
"The interpretation and application of a statute present
questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d
193, 858 N.W.2d 346. Thus, "this court decides whether the
circuit court applied the proper legal standard under Wis. Stat.
§ 907.02(1) . . . independently of the circuit court and the
court of appeals but benefiting from their analyses." Seifert,
372 Wis. 2d 525, ¶89.
III. ANALYSIS
¶28 We consider one issue on review: whether the circuit
court erroneously exercised its discretion under Wis. Stat.
§ 907.02(1) when it admitted expert testimony based on the
results of the MnSOST-R and the RRASOR tests. We conclude that
17
No. 2015AP2665
the circuit court did not erroneously exercise its discretion
because it evaluated the relevant facts under the proper
standard and articulated a reasonable basis for its decision.
¶29 As noted above, the admissibility of expert testimony
is governed by the recently amended Wis. Stat. § 907.02, which
provides, in relevant part, as follows:
Testimony by experts. (1) If scientific,
technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if the testimony is based upon
sufficient facts or data, the testimony is the product
of reliable principles and methods, and the witness
has applied the principles and methods reliably to the
facts of the case.
Wis. Stat. § 907.02(1). This statute requires that circuit
courts make five determinations before admitting expert
testimony: (1) whether the scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue; (2)
whether the expert is qualified as an expert by knowledge,
skill, experience, training, or education; (3) whether the
testimony is based upon sufficient facts or data; (4) whether
the testimony is the product of reliable principles and methods;
and (5) whether the witness has applied the principles and
methods reliably to the facts of the case.
¶30 The first two determinations were also required under
the pre-amendment statute. And they were all that was required.
As noted above, this was an easier standard to satisfy, because,
18
No. 2015AP2665
as with relevance generally,9 the court's role was simply to
determine whether the evidence made a fact of consequence more
or less probable (although the evidence did also have to be
introduced by a qualified witness). See Seifert, 372
Wis. 2d 525, ¶174 (Ziegler, J., concurring) (quoting State v.
Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478, 799 N.W.2d 865)
("'Expert testimony was generally admissible in the circuit
court's discretion if the witness was qualified to testify and
the testimony would help the trier of fact understand the
evidence or determine a fact at issue.'" (Alterations
omitted.)).
¶31 The court's role with regard to the admissibility of
evidence is often described as that of a gatekeeper. See, e.g.,
State v. Fischer, 2010 WI 6, ¶40, 322 Wis. 2d 265, 778
N.W.2d 629 (Ziegler, J., concurring) ("The judge, as gatekeeper,
has the capacity to determine whether certain evidence is
admissible."); see also State v. Wilson, 2015 WI 48, ¶99, 362
Wis. 2d 193, 864 N.W.2d 52 (Ziegler J., concurring) ("The trial
court remains the gatekeeper in determining what evidence is
9
Relevance is governed by Wis. Stat. § 904.01, which states
as follows:
"Relevant evidence" means evidence having any tendency
to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.
Wis. Stat. § 904.01.
19
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admissible and why."). In this role, courts seek to ensure that
the evidence submitted to the factfinder is of the requisite
quality. The quality standards for admission of evidence vary
based on the type of evidence at issue and the purpose for which
it is offered. See Wis. Stat. ch. 901. These standards are
prescribed by statute and represent the legislature's
determination of a balance that ensures "that the truth may be
ascertained and proceedings justly determined." Wis. Stat.
§ 901.02. In this regard, the admissibility of evidence is
distinguished from the weight given to evidence that is
admissible; the court's role is to admit evidence that meets the
prescribed standards, which the factfinder then weighs to
ascertain the truth.
¶32 The heightened standard under the amended Wis. Stat.
§ 907.02 does not change this gatekeeping function. It does,
however, require more of the gatekeeper. Instead of simply
determining whether the evidence makes a fact of consequence
more or less probable, courts must now also make a threshold
determination as to whether the evidence is reliable enough to
go to the factfinder. The legislature has prescribed that
courts do this by looking at whether the testimony is based upon
sufficient facts or data, whether the testimony is the product
of reliable principles and methods, and whether the witness has
applied the principles and methods reliably to the facts of the
case. As noted above, these requirements represent Wisconsin's
adoption of the federal Daubert standard. See supra ¶7.
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¶33 In applying this standard, courts typically, although
not exclusively, consider
 whether the evidence can be (and has been) tested;
 whether the theory or technique has been subjected to
peer review and publication;
 the known or potential rate of error;
 the existence and maintenance of standards controlling
the technique's operation; and
 the degree of acceptance within the relevant scientific
community.
Daubert, 509 U.S. at 593-94. Although this is a more burdensome
standard, it is not exceedingly high; the court's "role [is to
ensure] that the courtroom door remains closed to junk science."
Seifert, 372 Wis. 2d 525, ¶85. Moreover, although more
burdensome, "trial courts [still] retain substantial discretion
in deciding whether to admit expert testimony." Id., ¶178
(Ziegler, J., concurring) (citing Kumho, 526 U.S. at 141-42).
Thus, as with other admissibility determinations, we will not
overturn a circuit court's admission of expert testimony unless
the court failed to consider the relevant facts, failed to apply
the proper standard, or failed to articulate a reasonable basis
for its decision.
