874 N.W.2d 610
Wis. Ct. App.2015Background
- Defendant Larry Smith was convicted by a jury of two counts of repeated sexual assault of a child and one count of second-degree sexual assault of a child.
- The State sought to admit expert testimony from Paula Hocking, a social worker and director of a county child advocacy center, about reactive behaviors common among child sexual assault victims (delayed disclosure, recantation, mood/behavioral changes, etc.).
- Smith moved to exclude Hocking under Wis. Stat. § 907.02 and Daubert, arguing the testimony lacked the required reliability and the State had not provided an expert report or tied the testimony to Daubert factors.
- The trial court found Hocking’s testimony not neatly amenable to Daubert factors but admissible based on other indicia of reliability (extensive experience, acceptance in the field, and similar testimony admitted in other courts). The court qualified Hocking as an expert.
- At trial, Investigator Lori Domino testified and, on cross-examination, defense counsel elicited testimony that Domino believed the child-victim was "telling the truth." Smith later claimed ineffective assistance, arguing counsel’s questioning opened the door to testimonial assertions about the victim’s veracity.
- Smith sought a new trial in the interest of justice; the court denied relief. On appeal, the court considered (1) admissibility of Hocking’s expert testimony and (2) whether trial counsel was ineffective for eliciting Domino’s statements that the victim was truthful.
Issues
| Issue | Smith's Argument | State's / Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Hocking's expert testimony under Wis. Stat. § 907.02 / Daubert | Hocking's testimony failed Daubert factors; State provided no expert report or methodology tying opinions to reliable principles | Court may consider other indicia of reliability (expert qualifications, experience, discipline acceptance); Daubert factors are flexible | Court properly admitted Hocking; reliable based on qualifications, experience, and acceptance in the field |
| Qualification of Hocking as an expert | State did not adequately establish qualifications | Hocking had decades of child-protective services experience, training, CV submitted | Trial court did not err in qualifying Hocking as an expert |
| Ineffective assistance for eliciting Domino's statement that victim was "telling the truth" | Counsel was deficient for eliciting opinion on victim's veracity, prejudicing Smith | Cross-examination was a reasonable strategy to show investigator bias and limited investigation | Counsel's conduct was a reasonable, strategic choice; not ineffective assistance |
| Motion for new trial in interest of justice (§ 752.35) | Admission of Hocking and counsel's cross warranted new trial | Issues lacked merit; no prejudice shown | New trial denied; judgment affirmed |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (expert admissibility requires reliable foundation) (establishes the reliability inquiry for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (trial courts have leeway in applying Daubert factors and may rely on expert experience)
- State v. Giese, 356 Wis. 2d 796 (Wis. Ct. App. 2014) (standard of review for admission of expert testimony)
- Seifert ex rel. Scoptur v. Balink, 364 Wis. 2d 692 (Wis. Ct. App. 2015) (expert testimony admissible based on practitioner experience despite imperfect Daubert fit)
- State v. Pitsch, 124 Wis. 2d 628 (1985) (ineffective assistance test: deficient performance and prejudice)
- State v. Snider, 266 Wis. 2d 830 (Wis. Ct. App. 2003) (deference to trial strategy; legal review de novo for deficiency and prejudice)