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State v. Harrell, 2014 WL 4413255 (Ct. App. Wis. 2014)

Case (cite)
State v. Harrell, 2014 WL 4413255 (Ct. App. Wis. 2014)
Type of proceeding
Type of claim
Ineffective assistance of counsel
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Exclude
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Kyle Anderson
Summary of reasons for ruling
Defendant argued ineffective assistance of counsel for failing to object to the expert's testimony to a degree of scientific certainty in light of state and federal cases concluding that firearms identification evidence is questionable. He also challenged the qualifications of the expert. The court held that the circuit court properly dismissed the motion. First, the court notes that the two cases defendant relied on used Daubert, which had not yet been adopted in Wisconsin at the time of this trial and that instead, the standard for the expert testimony in this case was relevance. Under this standard, defendant's complaints about the qualifications and methods of the expert go to weight, not admissibility. Further, in Jones, the court has declined to impose a blanket rule barring firearms identification to a specific gun. Finally, defendant failed to show prejudice because he made no allegation that he spoke to any expert that would disagree with the testifying expert's testimony. The court agreed with the trial court that cross examination would likely not have had an impact on the outcome of the case based on other evidence.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Second standard
Did lower court hold a hearing
Names of prosecution expert(s) two testified at hearing
Names of defense expert(s) who testified at hearing (or None).
Discussion of 2009 NAS Report (NAS2009)
Discussion of 2016 PCAST report (PCAST)
Discussion of error rates / reliability
Frye Ruling
Limiting testimony ruling
Language imposed by court to limit testimony
Ruling based in prior precedent / judicial notice
Daubert ruling emphasizing – which factors – (list 1-5)
Ruling on qualifications of expert
Ruling on 702(a) – the expert will help / assist the jury
Ruling on 702(b) – the testimony is based on sufficient facts or data
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Ruling on 702(d) – reliable application of principles and methods to the facts of the case


Footnote describing defendant’s objection to expert’s qualificaitons: “Specifically, Harrell complained that Anderson “has not attained a college degree in science,” is not a member of any professional organization, and had not taken any proficiency tests at the time he performed the ballistics tests in issue. Aside from the fact that Harrell has not established that any of Anderson’s “deficiencies” are actual requirements, Anderson testified that he had trained for three years in an apprenticeship-type program with a forensic tool mark examiner who had thirty years’ experience.”




” Further, though Harrell thinks that Anderson’s testimony should be excluded because Harrell believes current literature indicates there is no such thing as a “perfect match” between bullets and a particular gun, we note that the third case on which Harrell relies, Jones, addressed exactly that question. Jones sought “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun … [citing] a number of articles and trial-level decisions questioning the efficacy of such evidence.” . . . We refused to impose such a rule in light of our then-status as a non-Daubert state. . . . Accordingly, the circuit court could properly conclude it would not have granted any attempt by trial counsel to exclude Anderson’s testimony, because there was no basis on which the court should have done so.”