¶34 Here, the circuit court considered the relevant facts,
applied the proper standard, and articulated a reasonable basis
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for its decision.10 The circuit court identified the standard it
was applying as under Wis. Stat. § 907.02 as "the Daubert
standard . . . named after Daubert versus Merrell Dow
Pharmaceuticals, 509 U.S. 579, 1993." Furthermore, the
transcript reveals that the circuit court actually applied this
standard: in reaching its conclusion, the circuit court found
that, although the tests had not been published in peer-reviewed
journals, "these tests are routinely published," "have been
written about, and even criticized," "were subject of extensive
review," and "are widely used in predicting recidivism in sex
offenders." These are among the factors that Daubert instructs
courts to consider when evaluating whether expert testimony is
admissible. See supra ¶¶8, 33.
¶35 These findings are also supported by the facts
introduced at the Daubert hearing. There was testimony that the
MnSOST-R has been the subject of 12 research inquiries and that
the RRASOR has been the subject of approximately 35 studies.
The testimony also establishes that these tests have been
criticized, particularly with regard to how they measure the
effect of age on the risk of recidivism, and that, despite this
10
We note that, at the Daubert hearing, Jones did not
dispute that Dr. Jurek was qualified or that Dr. Jurek had
failed to apply his principles and methods reliably to the facts
of Jones' case. See supra ¶23 ("And there was no evidence
suggesting or even challenging that they administered the test
incorrectly or interpreted the actuarial data incorrectly.").
Rather, Jones' challenge focused on whether the MnSOST-R and
RRASOR were based on sufficient facts and data and reliable
principles and methods.
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criticism, responsible examiners may responsibly use different
actuarial instruments where it is "somewhat prudent to look at
all the different assessments, and all the different factors and
consider them for a particular individual."
¶36 Moreover, under Daubert these are the relevant facts a
circuit court should consider. See supra ¶¶8, 33. The circuit
court's findings therefore demonstrate that it considered the
relevant facts, applied the proper standard, and articulated a
reasonable basis for its decision. Thus, the circuit court did
not erroneously exercise its discretion when it admitted
Dr. Jurek's testimony regarding the MnSOST-R and the RRASOR.
Nat'l Auto Truckstops, 263 Wis. 2d 649, ¶12.11
IV. CONCLUSION
¶37 We consider one issue on review: whether the circuit
court erroneously exercised its discretion under Wis. Stat.
§ 907.02(1) when it admitted expert testimony based on the
results of the MnSOST-R and the RRASOR tests. We conclude that
the circuit court did not erroneously exercise its discretion
because it evaluated the relevant facts under the proper
standard and articulated a reasonable basis for its decision.
¶38 Thus, we affirm the decision of the court of appeals.
11
We emphasize that our decision is based on the circuit
court's exercise of discretion. Our opinion should not be read
as endorsing the admissibility of these instruments in all
cases.
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No. 2015AP2665
By the Court.—The decision of the court of appeals is
affirmed.
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¶39 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion but write separately out of concern that the
majority author cites her own concurrences as authority for
legal principles instead of citing precedential majority
opinions. The majority author cites to her past concurring
opinions six times even though each citation could have been
replaced with precedential authority. The legal propositions
for which she cites her concurrences in prior cases are not
novel legal points. I am concerned that allowing this practice
to pass without notice will encourage future citations to past
solo concurrences——creating majority opinions supported by one
justice's separate writings instead of valid precedent.
¶40 Although "concurring opinions have often exercised a
greater effect on subsequent cases than the majority opinions
that they accompany," where possible,1 we should cite to opinions
that have binding precedential authority. See Igor Kirman,
Standing Apart to Be a Part: The Precedential Value of Supreme
Court Concurring Opinions, 95 Colum. L. Rev. 2083, 2084 (1995);
see also Ives v. Coopertools, a Div. of Cooper Indus., Inc., 208
Wis. 2d 55, 58, 559 N.W.2d 571 (1997) (per curiam) ("Our
division on reasoning simply means that the analyses of the two
concurrences have no precedential value." (citation omitted));
1
I take no issue with using self-authored separate writings
when, for example, no other authority exists for the proposition
that a majority of the court has decided is a correct statement
of the law. That is not the situation here.
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State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 719, 546
N.W.2d 140 (1996) (per curiam) (citing State v. Elam, 195
Wis. 2d 683, 685, 538 N.W.2d 249 (1995) for the proposition that
"[a] majority of justices must have agreed on a particular point
for it to be considered the opinion of the court.").
¶41 Here, the majority author's repeated citations to her
past concurrences are unnecessary. She could have replaced her
concurrence citations in ¶¶6, 30 and 33 with citations to the
precedential cases her concurrences quoted or cited.
¶42 More problematically, the majority author could have
replaced her concurrence citations in ¶31 with a citation to
State v. Giese, 2014 WI App 92, ¶18, 356 Wis. 2d 796, 854 N.W.2d
687 ("The court's gate-keeper function under the Daubert
standard is to ensure that the expert's opinion is based on a
reliable foundation and is relevant to the material issues."
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
n.7 (1993)))."
¶43 Parlaying a justice's own concurrence into a majority
opinion under these circumstances is not good practice.
Reliance on the majority opinion author's own separate writings
six times in an opinion that cites only four precedential cases
raises concerns over the soundness and scholarship of this
opinion.
¶44 For these reasons, I concur.
¶45 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and DANIEL KELLY join this concurrence.
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